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ENERGY AUDIT AGREEMENT
This Energy Audit Agreement ("Agreement"), effective the last date signed below
(Effective Date), is by and between the City of Miami Beach, with its primary office at 1700
Convention Center Drive, Miami, FL 33139 (the "City") and AMERESCO, Inc. with an office at
2202 N. West Shore Blvd., Suite 200, Tampa, FL 33607 (the "Company") (each a "Party" and
collectively the "Parties").
Whereas, the Company is party to the state term contract procured by the State of
Florida, Department of Management Services, ITN No. DMS 973-320-08-1, Comprehensive
Energy Strategy, which enables the Company to perform work under the Guaranteed Energy
Performance Savings Contract Act, codified at Section 489.145, Florida Statutes; and
Whereas, the City is responsible for the operation, management and maintenance of the
buildings and structures identified on Attachment A to this Agreement (the "Structures"); and
Whereas, the City is responsible for the operation, management, and maintenance of
numerous public service systems, including but not limited to the systems identified on
Attachment B to this Agreement (the "Systems"); and
Whereas, a comprehensive investment grade technical energy audit (the "Energy
Audit") and savings analysis (the "Report") must be performed on the Structures and,
Systems (individually, a Facility, and collectively, the Facilities) in order to determine the
feasibility of entering into a guaranteed energy performance savings contract ("Energy
Performance Contract") to provide for the installation and implementation of energy
conservation measures ("ECMs"), and/or for alternate energy generation projects, for the
Facilities; and
Whereas, if in the sole discretion of the City the ECMs are demonstrated to be feasible,
and if the amount of energy cost savings can be reasonably ascertained and guaranteed in an
amount sufficient to cover all costs associated with an energy performance contracting project
for the Facilities, the Parties intend to negotiate an Energy Performance Contract under which
the Company shall design, procure, install, implement, provide training, maintain, and monitor
such ECMs for the Facilities;
Therefore, the Parties agree as follows:
Article 1: Scope of Enercly Audit
The Company will perform the Energy Audit and prepare the Report that specifically identifies
the energy improvements and operational changes which are recommended to be installed or
implemented at the Facilities. The Report shall contain detailed projections of energy and cost
savings to be obtained at the Facilities as a result of the installation of the recommended ECMs
and the feasibility of implementing alternate energy generation projects. The savings
calculations must utilize assumptions, projections, and baselines which best represent the true
value of future energy or operational savings for the Facilities (including accurate marginal cost
for each unit of savings at the time the audit is performed; documented material and operational
costs actually avoided; adjustments to the baseline to reflect current conditions at the Facilities
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compared to the historic base period; calculations which account for the interactive effects of the
recommended ECMs; etc.). The Report shall clearly describe how utility tariffs were used to
calculate savings for all ECMs. The Report shall describe the Company's plan for installing or
implementing the ECMs or alternate energy generation projects in the Facilities, including all
anticipated costs associated with such installation and implementation. The primary purpose of
the Report is to provide an engineering and economic basis for negotiating an Energy
Performance Contract between the City and the Company; however, the City shall be under
no obligation to negotiate such a contract.
In addition to performing an evaluation of energy improvements and operational changes for the
Facilities, the Company will also evaluate the potential application of altemative methods of
energy generation, including but not limited to solar, wind, and wave power, and water
conservation, including desalinization, and will make recommendations to the City as to
potential implementation of such measures. The Company will also provide assistance to the
City, during the course of this Agreement, with design reviews for new structures in order to
ensure that energy efficiency measures are properly incorporated in such designs.
At the outset of performing its Energy Audit, the Company will arrange "kick-off" meetings with
the City Commission, City staff, and appropriate Community Action Groups (as determined by
City staff) in order to obtain input as to potential conservation measures, operational
improvements, alternative energy generation methods, and other matters of interest to the
Miami Beach community. The Company will appropriately consider such community input
during the performance of its Energy Audit, and in its recommendations to the City.
During the conduct of the Energy Audit, the Company will conduct at least one public status
meeting, each, for the community at large, and for such City board and committee as directed
by the City Manager. In addition to the two (2) public meetings, the Company will conduct
whatever internal meetings are deemed necessary by the City, with City staff and any
consultants retained by the City to complete the Energy Audit.
The Company shall perform the following tasks in performing the Energy Audit and preparing
the Report:
A. Collect General Facilities Information
The Company shall collect general Facilities information such as: size, age, construction
type, condition and general use of the Facilities and functions of the Systems. The
Company shall also collect and summarize Facilities utility cost and consumption data
for the most recent 36 month period. The Company shall evaluate the impact on utility
cost and consumption of any energy initiatives currently being installed or currently
planned to be installed by the City in the Facilities which will remain separate from the
Energy Performance Contract throughout the duration of that contract.
The City shall make available (or cause its energy suppliers to make available) all
available records and data concerning energy and water usage for the Facilities for the
most current 36 month period, if available, including: utility records; occupancy
information; descriptions of any changes in the structure or operation of a Facility or its
heating, cooling, lighting or other systems or energy requirements; descriptions of all
major energy and water consuming or energy and water saving equipment used in the
Facility; any comfort problems, code deficiencies and description of energy management
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procedures presently utilized. The City shall also make available a record of any energy
related improvements or modifications that have been installed during the past three (3)
years, or are currently being installed or are currently planned to be installed by the City
in the Facilities separate from the Energy Performance Contract throughout the duration
of that contract. The City shall also make available copies of drawings, equipment logs
and maintenance work orders to the Company.
B. Analyze Existing Systems and Equipment
The Company shall compile an analysis based on a physical inspection of the major
electrical and mechanical systems at the Facilities, including:
1. Cooling systems and related equipment
2. Heating and heat distribution systems
3. Automatic temperature control systems and equipment
4. Air distribution systems and equipment
5. Outdoor ventilation systems and equipment
6. Kitchen and associated dining room equipment, if applicable
7. Exhaust systems and equipment
8. Hot water systems
9. Electric motors 5 HP and above, transmission and drive systems
10. Interior and exterior lighting
11. Laundry equipment, if applicable
12. Water consumption end uses, such as restroom fixtures, water fountains,
irrigation, etc.
13. Other major energy using systems, if applicable.
The analysis shall address the following considerations:
The loads, efficiencies or hours of operation for each system (where
Facilities operating or climatic conditions necessitate, engineering
estimates may be used, but for large fluctuating loads with high potential
savings appropriate measurements are required unless waived by the
City); and
2. Current operating condition for each system.
3. Remaining useful life of each system
4. Feasible replacement systems
Hazardous materials and other environmental concerns
The Company shall use data loggers and conduct interviews with Facility operation and
maintenance staff regarding operation, occupancy patterns, and problems with comfort
levels or equipment reliability
The Company shall also perform physical inspections of the Systems and conduct
interviews with operation and maintenance staff regarding the operation of the Systems.
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C. Establish Base Year Consumption and Reconcile with End Use Consumption Estimates
The Company shall examine the most recent 36 months of utility bills and establish Base
Year consumption for electricity, fossil fuels and water by averaging; or selecting the
most representative contiguous twelve (12) months. The Company shall consult with
Facilities staff and account for any unusual or anomalous utility bills which may skew
Base Year consumption from a reasonable representation.
Company shall estimate loading, usage and/or hours of operation for all major end uses
representing more than 5% in aggregate of total Facilities consumption including, but not
limited to:
1. Water
2. Lighting
3. Heating
4. Cooling
5. HVAC motors (fans and pumps)
6. Plug load
7. Kitchen equipment
8. Other equipment
9. Miscellaneous
Where loading and/or usage are highly uncertain, Company shall employ spot
measurement and/or short term monitoring at its discretion, or at the request of the City.
Reasonable applications of measurement typically include variable loads that are likely
candidates for conservation measures, such as cooling equipment. The annual end use
estimated consumption shall be reconciled with the annual Base Year consumption to
within 5% of the aforementioned major end-use utilities, including electricity (kWh), fossil
fuels, and water. The contribution to electric-peak demand for each end use also shall
be reconciled to within 5% of the annual Base Year Peak for the major end-uses. The
"miscellaneous" category shall not be more than 5%. The purpose of this is to place
reasonable limits on potential savings.
D. Develop List of Potential ECMs
The Company shall:
1. Identify and propose potential ECMs for installation or implementation at the Facilities,
including cut sheets on proposed equipment. For non-standard ECMs provide
information regarding product site installations.
2. Identify and propose potential alternative energy generation projects for
implementation by the City;
3. Provide a detailed estimate of the cost, savings and life expectancy of each
proposed ECM and alternative energy generation project;
4. Specify Facilities operations and maintenance procedures which will be affected by
the installation/implementation of the proposed ECMs and alternative energy
generation projects;
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5. Provide analysis methodology, supporting calculations and assumptions used to
estimate savings, which shall be based on the life cycle cost calculations provided in
Section 255.255, Florida Statutes. Manual calculations should disclose essential
data, assumptions, formulas, etc. so that a reviewer could replicate the calculations
based on the data provided;
6. For savings estimates using computer simulations, the Company shall provide
access to the program and all inputs and assumptions used, as requested by the
City;
7. Provide a preliminary savings measurement and verification plan for each of the
proposed ECMs and alternative energy generation projects;
8. Provide a preliminary commissioning plan for the proposed ECMs;
9. Provide detailed calculations for any rate savings proposals;
10. Provide detailed supporting calculations for any proposed maintenance, material, or
other operational savings. Describe annual variances in savings from year to year (e.g.
lighting, warranties).
11. Estimate any environmental costs or benefits of the proposed ECMs (e.g. disposal
costs, avoided emissions, water conservation, etc.). Provide emission reductions data
for NOX, C02 and S02. Segment emissions data for direct site emissions reductions
(e.g. fossil fuels) and indirect emissions reduction data (e.g. electricity/water).
12. For all proposed ECMs or alternative energy generation projects, the Company shall
comply with all applicable Federal, State, Miami Dade County, and City of Miami
Beach codes and regulations in effect at the time of this analysis.
E. Select Final Recommended ECMs and Alternative Energy Generation Methods
The Company shall, in consultation with the City, recommend specific ECMs and
alternative energy generation projects from its preliminary compilation for installation and
implementation at the Facilities. No ECM's or energy generation projects shall be
removed from consideration for the final report and recommended list of ECM's without
the written agreement of the City.
This list shall be compiled and submitted to the City within one hundred twenty (120)
days from the Effective Date.
F. Provide Cost and Fee Estimates
The Company shall provide detailed estimates of all costs and fees associated with the
installation and implementation of the ECMs and alternative energy generation projects,
including:
1. Engineering/design costs for individual ECMs and alternative energy generation
projects
2. Contractor/vendor estimates for individual ECM and alternative energy
generation project unit costs
3. Construction management fees for the project
4. Commissioning costs for individual ECMs
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5. Initial training costs
6. Annual service fees including:
- measurement and verification
- maintenance
- performance monitoring
- on-going training services
7. Other costs/fee (specify)
The Company will also identify various options available to the City to finance the project
costs, and will provide preliminary interest rate quotes for the various financing methods
for consideration by the City.
G. Develop Savings Estimates
The City has endeavored to provide the Company with sufficient general and specific
guidance in this Article 1 to develop the savings estimates for the Report. In the event
that questions arise as to the calculation of savings or whether certain items will be
allowed as savings, the Company shall seek written guidance from the City. The City's
rejection of certain calculations of savings or rejection of certain items as allowable
savings in the Report shall be at the sole risk of the Company, and without liability to
City. The City also reserves the right, in its sole judgment and discretion, to reject
Company calculations of savings when it determines that there is another more suitable
or preferable means of determining or calculating such savings.
The following items will be allowed as savings or in the development of savings:
Escalation rates of 5 % for natural gas
Escalation rates of 5 % for electricity (plus an initial, one-time increase of 16%
above current rates)
Escalation rates of 5 % for oil
Escalation rates of 5 % for steam
Escalation rates of 5 % for water (plus an initial, one-time increase of 20% above
current rates)
Escalation rates of 5 % for other fuel types (specify)
Escalation rates of 3 % for operation and maintenance cost savings
Escalation rates of 3 % for material/commodity cost savings
Escalation rates of 3 % for allowable labor savings
The following items will not typically be credited as savings derived from a proposed
ECM. The Company may seek exemptions from the City on a case-by-case basis.
However, the final determination of allowable savings in each case considered shall
reside solely with the City:
City in-house labor cost
City deferred maintenance cost
Offset of future City capital cost
In preparing the Report, the Company will provide savings estimates for potential project
terms of fifteen (15) and twenty (20) years. The Report shall also provide project
savings estimates with no escalation, and percent increases of one (1%) and two (2%)
percent above and below the numbers indicated above as escalation factors.
H. Deliver the Report
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The Report shall include the presentation of information in the following Schedules
required for the Energy Performance Contract, to the extent the information has been
developed during the course of performing the Energy Audit. Preliminary information
and incomplete schedules will be finalized during contract negotiations, prior to
execution of the Energy Performance Contract.
Schedules
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 Agency Maintenance Responsibilities
Schedule I ECMs Operating Parameters/Standards of Comfort and 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 O Equipment Systems Startup and Commissioning of ECMs
Schedule P Alternative Dispute Resolution (ADR)
Schedule Q Insurance and Bonds
Schedule R Warranties
Schedule S Proposed Final Project Cost and Proposed Final Project Cash
Flow Analysis
Attachment A Sample Construction Process language
Exhibit I Performance Bond/Construction Bond
Exhibit II (i) Certification of Acceptance--Energy Audit Report
Exhibit II (ii) Certification of Acceptance--ECMs
Exhibit III Equipment Warranties
The Company shall complete and deliver the Report to the City within two hundred forty
(240) calendar days from the Effective Date, in the following format:
1. Provide an executive summary that describes the Facilities, measures evaluated,
analysis methodology, results and a summary table presenting the cost and
savings estimates for each recommended measure.
2. A discussion of ECMs and alternative energy generation methods not evaluated
in detail and the explanation of why a detailed analysis was not performed.
3. Conclusions, observations and caveats regarding cost and savings estimates.
4. Thorough appendices which document the data relied upon to prepare the
analysis and how that data was collected.
5. Provide a summary of all utility bills, consumption baselines and how they were
established, and end use rieconciliation with respect to the baselines (including a
discussion of any unusual characteristics and findings).
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6. Provide detailed descriptions for each ECM including analysis method, supporting
calculations (may be submitted in appendices), results, proposed equipment and
implementation issues. Provide a financial analysis for each proposed ECM.
Article 2: Acceptance of the Report by the City.
The City shall conduct and complete a technical review within ninety (90) calendar days of its
receipt of the Report, unless otherwise mutually extended, in writing, and signed by the parties
hereto. The City shall accept the Report if the recommended ECMs and alternative energy
generation projects are deemed feasible, in the sole discretion of the City, and the projected
energy cost savings are equal to or greater than the total projected costs of the design and
installation of the recommended ECMs and alternative energy generation projects and sufficient
to cover the amortized costs of the project over the selected contract term. If the City
determines, in its sole discretion, that one or more of the recommended ECMs or alternative
energy generation projects is not feasible, the City shall notify the Company of such objections
and the Company shall modify the Report and resubmit it to the City as soon as practicable.
Notwithstanding the preceding, the City shall have the right to deny (i.e. not accept) an ECMs)
or alternative energy generation project(s), as submitted in a revised Report.
In the event the City accepts the Report, the Company shall prepare and deliver to the City a
proposal (the "Project Proposal")for implementation of the recommended ECM's and altemative
energy generation projects, which will include:
1) The proposed scope of work (the "Scope of Work");
2) The implementation price for the Scope of Work (the "Implementation Price");
3) The estimated cost savings resulting from the Scope of Work; and
4) A financial pro-forma showing the complete financial impact to the City, on an
annual basis, of the Project Proposal.
The City shall review, within ninety (90) calendar days of its receipt of a Project Proposal, unless
otherwise mutually extended, in writing by the parties hereto. The City shall accept the Project
Proposal if it is deemed feasible, in the City's sole discretion. If the Project Proposal is
accepted, the City will so notify Company, in writing, and the Company will prepare and submit
to the City a draft Energy Performance Contract detailing the terms and conditions related to
the implementation of the Project Proposal.
Article 3: Energy Performance Contract
Upon acceptance by the City of the Project Proposal, the parties shall negotiate an Energy
Performance Contract under which the Company shall design, install, and implement ECMs and
alternative energy generation projects and provide certain maintenance and monitoring
services. Notwithstanding the preceding, or anything contained in this Agreement,
nothing in this Agreement should be construed as an obligation on any of the Parties to
execute such an Energy Performance Contract. The terms and provisions of such an
Energy Performance Contract shall be set forth in a separate agreement. This Agreement shall
automatically terminate upon the Parties' execution of an Energy Performance Contract.
Article 4: Payment
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The Parties understand and intend that the Company's costs for services performed under this
Agreement shall be included in the implementation price for the proposed Scope of Work under
the Energy Performance Contract, to be paid from savings generated by implemented ECMs
and/or alternative energy generation projects. The Company is undertaking work under this
Agreement in consideration of the City's good faith intention to negotiate and implement the
Energy Performance Contract with the Company.
The City agrees that, if it does not enter into and execute an Energy Performance Contract
within one hundred twenty (120) calendar days of the City's receipt of the Project Proposal, the
City will compensate the Company for its services under this Agreement, including without
limitation the preparation of the Energy Audit and Report, by paying a fee to the Company, in
the amount of One Hundred Seventy-Five Thousand Dollars ($175,000) (the "Audit and Report
Fee"). The Audit and Report Fee shall be fully-earned, due and payable by the City to the
Company no later than forty-five (45) calendar days after the expiration of the 120 day time
period provided in this paragraph; provided, however, that if the parties enter into an Energy
Performance Contract ,the City will not be separately billed for the Audit and Report Fee under
this Agreement, as the implementation price shall be all inclusive.
The Company has represented and the City has relied that by retaining the services of the
Company, the City would realize a minimum savings of $733,000 if the ECM's identified in the
RFP response are implemented. In the event that the Audit for such ECM projects does not
identify and support the minimum amount of $733,000 in savings (including energy, water and
sewer, and other related cost savings), the City, in its sole discretion, may without any obligation
to the Company terminate this Agreement and make no payment
In the event that the Company is unable to develop a Project Proposal whereby the amount of
energy cost savings can be reasonably ascertained and guaranteed in an amount sufficient to
cover all costs associated with an Energy Performance Contract project within the time periods
specified in this Agreement ,then the City will not be obligated to reimburse the Company the
Audit and Report Fee; provided, however, that the Company will be deemed to have satisfied
the above requirements and the City shall be obligated to pay the Audit and Report Fee should
the Company's failure to meet the above requirements result from: (a) a material adverse
change in the City's credit or bond rating; and/or (b) an increase in interest rates such that the
costs associated with the Scope of Work increase due to conditions beyond the control or fault
of the Company.
Article 5: Termination
A. By Company:
Company may terminate this Agreement prior to the completion of the Energy Audit and
Report or subsequent to the scheduled completion of the Energy Audit and Report if:
(i) It determines that it cannot develop a Project Proposal which guarantees an amount
of savings in energy costs through the implementation of an Energy Performance
Contract project sufficient to pay for all costs associated with the respective project;
or
(ii) It determines that even though it can develop a Project Proposal which guarantees an
amount of savings in energy costs, through the implementation of an Energy
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Performance Contract, the amount would be insufficient to cover the costs associated
with performing the Energy Audit and Report, and installing energy conservation
measures and related training, maintenance and monitoring services over the
specified contract term
In the event Company terminates the Agreement pursuant to Section 5 A (i) or (ii) the City
shall not be obligated to pay the Audit and Report Fee, or any other amount, to Company
for services performed or expenses incurred by Company under this Agreement.
Company shall provide City with any documents (preliminary notes, reports, or analysis)
which have been produced or prepared prior to the effective date of the termination.
Company will also return any documents or information that was provided by the City.
Termination under this section shall be effective upon City's receipt of written notification
from the Company stating the reason for the termination and all documents which support
termination pursuant to 5 A (i) or 5 A (ii) herein.
B. By the City:
City may terminate this Agreement:
(i) If the Company fails to complete the Energy Audit and deliver the Report to the City
by the date established in Article 1 H (or such other date as may have been
mutually agreed to, in writing, by the parties). Termination under this subsection B
(i) shall be effective upon Company's receipt of written notification from the City that
the deadline for submission of the Energy Audit and Report has passed. In this
event, the City shall not be obligated to pay the Audit Report and Fee, or any other
amount to Company for services performed or expenses incurred by the Company
under this Agreement. Company shall provide the City with any Audit documents
(preliminary notes, reports, or analysis) which have been produced or prepared
prior to the effective date of the termination. Company will also return any
documents or information that was provided by the City.
(ii) If, prior or subsequent to the completion of the Energy Audit or Report, the
Company notifies the City in writing that it is unable to guarantee an amount of
savings sufficient to pay all project costs of savings pursuant to subsection 5 A (i) or
(ii) above. Termination under this subsection B (ii) shall be effective upon
Company's receipt of written notification of termination from the City. In this event,
the City shall not be obligated to pay any amount to Company for services
performed or expenses incurred by Company under this Agreement. Company
shall provide the City with any Audit documents (preliminary notes, reports, or
analysis) which have been produced or prepared prior to the effective date of the
termination. Company will also retum any documents or information that was
provided by the City.
(iii) If, prior or subsequent to the completion of the Energy Audit or Report, the City
notifies the Company in writing that it has elected to terminate this Agreement, for its
convenience and without cause, the City shall reimburse the Company for either the
actual expenses incurred or percent of the Audit and Report completed as of the
effective date of the termination, the amount being determined as fair and equitable
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by the City, in its sole judgment and discretion. Termination under this subsection B
(iii) shall be effective upon Company's receipt of written notification from the City.
Company agrees to provide the City with any records of expenses incurred and any
preliminary notes, reports or analyses that have been produced or prepared prior to
the effective date of the termination. Such documentation shall be used by the City
to determine the extent of work completed by Company prior to termination and shall
become the property of the City.
If after completion and acceptance of the Energy Audit and Report, the City does not enter
into an Energy Performance Contract with the Company within the time period provided in
Article 4 of the Agreement, the City shall pay Company the Audit and Report Fee as
provided in said Section 4. Termination under this subsection B (iii) shall be effective upon
Company's receipt of written notification from the City. The Energy Audit and Report will
become the property of the City; and the City shall have no further obligation and/or
liability to Company.
It is clearly understood by both parties hereto that, if the Parties successfully negotiate and
execute an Energy Performance Contract, no payment shall be due for the Energy Audit
or Report under the terms of this Agreement. It is also understood that not all
recommended ECMs need be implemented in negotiating an Energy Performance
Contract. This Agreement shall automatically terminate upon the execution of an Energy
Performance Contract by Company and the City. It is further understood that provisions
for payment for the Energy Audit shall be incorporated into the Energy Performance
Contract.
C. By Either Party:
Either Party may terminate this Agreement, when the Party deems it to be in its best
interest to do so, by providing the other Party thirty (30) days written notice of its intent to
do so. Termination shall be effective thirty (30) days after receipt of the written notice.
Should the City terminate this Agreement under this provision, the City will reimburse the
Company for its costs incurred in performance of its responsibilities under this Agreement
to the date of such termination, up to, but not to exceed, the amount of the Audit and
Report Fee. Should the Company terminate this Agreement under this provision, the City
will be under no obligation to compensate the Company for the Audit and Report Fee.
Article 6: Standard Terms and Conditions
A. Agreement Term
This Agreement term shall commence on the Effective Date and end on December 31, 2009,
unless earlier terminated pursuant to the provisions of Article 4 hereof.
B. Termination by City due to Lack of Funding
This Agreement shall automatically terminate and the obligations of the City shall cease
immediately, without penalty, if in any fiscal year covered by the Agreement term, the
Legislature or the City fails to appropriate, re-appropriate or otherwise make available funds for
this Agreement. The City shall provide written notification to the Company of any impending
change in the status of appropriations which may affect this Agreement of which it has notice.
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In the event of termination of the Agreement pursuant to this subsection, the City shall
reimburse Company in the same manner as provided under Section S.C. hereof.
C. Materials, Equipment and Supplies
The Company shall be solely responsible for providing or cause to be provided, all facilities,
materials, equipment and supplies necessary to perform the Energy Audit and prepare the
Report.
D. Subcontractor Disclosure
If, during the term of this Agreement, the Company proposes to retain subcontractors to perform
material work pursuant to this Agreement, the Company shall so notify the City in writing and
obtain the prior written approval of the City before retaining said subcontractors.
Notwithstanding the City's approval of subcontractors, Company shall ultimately be responsible
for providing any and all services and/or work required of it pursuant to this Agreement.
E. City Access to Records
The City shall have the right, throughout the term of this Agreement and throughout the term of
any subsequent Energy Performance Contract resulting from this Agreement (if any), to inspect,
audit and obtain copies of all books, records, and supporting documents which Company is
required to maintain according to the terms of this Agreement and/or said Energy Performance
Contract.
F. Patent and Copyright Resoonsibilit
The Company agrees that any material or design specified by the Company or supplied by the
Company pursuant to this Agreement shall not knowingly infringe any patent or copyright, and
the Company shall be solely responsible for securing any necessary licenses required for
patented or copyrighted material utilized by the Company in the performance of the Energy
Audit and preparation of the Report.
G. Indemnity and Insurance
The Company agrees to assume all risk of loss and to indemnify and hold the City of Miami
Beach, and its officers, agents and employees harmless from and against any and all liabilities,
demands, claims, suits, losses, damages, causes of action, fines or judgments, including costs,
attorneys' and witnesses' fees, and expenses incident thereto, for injuries to persons (including
death) and for loss of, damage to or destruction of property (including property of the City)
because of the Company's negligent or intentional acts or omissions. In the event that any
demand or claim is made or suit is commenced against the City, the City shall give prompt
written notice thereof to the Company and the Company shall fully defend the same by and on
behalf of the City. The Company further agrees to provide and maintain during the term of the
Agreement the following types and amounts of insurance which shall be maintained with
insurers licensed to sell insurance in the State of Florida and have a B+ VI or higher rating in the
latest edition of AM Best's Insurance Guide. Any exceptions to these requirements must be
approved by the City's Risk Management Department:
1. Commercial General Liability. A policy including, but not limited to, comprehensive
general liability including bodily injury, personal injury, property damage in the amount of
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a combined single limit of not less than $1,000,000. Coverage shall be provided on an
occurrence basis. The City of Miami Beach must be named as certificate holder and
additional insured on policy.
2. Worker's Compensation. A policy of Worker's Compensation and Employers Liability
Insurance in accordance with State worker's compensation laws as required per Florida
Statutes.
Said policies of insurance shall be primary to and contributing with any other insurance
maintained by the Company or City, and shall name the City and the officers, agents and
employees of said Company as additional insured while acting within the scope of their duties
but only as to work performed by the Company under this Agreement. This policy cannot be
canceled without thirty (30) days prior written notice to the City.
The Company shall file and maintain certificates of all insurance policies with the City's Risk
Management Department showing said policies to be in full force and effect at all times during
the course of the Agreement. No work shall be done by the Company during any period when it
is not covered by insurance as herein required. Such insurance shall be obtained from brokers
of carriers authorized to transact insurance business in Florida and satisfactory to City.
Evidence of such insurance shall be submitted to and approved by City prior to commencement
of any work or tenancy under the proposed Agreement.
If any of the required insurance coverage contains aggregate limits, or applies to other
operations or tenancy of the Company outside the proposed Agreement, the Company shall
give City prompt written notice of any incident, occurrence, claim settlement or judgment against
such insurance which may diminish the protection such insurance affords the City. The
Company shall further take immediate steps to restore such aggregate limits or shall provide
other insurance protection for such aggregate limits.
The Company also agrees to indemnify and hold the City harmless should any goods or
services provided by the Company infringe upon the patent, copyright or trade secret of another.
The indemnification provisions under this Section 6(G) are intended by the parties to survive
termination and/or expiration of this Agreement.
H. Lobbying, Integrity, and Retention of Records
The Company shall not, in connection with this or any other agreement with the City, directly or
indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration
for any City officer or employee's decision, opinion, recommendation, vote, other exercise of
discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone any
gratuity for the benefit of, or at the direction or request of, any City officer or employee. For
purposes of clause (2), "gratuity" means any payment of more than nominal monetary value in
the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances,
deposits of money, services, employment, or agreements of any kind. Upon request of the City
Attomey, or other authorized City official, the Company shall provide any type of information the
City Attorney deems relevant to the Company's integrity or responsibility. Such information may
include, but shall not be limited to, the Company's business or financial records, documents, or
files of any type or form that refer to or relate to the Agreement. The Company shall retain such
records for the longer of (1) three years after the expiration of the Agreement or (2) the period
required by the General Records Schedules maintained by the Florida Department of State
(available at: http://dlis.dos.state.fl.us/barm/genschedules/gensched.htm). Failure to maintain
Energy Audit Agreement [date]
City of Miami Beach - AMERESCO, Energy Audit Agreement Page 13 of 20
the books, records, and supporting documents required by this Section shall establish a
presumption in favor of the City for the recovery of any funds paid by the City under the
Agreement for which adequate books, records, and supporting documents are not available to
support their purported disbursement. The Company agrees to reimburse the City for the
reasonable costs of investigation incurred by the City Attorney or other authorized City official
for investigations of the Company's compliance with the terms of this or any other agreement
between the Company and the City which results in the suspension or debarment of the
Company. Such costs shall include, but shall not be limited to: salaries of investigators,
including overtime; travel and lodging expenses; and expert witness and documentary fees.
The Company shall not be responsible for any costs of investigations that do not result in the
Company's suspension or debarment.
I. Dispute Resolution
The City and the Company recognize and acknowledge that efforts should always be made to
avoid or prevent disputes through effective partnering, good communications, and joint decision
making; and that timely requests for clarification and for information will help ensure a better
understanding of issues and problems and lead to the elimination of doubts, uncertainties, and
ambiguities. Nevertheless, the City and the Company also recognize that disputes may develop
between them and, in such event, wish to establish procedures to be followed to resolve such
disputes in the shortest possible time and at the least possible expense to the City and the
Company.
Any conflict or dispute between the City and the Company shall be resolved in accordance with
the procedures specified in this Agreement, which shall be the sole and exclusive procedures
for the resolution of any such disputes. This Agreement establishes successive steps of conflict
prevention and alternative dispute resolution prior to litigation, completion of which shall be
conditions precedent to the right to commence litigation over any dispute arising out of or
relating to the Agreement. The successive steps are: (1) informal negotiations between project-
level management personnel; (2) formal negotiations between executive-level management,
initiated by written notice and completed within thirty days, or longer as mutually agreed; and (3)
mediation, initiated by written notice. If the City and the Company have not agreed within ten
(10) business days of the request for mediation on the selection of a neutral mediator willing to
serve, then the Parties agree that a mediator shall be selected by the Florida Conflict Resolution
Consortium (FCRC), Florida State University, Tallahassee, (850) 644-6320
(http://consensus.fsu.edu). The appointment by FCRC of a qualified mediator shall be binding
on both Parties, and both Parties shall promptly cooperate with the appointed mediator to
effectuate mediation.
Any legal or equitable action arising out of or relating to this Agreement shall be brought in the
appropriate court in Miami-Dade County, Florida, and not elsewhere, and shall be governed by
Florida law.
J. Personnel
All Company employees, subcontractors, or agents performing work under this Agreement shall
be properly trained technicians who meet or exceed any specified training qualifications. Upon
request, the Company shall furnish a copy of technical certification or other proof of
qualification. All employees, subcontractors, or agents performing work under the Agreement
must comply with all security and administrative requirements of the City. The City may
conduct, and the Company shall cooperate in, a security background check or otherwise assess
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City of Miami Beach - AMERESCO, Energy Audit Agreement Page 14 of 20
any employee, subcontractor, or agent furnished by the Company. The City may refuse access
to, or require replacement of, any personnel for cause, including, but not limited to, technical or
training qualifications, quality of work, change in security status, or non-compliance with the
City's security or other requirements. Such approval shall not relieve the Company of its
obligation to perform all work in compliance with the Agreement. The City may reject and bar
from any facility for cause any of the Company's employees, subcontractors, or agents.
The Company, together with its agents, subcontractors, officers and employees, shall have and
always retain under the Agreement the legal status of an independent contractor, and in no
manner shall they be deemed employees of the City or deemed to be entitled to any benefits
associated with such employment. During the term of the Agreement, the Company shall
maintain at its sole expense those benefits to which its employees would otherwise be entitled
to by law, including health benefits, and all necessary insurance for its employees, including
workers' compensation, disability, and unemployment insurance, and provide the City with
certification of such insurance upon request. The Company remains responsible for all
applicable federal, state, and local taxes, and all FICA contributions.
K. Compliance with Applicable Law
In performing this Agreement, the Company shall comply with all laws, rules, codes, ordinances,
and licensing requirements that are applicable to the conduct of its business, including those of
Federal, State, and local (Miami-Dade County and City of Miami Beach) agencies having
jurisdiction and authority. By way of non-exhaustive example, Chapter 287, Florida Statutes
and Chapter 60A-1 of the Florida Administrative Code govern the Agreement. By way of further
non-exhaustive example, the Company shall comply with Section 247A(e) of the Immigration
and Nationalization Act, the Americans with Disabilities Act, and all prohibitions against
discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status,
veteran's status, and/or sexual orientation. Violation of such laws shall be grounds for
Agreement termination. The City may cancel the Agreement with no obligation and/or without
any liability whatsoever to the Company, if the Company refuses to allow public access to all
records made or received by the Company in conjunction with the Agreement, unless the
records are exempt from disclosure under applicable Florida Public Records law.
L. Waivers
No right of either party hereto shall be deemed to have been waived by non-exercise thereof, or
otherwise, unless such waiver is reduced to writing and executed by the party entitled to
exercise such right.
M. Assignment
Neither Party may assign this Agreement without the prior written consent of the other Party,
which shall not be unreasonably withheld.
N. Capacity to Contract
Each person signing this Agreement warrants that he or she is duly authorized to do so and to
bind the respective Party to the Agreement. The Company warrants that it is in good standing
and legally authorized to transact business in Florida. The Company warrants that, to the best
of its knowledge, there is no pending or threatened action, proceeding, or investigation, or any
other legal or financial condition, that would in any way prohibit, restrain, or diminish the
Company's ability to satisfy its Agreement obligations. The Company warrants that neither it
>/nergy Audit Agreement [date]
City of Miami Beach - AMERESCO, Energy Audit Agreement Page 15 of 20
nor any affiliate is currently on the convicted vendor list maintained pursuant to Section 287.133
Florida Statutes, or on any similar list maintained by any other state or the federal government.
The Company shall immediately notify the City in writing if its ability to perform is compromised
in any manner during the term of the Agreement.
O. Governing Law
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Florida, both substantive and remedial, without regard to principles
of conflict of laws. The exclusive venue for any litigation arising out of this Agreement
shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court,
Southern District of Florida, if in Federal court. BY ENTERING INTO THIS
AGREEMENT, CITY AND COMPANY EXPRESSLY WAIVE ANY RIGHTS EITHER
PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO,
OR ARISING OUT OF, THIS AGREEMENT.
P. Agreement
The following documents are incorporated in, and made a part of, this Agreement:
1. City Request for Proposals No. 06-07/08 (the RFP);
2.The Company RFP response
3.The Company presentation materials for both the Evaluation Committee and the City
Commission presentation, respectively.
Q. Confidential Information
In the event that a Party is allowed access to the other Party's confidential information (made
available by the other Party) ,each Party shall protect such confidential information in the same
manner as it protects its own confidential information of like kind; provided, however, that
disclosure of any confidential information received by the City will be governed by applicable
Florida Public Records law.
R. Convicted or Discriminatory Vendors
A person or affiliate placed on the convicted vendor list following a conviction for a public entity
crime is prohibited from doing any of the following for a period of 36 months from the date of
being placed on the convicted vendor list: submitting a bid on a contract to provide any goods or
services to a public entity; submitting a bid on a contract with a public entity for the construction
or repair of a public building or public work; submitting bids on leases of real property to a public
entity; being awarded or performing work as a contractor, supplier, subcontractor, or consultant
under a contract with any public entity; and transacting business with any public entity in excess
of the Category Two threshold amount ($25,000) provided in section 287.017 of the Florida
Statutes.
An entity or affiliate placed on the discriminatory vendor list pursuant to section 287.134 of the
Florida Statutes may not submit a bid on a contract to provide any goods or services to a public
entity; may not submit a bid on a contract with a public entity for the construction or repair of a
public building or public work; may not submit bids on leases of real property to a public entity;
Energy Audit Agreement [date]
City of Miami Beach - AMERESCO, Energy Audit Agreement Page 16 of 20
may not be awarded or perform work as a contractor, supplier, sub-contractor, or consultant
under a contract with any public entity; and may not transact business with any public entity.
S. Notices
All necessary and ordinary communications, submittals, approvals, requests and notices related
to Project work shall be issued or received by:
If to City:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Telephone: 305. 673.7010
Facsimile : 305.673.7782
Email: CityManager@miamibeachfl.gov
With copies to:
Robert Middaugh
Assistant City Manager
1700 Convention Center Drive
Miami Beach, FL 33139
Telephone: 305.673.7010
Facsimile: 305.673.7782
If to Company:
John L. Bosch
Vice President, Southeast Region
AMERESCO
2202 N. West Shore Blvd.
Suite 200
Tampa, FL 33607
Telephone: 704.779.5741
Facsimile : 866-2 32-1217
Email: JBosch@ameresco.com
Either Party may change its point of contact by written notice to other Parry's then-current
designated contact, which shall not constitute a formal amendment to this Agreement.
T. Modification of Terms
The Agreement contains all the terms and conditions agreed upon by the Parties. The
Agreement may only be modified or amended upon mutual written agreement of the Parties.
No oral agreements or representations shall be valid or binding upon the City or the Company.
U. Execution in Counterparts
Energy Audit Agreement [date]
City of Miami Beach - AMERESCO, Energy Audit Agreement Page 17 of 20
The Agreement may be executed in counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
V. Severability
If a court deems any provision of the Agreement void or unenforceable, that provision shall be
enforced only to the extent that it is not in violation of law or is not otherwise unenforceable and
all other provisions shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their appropriate officials, as of the date first entered above.
FOR CITY:
CITY OF MIAMI BEACH, FLORIDA
ATTEST:
Y
Robert Parcher, City Clerk
By:
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FOR COMPANY:
ATTEST:
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AMERESCO, INC.
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APPR01/ED A3 TO
FORM 8e LANGUAGE
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Date
Energy Audit Agreement [date]
City of Miami Beach - AMERESCO, Ener~ry Audit Agreement Page 18 of 20
Attachment A
to Enemy Audit Agreement
Energy Audit Agreement [date]
City of Miami Beach - AMERESCO, Energy Audit Agreement Page 19 of 20
Attachment B
to Ener~y Audit Agreement
City of Miami Beach Public Service "Systems"
Water distribution system.
Water meter reading and billing system.
Wastewater collection and pumping system.
Stormwater collection system.
Stormwater injection well system.
Street lighting system.
Energy Audit Agreement [date]
City of Miami Beach - AMERESCO, Energy Audit Agreement Page 20 of 20
CT~~I FRESCO
August 12, 2008
Mr. Robert Middaugh
City of Miami Beach
Assistant City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
Dear Mr. Middaugh,
Please find three (3) signed Energy Audit Agreements attached for your records. Once the contracts have
been signed by your representative, please return one (1) original of the executed agreement to the below
address. If you have any questions, please call me at 704.916.3522 (office) or 704.779.5741 (cell).
L. Bdsch, Vice President
Ameresco, Inc.
5200 77 Center Drive, Suite 300
Charlotte, NC 28217
52(}0 77 Cr.N rr;k DitivF;, Surre 3(xl, Crin~zr.at-rt::, NC 28217
Pruwt;:704.916.3500 . F.~x:866.232.1217