16. Energy savings performance contract with SiemensZ % �( OFFICE OF THE CITY MANAGER
Environmental Affairs Division
�1 CITY HALL
-� 10300 TORRE AVENUE • CUPERTINO, CA 95014 -3255
TELEPHONE: (408) 777 -3223 • FAX: (408) 777 -3366
CUPERTINO GREEN
Program
SUMMARY
Agenda Item No. 1 Meeting Date: April 20, 2010
Zn
SUBJECT AND ISSUE
Consider authorizing the City Manager to enter into an energy savings performance contract with
Siemens in substantially the same form as attached for an amount not to exceed $ 2,133,845. Consider
appropriating 2009 -10 capital improvement funds of $2,133,845 for this project, financed by $438,000
in EECBG grant funds, $562,000 from capital improvement reserves and $1,133,845 from a private
financing lender.
BACKGROUND
On June 16` 2009 the City of Cupertino applied for, and received, a $526,200 grant through the
Department of Energy's Energy Efficiency and Conservation Block Grant program to (1) conduct a
Detailed Energy Audit and implement an Energy Savings Performance Contract and (2) continue its
partnership with Acterra to offer the Green@Home residential audit, retrofit and training program within
our community.
Following Council authorization to conduct the Detailed Energy Audit, Siemens identified facility
improvement measures for city investment, which were submitted as a proposed scope of work for
Council review on November 30 2009. This staff report follows Council's recommendation at its
November 30, 2009 meeting to refine this proposal with Siemens and bring it back to reassess and
authorize future action.
The energy service agreement under consideration would reduce utility expenditures and hedge against
Utility rate increases. The project will also directly reduce greenhouse gas emissions from the primary
stationary sources over which the city has direct operational control. The facility improvement measures
proposed for the project take into account the profile of the city's current and future, utility expenditures.
Through a competitive RFP process, a team comprised of members from Environmental Affairs
Division and Public Works Department recommended Siemens as its partner to conduct a Detailed
Energy Audit and develop an energy savings performance contract based on the findings of the audit.
Upon approval of the performance contracting approach in June of 2009, by City Council, staff
submitted the application for the grant. Following its submission, the City Manager entered into a Letter
of Intent with Siemens to complete the Detailed Energy Audit, which described the scope and
parameters of this work.
16 -1
Review of Project Phases
1. Detailed Energy Audit Phase: Complete
A detailed energy study was necessary to provide the City with a final proposal for capital
improvements resulting in energy and resource savings for the City's facilities and systems. Staff and
Siemens met to determine the scope of the Detailed Energy Audit to analyze energy conservation, water
conservation and renewable energy generation measures.
2. Implementation Phase: Proposed: May 2010 —December 2010
Implementing these projects within this proposed consolidated one -year period will enable the city to
recognize savings after project completion. This varies greatly from a more traditional capital
improvement program, where the infrastructure improvements. and subsequent savings, are phased in
over a longer timeframe. The Energy Efficiency and Conservation Block Grant program requires funds
to be expended by December 1, 2010.
3. Guarantee Phase: Proposed: July 2010
Specifications for the Guarantee Phase have been developed jointly by the energy service company and
city staff. Monitoring and verification are typically focused on the first years after implementation, but
may range from no monitoring and verification activities at all, to activities that extend for the entire
duration of the project financing.
DETAILED ENERGY AUDIT FINDINGS
Based on the report to Council and Letter of Intent authorized by the City Council on June 16, 2009,
Siemens undertook a detailed evaluation of seven of the city's facilities, citywide irrigation and street
lighting, as well as opportunities for renewable energy generation. Siemens investigated characteristics
of the city's energy and water consumption using a combination of methodologies including data
logging of electrical circuits,
utility bill analysis, site and
building plan analysis, equipment
and fixture inventory
development, calculations and
other technical analyses, staff
interviews, etc. These activities
involved frequent site visits and
close coordination with staff.
Findings of the Detailed Energy
Audit are summarized below.
Figure 1: City of Cupertino's Annual
Utility Cost (based on 2008 data) for
electrical, gas, and water is S1.2 million.
Of that total, 43% is spent on water for
domestic and landscaping purposes,
33% is accounted for by electrical
consumption of city facilities, and 19% is
spent on streetlights.
Annual Utility Cost (2008)
Electricity, Gas, Water
$1.2 million
rical - I rrigation
1 °e
rical -Traffic
Signals
2 %
as
�r.
-al Water
9%
i .« Jetail in Fig 21
16 -2
ISee Detail in Fig. 21
Utility Costs
The Detailed Energy Audit found that the city spends $1.2 million annually on electrical, gas and Water
utility bills. Of that total, 43% is spent on water for domestic and landscaping purposes, 33% is
accounted for by electrical consumption at city facilities, and 19% is spent on streetlights.
The figures below describe usage for city buildings over the course of 12 months (September 2008
through August 2009). The city building for which the most is spent on electricity per square (S /ft'), is
City Hall (Table 1). Although Quinlan Community Center has a large annual utility expenditure, the
overall electrical energy usage index is much lower than City Hall or the Corporation Yard. This can be
attributed to Quinlan's large square footage. The Corporation Yard also has a high electrical spend and
gas spend per square foot.
Table 1: Existing Electrical Summary
Site Name
All Electrical Utility Rate'
Existing Density (Watts /sf) Existine $/kWh kWh /ft $ / ft '-
kW kWh
Area
City Hall
23,040
114
4.95
539.520
0.1405
23.4
3.29
Cote Yard'
7,500
0
__
171,970
0.1604
22.9
3.68
Quinlan
28,695
130
4.53
483.600
0.1473
16.9
2.48
Sports Center
20,808
130
6.25
404.320
0.1530
19.4
2.97
Senior Center
15,900
68
4.28
167.520
0.1664
10.5
1.75
Totals
( 95,943
ilia
5.00
1.766.930
0.1535
18.4
2.83
Regarding water consumption, the city spends 5539,000 annually (based on 2008 data) on San Jose
Water and California Water Company bills. About 95% of the consumption is for irrigation, including
watering of parks, facility landscaping, and medians, as depicted in Figure 2.
Water Consumption (2008)
$539,000
4 San Jose Water ( Irrigation)
rd San Jose Water
(Domestic /Unknown)
Cal Water ( Irrigation)
6 Cal Water
(Domestic /Unknown)
' Average utility rate at $0.15352/kWh
Corp. Yard excluded from Electrical Density average and kW average
Figure 2: Water Consumption: Accounts
for 5539,000 annually, 95%,I, of which is for
irrigation.
Siemens' review of electricity and
natural gas consumption of the city's
buildings and facilities yielded that
Quinlan Community Center, City Hall,
and the Sports Center were found to be
the three facilities with the greatest
consumption.
16 -3
Streetlight Electricity Cost*
The majority of electricity cost was
found to be associated with city -owned
streetlights. About $206,000 is spent
annually on electricity for city -owned
streetlights, based on the most recent
data collected from September 2008
through August 2009.
Figure 3: Electricity Cost
"Streetlight costs totaled $251,000,from September
2008 through August 2009; 82 %r of that accounted for
cit) -owned streetlights.
Upon review of utility budget and
expenditure data for FY06 — FY10, staff 144
found that every year expenditures
most recent 12 months M
exceeded budget projections, as is depicted
in Table 2. In FY09 expenditures exceeded budget estimates by nearly $65,000, indicating that utility
rates and/or consumption is increasing at a higher rate that that predicted by staff (Figure 8). In just four
years, the city's utility budget has increased $302,000 and expenditures have increased by nearly
$200,000. On average, utility expenditures rose 10% for the fiscal years reviewed by staff, which is a
much higher increase than is commonly assumed (5 %) for utility expenses for a given year if
consumption/rates remain consistent.
All estimates anticipate
Cupertino's utility costs
will continue to rise in the
future. PG &E has applied
to the California Public
Utilities Commission
(CPUC) for a 6% to 7%
rate increase for 2010.
San Jose Water has
applied to the CPUC for a
water rate increase of
18.4% for 2010, 6.5% for
2011, and 8.1 % for 2012
for the water it delivers to
the City of Cupertino and
surrounding communities.
51.3 2 5, 000
51.275,000
$1,225,000
51.175,000
0
51.125.000
$1,075,000
$1,025,000
$975,000
F1'06 FY07
FY08 FY09 FY10
Expenditure $1,009,156 51,087,011 $1,167,460 51,205,492
Budget $1,003,600 $1.076.200 51,142.500 $1,140.500 $1,306,200
Table 2: FY06 — FY10 Cupertino Utilities Budget vs. Cost
16 -4
$251,000
i ime t rear
Recommended Facility Improvement Measures
In looking at the city's utility expenditures as a whole, the greatest potential for cost and energy savings
were found, not surprisingly, in the areas of greatest expenditure: irrigation and electricity for
streetlights.
During the course of the detailed study, Siemens found that the city had already implemented many
energy, water, and cost - saving facility improvement measures including interior and exterior lighting
upgrades, motor replacements, and plumbing fixture replacements.
REVISED SCOPE
In re- evaluating the city's utility expenditures as a whole, the greatest potential for cost and energy
savings were found in water for irrigation and electricity for streetlights. Specifically, Siemens' revised
scope of work includes:
Streetlight Retrofits - 2,950 City -owned high pressure sodium, metal halide and mercury vapor
fixtures (including lamps and ballasts) will be retrofitted with new induction lamps (see
Attachment A, page 1). Note that of the total 3 265 streetlights located within the City's
jurisdiction, only 2950 are proposed for retrofit. Of the 334 lights not scheduled for retrofit, 315
fixtures are currently owned by PG &E and are located within the most recently annexed
neighborhoods of Rancho Rinconada, Garden Gate and Monta Vista. In addition, Siemens could
not identify an induction retrofit for 19 310 Watt and 400 Watt fixtures that exist on collector
arterial streets. Therefore, these 19 lights will not be incorporated into the project scope, but
rather, integrated into the City's replacement schedule.
2. Irrigation Upgrades — 111 existing irrigation controllers will be replaced with Weather Trak
evapo- transpirative weather -based controllers (see Attachment A, page 2).
The current project scope addresses three goals identified as part of the city's EECBG grant application
and reiterated again following the prior council discussion and direction to staff on November 30, 2009:
• Neutral cash flow — project costs will not exceed energy savings, paired with grant funds, for the
term of the financing period.
• Self- financing — the project currently proposes to use financing (loan) mechanisms available on
the open market or through the California Ene:-gy Commission, rather than general fund
resources.
• Reasonable payback period — the project's overall simple payback is designed to be five years or
less.
The scope proposed is a turnkey energy services project where the energy service company manages
construction and implementation of the project and guarantees the energy savings that will be created by
the project. The city will retain all rights for inspection and approval of work.
FISCAL IMPACT
This capital improvement project is self - funding, meaning that project debt service will pay for itself out
of the energy and water savings achieved from the new technology over the next five years. In addition,
the project will be able to utilize $438,000 of the E.ECBG funds as originally submitted in the grant
proposal and $562,000 in City capital reserves may be leveraged against these funds.
16 -5
AL
The cost and financing of the Siemens proposal is as follows:
Project Costs
Street Light Retrofits
$1,089,034
Irrigation Upgrades
839,986
Program Development
67,317
Project Management
75,508
Subtotal Installation Contract
2,071,845
Energy Savings Guarantee Option
62,000
Payments
$2,133,845
Project Financing:
EECBG Grant
.$438,000
City Capital Improvement Reserve
562,000
Outside Financing
1,133,845
$2,133.845
Staff contracted with the firm of E Wagner & Associates, Inc., to analyze our outside financing options.
The firm looked at private financing through banks and financing companies and public financing
through a bond issuance, either competitively bid or negotiated.
*Note: Final payment comes out of bond reserves.
Based on the above results, private financing comes out lowest in overall cost and payments. The high
costs and reserve requirements of selling bonds are not cost - effective for financing this amount.
Projected savings in the range of $300,000 per year in energy costs would fund the annual debt service
which will cover principal, interest, and issuance costs. Attachment 2 provides more detail on the
alternatives.
RECOMMENDED ACTION
Authorize the City Manager to negotiate and execute an energy savings performance contract with
Siemens in substantially the same form as attached for an amount not to exceed $2,133,845. Appropriate
2009 -10 capital improvement funds of $2,133,845 for this project, financed by $438,000 in EECBG
grant funds, $562,000 from capital improvement reserves and $1,133,845 from a private financing
lender.
ALTERNATE ACTIONS
1. City Implementation — If Council prioritizes the scope outlined in this project it could be added to
the CIP process. However, resources and staffing will need to be reallocated to complete the scope
16 -6
Interest
Net
Costs of
Annual
Total
Financing Alternatives
Term
Rate
Interest
Issuance
Payments
Payments
Cost
Private Financing
5 Yrs
4.40%
4.40%
$ 16,000
$ 257,775
$1,288,875
Bonds (competitive)*
6 Yrs
2.25%
4.21%
$ 203,463
$ 240,012
$1,440,071
Bonds (negotiated)*
6 Yrs
2.40%
4.45%
$ 209,000
$ 241,964
$1,451,783
*Note: Final payment comes out of bond reserves.
Based on the above results, private financing comes out lowest in overall cost and payments. The high
costs and reserve requirements of selling bonds are not cost - effective for financing this amount.
Projected savings in the range of $300,000 per year in energy costs would fund the annual debt service
which will cover principal, interest, and issuance costs. Attachment 2 provides more detail on the
alternatives.
RECOMMENDED ACTION
Authorize the City Manager to negotiate and execute an energy savings performance contract with
Siemens in substantially the same form as attached for an amount not to exceed $2,133,845. Appropriate
2009 -10 capital improvement funds of $2,133,845 for this project, financed by $438,000 in EECBG
grant funds, $562,000 from capital improvement reserves and $1,133,845 from a private financing
lender.
ALTERNATE ACTIONS
1. City Implementation — If Council prioritizes the scope outlined in this project it could be added to
the CIP process. However, resources and staffing will need to be reallocated to complete the scope
16 -6
within the timeline determined by DOE, which requires the City to obligate funds no later than
December 1, 2010.
2. No Action - Following approval by the City Council on June 19, 2009, the City of Cupertino applied
for, and received, Energy Efficiency Community Block Grant funding in order to pursue an energy
service agreement and other energy saving programs in the amount of $526,200. A decision not to
pursue facility improvement measures outlined in the original grant application and confirmed
through the Detailed Energy Audit would forfeit the terms of the existing grant and require
reapplication for a new grant.
Submitted by:
Approved for submission:
-2z)L
David W. Knapp
City Manager
Attachments:
Attachment A — Detail of Financing Alternatives
Attachment B — Agreement and Table of Contents of Addenda and Exhibits
16 -7
Public and Environmental Affairs Director
ATTACHMENT A
$1,149,846
City of Cupertino
Private Placement
(Sustainability Project)
Net Debt Service Schedule
Date
Principal
Coupon
Interest
Total P +I
Net New D/S
05/01/2011
213,770.00
4.400%
44,00537
257,775.37
257,77537
05/01/2012
218,970.00
4.400%
38,804.87
257,774.87
257,774.87
05/01/2013
228,710.00
4.400%
29,06422
257,774.22
257,77422
05/01/2014
238,885.00
4.400%
18,89028
257,775.28
257,77528
05/01/2015
249,511.00
4.400%
8 263.73
-- ' - - - - --
257 774.73
' - --
257,774.73
Total
$1,149,846.00
-
$139,028A7
$1,288,874.47
$1,288,874.47
$1,133,845 Project proceeds
16,001 Issuance costs
$1,149.846 Loan
File I CUPERT I Private Placement Financi I SINGLE PURPOSE 1 4/13/2010 1 10:57 PM
16-8
16 -9
$1,495,000
City of Cupertino
Negotiated Certificates of Participation
(Sustainability Project)
Net Debt Service Schedule
Date Principal Coupon Interest Total P +I DSR Net New D/S
06/01/2010
-
-
-
-
06/01/2011
240,000.00
1.000
30,875.00
270,875.00
(3,573.72)
267,30128
06/01/2012
240,000.00
1.500
28,475.00
268,475.00
(3,573.72)
264,90128
06/01/2013
245,000.00
1.750%
24,875.00
269,875.00
(3,573.72)
266,30128
06/01/201
250,000.00
2.250%
20 1 587. 50
270
(3,573.72)
267,013.78
06/01/2015
_
255,000.00
2.750%
14,962.50
269,962.50
(3,573.72)
266,388.78
06/01/2016
265,000.00
3.000%
7,950.00
272,95
(153,073.72)
119,87628
Total $1,495,000.00 - $127,725410 $1,622,725.00 (170,942.32) $1, 451,782.68
$1,133,89:5 Project proceeds
209,000 Issuance costs
152,155 Debt service reserve
$1,495,000 Loan
File 1 CUPERT -1.SF 1 Negotiated COPS 1 SINGLE PURPOSE 1 4/13/2010 1 11:08 PM
16-10
ATTACHMENT B
PERFORMANCE CONTRACTING AGREEMENT
TABLE OF C ONTENTS
Agreement
Exhibit A Scope of Work and Services
Exhibit B Payment Schedule(s)
Exhibit C Performance Assurance
Exhibit D Addendum No. 1
Appendix A - Special Terms and Conditions for EECBG
Attachment 1 Intellectual Property Provisions (for reference only)
Exhibit E City of Cupertino Standard Form 482- Bidder's Certifications
Exhibit F City of Cupertino Standard Form 610- Construction Performance Bond
Exhibit G Form of City of Cupertino Standard Form 620 - Construction Labor and Materials
Bond
Exhibit H Form of City of Cupertino Standard Form 821- Insurance Requirements
Exhibit I Form of City of Cupertino Standard Form 530- Insurance Form Instructions
16-11
PERFORMANCE CONTRACTING AGREEMENT
between
City of Cupertino
and
Siemens Industry, Inc.,
Building Technologies Division
TABLE OF ARTICLES
1. Agreement
2. Glossary
3. General
4. Performance Guarantee
5. Work by SIEMENS
6. The CLIENT'S Responsibilities
7. Changes and Delays
8. Compensation
9. Acceptance
10. Insurance and Allocation of Risk
11. Hazardous Material Provisions
12. Miscellaneous Provisions
13. Maintenance Services Program
Page 1 of 17 16-12
PERFORMANCE CONTRACTING AGREEMENT
Article 1
AGREEMENT
Number .
THIS PERFORMANCE CONTRACTING AGREEMENT ( "Agreement') is made this day of I (the
"Effective Contract Date ", defined below), by and between Siemens Industry, Inc., Building Technologies Division
( "SIEMENS ") and the party identified below as the CLIENT.
The CLIENT:
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
DESIGNATED REPRESENTATIVE: David Knapp
PHONE: (408) 777 -3200 FAX: (408) 777 -3366
Siemens Industry, Inc., Building Technologies Division
1000 Deerfield Parkway
Buffalo Grove, Illinois 60089
With offices at: 25821 Industrial Blvd, Suite 300
Hayward, CA 94545
DESIGNATED REPRESENTATIVE: Mike Emmons
PHONE: (510) 723 -7762 FAX: (510) 293 -2100
For Work and Services in connection with the following project (the "Project "):
City of Cupertino Energy Savings Performance Contract
The CLIENT considered performing the following FIMs but at this time, has determined to exclude them from the Scope of
Work and Services, Exhibit A:
Energy Management System
Solar Thermal Water Heating
HVAC Upgrades
Solar Photovoltaics
Park Lighting
Interior and Exterior Lighting at additional locations
Page 2 of 17
Agreement PCA -100 PUBLIC vlksil* 2009R
PERFORMANCE CONTRACTING AGREEMENT
Articles and Attachments
This Agreement consists of this document, which includes the following articles and exhibits which are acknowledged by the
CLIENT and SIEMENS and incorporated into the Agreement by this reference:
Articles
1. Agreement
2. Glossary
3. General
4. Performance Guarantee
5. Work BY SIEMENS
6. The CLIENT'S Responsibilities
7. Changes and Delays
8. Compensation
9. Acceptance
10. Insurance and Allocation of Risk
11. Hazardous Material Provisions
12. Miscellaneous Provisions
13. Maintenance Services Program
Exhibits
Exhibit A Scope of Work and Services
Exhibit B Payment Schedule(s)
Exhibit C Performance Assurance
Exhibit D Addendum No. 1
Appendix A - Special Terms and Conditions for EECBG Program
Attachment 1 Intellectual Property Provisions (for reference only)
Exhibit E Form of City of Cupertino Standard Form 482 - Bidder's Certifications
Exhibit F Form of City of Cupertino Standard Form 610 - Construction Performance Bond
Exhibit G Form of City of Cupertino Standard Form 620 - Construction Labor and Materials Bond
Exhibit H Form of City of Cupertino Standard Form 821 - Insurance Requirements
Exhibit I Form of City of Cupertino Standard Form 530 - Insurance Form Instructions
This Agreement, when executed by an authorized representative of the CLIENT and authorized representatives of
SIEMENS, constitutes the entire, complete and exclusive agreement between the Parties relative to the project scope
stated in Exhibit A. This Agreement supersedes all prior and contemporaneous negotiations, statements, representations,
agreements, letters of intent, awards, or proposals, either written or oral relative to the same, and may be modified only by
a written instrument signed by both Parties..
COMPENSATION/TERMS OF PAYMENT:
As full consideration for the performance of the Work and Services set forth in Exhibit A, and for the Performance Assurance
set forth in Exhibit C, the CLIENT shall pay SIEMENS in such manner and amounts as agreed to in Exhibit B.
Agreed for City of Cupertino
(Signature) by:
Print Name and Title:
(Signature) by:
Print Name and Title:
Agreed for Siemens Industry, Inc.
(Signature) by:
Print Name and Title:
(Signature) by:
Print Name and Title:
Page 3 of 17
Agreement PCA -100 PUBLIC 3f?rs16n 2009R
PERFORMANCE CONTRACTING AGREEMENT
Article 2
Glossary
The following terms shall for all purposes have the meanings stated herein, unless the context otherwise specifies or
requires, or unless otherwise defined in the Agreement:
"Acceptance" means the CLIENT has signed, or is deemed to have signed, a Certificate of Substantial Completion.
"Acceptance Date" means the date on which the CLIENT signs or is deemed to have signed a Certificate of Substantial
Completion.
"Annual Performance Assurance Report" means the document prepared by SIEMENS and submitted to the CLIENT as
part of the Performance Assurance Service Program, which identifies the Savings achieved for the applicable Annual Period.
"Annual Period" means a twelve (12) month period beginning on the Guarantee Date or on any anniversary date thereof.
"Annual Realized Savings" means the actual Savings achieved by the CLIENT during an Annual Period, calculated as the
sum of the Measured & Verified Savings plus the Stipulated Savings.
"Baseline" means the measurements of Facility energy usage taken prior to the Effective Contract Date, and the Facility
operating practices in effect prior to the Effective Contract Date, as set forth in the Performance Assurance, Exhibit C.
"Baseline Period" means the period of time from which data is provided to SIEMENS to derive the Baseline
measurements. The Baseline Period is set forth in the Performance Assurance, Exhibit C.
"BTU" means a British Thermal Unit and is a unit of thermal energy.
"Capital Off -Set Savings" means a sub - category of Operational Savings where Savings will result in a cost effective
upgrade to the Facility to address one or more of the following issues; potential future increased costs, comfort, code non-
compliance, usage requirements, user needs and /or expectations.
"Certificate of Substantial Completion" means the document indicating that the Work, or a designated portion of the
Work, is Substantially Complete in accordance with the Agreement.
"CLIENT Representative" means the person identified to SIEMENS by the CLIENT as the person authorized to make
decisions on behalf of the CLIENT as set forth in Section 6.1(a) hereof.
"Construction Period" means the period between the Effective Contract Date and the first day of the month following the
date of Substantial Completion.
"Construction Period Savings" means the actual accumulated Measured & Verified Savings plus the Stipulated Savings
achieved from the Effective Contract Date until the Guarantee Date.
"Contracted Baseline" means the post -FIM- implementation Facility operating profile based on parameters described in
Exhibit C, which the CLIENT shall maintain throughout the Performance Guarantee Period and are relied upon by SIEMENS
for the calculation of Guaranteed Savings as provided in the Performance Assurance, Exhibit C. The Contracted Baseline
must also include stipulated hours of operation and plug -loads for all Facilities, and must include stipulated blended, or non -
blended, utility rates.
"Deferred Maintenance" means a sub - category of Operatioral Savings where Savings results from a reduction of current
or potential future repair and maintenance costs due to certain work being performed hereunder where such work had been
previously postponed.
"Deliverable" means a report or drawing specifically prepared for and deliverable to the CLIENT.
"Effective Contract Date" is the date appearing at the top of this Agreement, unless specifically indicated otherwise.
Page z. of 17
Agreement PCA -100 PUBLIC a @rslbn 2009R
PERFORMANCE CONTRACTING AGREEMENT
"Energy Conservation Measure" or "ECM" means the equipment, devices, materials and /or software as installed by
SIEMENS at the Facilities, or as repaired or replaced by the CLIENT hereunder, for the purpose of improving the efficienc
of utility consumption.
"Equipment" means the installed products to be provided by SIEMENS as described in the Scope of Work and Services,
Exhibit A.
"Escalation Rate" means an annual percentage increase to be applied to the previous year's energy savings, operational
savings and service pricing, beginning and occurring on dates outlined in the Performance Assurance, Exhibit C. A different
Escalation Rate may be applied to differing Savings calculations and /or payment schedules depending on the percentage
agreed upon by the Parties.
"Facility" or "Facilities" means the building(s) or structure(s) where Work will be installed or implemented.
"Facility Improvement Measures" or "FIMs" means the methods, techniques, application of know -how, installation of
devices or otherwise, described in the Scope of Work and Services, Exhibit A, that are undertaken by SIEMENS as a result
of this Agreement with the intent of generating net savings or efficiencies at or in connection with the operation of the
Facilities, including one or multiple ECMs as well as any non - conservation- related activities, means or methods.
"FEMP" means the Federal Energy Management Program managed by the United States Department of Energy.
"FEMP Guidelines" means the FEMP M &V Guidelines v. 3.0 published by FEMP as M &V Guidelines, Measurement and
Verification for Federal Energy Management Projects.
"Guarantee Date" means the first day of the month following the date on which the CLIENT executes the final Certificate of
Substantial Completion, thus indicating that the Construction Period is complete.
"Guaranteed Annual Savings" are the Guaranteed Measured & Verified Savings plus the Stipulated Savings that
SIEMENS guarantees will occur in an Annual Period of the Performance Guarantee Period.
"Guaranteed Measured & Verged Savings" means the Measured & Verified Savings that SIEMENS guarantees will be
achieved, as described in the Performance Assurance, Exhibit C.
"Guaranteed Savings" means the amount of Savings that SIEMENS guarantees will be achieved at the Facility during the
Performance Guarantee Period. as identified in the Performance Assurance, Exhibit C as subject to the limitation identified in
Section 4.8.
"Hazardous Materials" refers to the definition found in Section 11.1.
"Instruments" means all reports, notes, calculations, data, drawings, estimates, specifications, manuals, documents, all
computer programs, codes and computerized materials prepared by or for SIEMENS, excluding Deliverables.
"IPMVP" means the International Performance Measurement and Verification Protocol, Volume 1, EVO 10000 - 1.2007 as
prepared by the Efficiency Valuation Organization.
"kW' and "kWh" means kilowatt and kilowatt hour, respectively.
"Maintenance Services Program" or "MSP" means the Services performed by SIEMENS to maintain the Equipment in
good working order. The MSP may also contain Services unrelated to the maintenance of the Equipment. If applicable, the
MSP is more fully described in the Scope of Work and Services, Exhibit A.
"Material Change" means a. measurable deviation in the Contracted Baseline such that there is an adverse impact on the
Annual Realized Savings which results or will result in a Savings Shortfall.
"Measured & Verified Savings" means those Savings that can be calculated and ascertained by the methodology set forth
in the Performance Assurance, Exhibit C.
Page 5 of 17
Agreement PCA -100 PUBLIC AtOn 2009R
PERFORMANCE CONTF!ACTING AGREEMENT
"OH" refers to the definition found in Section 11.1.
"Operational Savings" means Savings derived from reduced operational expenses, including but not limited to, Deferred
Maintenance, or Capital Off-Set Savings. Operational Savings can only be expressed in monetary value and are Stipulated
Savings.
"Parties" means the CLIENT and SIEMENS.
"Performance Assurance" is the process of ascertaining whether the FIMs are performing at the level necessary to
achieve the Guaranteed Savings.
"Performance Assurance Services Program" or "PASP" means the Services required to monitor the operation of the
FIMs so that SIEMENS can provide the Annual Performance Assurance Report detailing the Annual Realized Savings and,
where applicable, the Accumulated Realized Savings, and comparing the same to the Annual Guaranteed Savings and,
where applicable, the Guaranteed Accumulated Savings bared upon the calculations agreed to by the Parties in the
Performance Assurance, Exhibit C. The Services provided under the PASP are described in the Scope of Work and
Services, Exhibit A.
"Performance Guarantee" means the guarantee that SIEMENS makes to the CLIENT which is reconciled and confirmed
through the Performance Assurance process set forth in the Performance Assurance, Exhibit C.
"Performance Guarantee Period" means the timeframe from the Guarantee Date to the last day of the final Annual Period
as described in Table 1.1 of the Performance Assurance, Exhibit C, or the period from the Guarantee Date until the
termination of this Agreement, whichever occurs earlier.
"Permitted Users" means the CLIENT, its employees and agents.
"Savings" means the Parties' intended result from impleme-iting all FIMs. Savings can be derived from reductions in
energy or utility consumption, reductions in operating expenses, a changed utility rate classification or a combination thereof.
The Savings that are achieved from reduced energy or utility consumption are converted to a dollar figure based upon the
calculation in Article 4.1.1 and as detailed in the Performance Assurance, Exhibit C. When converted to a dollar figure, these
Savings become energy cost savings. Operational Savings are only expressed in a dollar figure.
"Savings Shortfall" means the Annual Realized Savings less the Guaranteed Annual Savings for the Annual Period
resulting in an amount less than zero.
"Services" means those services to be provided by SIEMENS as described in the Scope of Work and Services, Exhibit A.
"Stipulated Savings" are a sub - category of Guaranteed Savings that do not require post -FIM implementation measurement
and verification because they are Operational Savings as agreed upon by the Parties based upon representations made to
SIEMENS by the CLIENT. As such, Stipulated Savings are agreed upon in advance by the Parties and cannot be changed.
The Stipulated Savings for each Annual Period, along with the corresponding Escalation Rate, if applicable, are set forth in
the Performance Assurance, Exhibit C.
"Substantial Completion" or "Substantially Complete" means the Work, or any identifiable portion thereof, is
sufficiently complete, in accordance with the provisions of this Agreement relating to the Scope of the Work and Services,
Exhibit A, such that the CLIENT will be able to realize from such Work substantially all of the practical benefits intended to
be gained therefrom, or otherwise employ the Work or the FII`As for their intended purposes. To the extent that the Work
requires multiple Acceptances, the Work's final Substantial Completion date shall determine the Guarantee Date.
"Therm" is a measure of energy equal to 100,000 BTUs.
"Total Guaranteed Savings" means the sum of the Savings that are guaranteed for all Annual Periods during the
Performance Guarantee Period (inclusive of the Construction Period, if applicable). The Total Guaranteed Savings are
reflected in Tables 1.1 and 1.2 in the Performance Assurance, Exhibit C.
"Work" means collective labor, Equipment and services comprising the FIMs to be performed by SIEMENS, as described in
the Scope of Work and Services, Exhibit A.
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Agreement PCA -100 PUBLIC Mrsldn 2009R
PERFORMANCE CONTRACTING AGREEMENT
Article 3
General
3.1 The Parties hereto acknowledge and agree that this Agreement has been negotiated at arm's length and among the
Parties equally sophisticated and knowledgeable as to the subject matter of this Agreement. Each party has conferred,
or has had the opportunity to confer, with their respective legal counsel. Accordingly, in the event any claim is made
relating to any conflict, omission, or ambiguity in this Agreement, no presumption, burden of proof, or persuasion shall
be implied by virtue of the fact that this Agreement was drafted by or at the request of a particular party or its legal
counsel.
3.2 The CLIENT hereby engages and SIEMENS hereby accepts the engagement to perform and to provide the Work and
Services set forth in Exhibit A in accordance with the terms and conditions of this Agreement.
3.3 SIEMENS shall perform the Work as an independent contractor with exclusive control of the manner and means of
performing the Work in accordance with the requirements of this Agreement. SIEMENS has no authority to act or make
any agreements or representations on behalf of the CLIENT. This Agreement is not intended, and shall not be
construed to create, between the CLIENT and SIEMENS, the relationship of principal and agent, joint- venturers,
co- partners or any other such relationship, the existence of which is hereby expressly denied. No employee or agent of
SIEMENS shall be, or shall be deemed to be, an employee or agent of the CLIENT.
3.4 SIEMENS represents, warrants and covenants to the CLIENT that:
(a) It has all requisite corporate power to enter into this Agreement, and that its execution hereof has been duly
authorized and does not and will not constitute a breach or violation of any of SIEMENS' organizational
documents, any applicable laws or regulations, or any agreements with third parties;
(b) It has done and will continue to do all things necessary to preserve and keep in full force and effect its
existence and the Agreement;
(c) This Agreement is the legal, valid and binding obligation of SIEMENS, in accordance with its terms, and all
requirements have been met and procedures have been followed by SIEMENS to ensure the enforceability of
the Agreement;
(d) To SIEMENS' best knowledge, there is no pending or threatened, suit, action, litigation or proceeding agains
or affecting SIEMENS that affects the validity or enforceability of this Agreement; and,
(e) It is duly authorized to do business in all locations where the Work and Services are to be performed.
3.5 The CLIENT represents, warrants and covenants to SIEMENS that:
(a) It has all requisite corporate power and /or statutory authority to enter into this Agreement, and that its execution
hereof has been duly authorized and does not and will not constitute a breach or violation of any of the
CLIENT'S organizational documents, any applicable laws or regulations, or any agreements with third parties;
(b) It has done and will continue to do all things necessary to preserve and keep in full force and effect its
existence and the Agreement;
(c) This Agreement is the legal, valid and binding obligation of the CLIENT, in accordance with its terms, and all
requirements have been met and procedures have been followed by the CLIENT to ensure the enforceability of
the Agreement;
(d) To the CLIENT'S best knowledge, there is no pending or threatened, suit, action, litigation or proceeding
against or affecting the CLIENT that affects the validity or enforceability of this Agreement; and,
(e) The CLIENT has consulted with its legal counsel and is relying on the advice of its counsel concerning all legal
issues related to this Agreement, and is not relying on SIEMENS in this regard.
Article 4
Performance Guarantee
4.1 The Annual Realized Savings generated during each Annual Period will be no less than the Guaranteed Annual
Savings as shown in Tables 1.1 and 1.2 of the Performance Assurance, Exhibit C, subject to the limits in Section 4.8.
The measurement and verification calculation methodology for determining the Measured & Verified Savings is set forth
in the Performance Assurance, Exhibit C.
4.1.1 General Except as otherwise provided, energy savings will be calculated for each month of each Annua
Period as the product of (a) "units of energy saved" (kWh, Therms, GJ, etc.) multiplied by (b) "cost of energy."
Page 7 of 17
Agreement PCA -100 PUBLIC �Mrsldn 2009R
PERFORMANCE CONT AGREEMENT
(a) Units of energy saved are calculated by 1) assuming the Contracted Baseline has been maintained per
Section 4.3 below, and 2) subtracting the then current period measured units of energy consumed from the
Baseline units of energy defined in Article 5 of E xhibit C.
(b) Costs of energy are defined in Article 6 of Exhibit C, Utility Rate Structures and Escalation Rates.
4.2 Any future escalation factors to be applied to utility, energy or other costs are set forth in Exhibit C. SIEMENS and
the CLIENT agree that the Baseline data set forth in Exhibit C is a full and accurate reflection of the existing Facility,
equipment, operation, business use and energy usage, and that such Baseline data will be the basis on which all future
energy use will be compared in order to determine the Annual Realized Savings.
4.3 SIEMENS and the CLIENT agree that the Contracted . 3aseline fully described in Exhibit C will represent the new
operating and /or equipment profile of the Facility resulting from the FIM implementation. The Performance Guarantee is
dependent upon and is subject to the express condition that the CLIENT operates and maintains its Facilities within the
Contracted Baseline parameters, as may be adjusted in accordance with the terms herein, during the entire term of the
Performance Guarantee Period.
4.4 The CLIENT agrees to notify SIEMENS prior to or within 130 days of CLIENT'S knowledge of any Material Change.
4.5 Within 30 days of notice of a Material Change, SIEMENS' discovery of a Material Change, and with prompt notice to
CLIENT, SIEMENS will either:
(a) Require an adjustment to the Performance Assurance and the Performance Guarantee as a result of the
Material Change; or,
(b) Where a commercially reasonable adjustment to the Performance Guarantee is unavailable, terminate both the
Performance Assurance and the Performance Guarantee.
4.6 Performance Guarantee Period savings reconciliation as identified in Section 4.1 will be performed at the end of each
Annual Period as follows:
(a) Within ninety (90) days of the Guarantee Date, the Construction Period Savings shall be reconciled and applied
to the calculation of the first Annual Period's Annual Realized Savings.
(b) At the conclusion of each Annual Period, SIEMENS will calculate the Annual Realized Savings and compare
the calculated amount to the applicable Guaranteed Annual Savings amount.
(c) Where the Annual Realized Savings are less than the Guaranteed Annual Savings, a Savings Shortfall shall
be recorded for the applicable Annual Period.
(d) A Savings Shortfall shall be paid by SIEMENS within sixty (60) days following the CLIENT'S acceptance of the
reconciliation and once paid SIEMENS shall have fulfilled its obligations under the Performance Guarantee for
the applicable Annual Period.
4.6.1 As the mutual goal of the Parties is to maximize Savings, if SIEMENS can correct a Savings Shortfall through an
operational improvement at no expense or material inconvenience to the CLIENT and with no future operational
expenses, and the CLIENT declines to allow such operational improvement, then any future Savings Shortfall that
the improvement would have corrected will be negated by deeming the value of the Savings Shortfall as Savings
achieved and adding the amount of same to the Annual Realized Savings calculations for each Annual Period
thereafter.
4.7 The Performance Guarantee is dependent upon and is subject to the express condition that the CLIENT maintains the
PASP during the entire Performance Guarantee Period. If the CLIENT fails to maintain, breaches, cancels or otherwise
causes the termination of the PASP then; (a) The Performance Guarantee shall terminate immediately and be void
and of no force or effect; or, (b) Where termination of the Performance Guarantee would render the Agreement in
violation of the applicable law, all Guaranteed Savings thereafter shall be determined to have been achieved and
SIEMENS shall have been deemed to have met its Performance Guarantee obligations under this Agreement for each
and every Annual Period thereafter without the obligation to provide the CLIENT, or any third -party as the case may be,
with any further Annual Performance Assurance Reports.
4.8 The payments and credits based on Savings Shortfalls, if any, are the sole remedy of the CLIENT for this Performance
Guarantee. ANY PAYMENTS MADE OR TO BE MADE TO THE CLIENT UNDER THE TERMS OF THIS
PERFORMANCE GUARANTEE SHALL NOT EXCEED THE PAYMENTS ACTUALLY MADE BY CLIENT TO EITHER
SIEMENS AND /OR A THIRD -PARTY (IN THE EVENT THAT THE CLIENT HAS FINANCED THE TRANSACTION)
FOR THE AGGREGATE OF: THE PRICE, AS DEFINED IN EXHIBIT B, ARTICLE 1.1; THE PASP PAYMENTS; THE
MSP PAYMENTS, IF ANY; AND, IF APPLICABLE, THE CLIENT'S COST OF FINANCING THE WORK. The
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Agreement PCA -100 PUBLIC v1@rsf@n 2009R
PERFORMANCE CONTRACTING AGREEMENT
CLIENT'S cost of financing the Work is the cost of financing calculated either: (a) On the date that the escrow account
is funded in accordance with Exhibit B, Article 1.2; or, (b) On the Effective Contract Date if the escrow requirement it
expressly waived by SIEMENS.
4.9 The CLIENT represents that all existing equipment that is not installed by SIEMENS under this Agreement but is
deemed necessary to achieve the Performance Guarantee, is in satisfactory working condition. Prior to the beginning of
the Performance Guarantee Period, SIEMENS will have inspected all such existing equipment and reported any
deficiencies to the CLIENT. To the extent that the deficiencies are not remedied by the CLIENT prior to the Guarantee
Date, the adverse affect on the ability of the Project to attain the necessary Guaranteed Savings shall be factored into
the Annual Performance Assurance Report and, if necessary, the Performance Guarantee shall be adjusted
accordingly.
4.10 If the Equipment or the existing equipment is altered or moved by any person (including the CLIENT) other than
SIEMENS or a person authorized by SIEMENS, the CLIENT shall immediately notify SIEMENS in writing, and
SIEMENS reserves the right to perform a reacceptance test on, or if necessary a re- commissioning of, the system at
the CLIENT'S expense in order to determine if a Material Change has occurred.
4.11 SIEMENS will have no liability or obligation to continue providing PASP Services or any Guaranteed Savings under the
Performance Guarantee in the event that the CLIENT fails to:
(a) Authorize a re- acceptance test or re- commissioning that SIEMENS reasonably deems necessary in order to
determine if a Material Change has occurred;
(b) Provide access to any Facility where Work is to be performed;
(c) Service and maintain all Equipment in accordance with the manufacturers' recommendations in order to
prevent a Savings Shortfall; or,
(d) Provide SIEMENS with accurate Facility operating information as soon as such information becomes
reasonably available to the CLIENT, including energy usage and cost, executed preventive maintenance and
repair records, building or equipment additions, and occupancy levels during each Annual Period.
4.12 Unless expressly contrary to law, should the CLIENT decide to discontinue the PASP before the end of the
Performance Guarantee Period, the CLIENT will give SIEMENS thirty (30) days prior written notice and in such notic(
indicate that the CLIENT has selected one of the following:
(a) The CLIENT will re- invest the avoided cost of cancellation of the PASP into Facility improvements and services
that improve the overall Facility's performance and which improvements and services are implemented by
SIEMENS; or,
(b) The CLIENT will pay to SIEMENS _% of the remaining value left in the PASP Annual Period, as a liquidated
damage and not as a penalty, to compensate SIEMENS for SIEMENS' up -front costs and expenses in
preparing to perform the PASP as contracted for the Annual Period.
4.13 Unless expressly contrary to law, any disputes concerning the calculation of the Annual Realized Savings or changes to
the Contracted Baseline that are not resolved by negotiation between the Parties within thirty (30) days of the notice of
the dispute, will be resolved by a third -party professional engineering firm which is reasonably acceptable to both
SIEMENS and the CLIENT. The determination of such firm will be final and binding upon CLIENT and SIEMENS.
SIEMENS and the CLIENT will each be responsible for half of the fees of such firm.
Article 5
Work by SIEMENS
5.1 SIEMENS will perform the Work expressly described in this Agreement and in any work release documents or change
orders that are issued under this Agreement and signed by both Parties, The Work performed by SIEMENS shall be
conducted in a workmanlike manner.
5.2 SIEMENS shall perform the Work during its normal hours, Monday through Friday inclusive, excluding holidays, unless
otherwise agreed herein. The CLIENT shall make the Facility available so Work may proceed in an efficient manner.
5.3 SIEMENS is not required to conduct safety, reacceptance or other tests, install new devices or equipment or make
modifications to any Equipment unless expressly made a part of the Work identified in the Scope of Work and Services,
Exhibit A. Any CLIENT request to change the scope or the nature of the Work or Services must be in the form of
mutually agreed change order, effective only when executed by the Parties.
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Agreement PCA -100 PUBLIC 3brsi$n 2009R
PERFORMANCE CONTRACTING AG REEMENT
5.4 All Deliverables shall become the CLIENT'S property upon receipt by CLIENT. SIEMENS may retain file copies of such
Deliverables. All Instruments shall remain SIEMENS' property. All Deliverables and Instruments provided to the
CLIENT are for Permitted Users' use and only for the purposes disclosed to SIEMENS. To the extent specified in
Exhibit A, Permitted Users shall have a right to make and retain copies of Instruments except uncompiled code, and to
use all Instruments; provided, however, that the Instruments shall not be used or relied upon by any parties other than
Permitted Users, and such use shall be limited to the particular project and location for which the Instruments were
provided. The CLIENT shall not transfer any Deliverables or copies of Instruments to others or use them or permit them
to be used for any extension of the Work or any other project or purpose without SIEMENS' express written consent.
Any reuse of Deliverables or Instruments for other projects or locations without the written consent of SIEMENS, or use
other than by Permitted Users, will be at Permitted Users' and such other user's sole risk and without liability to
SIEMENS; and, unless expressly prohibited by law, the Permitted Users, jointly and severally, shall indemnify, defend
and hold SIEMENS harmless from any claims, losses or damages arising from such unauthorized use.
5.5 SIEMENS shall be responsible for any portion of the Work performed by any subcontractor of SIEMENS. SIEMENS
shall not have any responsibility, duty or authority to direct, supervise or oversee any contractor of the CLIENT or their
work or to provide the means, methods or sequence of their work or to stop their work. SIEMENS' work and /or
presence at the Facility shall not relieve others of their responsibility to the CLIENT or to others.
5.6 SIEMENS warrants that:
(a) Unless otherwise agreed, all Equipment shall ba new and of good quality. Until one year from the date the
Equipment is installed, all Equipment manufactured by SIEMENS or bearing its nameplate will be free from
defects in material and workmanship arising from normal use and service.
(b) Labor for all Work, excluding PASP or MSP Services, is warranted to be free from defects in workmanship for
one year after the Work is performed. PASP Services and MSP Services are warranted to be free from defects
in workmanship for ninety (90) days after the Ser✓ices are performed.
5.7 Warranty Limitation:
(a) The limited warranties set forth in Section 5.6 will be void as to, and shall not apply to, any Equipment (i)
repaired, altered or improperly installed by any person other than SIEMENS or its authorized representative; (ii)
which the CLIENT or a third party subjects to unreasonable or improper use or storage, uses beyond rated
conditions, operates other than per SIEMENS' or the manufacturer's instructions, or otherwise subjects to
improper maintenance, negligence or accident; (iii) damaged because of any use of the Equipment after the
CLIENT has, or should have had, knowledge of any defect in the Equipment; or (iv) not manufactured,
fabricated and assembled by SIEMENS or not bearing SIEMENS' nameplate. However, SIEMENS assigns to
the CLIENT, without recourse, any and all assignable warranties available from any manufacturer, supplier, or
subcontractor of such Equipment.
(b) Any claim under the limited warranty granted above must be made in writing to SIEMENS within thirty (30)
days after discovery of the claimed defect unless discovered directly by SIEMENS. Such limited warranty only
extends to the CLIENT and not to any subsequent owner of the Equipment. The CLIENT'S sole and exclusive
remedy for any Equipment or Services not conforming with this limited warranty is limited to, at SIEMENS'
option: (i) repair or replacement of defective components of covered Equipment; (ii) re- performance of the
defective portion of the Services; or (iii) to the extent previously paid and itemized, the issuance of a credit or
refund for the original purchase price of such defective component or portion of the Equipment or Services.
(c) SIEMENS shall not be required to repair or replace more than the component(s) of the Equipment or the
portion of the Work and Services actually found to be defective. SIEMENS' warranty liability shall not exceed
the purchase price of such item. Repaired or replaced Equipment or Services will be warranted hereunder only
for the remaining portion of the original warranty period.
5.8 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE ARE IN LIEU OF AND EXCLUDE ALL OTHER
WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY
DISCLAIMED. THE LIMITED EXPRESS WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS
AGREEMENT MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A WRITING EXECUTED BY A DULY
AUTHORIZED SIGNATORY OF EACH PARTY.
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Agreement PCA -100 PUBLIC 0rsl6n 2009R
PERFORMANCE CONTRACTING AGREEMENT
5.9 SIEMENS will not be responsible for the maintenance, repair or replacement of, or Services necessitated by reason of.
(a) Non - maintainable, non - replaceable or obsolete parts of the Equipment, including but not limited to: ductwork
shell and tubes, heat exchangers, coils, unit cabinets, casings, refractory material, electrical wiring, water anc,
pneumatic piping, structural supports, cooling tower fill, slats and basins, etc., unless covered by the warranty
provisions herein or otherwise specifically stated herein; or
(b) CLIENT'S or a third - party's negligence, abuse, misuse, improper or inadequate repairs or modifications,
improper operation, lack of operator maintenance or skill, corrosion, erosion, improper or inadequate water
treatment, electrolytic action, chemical action, failure to comply with manufacturer's operating and
environmental requirements, Acts of God, or other reasons beyond SIEMENS' control. Unless expressly
agreed in writing, SIEMENS is not responsible for the removal or reinstallation of replacement valves, dampers,
or waterflow and tamper switches with respect to pipes and ductwork, including vent or drain system.
SIEMENS ASSUMES NO RESPONSIBILITY FOR ANY SERVICE PERFORMED ON ANY EQUIPMENT
OTHER THAN THAT PERFORMED BY SIEMENS OR ITS AGENTS.
Article 6
The CLIENT'S Responsibilities
6.1 The CLIENT, without cost to SIEMENS, shall:
(a) Designate a contact person with authority to make decisions for the CLIENT regarding the Work and provide
SIEMENS with information sufficient to contact such person in an emergency;
(b) Coordinate the work of contractors under CLIENT'S sole control so as not to disrupt the Work and Services
proceeding in an efficient manner;
(c) Provide or arrange for 24 hour, 7 day per week access and make all reasonable provisions for SIEMENS to
enter any Facility where Work is to be performed so that Work may proceed in an efficient manner;
(d) Permit SIEMENS to control and /or operate all building controls, systems, apparatus, equipment and machinery
necessary to perform the Work;
(e) Furnish SIEMENS with blueprints, surveys, legal descriptions, waste management plans and all other availabIL
information pertinent to the Work and any Facility where the Work is to be performed as may be reasonably
requested by SIEMENS. Such plans and blueprints, along with an executed copy of this Agreement, with its
Exhibits, shall be kept and maintained in CLIENT'S files for a period of fifteen (15) years from the Effective
Contract Date;
(f) Furnish SIEMENS with all approvals, permits and consents from government authorities and others as may be
required for performance of the Work, except for those SIEMENS has expressly agreed in writing to obtain;
(g) In accordance with Article 11 hereof, promptly notify SIEMENS of all known or suspected Hazardous Materials
at the Facility, of any contamination of the Facility by Oil or Hazardous Material, and of any other conditions
requiring special care or which may reasonably be expected to affect the Work, and provide SIEMENS with
any available documents describing the quantity, nature, location and extent of such materials, contamination
or conditions;
(h) Comply with all laws and provide any notices required to be given to any government authorities in connection
with the Work, except such notices SIEMENS has expressly agreed in writing to give;
(i) Provide SIEMENS with legally required materials and information (including but not limited to Material Safety
Data Sheets) related to all Hazardous Materials located at any Facility where the Work is to be performed;
(j) Furnish SIEMENS with any contingency plans, safety programs and other policies, plans or programs related
to any Facility where the Work is to be performed;
(k) Operate, service and maintain all Equipment according to the manufacturer's recommendations including those
set forth in the manufacturer's operating manuals or instructions, as well as all requirements of applicable law
or of authorities having jurisdiction. The CLIENT shall furnish all needed servicing and parts for said FIMs,
which parts shall become part of the FIMs. Such Equipment shall be operated only in the specified operating
environment, which shall be supplied by the CLIENT, including without limitation: (1) suitable electrical service,
including clean, stable, properly conditioned power, to all Equipment; (2) telephone lines, capacity anr'
connectivity as required by such Equipment; and (3) heat, light, air conditioning or other environmenta.
controls, and other utilities in accordance with the specifications for the Equipment;
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Agreement PCA -100 PUBLIC J&rslgn 2009R
PERFORM CONTRACTI AGREEMENT
(1) Promptly notify SIEMENS of any unusual operating conditions, hours of usage, system malfunctions, installed
equipment or building alterations that may affect the Equipment or energy usage or any Services; and,
(m) If applicable, provide and pay for a dedicated voice grade dial -up phone line, or a mutually agreed
communication method, and install a terminal block, or an equivalent communication mechanism, in a mutually
agreed upon location. All on -line service Equipment (excluding the phone line) will remain the property of
SIEMENS unless otherwise stated herein.
6.2 Unless contrary to law, the CLIENT acknowledges that the technical and pricing information contained in this
Agreement is confidential and proprietary to SIEMENS and agrees not to disclose it or otherwise make it available to
others without SIEMENS' express written consent.
6.3 The CLIENT acknowledges that it is now and shall at all times remain in control of the Facility. Except as expressly
provided herein, SIEMENS shall not be responsible for the adequacy of the health or safety programs or precautions
related to the CLIENT'S activities or operations, the CLIENT'S other contractor(s), the work of any other person or
entity, or Facility conditions. SIEMENS shall not be responsible for inspecting, observing, reporting or correcting health
or safety conditions or deficiencies of the CLIENT or others at the Facility. So as not to discourage SIEMENS from
voluntarily addressing health or safety issues while at the Facility, in the event SIEMENS does address such issues by
making observations, reports, suggestions or otherwise, t - ie CLIENT shall not hold, or attempt to hold, SIEMENS liable
or responsible on account thereof.
Article 7
Changes and Delays
7.1 As the Work is performed, existing laws or conditions may change, or circumstances outside SIEMENS' reasonable
control may develop, which would require SIEMENS to expend additional costs, effort or time to complete the Work, in
which case SIEMENS will notify the CLIENT and an equitable adjustment will be made to SIEMENS' compensation and
the time for performance. In the event such changes require the Work to be suspended or terminated, SIEMENS shall
be compensated for Work previously performed and for costs reasonably incurred in connection with the suspension or
termination.
7.2 Either party may request additions, deletions, modifications or changes to the Work. Any such requests shall only
become effective upon execution of a written agreement by authorized representatives of both Parties.
7.3 SIEMENS may, in its sole discretion, substitute alternative parts, goods or equipment in the performance of the Work,
provided that any such substitution shall be of an equal or better quality.
7.4 SIEMENS shall not be responsible for loss, delay, injury, damage or failure of performance that may be caused by
circumstances beyond its control, including but not restricted to acts or omissions by the CLIENT or its employees,
agents or contractors, Acts of God, war, civil commotion, acts or omissions of government authorities, fire, theft,
corrosion, flood, water damage, lightning, freeze -ups, strikes, lockouts, differences with workmen, riots, explosions,
quarantine restrictions, delays in transportation, or shortage of vehicles, fuel, labor or materials. In the event of such
delay or failure, the time for performance shall be extended by a period equal to the time lost plus a reasonable
recovery period and the compensation shall be equitably adjusted to compensate for additional costs SIEMENS incurs
due to such delay. If any such delay exceeds sixty (60) days, SIEMENS may terminate this Agreement upon three (3)
days notice to the CLIENT and the CLIENT shall promptly pay SIEMENS for the allocable portion of the Work
completed, for any costs and expenses of termination, and for any loss or damage incurred with respect to materials,
equipment, tools and machinery, including reasonable overhead and profit.
Article 8
Compensation
8.1 The aggregate amount paid by CLIENT provides for and is solely in consideration of the Scope of Work and Services
described in Exhibit A, and is detailed in Exhibit B.
8.2 SIEMENS will invoice the CLIENT in accordance with the schedules set forth in Exhibit B. Unless otherwise agreed in
writing, invoices are due and payable upon receipt by the CLIENT. If the CLIENT disagrees with any portion of an
invoice, it shall notify SIEMENS in writing of the amount in dispute and the reason for its disagreement within 21 days of
receipt of the invoice, and shall pay the portion not in dispute.
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PERFORMANCE CONTRACTING AGREEMENT
8.3 SIEMENS may suspend or terminate the Work or Services at any time if payment is not received when due. In such
event, SIEMENS shall be entitled to compensation for the Work or Services previously performed and for costp
reasonably incurred in connection with the suspension or termination.
8.4 On amounts not paid within thirty (30) days of invoice date, the CLIENT shall pay interest from invoice date until
payment is received at the lesser of 12% per annum or the maximum rate allowed by law. The CLIENT shall reimburse
SIEMENS for SIEMENS' costs and expenses (including reasonable attorney and witness fees) incurred for collection
under this Agreement.
8.5 Except to the extent expressly agreed herein, SIEMENS' fees do not include any taxes, excises, fees, duties or other
government charges related to the Work or Services. The CLIENT shall pay such amounts or reimburse SIEMENS for
any such amounts SIEMENS pays to the extent such charges are lawfully due and payable by CLIENT and have been
paid or incurred by SIEMENS in furtherance thereof. If the CLIENT claims that the Work or Services is subject to a tax
exemption or direct payment permit, it shall provide SIEMENS with a valid exemption certificate or permit and, unless
specifically prohibited by law, shall indemnify, defend and hold SIEMENS harmless from any taxes, costs and penalties
arising out of the use or acceptance of same.
8.6 All other work or services requested by the CLIENT, including but not limited to the following, shall be separately billed
or surcharged on a time and materials basis:
(a) Emergency services, if inspection does not reveal any deficiency covered by the Scope of Work and Services,
Exhibit A;
(b) Work and /or services performed at times other than during SIEMENS' normal working hours, unless otherwise
agreed to in Exhibit A; or
(c) Work and /or services performed on equipment not covered by the Scope of Work and Services, Exhibit A.
Article 9
Acceptance
9.1 When SIEMENS believes that all, or an independent, definable phase or portion, of the Work is Substantially Complete,
SIEMENS will submit a Certificate of Substantial Completion to the CLIENT which shall be subject to the following:
(a) If the CLIENT concurs that the described portion of the Work as performed is Substantially Complete, the
CLIENT will accept that Work by signing the Certificate of Substantial Completion and returning it to SIEMENS;
(b) If the CLIENT does not concur that the Work is Substantially Complete, then the CLIENT shall notify SIEMENS
within five (5) business days of any discrepancies;
(c) To the extent SIEMENS does not dispute the discrepancies raised by the CLIENT, SIEMENS shall correct the
Work to conform to the description of the Work set forth herein, and resubmit the Certificate of Substantial
Completion to the CLIENT;
(d) If SIEMENS disagrees with the discrepancies raised by the CLIENT, SIEMENS shall notify the CLIENT of a
dispute and such dispute shall be resolved in accordance with Section 9.3 herein;
(e) If the CLIENT Representative does not deliver written notice to SIEMENS within five (5) business days of
receiving the Certificate of Substantial Completion, in the mutual interests of the Project proceeding in a timely
manner, the CLIENT will be deemed to have agreed to, signed and returned the Certificate of Substantial
Completion.
9.2 To the extent that this Project requires multiple Certificates of Substantial Completion, the final Certificate of Substantial
Completion shall determine the date on which the Construction Period is completed.
9.3 Any disputes concerning the Substantial Completion of the Work will be resolved by submitting the issue to a third party
professional engineering firm and which is reasonably acceptable to both SIEMENS and the CLIENT. The
determination of this firm with respect to completion or Substantial Completion will be final and binding upon the
Parties. SIEMENS and the CLIENT shall share equally the costs or fees for such firm in connection with such dispute
resolution process.
Article 10
Insurance and Allocation of Risk
10.1 SIEMENS shall maintain, at SIEMENS' expense, the following insurances while performing the Work and shall add thf
CLIENT as an "Additional Insured" to each policy that is referenced in subsections (c) through and including (e) hereof:
Page 13 of 17
Agreement PCA -100 PUBLIC a6rs?6n 2009R
PERFORMAN CO NTFLA CT ING AGREEMENT
(a) Workers' Compensation at the statutory amounts ,and limits as prescribed by applicable law.
(b) Employer's Liability insurance (and, where appli :able, Stop Gap extended protection endorsement) limits of
liability shall be:
• $1,000,000 per occurrence
• $1,000,000 Disease Policy
• $1,000,000 Each Employee
(c) SIEMENS shall carry, in the Occurrence Coverage Form, Comprehensive General Liability or Commercial
General Liability, insurance covering SIEMENS' operations and providing insurance for bodily injury and
property damage with limits of liability stated below and including coverage for:
• Products and Completed Operations
• Contractual Liability insuring the obligations assumed by SIEMENS in this Agreement
• Broad Form Property Damage (including Completed Operations)
• Explosion, Collapse and Underground Hazards
• Personal Injury Liability:
— Limits of liability shall be $1,000,000 per occurrence /aggregate
(d) SIEMENS shall carry Automobile Liability Insurance in the Occurrence Coverage Form covering all owned,
hired and non -owned automobiles and trucks usE?d by or on behalf of SIEMENS providing insurance for bodily
injury liability and property damage liability for the limits of.
• $1,000,000 per occurrence /aggregate
(e) SIEMENS shall carry Excess Liability Insurance in the Occurrence Coverage Form with limits of:
• $5,000,000 per occurrence /aggregate
10.2 The CLIENT will either maintain at its own expense, or se f- insure for the equivalent risks, property insurance written on
a builder's "all- risk" or equivalent policy form in an amount: no less than the Price identified in Exhibit B, Article 1.1, plus
the value of subsequent modifications and cost of materials supplied or installed by others, on a replacement cost basis
without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Contract
Documents or otherwise agreed in writing by SIEMENS, until final payment has been made to SIEMENS or no person
or entity other than the CLIENT has an insurable interest in the property, whichever is later. The policy form shall
include without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage
including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm,
falsework, testing and start-up, rebuilding and debris removal including demolition occasioned by enforcement of any
applicable legal requirements, and shall cover reasonable compensation for SIEMENS' services and expenses
required as result of such insured loss. If the insurance requires deductibles or retentions, the CLIENT shall pay costs
not covered because of such deductibles or retentions. Tiis insurance shall cover portions of the Work off the Facility,
and also portions of the Work in transit. Partial occupancy or use shall not commence unless the insurance company
providing this insurance has consented to such partial occupancy or use by endorsement for otherwise. The CLIENT
shall purchase and maintain boiler and machinery insurance which shall specifically cover such insured objects during
installation and until Acceptance by the CLIENT. The insu - ance required by this section shall include the interests of the
CLIENT, SIEMENS, subcontractor and sub - subcontractor in the Work. SIEMENS shall be included as an additional
insured on each such insurance coverage. The CLIENT and SIEMENS waive all rights against each other and any of
their subcontractors, sub - subcontractors, agents and employees for damages caused by fire or other causes of loss to
the extent covered by the insurance required by this section and for any other property insurance applicable to the
Work, except such rights as they have to proceeds of sich insurance held by the CLIENT as fiduciary. A waiver of
subrogation shall be effective as to a person or entity even though that person or entity would otherwise have duty of
indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not
the person or entity had an insurable interest in the property damaged. Insurance certificates shall be furnished upon
request.
10.3 Title and risk of loss of materials and Equipment furnished by SIEMENS shall pass to the CLIENT upon their delivery to
the Facility, and the CLIENT shall be responsible for protecting them against theft and damage.
10.4 SIEMENS will indemnify the CLIENT from and against losses, claims, expenses and damages (including reasonable
attomey's fees) for personal injury or physical damage to property (collectively "Damages "). Such indemnification shall
be solely to the extent the Damages are caused by or arise directly from SIEMENS or its employees', consultants' or
agents' negligent acts or omissions or willful misconduct: in connection with SIEMENS' performance of the Work or
Page 14 of 17
Agreement PCA -100 PUBLIC V&sR�n 2009R
PERFORMANCE CONTRACTING AGREEMENT
Services. SIEMENS' obligations under this indemnity shall not extend to Damages arising out of or in any way
attributable to the negligence of the CLIENT or its agents, contractors or employees. SIEMENS reserves the right t
control the defense and settlement of any claim for which SIEMENS has an obligation to indemnify hereunde,
UNLESS CONTRARY TO APPLICABLE LAW, IN NO EVENT SHALL THE CLIENT OR SIEMENS BE LIABLE UNDER
THIS INDEMNITY OR OTHERWISE UNDER THIS AGREEMENT FOR SPECIAL, INDIRECT, INCIDENTAL,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING COMMERCIAL LOSS, LOSS OF USE, OR
LOST PROFITS, HOWEVER CAUSED, EVEN IF SIEMENS OR THE CLIENT HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND, IN ANY EVENT, UNLESS CONTRARY TO APPLICABLE LAW, SIEMENS'
AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR EXPENSES ARISING OUT OF THIS
AGREEMENT, OR OUT OF ANY GOODS OR SERVICES FURNISHED UNDER THIS AGREEMENT, WHETHER
BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, AGENCY, WARRANTY, TRESPASS, INDEMNITY OR
ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE LESSER OF $1,500,000 OR THE TOTAL
COMPENSATION RECEIVED BY SIEMENS FROM THE CLIENT UNDER THIS AGREEMENT. The preceding limit
shall not apply to the CLIENT'S remedy under the Performance Guarantee as such is limited by Section 4.8.
10.5 As to Patents and Copyrights:
(a) SIEMENS will, at its own expense, defend or at its option settle any suit or proceeding brought against the
CLIENT in so far as it is based on an allegation that any Work (including parts thereof), or use thereof for its
intended purpose, constitutes an infringement of any United States patent or copyright, if SIEMENS is promptly
provided notice and given authority, information, and assistance in a timely manner for the defense of said suit
or proceeding. SIEMENS will pay the damages and costs awarded in any suit or proceeding so defended.
SIEMENS will not be responsible for any settlement of such suit or proceeding made without its prior written
consent. In case the Work, or any part thereof, as a result of any suit or proceeding so defended is held to
constitute infringement or its use by the CLIENT is enjoined, SIEMENS will, at its option and its own expense,
either: (i) procure for the CLIENT the right to continue using said Work; (ii) replace it with substantially
equivalent non - infringing Work; or (iii) modify the Work so it becomes non - infringing.
(b) SIEMENS will have no duty or obligation to the CLIENT under Section 10.5(a) to the extent that the Work is: (i)
supplied according to the CLIENT'S design or instructions, wherein compliance therewith has cause
SIEMENS to deviate from its normal course of performance; (ii) modified by the CLIENT or its contractors after
delivery; or, (iii) combined by the CLIENT or its contractors with items not furnished hereunder, and by reason
of said design, instruction, modification, or combination, a suit is brought against the CLIENT. If by reason of
such design, instruction, modification or combination, a suit or proceeding is brought against SIEMENS, unless
expressly prohibited by law, the CLIENT shall protect SIEMENS in the same manner and to the same extent
that SIEMENS has agreed to protect the CLIENT under the provisions of Section 10.5(a) above.
(c) THIS SECTION 10.5 IS AN EXCLUSIVE STATEMENT OF ALL THE DUTIES OF THE PARTIES RELATING
TO PATENTS AND COPYRIGHTS, AND DIRECT OR CONTRIBUTORY PATENT OR COPYRIGHT AND OF
ALL THE REMEDIES OF THE CLIENT RELATING TO ANY CLAIMS, SUITS, OR PROCEEDINGS
INVOLVING PATENTS AND COPYRIGHTS. Compliance with Section 10.5 as provided herein shall constitute
fulfillment of all liabilities of the Parties under the Agreement with respect to the intellectual property
indemnification.
10.6 The Parties acknowledge that the price for which SIEMENS has agreed to perform the Work and obligations under this
Agreement was calculated based upon the foregoing allocations of risk, and that each Party has expressly relied on
and would not have entered into this Agreement but for such allocations of risk.
Article 11
Hazardous Materials Provisions
11.1 The Work does not include directly or indirectly performing or arranging for the detection, testing, handling, storage,
removal, treatment, transportation, disposal, monitoring, abatement or remediation of any contamination of any Facility
at which Work is performed and any soil or groundwater at the Facility by petroleum or petroleum products (collectively
called "Oil "), asbestos, PCBs or hazardous, toxic, radioactive or infectious substances, including any substances
regulated under RCRA, CERCLA or any other federal, state or local environmental laws, regulations, statutes, rules,
standards or ordinances (collectively called "Hazardous Materials "), including without limitation: ionization smok
detectors, ballasts, mercury bulb thermostats, used oil, contaminated filters, contaminated absorbents, and refrigerant.
Except as expressly disclosed pursuant to Section 11.2, the CLIENT represents and warrants that, to the best of its
Page 15 of 17
Agreement PCA -100 PUBLIC OrAn 2009R
PERFORMANCE CONTRACTING AGREEMENT
knowledge following due inquiry, there are no Hazardous Materials or Oil present where the Work is to be performed.
SIEMENS will notify the CLIENT immediately if it discovers or reasonably suspects the presence of any previously
undisclosed Oil or Hazardous Material. All Services have been priced and agreed to by SIEMENS in reliance on the
CLIENT'S representations as set forth in this Article. The discovery or reasonable suspicion of Hazardous Materials or
hazardous conditions at a Facility where SIEMENS is to perform Work, or of contamination of the Facility by Oil or
Hazardous Materials not previously disclosed pursuant to Section 11.2, shall entitle SIEMENS to suspend the Work
immediately, subject to mutual agreement of terms and conditions applicable to any further Work, or to terminate the
Work and to be paid for Work previously performed.
11.2 The CLIENT warrants that, prior to the execution of the Agreement, it notified SIEMENS in writing of any and all Oil or
Hazardous Materials, to the best of its knowledge following due inquiry, known to be present, potentially present or
likely to become present at the Facility and provided a copy of any Facility safety policies and information, including but
not limited to lock -out and tag procedures, chemical hygiene plan, material safety data sheets, and other items covered
or required to be disclosed or maintained by federal, state, or local laws, regulations or ordinances.
11.3 Regardless of whether Oil or Hazardous Material was disclosed pursuant to Section 11.2, the CLIENT shall be solely
responsible for properly testing, abating, encapsulating, removing, disposing, remedying or neutralizing such Oil or
Hazardous Materials, and for the costs thereof. Even if an appropriate change order has been entered into pursuant to
Section 11.1, SIEMENS shall have the right to stop the Work until the Facility is free from Oil or Hazardous Materials. In
such event, SIEMENS will receive an equitable extension of time to complete the Work, and compensation for delays
caused by Oil or Hazardous Materials remediation. In no event shall SIEMENS be required or construed to take title,
ownership or responsibility for such Oil or Hazardous Materials. The CLIENT shall sign any required waste manifests in
conformance with all government regulations, listing the CLIENT as the generator of the waste. If someone other than
the CLIENT is the generator of the waste, the CLIENT shall arrange for such other person to sign such manifests.
11.4 Except where expressly prohibited by law, for separate consideration of $10 and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the CLIENT shall indemnify, defend and
hold SIEMENS harmless from and against any damagES, losses, costs, liabilities or expenses (including attorneys'
fees) arising out of any Oil or Hazardous Materials or from the CLIENT'S breach of, or failure to perform its obligations
under this Article.
11.5 For purposes of this Article 11, in the context of the phrase "to the best of its knowledge following due inquiry";
"knowledge" means actual awareness of the facts by the CLIENT'S directors, officers, employees or agents, or the
presence of relevant information contained in the CLIENT'S books or records; and, "due inquiry" means inquiry of those
persons under the CLIENT'S control who should have knowledge of the subject matter of such inquiry.
Article 12
Miscellaneous Provisions
12.1 Notices between the Parties shall be in writing and shall be hand - delivered or sent by certified mail, express courier, or
acknowledged telefax properly addressed to the appropriate party. Any such notice shall be deemed to have been
received when delivered in- person or when sent by telefax, or five (5) business days subsequent to deposit in the U.S.
mails, or one (1) day after deposit with express courier.
12.2 Neither the CLIENT nor SIEMENS shall assign or transfer any rights or obligations under this Agreement, except that
either party may assign this Agreement to its affiliates and SIEMENS may use subcontractors in the performance of the
Work or Services. Nothing contained in this Agreement shall be construed to give any rights or benefits to anyone other
than the CLIENT and SIEMENS without the express written consent of both Parties.
12.3 This Agreement shall be governed by and construed in accordance with the laws of the state or commonwealth within
which the Facilities are located.
12.4 This Agreement and all provisions of this Agreement allocating responsibility or liability between the Parties shall
survive the completion of the Work, the Services, and the termination of this Agreement.
12.5 Unless contrary to applicable law and with the exception of disputes arising under Article 4 or Article 9, all disputes not
resolved by negotiation between the Parties shall be resolved in accordance with the Commercial Rules of the
American Arbitration Association in effect at that time, except as modified herein. All disputes shall be decided by a
single arbitrator. A decision shall be rendered by the arbitrator no later than nine months after the demand for arbitration
is filed, and the arbitrator shall state in writing the factual and legal basis for the award. No discovery shall be permitted.
The arbitrator shall issue a scheduling order that shall not be modified except by the mutual agreement of the Parties.
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Agreement PCA -100 PUBLIC ausrs;dn 2009R
PERFORMANCE CONTRACTING AGREEMENT
The arbitrator shall have no authority to award, and shall not award, attorneys' fees. Judgment may be entered upon
the award in the highest state or federal court having jurisdiction over the matter.
12.6 SIEMENS' performance of the Work and Services is expressly conditioned on the Parties assenting to all of the terms
of this Agreement, notwithstanding any different or additional terms contained in any writing at any time submitted or to
be submitted by a Party to the other Party relating to the Work or Services, even if signed by the Parties, unless the
written statement expressly indicates that such terms supersede the terms of this Agreement
12.7 Any provision of this Agreement found to be invalid, unlawful or unenforceable by a court of law shall be ineffective to
the extent of such invalidity, and deemed severed herefrom, without invalidating the remainder of this Agreement. All
other provisions hereof shall remain in full force and effect.
12.8 The waiver by a party of any breach by the other party of any term, covenant or condition hereof shall not operate as a
waiver of any subsequent breach hereof. No waiver shall operate or be effective unless made in writing and executed
by the party to be bound thereby.
12.9 In the event that the applicable law or the CLIENT requires that SIEMENS procure a performance bond and /or a
payment bond, SIEMENS shall provide a performance and payment bond in the amount of $ . The performance
and payment bond will solely apply to the Work performed during the Construction Period and to the required statutory
lien filing period thereafter. The performance and payment bond will not apply to any of the obligations included in the
Performance Assurance, Exhibit C. Furthermore, the CLIENT'S funding source may be named as "Co- Obligee" on the
performance bond if so requested by the CLIENT.
Article 13
Maintenance Services Program
13.1 If applicable, the scope of Services provided by SIEMENS for the Maintenance Services Program is stated in Exhibit A.
13.2 The CLIENT represents that all equipment not installed by SIEMENS under this Agreement and subject to a MSP is in
satisfactory working condition. SIEMENS will have inspected all such equipment within the first thirty (30) days of MSP
commencement or no later than the first scheduled inspection. Testing and inspection will not be deemed to be
complete until all such equipment has been so tested and inspected.
13.3 If the equipment is altered or moved by any person, including the CLIENT, other than SIEMENS or a person authorized
by SIEMENS, the CLIENT shall immediately notify SIEMENS in writing, and SIEMENS reserves the right to perform a
reacceptance test on, or if necessary a re- commissioning of, the system at the CLIENT'S expense.
13.4 If SIEMENS reasonably determines as a result of such inspection and /or testing that any equipment requires repair or
replacement, the CLIENT will be so notified and shall take corrective action within thirty (30) days, or such equipment
shall be removed from coverage hereunder without further action by the Parties. SIEMENS is not liable or responsible
for the continued testing, maintenance, repair, replacement or operating capabilities of any portion of the equipment
until it has been inspected and /or tested and has been, if necessary, restored to an acceptable initial condition at the
CLIENT'S sole expense. Any services provided by SIEMENS in the course of such restoration will be separately
charged on a time and materials basis, and not included in fees paid hereunder. If individual items of equipment cannot,
in SIEMENS' sole determination, be properly repaired or replaced due to age, obsolescence, lack of availability of
refrigerant gas, halon gas, necessary parts, materials, compatibility or otherwise, or as a result of excessive wear or
deterioration, SIEMENS may, within ten (10) days of such inspection, give written notice that it is withdrawing such
items from coverage under the MSP and adjust the MSP payments due hereunder accordingly.
13.5 If the removal of equipment from coverage would compromise or impair the integrity of the Work, Services or
compliance with law of any system, then SIEMENS will provide a written statement thereof for execution by the
CLIENT. The CLIENT'S failure to execute such statement within ten (10) days will void the MSP and release SIEMENS
from any further obligations with respect to the MSP.
13.6 If the MSP scope of Services provides for equipment maintenance, repairs and /or replacements of equipment by
SIEMENS, those Services are limited to restoring the proper working condition of such equipment. SIEMENS will not
be obligated to provide replacement equipment that represents significant capital improvement compared to the
original. Exchanged components become the property of SIEMENS, except Hazardous Materials, which under all
circumstances remain the property and responsibility of the CLIENT.
Page 17 of 17
Agreement PCA -100 PUBLIC V6rsMn 2009R
Exhibit A - Scope of Work and Services
City of Cupertino
Article 1: Scope of Work
1.1 Description: Except as otherwise expressly provided herein, SIEMENS shall
provide each and every item of cost and expense necessary for:
Upgrades to streetlight and irrigation systems as described in detail below.
1.2 Specific Elements: The Work shall include the following:
1.2.1 Street lighting Induction Retrofit Description
General Description:
• City of Cupertino streetlights will be retrofitted with new induction lamps and
generators with a 10 -year warranty. %Siemens will retrofit up to 2,950 streetlights
under this scope
• The induction lamps and generators are rated at greater than 100,000 hours
mean time to failure.
• At 4100 hours per year of burn time, the City can expect over 20 years of
maintenance -free lighting.
• Nexlume induction was chosen because of the quality of the product, favorable
performance in the street light demonstration project, and provision of a 10 -year
warranty.
• Unlike many induction systems which have poor lumen maintenance, the
Nexlume system has superb lumen maintenance of 90% at end -of -life.
Scope Includes:
1. Coordination of the field installation and quality control process with Public Works
prior to the start of the project.
2. Remove existing high pressure sodium, metal halide, and mercury vapor lamps,
and ballasts for a total not to exceed 2,950 streetlights.
3. New acrylic flat lenses will replace existing "fishbowl" lenses.
4. Environmentally compliant disposal of old materials and lenses.
5. Replacement of all photo cells as part of retrofit.
6. Street Safety and routing plan, as well as traffic control plan and supervision.
7. Mechanical lift equipment and trucks.
8. Signage and decals for lamp pole identification.
9. Project management and procurement of materials and subcontractors.
10. Field coordination with Public Works prior to installation of retrofit. Includes
notification of public and businesses.
11. Siemens will gather information and coordinate steps necessary to apply for
PG &E street lighting rebates.
12. Siemens will report to the City of Cupertino,on a one -time basis, information that
will include but not be limited to, a summary of all existing fixtures, their induction
replacement, estimated energy savings and GHG reductions.
13. Siemens will train appropriate City of Cupertino personnel to properly maintain
and operate the equipment that has been installed by Siemens
Page 1 of 7
Siemens Industry, Inc., Building Technologies Division
Exhibit A - Scope of Work and Services v. 2009 - 29
Exhibit A - Scope of Work and Services
City of Cupertino
Clarifications to the Scope:
1. Existing street poles will not be repaired, painted or removed during retrofit
construction.
2. Existing street lights are assumed to have functional and code compliant
electrical wiring.
3. Existing street lights will be fully operational and use wattages that allow for
specified retrofit.
4. The Public Works Department has identified that approximately 20% of the
streetlight fixtures may not be candidates for retrofit, the process for upgrade will
be addressed in project planning.
5. Siemens will be working during normal hours between 8:00am- 8:00pm. No
overtime is estimated at this time for the project.
Schedule: Streetlight retrofit will be completed 6 months from signing of contract.
1.2.2 Irrigation (100% of City Controllers)
General Description:
The up to 111 existing irrigation controllers, manufactured by either Rain Bird and Rain
Master, will be replaced with new Weather Trak evapo - transpirative (ET) weather -based
controllers. This upgrade provides wireless connectivity to each of the 111 controllers,
programming and professional services to develop an irrigation plan for the City of
Cupertino, modern irrigation technology with internet web portal control and weather
based controller management. Public Works will be able to monitor and control irrigation
24/7 via any computer with internet capability and irrigation will be automatically adjusted
based upon current weather conditions.
The controller technology has four integrated components:
1. Hardware controller which automatically adjusts irrigation schedules based on
landscape needs and local weather conditions
2. Irrigation scheduling software engine with Remote Internet Management
capability
3. WeatherTRAK daily weather subscription service for 10 years
4. Web -based Internet management portal for all irrigation controllers.
5. Professional Services to review and evaluate existing irrigation controller
programming, and plan and program the new system and software.
Benefits of proper irrigation include improved plant and turf health, as water is
driven to plant roots, and roots are allowed to "breathe" between watering
intervals. Landscape appearance improves with proper watering. Further, dry
weather runoff that may cause damage to pavement or asphalt is reduced;
thereby prolonging hardscape conditions and reducing frequency of resurface or
repair intervals. An additional benefit of eliminating runoff is the reduction of
potential liability from slip / fall hazards on wet pavement or walkways. Reduced
runoff also improves image in the community regarding water conservation.
Page 2 of 7
Siemens Industry, Inc., Building Technologies Division
Exhibit A - Scope of Work and Services v. 200V - 30
Exhibit A - Scope of Work and Services
City of Cupertino
Siemens, in working with the City, has selected to upgrade the existing irrigation
control system as opposed to recommending an add -on to the existing
controllers supplied by two manufacturers, Rain Bird Evolution DX2 and Rain
Master Sentaur. Such an add -on does not include the capability of managing the
system centrally from an internet location, and would have to be manually
calibrated every year by city employees. Installing such add -ons is analogous to
using a ten year old computer with today's operating system, programs and
internet capabilities — while it will function, the City would not get the benefit of a
fully upgraded system, and Siemens would not be able to warranty any of the
existing irrigation controllers, connectivity between the existing controllers and
the wireless device and control of the existing controllers from the software
package. Additionally, Siemens would not be able to provide the water savings
guarantee, because the weather data from the add -on /legacy system is not
accurate down to 1 square kilometer as with our proposed system, which is
critical in terms of predictable weather data, proper irrigation quantities and
scheduling, and ultimately maximizing water savings.
Scope Includes:
1. Siemens will coordinate the field installation and quality control process with
Public Works prior to the start of the project.
2. Inspection of existing conditions and the provision of a Site Assessment Report
(SAR).
3. Removal of existing controller and installation and wiring of new controllers.
4. Review and analysis of current controller scheduling
5. System programming and controller inspection report.
6. Project management and technical support.
7. Ten years of subscription service to WeatherTRAK service and controller
connectivity
8. Extensive training includes web based overview and programming of the
controller and zones. Scheduling and changes to areas as needed.
9. Field coordination with Public Works prior to installation of retrofit. Includes
notification of public and businesses.
10. Siemens will gather information and coordinate steps necessary for applying for
rebates.
11. Siemens will report to the City of Cupertino,on a one -time basis, information that
will include, a summary of all existing controllers, their replacement, estimated
water savings and GHG reductions.
12. Siemens will train appropriate City of 3upertino personnel to properly maintain
and operate the equipment that has been installed by Siemens
Clarifications:
1. All existing controllers, time clocks and panels to be removed.
2. No existing controllers will be re -used as part of the retrofit project.
3. All existing distribution piping will remain and be untouched.
Page 3 of 7
Siemens Industry, Inc., Building Technologies Division
Exhibit A - Scope of Work and Services v. 2009 " 31
Exhibit A - Scope of Work and Services
City of Cupertino
4. Existing sprinkler heads or drip systems will not be removed, replaced or
repaired as part of this scope.
5. Master flow valves are in use at the City of Cupertino and are not included in the
scope of work
6. Siemens will provide to the City a Site Assessment Report. The City will be
responsible for all repairs as identified in the SAR. This is typically all repairs or
replacements of equipment or hard irrigation parts associated with the irrigation
distribution piping systems.
7. If new sprinkler heads, drip systems, distribution piping or additional materials
are required for replacement, or repair of the irrigation systems, additional cost
plus overhead will be allocated from the contingency fund.
8. Per the City's input, further investigation and clarification will be required in order
to establish a mutually agreed upon water consumption baseline should a
guarantee be desired.
Schedule: Irrigation System Upgrade should be completed 3 months from contract
execution.
1.2.3 Pricing Summary
Siemens has provided pricing to the City of Cupertino at an agreed upon overhead rate
of 18.1%. We have included the profit column to demonstrate the cost reduction
provided by Siemens to the City to move the project forward.
Description
Project Cost
Cupertino Price = Cost +
18.1% Overhead
Street Lighting
$
922,129.00
$'
1,089,034.35
Irrigation Controller and Conservation
$
711,250.00
$_
839,986.25
Program Development
$
57,000.00
$
67,317.00
Project Manager
$
63,935.16
$
75,507.42
Base Project Total
$
1,754,314.16
$
2,071,845.02
Project Total
$
2,071,845.02
Add Alternates for Consideration
Add Alternate #1
Annual M &V /Guarantee
$
16,934.80
$
20,000.00
Add Alternate #2
Bonds and Insurance
$
14,025.40
$
16,564.00
Base Project Total of $2,071,845 does not include Add Alternates #1 (Annual
M &V /Guarantee) nor Add Alternate #2 (Bonds and Insurance).
1.2.4 Measurement & Verification
Page 4 of 7
Siemens Industry, Inc., Building Technologies Division
Exhibit A - Scope of Work and Services v. 2000 - 32
Exhibit A - Scope of Work and Services
City of Cupertino
If Add Alternate #1 is added to the ;,ontract by CLIENT, SIEMENS will provide
annual measurement and verification reporting for up to Ten (10) years of the
program CLIENT has the option tc discontinue Add Alternate #1 at its sole
discretion at any time. The measurement and verification plan will provide annual
reports documenting results of actual performance compared to adjusted base
year performance. Savings will be reconciled according to the methodologies set
forth in Exhibit C, Performance Assurance.
1.3 CLIENT'S Responsibilities (in addition to those in Article 6 of the Agreement):
Article 2: Work Implementation Period
2.1 Commencement of Work (select one):
2.1.1 ❑ SIEMENS shall commence the Work on _TBD , 2010, _ and shall
perform the Work diligently and shall complete the Work no later than
_TBD , 2010_;
or,
2.1.1 ❑ SIEMENS shall commence the 'Work 15 calendar days from the Effective
Contract Date, and shall perform the Work diligently and shall complete the Work
no later than 180calendar days from the day of commencement.
2.2 Milestones: Specific scheduling milestones and coordination requirements are as
follows:
Page 5 of 7
Siemens Industry, Inc., Building Technologies Division
Exhibit A - Scope of Work and Services v. 2001 " 33
Exhibit A - Scope of Work and Services
City of Cupertino
Article 3: Scope of Services - Performance Assurance Services Program
3.1 Measurement & Verification
If Add Alternate #1 is added to the contract by CLIENT, SIEMENS will provide
annual measurement and verification reporting for up to Ten (10) years of the
program- CLIENT has the option to discontinue Add Alternate #1 at its sole
discretion at any time. The measurement and verification plan will provide
annual reports documenting results of actual performance compared to adjusted
base year performance. Savings will be reconciled according to the
methodologies set forth in Exhibit C, Performance Assurance.
Article 4: Scope of Services - Maintenance Services Program
(Please check one box only)
❑ CLIENT has elected to self - implement maintenance. Therefore SIEMENS shall
not perform any on -going maintenance services, although the Parties may
negotiate a separate agreement for such services at a later date. CLIENT
agrees that it will maintain the equipment per manufacturer specifications and
that it will operate the Equipment in accordance with the Contracted Baseline
described in Article 7 of Exhibit C. If CLIENT fails to properly maintain or operate
the Equipment, SIEMENS shall have the right to modify the Performance
Guarantee pursuant to Article 4 of the Agreement.
❑ The follow consists of the Services to be performed by SIEMENS:
4.1 Pre and Post Street Lighting voltage readings measurements.
4.2 Irrigation Pre and Post water usage metering
4.3 Measurement and Verification Reports.
Page 6 of 7
Siemens Industry, Inc., Building Technologies Division
Exhibit A - Scope of Work and Services v. 200 - 34
Exhibit A - Scope of Work and Services
City of Cupertino
By signing below, this Exhibit is attached to and made a part of the
Agreement between SIEMENS and the CLIENT.
CLIENT:
Signature:
Printed Name:
Title:
Date:
City of Cupertino
SIEMENS:
Signature:
Printed Name:
Title:
Date:
Siemens Industry, Inc.
Page 7 of 7
Siemens Industry, Inc., Building Technologies, Division
Exhibit A - Scope of Work and Services
Signature:
Printed Name:
Title:
Date:
v. 200 - 35
Exhibit B — Payment Schedules
City of Cupertino Energy Saving Performance Contract
Article 1: Payment for Scope of Work
1.1 Price: As full consideration of the Work as described in Exhibit A, Article 1: Scope of
Work, the CLIENT shall pay to SIEMENS an amount not to exceed $2,071,845.02 (plus
taxes, if applicable).
1.2 Timely Payments: The CLIENT agrees to pay SIEMENS per Table 13.1 below. CLIENT
agrees to pay all invoices submitted by SIEMENS per Article 8 of the Agreement.
In the event that the work called for in Exhibit A Scope of Work cannot be performed by SIEMENS
due to conditions outside the control of either party, such as street lights found to be too old or not
properly grounded, or the number of irrigation controllers is less than 111 CLIENT shall realize a
savings on the total contract price. Deducts and /or credits shall be determined as follows:
Equipment not used: 100% of the cost of equipment not used, minus any substantial
restocking fee incurred by SIEMENS, shall be deducted from the amount to be charged.
Labor. Only the labor cost for the labor incurred in making the determination that the street
light is too old or not properly grounded shall be charged, not the per unit labor charge.
The number of streetlights or irrigation controllers examined, and the number of streetlights or
irrigation controllers retrofitted will be reported on a monthly basis. The final number of streetlights
or irrigation controllers retrofitted and applicable labor charges will be reconciled upon substantial
completion in the October, 2010 invoice.
Table 13.1 — FIM Work Payment Schedule
Project:Phase,
Payments_ $j , :.
Payrner:ts 0/141
_< Schedule
Mobilization & Development Fees
$207,184.50
10%
Final Contract
Approval/Startup
Lighting & Irrigation Procurement
$414,369.00
20%
30% _Completion
Lighting & Irrigation Installation
$414,369.00
20%
50% Completion
Lighting & Irrigation Installation
$414,369.00
20%
70% Completion
Lighting & Irrigation Installation
$414,369.00
20%
90 %Completion
Final Inspection & Punch List Items
$103,592.25
5%
95 % Completion
Project Close -out
$103,592.25
5 %
Upon 100%
Completion
PROJECT TOTAL:
$2,071,845.02
100%
Article 1 of Exhibit B is attached to and made a part of the Agreement between SIEMENS and the
CLIENT.
CLIENT: City of Cupertino SIEMENS:
Signature: Signature:
Printed Name: David Knapp Printed Name:
Title: City Manager Title:
Date: Date:
Signature:
Printed Name:
Title:
Date:
Siemens Industry, Inc.
Page 1 of 2
Siemens Industry, Inc., Building Technologies Division
Exhibit B - Payment Schedules
v. 20095 - 36
Exhibit B — Payment Schedules
City of Cupertino Energy Saving Performance Contract
Article 2: Payment for Performance Assurance Services Program (PASP)
2.1 Price: As full consideration of the Ser✓ices as described in Exhibit A, Article 3, the
CLIENT shall pay to SIEMENS the amounts identified in Table 13.2 plus taxes, if
applicable, on the dates identified therein.
2.2 Performance Assurance Services Program Term: The term of the PASP shall
commence on the Guarantee Date and shall extend for either: (a) the term of the
Performance Guarantee Period where multi -year obligations are allowed; or (b) for twelve
(12) month periods corresponding to the term of each Annual Period.
2.3 Automatic Renewal: Where the PASP term is limited to an Annual Period, the PASP
shall automatically renew for successive Annual Periods beginning on the anniversary date
of Guarantee Date. CLIENT at its sole discretion has the option to discontinue the PASP
with twelve (12) months notice to SIEMENS.
2.4 Termination: See Section 4.7 of the Agreement.
Table B.Z — Pertormance Assurance Program Payment 5cneoule
2011 Anniversary $20,000.00
of 100%
Completion
2012 Anniversary $20,000.00
of 100%
Completion
2013 Anniversary $20,000.00
of 100%
Com letion
Article 2 of Exhibit B is attached to and made a part of the Agreement between SIEMENS and the
CLIENT.
CLIENT:
Signature:
Printed Name:
Title:
Date:
City of Cupertino
David Knapp
City Manager
SIEMENS:
Signature:
Printed Name:
Title:
Date:
Signature:
Printed Name:
Title:
Date:
Siemens Industry, Inc.
Page :2 of 2
Siemens Industry, Inc., Building Technologies Division
Exhibit B - Payment Schedules
v. 2009 - 37
Exhibit C — Performance Assurance
City of Cupertino
The following Articles and Tables are hereby included and made part of th
Article 1: Summary of Articles and Total Guaranteed Savi
Article 1
Summary of Articles and Total Gua
Article 2
Guarantee Savings Types
Article 3
Guarantee Term Responsibilities of
Article 4
Measurement and Verification Plan
Article 5
Baseline Data
Article 6
Utility Rate Structures and Escalatii
Article 7
Contracted Baseline Data
Table 1.1 — Total Guaranteed Savin s Units
C:
Performance
Energy /Utility
Savings
Electric
Electric
Na; 1 Gas
No. 2 Fuel
Water Saved
Period
Annual Period 1
Energy
Power
awed
Oil Saved
(CCF)
$0
$248,576
Saved kWh
Saved kW
Therms
Gallons
Annual Period 4
Construction
$20
0
0
0
0
0
Annual Period 1
$297,199
813,003
0
0 1
0
45,952
Table 1.2 — Total Guaranteed Savings (Cost)
Performance
Period
Energy /Utility
Savings
Operational Savings
Total Savings
Construction
$0
$0
$0
Annual Period 1
$235,882
$0
$235
Annual Period 2
$248,576
$0
$248,576
Annual Period 3
$264,209
$0
$264
Annual Period 4
$274,778
$20
$274,798
Annual Period 5
$285,769
$2,760
$288,529
Annual Period 6
$297,199
$56,220
353,419
Annual Period 7
$309,087
$0
$309,087
Annual Period 8
$321
$20
$321
Annual Period 9
$334,309
$0
$334
Annual Period 10
$347,681
$2
$350 "1
TOTALS
$3,765,284
$120
$3,88j 064
1.1 Table 1.1 shows the CLIENT'S guaranteed energy /utility unit Savings for Annual
Period 1 of the Agreement. Table 1.2 shows the CLIENT'S guaranteed cost
Savings that can be extrapolated from the guaranteed energy /utility unit Savings
shown in Table 1.1 by multiplying the energy /utility Savings by the Baseline
energy /utility rates including the stipulated Escalation Rates found in Article 6.
1.2 SIEMENS cannot and does not predict fluctuations in utility rates or the cost of
energy. Therefore, the CLIENT and SIEMENS agree that the energy /utility cost
Savings for each Annual Period will be calculated by multiplying the verified units
of energy /utility Savings by the Annual Period's stipulated energy /utility rate and
Escalation Rates and not the Annual Period's actual utility rate.
1.3 The determination of Energy /Utility Savings will follow current best practice, as
defined in the IPMVP, or the FEMP Guidelines where required, unless otherwise
agreed to by the Parties.
Page 1 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance v. 2009P - 38
Exhibit C — Performance Assurance
of Cupertino
This Exhibit C comprising of 15 pages is attached to and made a part of the
between SIEMENS and the CLIENT.
CLIENT:
Signature:
Printed Name:
Title:
Date:
[Insert CLIENT name] SIEMENS:
Printed
, In
Printed N
Page,'! of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance
v. 20091 - 39
Exhibit C — Performance Assurance
City of Cupertino
Article 2: Guaranteed Savings Options
2.1 Guarantee Savings Options for Energy /Utility Savings: Utilizing e
are four guarantee savings options to measure and verify Energy/ =._ ty T g
Option A - Retrofit Isolation: Key Parameter Measureme ti ro
Isolation: All Parameter Measurement; Option C - Whole _ n D
Calibrated Simulation.
Option A - Retrofit Isolation: Key Parameter Measureme _ r ermined by
field measurement of the key performance parameters) is energy use of
the FIM's affected system(s) and /or the success of the pr , c ment frequency
ranges from short-term to continuous, depending on t : v ed variations in the
measured parameter, and the length of the reporting pei rameters not selected
for field measurement are estimated. Estimates can ased on historical data,
manufacturer's specifications, or engineering judgment. E cumentation of the source or
justification of the estimated parameter is required. The plausible savings error arising
from estimation rather than measurement is evaluated. The predetermined schedule.for
data collection, evaluation, and reporting is defined in Exhibit A, Article 3- Performance
Assurance Services Program.
Option B — Retrofit Isolation: All Parameter Measurement. Savings are determined by
field measurement of the energy use of the FIM- affected system. Measurement
frequency ranges from short-term to continuous, depending on the expected variations
in the savings and the length of the reporting period. The predetermined schedule for
data collection, evaluation, and reporting is defined in Exhibit A, Article 3- Performance
Assurance Services Program.
Option C - Whole Facility: Savings are determined by measuring energy use at the
whole facility or sub - facility level. Continuous measurements of the entire facility's
energy use are taken throughout the reporting period. The predetermined schedule for
data collection, evaluation, and reporting is defined in Exhibit A, Article 3- Performance
Assurance Services Program.
Option D - Calibrated Simulation: Savings are determined through simulation of the
energy use of the whole facility, or of a sub - facility. Simulation routines are
demonstrated to adequately model actual energy performance measured in the facility.
This Option usually requires considerable skill in calibrated simulation. The
predetermined schedule for data collection, evaluation, and reporting is defined in
Exhibit A, Article 3- Performance Assurance Services Program.
2.1.1. Operational Savings: Operational Savings are Stipulated Savings
derived from data provided by the CLIENT to SIEMENS that supports the
stipulated outcome. Section 2.3 below identifies each source of Operational
Savings, the Stipulated Savings, and any applicable Escalation Rate to be
applied. The Stipulated Savings applicable to all Annual Periods will be achieved
upon completion of the FIM. No further measurement or verification will need to
be performed.
Page 3 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance v. 20091 - 40
Exhibit C — Performance Assurance
City of Cupertino
2.2 Table 2.1 below summarizes the first Annual Period's Guaranteed Savi
Article 1, Tables 1.1 and 1.2) utilizing the applicable Options as appli
referenced FIMs valued pursuant to the agreed upon amounts ide d
6 hereof .
Table 2.1 — Savings for First Annual Period by Option
Note: Refer to Table 1.2 for Annual Savings in subsequent years.
2.3 Table 2.2 identifies the source of Operational Savings defined and quantified by
the CLIENT. The Parties affirm that such amounts are Stipulated Savings for
purposes of calculating Annual Realized Savings and acknowledge that the
Guaranteed Savings identified herein have been based on CLIENT'S affirmation.
OPERATIONAL SAVINGS SHALL NOT BE MEASURED OR MONITORED
DURING THE PERFORMANCE GUARANTEE PERIOD.
Table 2.2 - Source of Operational Saving
Energy /Utility
a - 2I ,� vings Ir
# of Annual
Saving $
Guarantee Type Options
Periods
Annual
A
B
C
D
T
a Total
FIM
Retrofit
Retrofit
Whole
Calibrated
Energ.__ ill
- S Savings $
Year 4
Isolation: Key
Isolation: All
Facility
Simulation
Sa n
Street Lighting Costs
Parameter
Parameter
Year 5
N/A
only. No labor
Measurement
Measurement
Street Lighting Costs
Replacement Lamp costs savings
$56,220
Year 6
Street
only. No labor
Street Lighting Costs
Replacement Lamp costs savings
$105,562
Year 8
N/A
$
0 $105,562
Li tin
Street Lighting Costs
Replacement Lamp costs savings
$2,760
Year 10
N/A
Irrigation
$110,441
$ 1
0 $110,441
TOTALS
$216,003
$ 6,003
0 $216,003
Note: Refer to Table 1.2 for Annual Savings in subsequent years.
2.3 Table 2.2 identifies the source of Operational Savings defined and quantified by
the CLIENT. The Parties affirm that such amounts are Stipulated Savings for
purposes of calculating Annual Realized Savings and acknowledge that the
Guaranteed Savings identified herein have been based on CLIENT'S affirmation.
OPERATIONAL SAVINGS SHALL NOT BE MEASURED OR MONITORED
DURING THE PERFORMANCE GUARANTEE PERIOD.
Table 2.2 - Source of Operational Saving
2.4 SIEMENS has explained to the CLIEI4T and the CLIENT has satisfied itself as to
how Operational Savings are incorporated into the Annual Realized Savings.
BY SIGNING BELOW, THE PARTIES CONFIRM THAT THEY HAVE REVIEWED THE
INCLUDED GUARANTEE SAVINGS OPTIONS AND THEIR APPLICATION TO BE
USED IN CALCULATING SAVINGS UNDER THE AGREEMENT.
CLIENT: City of Cupertino
Signature:
SIEMENS:
Signature:
SIEMENS Industry, Inc.
Page 4 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance v. 2009 - 41
# of Annual
First Year
Periods
Annual
Savings Are
Savings
AccountPVendor
Description
Annual Cost $
Applied
Allowed
Street Lighting Costs
Replacement Lamp costs savings
$20
Year 4
N/A
only. No labor
Street Lighting Costs
Replacement Lamp costs savings
$2,760
Year 5
N/A
only. No labor
Street Lighting Costs
Replacement Lamp costs savings
$56,220
Year 6
N/A
only. No labor
Street Lighting Costs
Replacement Lamp costs savings
$20
Year 8
N/A
only. No labor
Street Lighting Costs
Replacement Lamp costs savings
$2,760
Year 10
N/A
only. No labor
2.4 SIEMENS has explained to the CLIEI4T and the CLIENT has satisfied itself as to
how Operational Savings are incorporated into the Annual Realized Savings.
BY SIGNING BELOW, THE PARTIES CONFIRM THAT THEY HAVE REVIEWED THE
INCLUDED GUARANTEE SAVINGS OPTIONS AND THEIR APPLICATION TO BE
USED IN CALCULATING SAVINGS UNDER THE AGREEMENT.
CLIENT: City of Cupertino
Signature:
SIEMENS:
Signature:
SIEMENS Industry, Inc.
Page 4 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance v. 2009 - 41
Exhibit C — Performance Assurance
City of Cupertino
Printed Name:
Title:
Date:
Printed Name:
Title:
Date:
Page 5 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance
v. 20091 - 42
Exhibit C — Performance Assurance
City of Cupertino
Article 3: Guarantee Term Responsibilities of the CLIENT
In addition to the CLIENT'S responsibilities under Article 6 of the Agr
details the responsibilities of the CLIENT in connection with the
administration of the Performance Guarantee.
3.1 The CLIENT will provide a representative at each Facility
provide required data described below. Aft
3.2 The CLIENT will provide SIEMENS with accurate in ion as
defined below and in the Contracted Baseline arti o ring each
Annual Period, within thirty (30) days of any Mat I r may increase
or decrease energy usage.
3.3 CLIENT will provide SIEMENS with copies of utilit wffhin 30 days of receipt
by CLIENT or provide access to utility vendor infor Fn.
3.4 If required for the Work, CLIENT will provide telephone /data remote access, as
SIEMENS reasonably requests. All charges related to telephone /data line
installation, activation and communication services are the responsibility of the
CLIENT.
3.5 If required for the Work, CLIENT will ,provide and coordinate utility meter upgrade
for interface with SIEMENS metering and data collection. All charges related for
these upgrades are the responsibility of the CLIENT.
Page E of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance
V. 200A - 43
Exhibit C — Performance Assurance
City of Cupertino
Article 4: Measurement and Verification Plan
The following information is applicable to this Agreement:
Article 4.1 General Overview
Article 4.2 Option A - Retrofit Isolation: Key Parameter Measu
Article 4.3 Option B - Retrofit Isolation: All Parameter Measur
Article 4.4 Option C - Whole Facility
Article 4.5 Option D - Calibrated Simulation
4.1 General Overview —
The purpose of the Measurement and Verific F_ an is to identify
the methods, measurements, procedures and h'_ will be used to verify
the Savings for each FIM which has Energy - N avings. Savings are
determined by comparing prior usage, consu or efficiencies defined as
the Baseline to the selected FIMs being impl mented against the post FIM
implementation usage, consumption or efficiencies. The Baseline usage,
consumption or efficiencies is described in this Exhibit C, Article 5. The
usage, consumption or efficiencies associated with the FIM implementation is
defined as the Contracted Baseline, and are described in this Exhibit C,
Article 7.
4.2 Option A - Retrofit Isolation: Key Parameter Measurement
4.2.1 FIM 1: Street Lighting
Methodology
Guaranteed energy savings for FIM 1: Street Lighting shall be based upon one-
time before and after measurements. Energy savings will be calculated by taking
sample wattage measurements on 2% of fixtures before and after for each fixture
retrofitted.
A wattage - per - fixture -type will be assigned based on these measurements. Each
fixture's assigned wattage will be used in the lighting survey to calculate energy
savings.
Pacific Gas & Electric (PGE) approved wattages will be used for fixture codes
when it is not feasible to take actual measurements. Lighting Burn Hours used in
the energy calculations for each fixture are based on agreed upon hours given
outlined in Article 5.
The following calculations determined the amount of annual electrical savings for
Annual Period 1. Once the savings are established for Annual Period 1, the
dollar savings for future Annual Periods will be calculated using Annual Period 1
kWh savings multiplied by the applicable electric rate.
Calculations
Existing Lighting Power. kW Dj
Page 7 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance v. 20091 - 44
Exhibit C — Performance Assurance
of Cupertino
((# Fixtures) Ex x (Watts / Fixture) r=x / (1,000 W /kW) = kW Ex
Proposed Lighting Power. [kW PR]
((# Fixtures) PR x (Watts / Fixture; PR) / (1 ,000 W /kW) _
Existing Lighting Power Consumption: [klNh Fx]
E (kW EX) — E (kW PR) = kW LGHT
Annual Lighting Power Consumption Savings: [kWh LGHT]
I (kWh Ex) - Y- (kWh MY= kWh LGHT
Annual Lighting Power Savings: (kW LGHi]
$ Savings = kWh LGHT " Electrical Energy Rate
Calculations Variables Index
At -. Parameters:
= iiaiue _
:: Verifieaiion iVlefirc��1 - -_
Existing Annual Burn Hours:
See Table 5.2.1
Stipulated
(Based on interviews with
(Annual Burn Hours)
facility personnel
Existin Fixtu Power: (kW Ex )
TBD
Onetime pre measurement
Existing Qty. of fixtures: (# of Fixtures) Ex
See Article 5, Item
Stipulated
(Confirmed during lighting
5.4
audit
Greater of Current Blended
Electrical Energy Rate: ($ /kWh)
c.ee Table 5.1.1
Rate or Scheduled Rate
w /escalation
Proposed F ixture Power kW PR )
TBD
One time oost measurement
Proposed Qty. of fixtures: (# of Fixtures) PR
See Exhibit D
Stipulated (Confirmed during
commissionin
Measurement or Reference Tables
Street Lighting Inventory, see Article 5, Item 5.4.
Responsibility for SIEMENS and CLIENT
Siemens Responsibilities
Page 13 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance v. 20091 - 45
Exhibit C — Performance Assurance
City of Cupertino
• Identify the amount and location of equipment to be measured and or
verified.
• Provide tools used in the measurement process.
• Conduct all measurement and verification that will be needed f e
calculations.
• Provide the results of the measurement and verificatio �_ OF
Clients Responsibilities
• The Client will provide a representative for all
provide required data described below.
• Client will provide all information as it relates
• Client will provide access to any area that cor
measured and or verified.
Specifications on Measurement Tools
equipment.
to be
gs
rk and
■ The existing power (kW EX) and post retrofit power (kW PR) will be
measured using a FLUKE model multi meter on number of fixtures listed in
Exhibit E for each unique fixture code.
4.2.2 FIM 2: Irrigation
Methodology
Guaranteed energy savings for FIM 2: Irrigation shall be based upon one -time
before and after measurements.
Water consumption before the retrofit (baseline) will be established on a 10%
sampling of irrigation sites, by establishing the usage per station and the baseline
schedule.
The post retrofit water consumption will be established for the same 10% sample
by programming in the base year weather conditions into the new controllers,
and downloading the proposed schedule and the usage per station.
The difference between the two will be calculated for each of the sampled sites,
and compared to guaranteed values. The % deviation (positive or negative)
between the calculated and guaranteed values will be extrapolated to the rest of
the sites. The overall dollar savings will then be computed using the overall
extrapolated utility savings multiplied by the applicable blended rate. Once the
utility savings (excess or shortfall) are established for Annual Period 1, the dollar
savings for future Annual Periods will be calculated using Annual Period 1 water
savings multiplied by the applicable water rate.
Calculations
Baseline
Page 9 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance
v. 200914 - 46
Exhibit C — Performance Assurance
City of Cupertino
Siemens will establish baseline irrigation consumption on 10% sampling
by quantifying the baseline schedule and the water usage per station at
sites:
a. Typically, one to four irrigation programs exist on each old rc
b. Irrigation zones / stations are then assigned to each _ ra �
example:
1. Program "A" might run 20 minutes per ;, s-
2. Program "B" might run 5 minutes p
c. At the time of installation, SIEMENS record n
schedules on a program worksheet for eac f n r
Baseline consumption per site = E (Water fl ;`. r irrigation
station x baseline annual time
schedul irrigation station)
Post - retrofit V
• Once a new controller is installed, and programmed, the system
automatically calculates a new schedule for each individual landscape
zone. To do this, the ET values for the base year are programmed into
the controller. Thus, the new .schedule will be reflective of the baseline
weather conditions.
• The new schedule is recorded on the same worksheet
The system will provide reporting on all run time minutes, for each zone
on every controller in the customers' network. These run time reports will
be downloaded.
Post - retrofit consumption per :site = E ( Water flow rate for each irrigation
station x recorded annual run time
schedule for each irrigation station)
Water savings per site = Baseline consumption per site - Post - retrofit
consumption per site
Adjustments
If the following situations exist at a site, either adjustments will be made to
account for baseline deficiencies or the site will not be used in the sampling. The
adjustment methodology will vary by site and will be shared with the customer
during the M & V process.
a. If a landscape is currently under - watered, or deliberately deficit irrigated,
run times may increase with the new system as the system will create
proper irrigation schedules for each landscape zone.
b. Some customers simply turn controllers off during winter months. The
new controller may irrigate during winter months, depending on weather
conditions and the needs of plants.
c. Some plants require water at certain times in their growing season, to
fruit, flower, etc. Since the ne'N controllers contain the crop coefficient of
these plant materials, the controller will water according to the needs of
the plant.
Page 10 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance V. 2009K - 47
Exhibit C — Performance Assurance
City of Cupertino
Calculations Variables Index
Measurement or Reference Tables
Irrigation Scope of Work, see Exhibit A.
Responsibility for SIEMENS and CLIENT
Siemens Responsibilities
• Identify the amount and location of equipment to be measured and or
verified.
• Provide tools used in the measurement process.
• Conduct all measurement and verification that will be needed for the savings
calculations.
• Provide the results of the measurement and verification to the customer.
Clients Responsibilities
• The Client will provide a representative for all facilities to coordinate work and
provide required data described below.
• Client will provide all information as it relates to the measured equipment.
• Client will provide access to any area that contains equipment to be
measured and or verified.
Specifications on Measurement Tools
• Spreadsheet for recording baseline and post- retrofit run times.
4.3 Option B - Retrofit Isolation: All Parameter Measurement — N/A
4.4 Option C - Whole Facility — N/A
4.5 Option D — Calibrated Simulation — N/A
Page 11 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance v. 20091 - 48
O e u ft t
Existing irrigation schedule per station
TBD
(F : r troller.
r -
i t on
Existing water usage per station
TBD
r facility
- e ews
Proposed irrigation schedule & water
e surement
usage per station
TBD
ded from the
troller program
e _ ated based on values
Base year ET
TBD
in the Hydropoint Climate
Centers database
Measurement or Reference Tables
Irrigation Scope of Work, see Exhibit A.
Responsibility for SIEMENS and CLIENT
Siemens Responsibilities
• Identify the amount and location of equipment to be measured and or
verified.
• Provide tools used in the measurement process.
• Conduct all measurement and verification that will be needed for the savings
calculations.
• Provide the results of the measurement and verification to the customer.
Clients Responsibilities
• The Client will provide a representative for all facilities to coordinate work and
provide required data described below.
• Client will provide all information as it relates to the measured equipment.
• Client will provide access to any area that contains equipment to be
measured and or verified.
Specifications on Measurement Tools
• Spreadsheet for recording baseline and post- retrofit run times.
4.3 Option B - Retrofit Isolation: All Parameter Measurement — N/A
4.4 Option C - Whole Facility — N/A
4.5 Option D — Calibrated Simulation — N/A
Page 11 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance v. 20091 - 48
Exhibit C - Performance Assurance
City of Cupertino
Article 5: Baseline Data
5.1 The year(s) selected as the Baseline Period starts on January
December 2009. Table 5.1 outlines the utility consumption th
this Baseline Period. This Baseline Period's Facility utilit
used as the reference for comparing the actual Facility ut i
the Performance Guarantee Period in order to de i t
Savings.
Table 5.1 — Baseline Utility Consumption
Units
Jan
I Feb
Mar
I A
,r
Jun
Ju ' u f , Oct
Nov
Dec
Electric
I kWh
136699
1 123470
1 136699
1 132289
136599
132289
1 13 6 9 1 136699
1 132289
1 136699
5.2 Water Baseline to be added
5.2 The operating practices during the Baseline riod determine the utility
consumption shown in Table 5.1. This data indicates the operating
characteristics that were in effect during the Baseline Period. The Guaranteed
Savings provided under this Agreement are based on the efficiencies gained by
implementing the Work and implementing the Contracted Baseline in Article 7 of
this Exhibit C.
Annual operating hours for Street Lighting is taken as 4,100 hours per year. This
value is based on the LS -2 Rate Schedule.
(Note: It is important to note that PG&E charges a flat rate per reported
lamp type regardless of the actual lamp, consumption or run hours.
Therefore, actual calculated cost savings may vary from PG &E bills.)
5.3 Applicable codes - Federal, State (Provincial), County or Municipal codes or
regulations are applicable to the use and operation of the Facility. SIEMENS will
maintain the current level of Facility compliance relative to applicable codes
unless specifically outlined to the contrary below. Unless specifically set forth in
the Scope of Work and Services, Exhibit A, nothing herein should be construed
as to require SIEMENS to provide additional work or services in the event that
the current applicable code or regulation is modified.
5.3.1 Current code compliance (identify the applicable code citation): N/A
5.3.2 Code changes: N/A
5.4 Street Lighting Inventory - The following information summarizes the equipment
inventory that existed in the Facility during the Baseline period. This inventory is
based on information provided to SIEMENS by the City of Cupertino.
Page 12 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C - Performance Assurance v. 20091 - 49
Exhibit C — Performance Assurance
City of Cupertino
LAMP SIZE
Total
S4H -100
31
84H- 150 ......:..
S4400
430
S4H -250
_ .
61
S4H -310
4
S4H -400
_. - -
S4H -70
165
S -H -100
192
S -H -150
77
S -H -70
1785
S -M -100
6
S -M -175
15
- -- - - - - -- - -------
S-M-400
- - - - --
- - - - - -- ---- - - - - --
117
S V -250
1
Grand Total
2950
Key
S4H -)= Street lamp, 240V, High Pressure Sodium (HPS), xxx- Wattage
S -H -)= Street Lamp, 120V, HPS, Wattage
S -I -xxx Street Lamp, 120V, Incandescent, Wattage
S -L -xxx Street Lamp, 120V, Low Pressure Sodium (LPS), Wattage
S -M -xxx Street Lamp, 120V, Metal Halide (MH), Wattage
S -V -xxx Street Lamp, 120V, Mercury Vapor (MV), Wattage
Article 6: Utility Rate Structures and Escalation Rates
6.1 Utility costs used for Savings calculations will be based on the utility rates and
rate escalation percentages provided in the tables below. The rate identified
below is a stipulated rate, and is shown below for each utility. An escalation rate
(noted below for each utility) applied per Annual Period will be applied to the
below stipulated utility rates.
The rate schedule for Street Lighting varies based on lamp type and is not based
on $ per kWh specifically. However, monthly energy charges per lamp are
calculated using the following formula: (Lamp wattage + ballast wattage) x 4,100
hours / 12 months / 1000 W /kWh x Street Light energy rate per kWh.
Where ballast wattage = ballast factor x lamp wattage.
The blended rate shown below in Table 6.1.1 is used in instances where no
specific lamp is listed in the LS -2 Rate Schedule.
(Note: this formula taken from Page 1 of LS -2 rate schedule.)
Page 13 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance
v. 20091 - 50
Exhibit C — Performance Assurance
City of Cupertino
Table 6.1.1 Electricity
Tariff Number or Designation:
Utility Name:
Rate Structure:
LS- -2A (March 1, 2009 — April 30,
PG &E
$0.12206 $ per
N/A $ p
Rate Escalation:
Table 6.1.3 Water
Tariff Number or Designation
Utility Name:
San Jose Rate Structure':
California Water Rate Structure 2:
Rate Escalation 3:
Schedule 1 — S J
Schedule LS -1- o Water
San Jose Water rnia Water
$2.2 $per 100 cu. Ft.
$3.0 $ per 100 cu. Ft.
3 % per Annual Period
1 Rate Structure based on Schedule 1 Effective 9/17/2009
2 Rate Structure based on Schedule LS -1 -NR up to 6 inch meter (no effective date shown)
3 Rates for Years 1 through 3 for San Jose Water based on recent published escalation rates of
18.44% in 2010, 6.52% in 2011, and 8.10% on 2012. Years 4 through 10 estimated at 3 %. San
Jose Water Public Notice attached as Figure 1 at end of this Exhibit.
Article 7: Contracted Baseline Data
7.1 The following tables detail the Facility operating parameters that are required to
be implemented on the Guarantee Date or on such time as agreed upon by the
Parties. This specific configuration of Facility operating parameters is the
Contracted Baseline and failure of the CLIENT to maintain the Contracted
Baseline may result in a Material Change which may require a modification of the
Performance Guarantee pursuant to Article 4 of the Agreement.
Annual operating hours for Street Lig iting is taken as 4,100 hours per year. This
value is based on the LS -2 Rate Schedule.
(Note: Actual run hours will not affect monthly energy charge or savings.)
7.2 Facility operating parameters to be added
Page 1.4 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C — Performance Assurance v. 2009A - 51
Exhibit C - Performance Assurance
City of Cupertino
Figure 1 - Back up Documentation for Water Escalation
Notice of Application by San Jose Water Company for a
Rate Increase Request for Public Comments . In
Application NO. 09 -014M
T C�
he California Public Utilities bmmission (CPUC) is seeking
A public comments an Application 09 -01-W9 filed by the San Jost \! :ter
Compam' (SJIVC} As noted below, the fd
ire is saxkit r increase rates fax water
mm ice in 2010, 2011, mud 2012.;. As pan of its del- isien- making prtcess, the CPUC
is Interested m your comments on any aslant of the cnmpam's opetalion inc!udmg
proposed rates, smace quulily nr any other issue that map be- of cane veer
The purpose of this notice is to inform SJA'C's customers of the filing of
the AM, lication and to give i nstructions on how to provide input in the review
Process
THr APPI,IrATION
SAW has tiled an Application requesting rate inrreascs. df S36,2ep 18 44%
A 20M nS. °" irt21111,andSto.899.00UcrS IM in :_x31.2 :511VC
is also requesting consolidation of the rates charged in its llnuntain Di strict with
the rates charged thine; hwt 51WC's remaining service meet. Finally, SAW is
requesting that the Commi -on authorize the (I) disburatmem of 51,649,1061 m
its flalancirng Account via a 12 -mrmth SiJ.0271Uccf tusurnor suvattlit and ( 2) allow
recovery Of $90,669 from the Wain Quality Expense Memorandum Account via a
one -tune cmlomc, surcha•gc of 50.4 f.
SAVC is proposing thisnic infom c due to Mulatitg operating expenses as well
as significant system infr isiralcWre replacemcm requirements over the rient several
y ism . lbe on as
mnal budgets for the perind are also massing due it) significa
higher emttructioo casts. 11e iartastruenae improvements such as water main and
well replacements. improvements to pumping stations and Well fields. as well as
water tank upgrades and replacements throughout SJII'C's about 140 square miles
smwe area an necessary in order t, maintain safe aunt reliable water service.
The following tahl,s summarize SRVC's Onecasted rote changes by meter size:
For the typical residential customer with a meta using 16 of (one ucf =
74 ga)lons) of %rater per month, the monthly Water bill will increase by S9 4 or
18.45°6 from C51 W at present rates to SW).48 in 30l (k by S2 90 or 4.79% to 56338
lo 2CU 1, and by SQ.oS or 7.4 °6 w 568.((6 in 2012. 11,est bill amounts include 1.5%
chs!ge to fund the Caltlitmia Puhlle titilitis Commission. The rate shown on your
waor hill may an slightly from the cxistin¢ rates shown abm•e due to temporary
surer edits m surcharges in nlfecl from time to tine.
Scbeblle l - (3enernl Metered Sm
ice
Monthlc Soviet
Chame
Rates I'mtrpsed
in Sj%kr's Annhcatirm
Adder Size
PTe.ert Rates
201 O Rates
201 I Rata
201 "_ Rates
5'8X34 -inch
SI5.07
$17.47
S19.19
S20.50
34 -inch
$15.07
$17.47
519.19
520.50
1 -inch
525,12
$29.12
531 t>S
S34.16
1 V<-inch
$50.26
$57.08
SO-97
S68.33
2 -inch
S8040
$9120
5102.35
510.33
3 -inch
S150.75
S174.74
$19191
52t499
4 -inch
$25i.2ti
S291.
$319.85
S341.65
6 -mch
$502.52
S5S2.48
5639.70
$68339
8 -inch
5804.03
$931.9,1
SL023.51
S1p93.2K
lieineh
S1,155.80
51,339.69
$1:17130
51,571.59
Ouantity ( shames
Mer Cc7l
56.88
S25.(X(j
525.00
RRtdcnt)a! (usinmers with a 5:8 x
26 to 35 Ccf
510 32
525.00
3 -inch t «inch
or 1, inch meter
36 to 46 Ccf
513.76
5=5.00
11 to 13 Ccf
52.2082
S2 6139
S2.711
52.918
Over 13 Ccf
S2.4282
S2.902
$2.981
S3, 2(P
Residential Cumomm
I !_ imh err 2
with
meter:
F.lo at iron "hares
I'er Ccf
M'A
50.7632
-inch
0 w 26 Ccf
52.2082
$2.639
52.711
52918
Over 26 C ti
S24282
S2,5X92
$2.981
S3 2io
All rhher Customers
Al; Usage
522921
$2.7272
52.8017
S3.0159
For the typical residential customer with a meta using 16 of (one ucf =
74 ga)lons) of %rater per month, the monthly Water bill will increase by S9 4 or
18.45°6 from C51 W at present rates to SW).48 in 30l (k by S2 90 or 4.79% to 56338
lo 2CU 1, and by SQ.oS or 7.4 °6 w 568.((6 in 2012. 11,est bill amounts include 1.5%
chs!ge to fund the Caltlitmia Puhlle titilitis Commission. The rate shown on your
waor hill may an slightly from the cxistin¢ rates shown abm•e due to temporary
surer edits m surcharges in nlfecl from time to tine.
For the typial NUAMUin District TMUlrntial uauAantr with a `: -inch meta seine lb ocf
(owed = 748 aalhxw) of water per month, the msaatltly water bill will decra;ese by $63 56
m 466516 rim 5136 °5 at In-it rates to $7:.69 in 201 Q aralwih then inatast In" S2.89
or 3.9 to 575.58 in 2011. and by 54.69 or 6 21% to S90.27 in 2012. These bill amount
include 1. charge to fund the CPUC. The rates shown on your water bill roar van
slighth from the inustmg rates shower above due to temporary surcnmdits cr snrclarges in
effect fitmi time to time.
Under SAVCo proposal, rates fa- crch yca would bxtmue elRethe on Januun 1 for
Ilea p:aliv}a yeas As regttied. the rate increases for 2011 and 221113 we derived us
intlatium factors pimidod Its• the M,'1C. The LiC'i s u.,cd to calculate rates in these pars
will be the most recent inflau or forecast at that print in time. in ils Applica mX sA%eC
has requested to increase its macs by actual infixion will"- further "ice W customers.
This meats that if mtlation u greater than that asunxd hen, roles for 2011 and 2012 may
I, h!gler them shown in this notice.
THE ('Pit( NOCS
The CPUC "s Pirisim of Ratepayer Advocates (DRA) will review the Applicatim aril
submit its i depcieru anatysu and reeonumeruhtuoast in a written rep.M for the r_yUC's
consideration That refxrt will become available to the public. DRA is staffed with
engine rs, audilo s. and otha profrssirnal staff and is Iasked with representing the imercfi
of all utility ratepayers. Otter interested parties may also participate in the proceeding.
Evid nu n• hearing: ma:• be hold wberebv of parts of record will present their
testimorty and will be tadyeet to cro&a- oumimthm before the asigrwd Administrative
Law hdge (ALl). Thesc evidentiary hearings are open to the public. but ooh' Partin to
the proccednrg map presom evidence or sots crzmline witne if you Avid, to bis are
a party and participate in the evidemiary heurirsgs, Please contact the CIVCs Public
Adviser at Or addren shrusri bokwc
Panics at lust hearings may offer proposals to the Commission that chiller than
ltasv requested b,. SAW After ccxsickrinr all proposals and evidmw pros mte:) dieing
the formal hearing poecess, the assigned AL) will inuo a pmppsed decision IVhcn the
CPUC mues a final decaim an Apphc u on 09411 it may ndeopL amerd or modlfv
all a poi of the ALrs prcpwd decision as written The CPU-C's final decision may be
different from SIWC's proposal
PRr7TrSTNG THE AJ 7lOW
i } to this amli =ion slwutd be mailed to the (`FMC's Public Advisor's Office. For
asw.tance in fibm a protest or ahem•ise rartwipoung in the proceeding, pltaic ,+roast
the Public: im•lsor's Office u;
California Public Utilities Commission, public Adviser's Offer
50 5 Man NctsAvenue, San Fmrnciseo,C.A 941CC
E-mail: public.adyaoni,c W.cagov
1•ou mac a' nil 866.849.839rt (toll fret) err 415.713.E 1/a. Pease mrntiran that tau m v
wnain about Applicauam C�1JI -tlr).
I'URLIC COO-!, .1Tf
Written public comment ma M sent to the Public Advisor's Office at the address
sham abo c. These umnents will became put of the famed cotuspondart fik+
of the proceeding and will be circulated for reviov to the aas4.rYd .4ll. the wigncd
Cummissiarr mid the apprtprratr CPUC sniff. Commtats will be eolkctnt m aracagoing
basis until such time that ti>; evi:enua n, hearings commctac r lease sod comments to
the CRI(7s PutblicAdcisur s Office Wed above. In addition, public ranicipatwm hearing&
mm• he hold Please refer to San joss Water Comp-.'s Application No. , 6 in all
of van :ommunictturss_
A corn- of SAUVC's Application and further imformi atuoo may tr otsained firm the
c mrsmy's cuss mr, service office located at the a r;diess beker.
�� San bete
110 W" Taylor Street • San Jose, CA95110
408379.79(K1 • wwm jw•atcr.com
Page 15 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C - Performance Assurance v. 20091 -52
Schedule IC - Mountain District
A. 1mt_hly Sen
Charee
}fate, Pmnntcd
in NANO's
inruicatim
Meta size
Presrnr Rates
2010 Rates
2 1 1 Rates
2012 R4
5:"8 a 3.4 -inch
S81.37
$1747
519.19
S2b.50
14 -inch
$8137
$17.47
S1919
51
1 -inch
SR137
529.12
53198
S :ullti
11!2 -inch
58137
55K._5
S63.97
568,33
? -inch
$81 37
9)3 20
$10:35
$Irx>33
3 -inch
$81,37
5174.74
$141.
520499
OUamily CharGn
I r Cell
0 to 13 Ccf
53.43
52639
52.711
52.91 K
14 to 16 Ccf
5343
52.9112
$2981
S3 :09
17 to 22 Ccf
54.29
S
$2500
525. 00
23 to 25 Ccf
56.88
S25.(X(j
525.00
525.00
26 to 35 Ccf
510 32
525.00
S25.
S25.rky
36 to 46 Ccf
513.76
5=5.00
S25 1XI
$25. 00
47 to 55 Ccf
S1730
S25.00
S25
$25.00
56 ticf and above
Soa).64
SZS.Caf
525 00
525.00
F.lo at iron "hares
I'er Ccf
M'A
50.7632
$117632
$0.7632
For the typial NUAMUin District TMUlrntial uauAantr with a `: -inch meta seine lb ocf
(owed = 748 aalhxw) of water per month, the msaatltly water bill will decra;ese by $63 56
m 466516 rim 5136 °5 at In-it rates to $7:.69 in 201 Q aralwih then inatast In" S2.89
or 3.9 to 575.58 in 2011. and by 54.69 or 6 21% to S90.27 in 2012. These bill amount
include 1. charge to fund the CPUC. The rates shown on your water bill roar van
slighth from the inustmg rates shower above due to temporary surcnmdits cr snrclarges in
effect fitmi time to time.
Under SAVCo proposal, rates fa- crch yca would bxtmue elRethe on Januun 1 for
Ilea p:aliv}a yeas As regttied. the rate increases for 2011 and 221113 we derived us
intlatium factors pimidod Its• the M,'1C. The LiC'i s u.,cd to calculate rates in these pars
will be the most recent inflau or forecast at that print in time. in ils Applica mX sA%eC
has requested to increase its macs by actual infixion will"- further "ice W customers.
This meats that if mtlation u greater than that asunxd hen, roles for 2011 and 2012 may
I, h!gler them shown in this notice.
THE ('Pit( NOCS
The CPUC "s Pirisim of Ratepayer Advocates (DRA) will review the Applicatim aril
submit its i depcieru anatysu and reeonumeruhtuoast in a written rep.M for the r_yUC's
consideration That refxrt will become available to the public. DRA is staffed with
engine rs, audilo s. and otha profrssirnal staff and is Iasked with representing the imercfi
of all utility ratepayers. Otter interested parties may also participate in the proceeding.
Evid nu n• hearing: ma:• be hold wberebv of parts of record will present their
testimorty and will be tadyeet to cro&a- oumimthm before the asigrwd Administrative
Law hdge (ALl). Thesc evidentiary hearings are open to the public. but ooh' Partin to
the proccednrg map presom evidence or sots crzmline witne if you Avid, to bis are
a party and participate in the evidemiary heurirsgs, Please contact the CIVCs Public
Adviser at Or addren shrusri bokwc
Panics at lust hearings may offer proposals to the Commission that chiller than
ltasv requested b,. SAW After ccxsickrinr all proposals and evidmw pros mte:) dieing
the formal hearing poecess, the assigned AL) will inuo a pmppsed decision IVhcn the
CPUC mues a final decaim an Apphc u on 09411 it may ndeopL amerd or modlfv
all a poi of the ALrs prcpwd decision as written The CPU-C's final decision may be
different from SIWC's proposal
PRr7TrSTNG THE AJ 7lOW
i } to this amli =ion slwutd be mailed to the (`FMC's Public Advisor's Office. For
asw.tance in fibm a protest or ahem•ise rartwipoung in the proceeding, pltaic ,+roast
the Public: im•lsor's Office u;
California Public Utilities Commission, public Adviser's Offer
50 5 Man NctsAvenue, San Fmrnciseo,C.A 941CC
E-mail: public.adyaoni,c W.cagov
1•ou mac a' nil 866.849.839rt (toll fret) err 415.713.E 1/a. Pease mrntiran that tau m v
wnain about Applicauam C�1JI -tlr).
I'URLIC COO-!, .1Tf
Written public comment ma M sent to the Public Advisor's Office at the address
sham abo c. These umnents will became put of the famed cotuspondart fik+
of the proceeding and will be circulated for reviov to the aas4.rYd .4ll. the wigncd
Cummissiarr mid the apprtprratr CPUC sniff. Commtats will be eolkctnt m aracagoing
basis until such time that ti>; evi:enua n, hearings commctac r lease sod comments to
the CRI(7s PutblicAdcisur s Office Wed above. In addition, public ranicipatwm hearing&
mm• he hold Please refer to San joss Water Comp-.'s Application No. , 6 in all
of van :ommunictturss_
A corn- of SAUVC's Application and further imformi atuoo may tr otsained firm the
c mrsmy's cuss mr, service office located at the a r;diess beker.
�� San bete
110 W" Taylor Street • San Jose, CA95110
408379.79(K1 • wwm jw•atcr.com
Page 15 of 15
SIEMENS Industry, Inc., Building Technologies Division
Exhibit C - Performance Assurance v. 20091 -52
Exhibit D — Addendum No. 1
Addendum No.1 to the Performance Contracting Agreement between
Siemens Industry, Inc., Building Technologies Division ( "SIEMENS ") and
City of Cupertino ( "CLIENT")
Dated Insert Date of PCA that appears on Page 2 of the PCA
No. Enter SBT Contract Number
The Parties agree to modify and to supplement the Performance Contracting Agreement ( "Agreement ")
as follows:
1. To the extent that any terms and conditions contained in the Agreement conflict with any terms
and conditions contained in this Addendum Nc. 1, then the terms contained in this Addendum No.
1 shall control.
2. Defined terms that are not specifically defined - )erein shall be as defined in the Agreement.
3. The Parties acknowledge that a portion of the funds utilized to pay SIEMENS for the Work has been
obtained through the Energy Efficiency and Conservation Block Grant Program ( "EECBGP ") which
is derived from the American Recovery and Reinvestment Act of 2009 ( "ARRA "). As a result,
certain reporting requirements under both the EECBGP and the ARRA are required of each party
and additional terms and conditions are to be included herein. The following list identifies
appendices to this Addendum No. 1 that contain terms and conditions incorporated by their
reference herein and to the extent modified, the modifications appear under the listing:
A. Addendum No. 1- Appendix A: Special Terms and Conditions For The Energy Efficiency
And Conservation Block Grant Prograrri- Formula Grants -July 2009
i. Modification: The Parties acknowledge that under the Agreement no Intellectual Property
rights are being transferred from SIEMENS to the CLIENT. Therefore, the Intellectual
Property provisions contained in Appendix A (Section 18(a)) are inapplicable and are not
included herein, as are the terms referenced in Section 18(a) that are contained in the
document identified as "Attachment 1- Intellectual Property Provisions ".
B. Addendum No.1- Appendix B: Attachment 5 -Davis Beacon Wage Determination
4. Section 3.3 of the Agreement is modified as follows:
"SIEMENS shall perform the Work as an independent contractor with exclusive control of the
manner and means of performing the Work in accordance with the requirements of this Agreement,
however, the CLIENT may review the Work in ,arogress and direct SIEMENS to stop Work if in the
CLIENT's reasonable determination of the Work is not in accordance with the terms and conditions
of this Agreement. To the extent that it is lat determined that CLIENT's Stop Work Order was
issued in error. SIEMENS shall incur no preiudic)e due to the issuance of the Stop Work Order
SIEMENS has no authority to act or make any agreements or representations on behalf of the
CLIENT. This Agreement is not intended, arid shall not be construed to create, between the
CLIENT and SIEMENS, the relationship of principal and agent, joint- venturers, co- partners or any
other such relationship, the existence of which is hereby expressly denied. No employee or agent of
SIEMENS shall be, or shall be deemed to be, an employee or agent of the CLIENT."
5. Section 5.2 of the Agreement is modified with tl addition of the following:
" (a) SIEMENS shall notify the CLIENT at least seven (7) days in advance of proposed work
schedule for the week following.
(b) SIEMENS shall stop Work as directed by the CLIENT on any field installation.
Siemens Industry, Inc., Building Technologies Division v. 2009
Exhibit D- Addendum No. 1 16-53
Exhibit D — Addendum No. 1
6. Article 6 of the Agreement is modified with the addition of the following:
" (n) The CLIENT may be present to review all field installation while Work is being performed.
(o) The CLIENT may direct SIEMENS to stop Work on any field installation.
(p) The CLIENT shall provide written response to SIEMENS explaining any Stop Work Order
within seven (7) days of the issuance of the Stop Work Order.
The Parties agree that this Exhibit D- Addendum No. 1 modifies the Agreement between the Parties,
dated , 2010 and is attached to and made a part of the Agreement.
CLIENT: City of Cupertino
Signature:
Printed Name:
Title:
Date:
SIEMENS: Siemens Industry, Inc.
Signature:
Printed Name:
Title:
Date:
Signature:
Printed Name:
Title:
Date:
Siemens Industry, Inc., Building Technologies Division v. 2009
Exhibit D- Addendum No. 1
16 -54
SPECIAL TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND CONSERVATION
BLOCK GRANT PROGRAM — 1+ORMULA GRANTS — JULY 2009
Table of Contents
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
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21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
RESOLUTION OF CONFLICTING CONDITIONS .................................................... ..............................1
AWARD AGREEMENT TERMS AND CONDITIONS .............................................. ..............................1
AWARD PROJECT PERIOD AND BUDGET PERIODS ........................................... ..............................1
STAGED DISBURSEMENT OF FUNDS .................................................................... ..............................1
PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD
APPLICATION FOR PAYMENTS (ASAP) SYSTEM ................................................ ..............................2
INCREMENTAL FUNDING AND MAXIMUM OBLIGATION - COEXTENSIVE BUDGET PERIOD
ANDPROJECT PERIOD .............................................................................................. ..............................2
COST SHARING FFRDC'S NOT INVOLVED ............................................................ ..............................2
REBUDGETING AND RECOVERY OF INDIRECT COSTS .................................... ..............................3
CEILING ON ADMINISTRATIVE COSTS ................................................................. ..............................4
LIMITATIONS ON USE OF FUNDS ........................................................................... ..............................4
PRE -AWARD COSTS ................................................................................................... ..............................4
USE OF PROGRAM INCOME - ADDITION .............................................................. ..............................4
STATEMENT OF FEDERAL STEWARDSHIP .......................................................... ..............................4
SITEVISITS .................................................................................................................. ..............................4
REPORTINGREQUIREMENTS .................................................................................. ..............................5
PUBLICATIONS........................................................................................................... ..............................5
FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS ...................................... ..............................5
INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION .. ..............................5
LOBBYING RESTRICTIONS ...................................................................................... ..............................6
NOTICE REGARDING THE PURCHASE OF AMERICAN -MADE EQUIPMENT AND PRODUCTS -
- SENSE OF CONGRESS ............................................................................................. ..............................6
INSOLVENCY, BANKRUPTCY OR RECEIVIM SHIP .............................................. ..............................6
NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS .......... ..............................6
DECONTAMINATION AND/OR DECOMMISSIONING (D &D) COSTS ................ ..............................7
SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009 (MAY 2009) ........ ................................................... ..............................7
REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE
RECOVERY ACT (MAY 2009) .................................................................................. .............................12
REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS -- SECTION
1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009) .........12
REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED
UNDER INTERNATIONAL AGREEMENTS) -- SECTION 1605 OF THE AMERICAN RECOVERY
AND REINVESTMENT ACT OF 2009 (MAY 2009) ................................................. .............................14
WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT (MAY 2009)17
RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL
AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS (MAY
2009) ............................................................................................................................. .............................18
DAVIS BACON ACT REQUIREMENTS (MAY 2009) ............................................. .............................18
16 -55
Not Specified/Other
SPECIAL TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND
CONSERVATION BLOCK GRANT PROGRAM — FORMULA GRANTS — JULY 2009
1. RESOLUTION OF CONFLICTING CONDITIONS
Any apparent inconsistency between Federal statutes and regulations and the terms and conditions
contained in this award must be referred to the DOE Award Administrator for guidance.
2. AWARD AGREEMENT TERMS AND CONDITIONS
This award/agreement consists of the Grant and Cooperative Agreement cover page, plus the following:
a. Special terms and conditions.
b. Attachments:
Attachment No Title
Intellectual Property Provisions
Project Activity Worksheet(s)
Federal Assistance Reporting Checklist
Budget Pages
Davis Bacon Wage Determination
c. Applicable program regulations: Title V, Subtitle E of the Energy Independence Security Act (EISA)
of 2007, Public Law 110 -140.
d. DOE Assistance Regulations, 10 CFR Part 600 at http: / /ecfr.gpoaccess.gov and if the award is for
research and to a university or non - profit, the Research Terms & Conditions and the DOE Agency
Specific Requirements at http://www.nsf.gov/bfa/dias/Policy/rtc/indexjsp.
e. Application/proposal as approved by DOE.
f. National Policy Assurances to Be Incorporated as Award Terms in effect on date of award at
hitp: / /management.energy.gov/business doe/1374.htm
3. AWARD PROJECT PERIOD AND BUDGET PERIODS
The Project and Budget Periods for this award is 08/14/2009 through 08/13/2012.
4. STAGED DISBURSEMENT OF FUNDS
I 1 IF MARKED, THIS TERM IS APPLICABLE
The total funding allocation for this award is shown in Block 13 of the Assistance Agreement Cover Page.
However, funds will be released according to a staged disbursement schedule. All funds must be expended
within 36 months of the effective date of the award.
[ ] For Energy Efficiency Conservation Strategy (SECS) Only awards, funds in the amount of
$ [ ] are released to the Recipient to begin work'on the EECS. The approved activities are listed in
Attachment 2, Project Activity Worksheets. The remaining funds will be released for disbursement upon
DOE approval of the EECS and amendment of the award to include the authorized Project Activity
Worksheets.
[ ] Funds in the amount of $ [ ] are released to the Recipient to begin work on the activities listed in
Attachment 2, Project Activity Worksheets. The remaining funds will be released for disbursement upon
Not Specified/Other
16 -56
Not Specified/Other
DOE approval of additional activities and amendment of the award to include the authorized Project
Activity Worksheets.
[ ] Funds in the amount of $ [ ] are released to the Recipient to begin work on administrative duties
pending resolution of problematic issues such as eligibility, technical issues, NEPA, historic preservation,
budgetary items, or similar issues. The remaining funds will be released upon successful resolution of
these issues and amendment of the award.
5. PAYMENT PROCEDURES - ADVANCES T11ROUGH THE AUTOMATED STANDARD
APPLICATION FOR PAYMENTS (ASAP) SYSTEM
I 1 IFMARKED, THIS TERMDOESNOTAPPLY— SEEATTACHMENT6
a. Method of Payment. Payment will be made by advances through the Department of Treasury's ASAP
system.
b. Requesting Advances. Requests for advances must be made through the ASAP system. You may
submit requests as frequently as required to meet your needs to disburse funds for the Federal share of
project costs. If feasible, you should time each request so that you receive payment on the same day
that you disburse funds for direct project costs and the proportionate share of any allowable indirect
costs. If same -day transfers are not feasible, advance payments must be as close as is administratively
feasible to actual disbursements.
c. Adjusting payment requests for available cas'a. You must disburse any funds that are available from
repayments to and interest earned on a revoIN ing fund, program income, rebates, refunds, contract
settlements, audit recoveries, credits, discounts, and interest earned on any of those funds before
requesting additional cash payments from DOE/NNSA.
d. Payments. All payments are made by electronic funds transfer to the bank account identified on the
ASAP Bank Information Form that you filed with the U.S. Department of Treasury.
6. INCREMENTAL FUNDING AND MAXIMUM OBLIGATION - COEXTENSIVE BUDGET
PERIOD AND PROJECT PERIOD
This award is funded on an incremental basis. The maximum obligation of the DOE/NNSA is limited to
the amount shown on the Agreement Face Page. You are not obligated to continue performance of the
project beyond the total amount obligated and your pro rata share of the project costs, if cost sharing is
required. Additional funding is contingent upon 1he availability of appropriated funds and substantial
progress towards meeting the objectives of the award.
7. COST SHARING FFRDC'S NOT INVOLVED
Aaalicable only if cost sharint is included in the award
a. Total Estimated Project Cost is the sum of the Government share and Recipient share of the estimated
project costs. The Recipient's cost share must come from non - Federal sources unless otherwise
allowed by law. By accepting federal funds under this award, you agree that you are liable for your
percentage share of total allowable project costs, on a budget period basis, even if the project is
terminated early or is not funded to its comp:,etion. This cost is shared as follows:
Budget
Budget
Government Share
Recipient Share
Total Estimated Cost
Period
Period Start
$/%
$/%
No.
1
08/14/2009
$526,200.00
$2,438,196.00
$2,964,396.00
Total Project
$526,200.00
$2,438,196.00
$2,964,396.00
Not Specified/Other
16 -57
Not Specified/Other
b. If you discover that you may be unable to provide cost sharing of at least the amount identified in
paragraph a of this article, you should immediately provide written notification to the DOE Award
Administrator indicating whether you will continue or phase out the project. If you plan to continue
the project, the notification must describe how replacement cost sharing will be secured.
c. You must maintain records of all project costs that you claim as cost sharing, including in -kind costs,
as well as records of costs to be paid by DOE/NNSA. Such records are subject to audit.
d. Failure to provide the cost sharing required by this Article may result in the subsequent recovery by
DOE/NNSA of some or all the funds provided under the award.
8. REBUDGETING AND RECOVERY OF INDIRECT COSTS
THE APPLICABLE CLA USE IS MARKED BELOW.
[ ] REBUDGETING AND RECOVERY OF INDIRECT COSTS - REIlVMURSABLE INDIRECT
COSTS AND FRINGE BENEFITS
a. If actual allowable indirect costs and fringe benefits are less than those budgeted and funded
under the award, you may use the difference to pay additional allowable direct costs during the
project period. If at the completion of the award the Government's share of total allowable costs
(i.e., direct, indirect, fringe benefits), is less than the total costs reimbursed, you must refund the
difference.
b. Recipients are expected to manage their indirect costs and fringe benefits. DOE will not amend
an award solely to provide additional funds for changes in indirect costs and fringe benefits.
DOE recognizes that the inability to obtain full reimbursement for indirect costs and fringe
benefits means the recipient must absorb the underrecovery. Such underrecovery may be
allocated as part of the organization's required cost sharing.
[ ] REBUDGETING AND RECOVERY OF INDIRECT COSTS — REINMURSABLE INDIRECT
COSTS
a. If actual allowable indirect costs are less than those budgeted and funded under the award, you
may use the difference to pay additional allowable direct costs during the project period. If at
the completion of the award the Government's share of total allowable costs (i.e., direct and
indirect), is less than the total costs reimbursed, you must refund the difference.
b. Recipients are expected to manage their indirect costs. DOE will not amend an award solely to
provide additional funds for changes in indirect cost rates. DOE recognizes that the inability to
obtain full reimbursement for indirect costs means the recipient must absorb the underrecovery.
Such underrecovery may be allocated as part of the organization's required cost sharing.
c. The budget for this award includes indirect costs, but does not include fringe benefits.
Therefore, fringe benefit costs shall not be charged to nor shall reimbursement be requested for
this project nor shall the fringe benefit costs for this project be allocated to any other federally
sponsored project. In addition, fringe benefit costs shall not be counted as cost share unless
approved by the Contracting Officer.
[X] REBUDGETING AND RECOVERY OF INDIRECT COSTS - INDIRECT COSTS AND FRINGE
BENEFITS ARE NOT REPvMURSABLE
The budget for this award does not include indirect costs or fringe benefits. Therefore, these
expenses shall not be charged to nor reimbursement requested for this project nor shall the fringe and
indirect costs from this project be allocated to any other federally sponsored project. In addition,
Not Specified/Other
16 -58
Not S Decified/Other
indirect costs or fringe benefits shall not be counted as cost share unless approved by the Contracting
Officer.
9. CEILING ON ADMINISTRATIVE COSTS
a. Recipients may not use more than 10 percent of amounts provided under this program, or $75,000,
whichever is greater (EISA Sec 545(b)(3)(A), for administrative expenses, excluding the costs of
meeting the reporting requirements under Title V, Subtitle E of EISA. These costs should be captured
and summarized for each activating under the Projected Costs Within Budget: Administration.
b. Recipients are expected to manage their administrative costs. DOE will not amend an award solely to
provide additional funds for changes in administrative costs. The Recipient shall not be reimbursed on
this project for any final administrative costs that are in excess of the designated 10 percent
administrative cost ceiling. In addition, the Recipient shall neither count costs in excess of the
administrative cost ceiling as cost share, nor E►llocate such costs to other federally sponsored projects,
unless approved by the Contracting Officer.
10. LIMITATIONS ON USE OF FUNDS
a. Recipients may not use more than 20 percent or $250,000, whichever is greater (EISA Sec
545(b)(3)(B), for the establishment of revolving loan funds.
b. Recipients may not use more than 20 percent or $250,000, whichever is greater (EISA Sec
545(b)(3)(C), for subgrants to nongovernmental organizations for the purpose of assisting in the
implementation of the energy efficiency and conservation strategy of the eligible unit of local
government.
11. PRE -AWARD COSTS
THIS TERM IS INAPPLICABLE UNLESS CO WPLETED BELOW.
You are entitled to reimbursement for costs incurred on or after [N /A], as authorized by the pre -award costs
letter dated [N /A], if such costs are allowable in a,;cordance with the applicable Federal cost principles
referenced in 10 CFR Part 600.
12. USE OF PROGRAM INCOME - ADDITION
If you earn program income during the project period as a result of this award, you may add the program
income to the funds committed to the award and use it to further eligible project objectives.
13. STATEMENT OF FEDERAL STEWARDSHIP
DOE/NNSA will exercise normal Federal stewardship in overseeing the project activities performed under
this award. Stewardship activities include, but are, not limited to, conducting site visits; reviewing
performance and financial reports; providing technical assistance and/or temporary intervention in unusual
circumstances to correct deficiencies which develop during the project; assuring compliance with terms and
conditions; and reviewing technical performance after project completion to ensure that the award
objectives have been accomplished.
14. SITE VISITS
DOE's authorized representatives have the right tc make site visits at reasonable times to review project
accomplishments and management control systems and to provide technical assistance, if required. You
must provide, and must require your subawardees to provide, reasonable access to facilities, office space,
Not Specified/Other
16 -59
Not Specified/Other
resources, and assistance for the safety and convenience of the government representatives in the
performance of their duties. All site visits and evaluations must be performed in a manner that does not
unduly interfere with or delay the work.
15. REPORTING REQUIREMENTS
a. Requirements. The reporting requirements for this award are identified on the Federal Assistance
Reporting Checklist, DOE F 4600.2, attached to this award. Failure to comply with these reporting
requirements is considered a material noncompliance with the terms of the award. Noncompliance
may result in withholding of future payments, suspension, or termination of the current award, and
withholding of future awards. A willful failure to perform, a history of failure to perform, or
unsatisfactory performance of this and/or other financial assistance awards, may also result in a
debarment action to preclude future awards by Federal agencies.
b. Dissemination of scientific /technical reports. Scientific /technical reports submitted under this award
will be disseminated on the Internet via the DOE Information Bridge (www.osti.gov/bridge), unless the
report contains patentable material, protected data, or SBIR/STTR data. Citations for journal articles
c. produced under the award will appear on the DOE Energy Citations Database
(www.osti.gov/energycitations
d. Restrictions. Reports submitted to the DOE Information Bridge must not contain any Protected
Personal Identifiable Information (PH), limited rights data (proprietary data), classified information,
information subject to export control classification, or other information not subject to release.
16. PUBLICATIONS
a. You are encouraged to publish or otherwise make publicly available the results of the work conducted
under the award.
b. An acknowledgment of Federal support and a disclaimer must appear in the publication of any
material, whether copyrighted or not, based on or developed under this project, as follows:
Acknowledgment: "This material is based upon work supported by the Department of Energy under
Award Number DE- SC0001398."
Disclaimer: "This report was prepared as an account of work sponsored by an agency of the United
States Government. Neither the United States Government nor any agency thereof, nor any of their
employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for
the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed,
or represents that its use would not infringe privately owned rights. Reference herein to any specific
commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not
necessarily constitute or imply its endorsement, recommendation, or favoring by the United States
Government or any agency thereof. The views and opinions of authors expressed herein do not
necessarily state or reflect those of the United States Government or any agency thereof."
17. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS
You must obtain any required permits and comply with applicable federal, state, and municipal laws, codes,
and regulations for work performed under this award.
18. INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION
a. The intellectual property provisions applicable to this award are provided as an attachment to this
award or are referenced on the Agreement Face Page. A list of all intellectual property provisions may
be found at hitp: / /www. ca doe.gov /financial assistance awards.htm
Not Specified/Other
16 -60
Not Specified/Other
b. Questions regarding intellectual property matters should be referred to the DOE Award Administrator
and the Patent Counsel designated as the service provider for the DOE office that issued the award.
The IP Service Providers List is found at
http:// www. gc .doe.aov /documents/Intellectual Property 0P) Service Providers for Acquisition.pdf
19. LOBBYING RESTRICTIONS
By accepting funds under this award, you agree that none of the funds obligated on the award shall be
expended, directly or indirectly, to influence congressional action on any legislation or appropriation
matters pending before Congress, other than to communicate to Members of Congress as described in 18
U.S.C. 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation.
20. NOTICE REGARDING THE PURCHASE OF AMERICAN -MADE EQUIPMENT AND
PRODUCTS — SENSE OF CONGRESS
It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased
with funds made available under this award should be American -made.
21. INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP
a. You shall immediately notify the DOE of the occurrence of any of the following events: (i) you or your
parent's filing of a voluntary case seeking liquidation or reorganization under the Bankruptcy Act; (ii)
your consent to the institution of an involuntary case under the Bankruptcy Act against you or your
parent; (iii) the filing of any similar proceeding for or against you or your parent, or its consent to, the
dissolution, winding -up or readjustment of your debts, appointment of a receiver, conservator, trustee,
or other officer with similar powers over you, under any other applicable state or federal law; or (iv)
your insolvency due to your inability to pay your debts generally as they become due.
b. Such notification shall be in writing and shall: (i) specifically set out the details of the occurrence of
an event referenced in paragraph a; (ii) provide the facts surrounding that event; and (iii) provide the
impact such event will have on the project being funded by this award.
c. Upon the occurrence of any of the four events described in the first paragraph, DOE reserves the right
to conduct a review of your award to determine your compliance with the required elements of the
award (including such items as cost share, progress towards technical project objectives, and
submission of required reports). If the DOE review determines that there are significant deficiencies or
concerns with your performance under the award, DOE reserves the right to impose additional
requirements, as needed, including (i) change your payment method; or (ii) institute payment controls.
d. Failure of the Recipient to comply with this provision may be considered a material noncompliance of
this financial assistance award by the Contracting Officer.
22. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS
You are restricted from taking any action using Federal funds, which would have an adverse effect on the
environment or limit the choice of reasonable alternatives prior to DOE/NNSA providing either a NEPA
clearance or a final NEPA decision regarding this project. Prohibited actions include: Any activities other
than Project Activities 3 and 6. This restriction does not preclude you from: City Energy Audits and
Retrofits and Green @ Home Program.
If you move forward with activities that are not authorized for federal funding by the DOE Contracting
Officer in advance of the final NEPA decision, you are doing so at risk of not receiving federal funding and
such costs may not be recognized as allowable cost share.
Not Specified/Other
16 -61
Not Specified/Other
If this award includes construction activities, you must submit an environmental evaluation
report/evaluation notification form addressing NEPA issues prior to DOE/NNSA initiating the NEPA
process.
23. DECONTAMINATION AND /OR DECOMMISSIONING (D &D) COSTS
Notwithstanding any other provisions of this Agreement, the Government shall not be responsible for or
have any obligation to the recipient for (i) Decontamination and/or Decommissioning (D &D) of any of the
recipient's facilities, or (ii) any costs which may be incurred by the recipient in connection with the D &D of
any of its facilities due to the performance of the work under this Agreement, whether said work was
performed prior to or subsequent to the effective date of this Agreement.
24. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN
RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009)
Preamble
The American Recovery and Reinvestment Act of 2009, Pub. L. 111 -5, (Recovery Act) was enacted to
preserve and create jobs and promote economic recovery, assist those most impacted by the recession,
provide investments needed to increase economic efficiency by spurring technological advances in science
and health, invest in transportation, environmental protection, and other infrastructure that will provide
long -term economic benefits, stabilize State and local government budgets, in order to minimize and avoid
reductions in essential services and counterproductive State and local tax increases. Recipients shall use
grant funds in a manner that maximizes job creation and economic benefit.
The Recipient shall comply with all terms and conditions in the Recovery Act relating generally to
governance, accountability, transparency, data collection and resources as specified in Act itself and as
discussed below.
Recipients should begin planning activities for their first tier subrecipients, including obtaining a DUNS
number (or updating the existing DUNS record), and registering with the Central Contractor Registration
(CCR).
Be advised that Recovery Act funds can be used in conjunction with other funding as necessary to complete
projects, but tracking and reporting must be separate to meet the reporting requirements of the Recovery
Act and related guidance. For projects funded by sources other than the Recovery Act, Contractors must
keep separate records for Recovery Act funds and to ensure those records comply with the requirements of
the Act.
The Government has not fully developed the implementing instructions of the Recovery Act, particularly
concerning specific procedural requirements for the new reporting requirements. The Recipient will be
provided these details as they become available. The Recipient must comply with all requirements of the
Act. If the recipient believes there is any inconsistency between ARRA requirements and current award
terms and conditions, the issues will be referred to the Contracting Officer for reconciliation.
Definitions
For purposes of this clause, Covered Funds means funds expended or obligated from appropriations under
the American Recovery and Reinvestment Act of 2009, Pub. L. 111 -5. Covered Funds will have special
accounting codes and will be identified as Recovery Act funds in the grant, cooperative agreement or TIA
and/or modification using Recovery Act funds. Covered Funds must be reimbursed by September 30,
2015.
Non - Federal employer means any employer with respect to covered funds — the contractor, subcontractor,
grantee, or recipient, as the case may be, if the contractor, subcontractor, grantee, or recipient is an
employer; and any professional membership organization, certification of other professional body, any
Not Specified/Other
16 -62
Not Specified/Other
agent or licensee of the Federal government, or any person acting directly or indirectly in the interest of an
employer receiving covered funds; or with respect to covered funds received by a State or local
government, the State or local government receiving the funds and any contractor or subcontractor
receiving the funds and any contractor or subcontractor of the State or local government; and does not
mean any department, agency, or other entity of th a federal government.
Recipient means any entity that receives Recovery Act funds directly from the Federal government
(including Recovery Act funds received through grant, loan, or contract) other than an individual and
includes a State that receives Recovery Act Funds.
Special Provisions
A. Flow Down Requirement
Recipients must include these special terms and conditions in any subaward.
B. Segregation of Costs
Recipients must segregate the obligations and expenditures related to funding under the Recovery Act.
Financial and accounting systems should be nwised as necessary to segregate, track and maintain these
funds apart and separate from other revenue streams. No part of the funds from the Recovery Act shall
be commingled with any other funds or used for a purpose other than that of making payments for
costs allowable for Recovery Act projects.
Prohibition on Use of Funds
None of the funds provided under this agreem ent derived from the American Recovery and
Reinvestment Act of 2009, Pub. L. 111 -5, may be used by any State or local government, or any
private entity, for any casino or other gambling establishment, aquarium, zoo, golf course, or
swimming pool.
C. Access to Records
With respect to each financial assistance agreement awarded utilizing at least some of the funds
appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009,
Pub. L. 111 -5, any representative of an appropriate inspector general appointed under section 3 or 8G
of the Inspector General Act of 1988 (5 U.S.C:. App.) or of the Comptroller General is authorized —
(1) to examine any records of the contractor or grantee, any of its subcontractors or subgrantees, or
any State or local agency administering such contract that pertain to, and involve transactions
relation to, the subcontract, subcontract, grant, or subgrant; and
(2) to interview any officer or employee of the contractor, grantee, subgrantee, or agency regarding
such transactions.
D. Publication
An application may contain technical data and other data, including trade secrets and/or privileged or
confidential information, which the applicant does not want disclosed to the public or used by the
Government for any purpose other than the application. To protect such data, the applicant should
specifically identify each page including each line or paragraph thereof containing the data to be
protected and mark the cover sheet of the application with the following Notice as well as referring to
the Notice on each page to which the Notice E.pplies:
Notice of Restriction on Disclosure and Use of Data
Not Specified/Other
16 -63
Not Specified/Other
The data contained in pages - - -- of this application have been submitted in confidence and contain
trade secrets or proprietary information, and such data shall be used or disclosed only for evaluation
purposes, provided that if this applicant receives an award as a result of or in connection with the
submission of this application, DOE shall have the right to use or disclose the data here to the extent
provided in the award. This restriction does not limit the Government's right to use or disclose data
obtained without restriction from any source, including the applicant.
Information about this agreement will be published on the Internet and linked to the website
www.recovery.gov , maintained by the Accountability and Transparency Board. The Board may
exclude posting contractual or other information on the website on a case -by -case basis when
necessary to protect national security or to protect information that is not subject to disclosure under
sections 552 and 552a of title 5, United States Code.
E. Protecting State and Local Government and Contractor Whistleblowers
The requirements of Section 1553 of the Act are summarized below. They include, but are not limited
to:
Prohibition on Reprisals: An employee of any non - Federal employer receiving covered funds under
the American Recovery and Reinvestment Act of 2009, Pub. L. 111 -5, may not be discharged,
demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in
the ordinary course of an employee's duties, to the Accountability and Transparency Board, an
inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory or law
enforcement agency, a person with supervisory authority over the employee (or other person working
for the employer who has the authority to investigate, discover or terminate misconduct, a court or
grant jury, the head of a Federal agency, or their representatives information that the employee
believes is evidence of:
• gross management of an agency contract or grant relating to covered funds;
• a gross waste of covered funds
• a substantial and specific danger to public health or safety related to the implementation or use of
covered funds;
• an abuse of authority related to the implementation or use of covered funds; or
• as violation of law, rule, or regulation related to an agency contract (including the competition for
or negotiation of a contract) or grant, awarded or issued relating to covered funds.
Agency Action: Not later than 30 days after receiving an inspector general report of an alleged
reprisal, the head of the agency shall determine whether there is sufficient basis to conclude that the
non - Federal employer has subjected the employee to a prohibited reprisal. The agency shall either
issue an order denying relief in whole or in part or shall take one or more of the following actions:
• Order the employer to take affirmative action to abate the reprisal.
• Order the employer to reinstate the person to the position that the person held before the reprisal,
together with compensation including back pay, compensatory damages, employment benefits,
and other terms and conditions of employment that would apply to the person in that position if
the reprisal had not been taken.
• Order the employer to pay the employee an amount equal to the aggregate amount of all costs and
expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by
the employee for or in connection with, bringing the complaint regarding the reprisal, as
determined by the head of a court of competent jurisdiction.
Nonenforceablity of Certain Provisions Waiving Rights and remedies or Requiring Arbitration:
Except as provided in a collective bargaining agreement, the rights and remedies provided to aggrieved
employees by this section may not be waived by any agreement, policy, form, or condition of
employment, including any predispute arbitration agreement. No predispute arbitration agreement
shall be valid or enforceable if it requires arbitration of a dispute arising out of this section.
Requirement to Post Notice of Rights and Remedies: Any employer receiving covered funds under the
Not Specified/Otber
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Not Specified/Other
American Recovery and Reinvestment Act of 2009, Pub. L. 111 -5, shall post notice of the rights and
remedies as required therein. (Refer to section 1553 of the American Recovery and Reinvestment Act
of 2009, Pub. L. 111 -5, www.Recovery.gov, for specific requirements of this section and prescribed
language for the notices.).
F. Request for Reimbursement
Reserved
G. False Claims Act
Recipient and sub - recipients shall promptly refer to the DOE or other appropriate Inspector General
any credible evidence that a principal, employee, agent, contractor, sub - grantee, subcontractor or other
person has submitted a false claim under the False Claims Act or has committed a criminal or civil
violation of laws pertaining to fraud, conflict ar interest, bribery, gratuity or similar misconduct
involving those funds.
H. Information in supporting of Recovery Act R -porting
Recipient may be required to submit backup documentation for expenditures of funds under the
Recovery Act including such items as timecards and invoices. Recipient shall provide copies of
backup documentation at the request of the Contracting Officer or designee.
I. Availability of Funds
Funds appropriated under the Recovery Act and obligated to this award are available for
reimbursement of costs until September 30, 2015.
J. Additional Funding Distribution and Assuran of Appropriate Use of Funds
Applicable if award is to a State Government or an Agency
Certification by Governor -- Not later than April 3, 2009, for funds provided to any State or agency
thereof by the American Reinvestment and Recovery Act of 2009, Pub. L. 111 -5, the Governor of the
State shall certify that: 1) the state will request and use funds provided by the Act; and 2) the funds will
be used to create jobs and promote economic growth.
Acceptance by State Legislature -- If funds provided to any State in any division of the Act are not
accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of
a concurrent resolution, shall be sufficient to provide funding to such State.
Distribution — After adoption of a State legislature's concurrent resolution, funding to the State will be
for distribution to local governments, councils of government, public entities, and public - private
entities within the State either by formula or «t the State's discretion.
K. Certifications
With respect to funds made available to State or local governments for infrastructure investments
under the American Recovery and Reinvestment Act of 2009, Pub. L. 111 -5, the Governor, mayor, or
other chief executive, as appropriate, certifies. by acceptance of this award that the infrastructure
investment has received the full review and vetting required by law and that the chief executive accepts
responsibility that the infrastructure investment is an appropriate use of taxpayer dollars. Recipient
shall provide an additional certification that includes a description of the investment, the estimated
total cost, and the amount of covered funds to be used for posting on the Internet. A State or local
agency may not receive infrastructure investment funding from funds made available by the Act unless
this certification is made and posted.
Not Specified/Other 10
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Not Specified/Other
25. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE
RECOVERY ACT (MAY 2009)
a. This award requires the recipient to complete projects or activities which are funded under the
American Recovery and Reinvestment Act of 2009 (Recovery Act) and to report on use of Recovery
Act funds provided through this award. Information from these reports will be made available to the
public.
b. The reports are due no later than ten calendar days after each calendar quarter in which the recipient
receives the assistance award funded in whole: or in part by the Recovery Act.
c. Recipients and their first -tier recipients must maintain current registrations in the Central Contractor
Registration (http: / /www.ccr.gov) at all times during which they have active federal awards funded
with Recovery Act funds. A Dun and Bradstreet Data Universal Numbering System (DUNS) Number
(http: / /www.dnb.com) is one of the requirements for registration in the Central Contractor
Registration.
d. The recipient shall report the information described in section 1512(c) of the Recovery Act using the
reporting instructions and data elements that will be provided online at
http: / /www.FederalReporting.gov and ensure that any information that is pre -filled is corrected or
updated as needed.
26. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS --
SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009
(MAY 2009)
This award term is applicable to any Recovery Act funds for construction, alteration, maintenance,
or repair of a public building or public work and the total project value is estimated less than
$7,443,000. This award term also applies to all subgrants and contracts.
a. Definitions. As used in this award term and condition --
(1) Manufactured good means a good brought to the construction site for incorporation into the
building or work that has been —
(i) Processed into a specific form and shape; or
(ii) Combined with other raw material to create a material that has different properties than the
properties of the individual raw materials.
(2) Public building and public work means a public building of, and a public work of, a governmental
entity (the United States; the District of Columbia; commonwealths, territories, and minor
outlying islands of the United States; State and local governments; and multi - State, regional, or
interstate entities which have governmental functions). These buildings and works may include,
without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers,
mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers,
wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction,
alteration, maintenance, or repair of such buildings and works.
(3) Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and
may include other elements.
b. Domestic preference.
(1) This award term and condition implements Section 1605 of the American Recovery and
Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111 - -5), by requiring that all iron, steel, and
manufactured goods used in the project are produced in the United States except as provided in
Not Specified/Other 12
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Not Specified/Other
paragraph (b)(3) and (b)(4) of this section and condition.
(2) This requirement does not apply to the material listed by the Federal Government as follows:
None
(3) The award official may add other iron, steel, and/or manufactured goods to the list in paragraph
(b)(2) of this section and condition if the Federal Government determines that- -
(i) The cost of the domestic iron, steel, and/or manufactured goods would be unreasonable. The
cost of domestic iron, steel, or manufactured goods used in the project is unreasonable when
the cumulative cost of such material will increase the cost of the overall project by more than
25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United
States in sufficient and reasonably available quantities and of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent
with the public interest.
c. Request for determination of inapplicability of Section 1605 of the Recovery Act.
(1)
(i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance
with paragraph (b)(3) of this section shall include adequate information for Federal
Government valuation of the request, including —
(A) A description of the foreign and domestic iron, steel, and/or manufactured goods;
03) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron, steel, and/or
manufactured goods cited in accordance with paragraph (b)(3) of this section.
(ii) A request based on unreasonable cost shall include a reasonable survey of the market
and a completed cost comparison table in the format in paragraph (d) of this section.
(iii) The cost of iron, steel, and/or manufactured goods material shall include all delivery
costs to the construction site and any applicable duty.
(iv) Any recipient request for a determination submitted after Recovery Act funds have
been obligated for a project for construction, alteration, maintenance, or repair shall
explain why the recipient could not reasonably foresee the need for such determination
and could not have requested the determination before the funds were obligated. If the
recipient does not submit a satisfactory explanation, the award official need not make a
determination.
(2) If the Federal Government determines after funds have been obligated for a project for
construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery
Act applies, the award official will amend the award to allow use of the foreign iron, steel, and/or
relevant manufactured goods. When the basis for the exception is nonavailability or public
interest, the amended award shall reflect adjustment of the award amount, redistribution of
budgeted funds, and/or other actions taken to cover costs associated with acquiring or using the
foreign iron, steel, and/or relevant manufactured goods. When the basis for the exception is the
unreasonable cost of the domestic iron, steel, or manufactured goods, the award official shall
adjust the award amount or redistribute budgeted funds by at least the differential established in 2
CFR 176.110(a).
(3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act
applies, use of foreign iron, steel, and/or manufactured goods is noncompliant with section 1605
of the American Recovery and Reinvestment Act.
Not Specified/Other 13
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Not S :)ecified/Other
d. Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost,
the Recipient shall include the following info:znation and any applicable supporting data based on the
survey of suppliers:
Foreign and Domestic Items Cost Comparison
Description
Unit of Measure
Quantity
Cost
( dollars)*
Item 1:
Foreign steel, iron, or manufactured go od
Domestic steel, iron, or manufactured go od
Item 2:
Foreign steel, iron, or manufactured go od
Domestic steel, iron, or manufactured go od
List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of
response; if oral, attach summary.
Include other applicable supporting information.
*Include all delivery costs to the construction site.
27. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS
(COVERED UNDER INTERNATIONAL AGREEMENTS)— SECTION 1605 OF THE
AMERICAN RECOVERY AND REI14VESTMENT ACT OF 2009 (MAY 2009)
This award term is applicable to any Recovery Act funds for construction, alteration, maintenance,
or repair of a public building or public work with a total proiect value over $7,443,000 that involves
iron, steel, and/or manufactured goods materials covered under international agreements. This
award term also applies to all suberants and contracts.
a. Definitions. As used in this award term and condition—
Designated country —
(1) A World Trade Organization Government Procurement Agreement country (Aruba, Austria,
Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic
of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal,
Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and United
Kingdom;
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain, Canada, Chile, Costa Rica,
Dominican Republic, El Salvador, Guatemala, Honduras, Israel, Mexico, Morocco, Nicaragua,
Oman, Peru, or Singapore); or
(3) A United States - European Communities Exchange of Letters (May 15, 1995) country: Austria,
Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland,
Not SF ecified/Other 14
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Not Specified/Other
Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom.
Designated country iron, steel, and/or manufactured goods —
(1) Is wholly the growth, product, or manufacture of a designated country; or
(2) In the case of a manufactured good that consist in whole or in part of materials from another
country, has been substantially transformed in a designated country into a new and different
manufactured good distinct from the materials from which it was transformed.
Domestic iron, steel, and/or manufactured good —
(1) Is wholly the growth, product, or manufacture of the United States; or
(2) In the case of a manufactured good that consists in whole or in part of materials from another
country, has been substantially transformed in the United States into a new and different
manufactured good distinct from the materials from which it was transformed. There is no
requirement with regard to the origin of components or subcomponents in manufactured goods or
products, as long as the manufacture of the goods occurs in the United States.
Foreign iron, steel, and/or manufactured good means iron, steel and/or manufactured good that is not
domestic or designated country iron, steel, and/or manufactured good.
Manufactured good means a good brought to the construction site for incorporation into the building or
work that has been- -
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has different properties than the
properties of the individual raw materials.
Public building and public work means a public building of, and a public work of, a governmental
entity (the United States; the District of Columbia; commonwealths, territories, and minor
outlying islands of the United States; State and local governments; and multi - State, regional, or
interstate entities which have governmental functions). These buildings and works may include,
without limitation, bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers,
mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers,
wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals, and the construction,
alteration, maintenance, or repair of such buildings and works.
Steel means an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and
may include other elements.
b. Iron, steel, and manufactured goods.
(1) The award term and condition described in this section implements- -
(i) Section 1605(a) of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111 - -5)
(Recovery Act), by requiring that all iron, steel, and manufactured goods used in the project
are produced in the United States; and
(ii) Section 1605(d), which requires application of the Buy American requirement in a manner
consistent with U.S. obligations under international agreements. The restrictions of section
1605 of the Recovery Act do not apply to designated country iron, steel, and/or manufactured
goods. The Buy American requirement in section 1605 shall not be applied where the iron,
steel or manufactured goods used in the project are from a Party to an international agreement
that obligates the recipient to treat the goods and services of that Party the same as domestic
goods and services. This obligation shall only apply to projects with an estimated value of
Not Specified/Other 15
16 -70
Not Specified/Other
$7,443,000 or more.
(2) The recipient shall use only domestic or designated country iron, steel, and manufactured goods in
performing the work funded in whole or part with this award, except as provided in paragraphs
(b)(3) and (b)(4) of this section.
(3) The requirement in paragraph (b)(2) of this section does not apply to the iron, steel, and
manufactured goods listed by the Federal Government as follows:
None
(4) The award official may add other iron, steel, and manufactured goods to the list in paragraph
(b)(3) of this section if the Federal Government determines that- -
(i) The cost of domestic iron, steel, andlor manufactured goods would be unreasonable. The cost
of domestic iron, steel, and/or manufactured goods used in the project is unreasonable when
the cumulative cost of such material will increase the overall cost of the project by more than
25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United
States in sufficient and reasonably available commercial quantities of a satisfactory quality; or
(iii) The application of the restriction of <.;ection 1605 of the Recovery Act would be inconsistent
with the public interest.
c. Request for determination of inapplicability of section 1605 of the Recovery Act or the Buy American
Act.
(1) (i) Any recipient request to use foreign iron, steel, and/or manufactured goods in accordance
with paragraph (b)(4) of this section shall include adequate information for Federal
Government evaluation of the request, including- -
(A) A description of the foreign and domestic iron, steel, and/or manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the: reason for use of foreign iron, steel, and/or
manufactured goods cited in accordance with paragraph (b)(4) of this section.
(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a
completed cost comparison table in the format in paragraph (d) of this section.
(iii) The cost of iron, steel, or manufactured goods shall include all delivery costs to the
construction site and any applicable duty.
(iv) Any recipient request for a determination submitted after Recovery Act funds have been
obligated for a project for construction, alteration, maintenance, or repair shall explain why
the recipient could not reasonably foresee the need for such determination and could not have
requested the determination before the funds were obligated. If the recipient does not submit a
satisfactory explanation, the award official need not make a determination.
(2) If the Federal Government determines after funds have been obligated for a project for
construction, alteration, maintenance, or repair that an exception to section 1605 of the Recovery
Act applies, the award official will amend the award to allow use of the foreign iron, steel, and/or
relevant manufactured goods. When the basis for the exception is nonavailability or public
interest, the amended award shall reflect adjustment of the award amount, redistribution of
budgeted funds, and/or other appropriate actions taken to cover costs associated with acquiring or
using the foreign iron, steel, and/or relevant manufactured goods.. When the basis for the
exception is the unreasonable cost of the domestic iron, steel, or manufactured goods, the award
official shall adjust the award amount or redistribute budgeted funds, as appropriate, by at least the
Not Specified/Other 16
16 -71
Not Specified/Other
differential established in 2 CFR 176.110(a).
(3) Unless the Federal Government determines that an exception to section 1605 of the Recovery Act
applies, use of foreign iron, steel, and/or manufactured goods other than designated country iron,
steel, and/or manufactured goods is noncompliant with the applicable Act.
d. Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost,
the applicant shall include the following information and any applicable supporting data based on the
survey of suppliers:
Foreign and Domestic Items Cost Comparison
Description
Unit of
Measure
Quantity
Cost
dollars *
Item 1:
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
Item 2:
Foreign steel, iron, or manufactured good
Domestic steel, iron, or manufactured good
List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of
response; if oral, attach summary.
Include other applicable supporting information.
*Include all delivery costs to the construction site.
28. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT (MAY
2009)
This award term is applicable to Recovery Act vrograms or activities that may involve construction,
alteration, maintenance, or repair. This award term also applies to all suberants and contracts.
a. Section 1606 of the Recovery Act requires that all laborers and mechanics employed by contractors
and subcontractors on projects funded directly by or assisted in whole or in part by and through the
Federal Government pursuant to the Recovery Act shall be paid wages at rates not less than those
prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in
accordance with subchapter IV of chapter 31 of title 40, United States Code.
Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40 U.S.C. 3145, the Department of
Labor has issued regulations at 29 CFR parts 1, 3, and 5 to implement the Davis -Bacon and related
Acts. Regulations in 29 CFR 5.5 instruct agencies concerning application of the standard Davis -Bacon
contract clauses set forth in that section. Federal agencies providing grants, cooperative agreements,
and loans under the Recovery Act shall ensure that the standard Davis -Bacon contract clauses found in
29 CFR 5.5(a) are incorporated in any resultant covered contracts that are in excess of $2,000 for
construction, alteration or repair (including painting and decorating).
b. For additional guidance on the wage rate requirements of section 1606, contact your awarding agency.
Recipients of grants, cooperative agreements and loans should direct their initial inquiries concerning
the application of Davis -Bacon requirements to a particular federally assisted project to the Federal
Not Specified/Other 17
16 -72
Not Specified/Other
agency funding the project. The Secretary of labor retains final coverage authority under
Reorganization Plan Number 14.
29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF
FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING
SUBRECIPIENTS (MAY 2009)
a. To maximize the transparency and accountability of funds authorized under the American Recovery
and Reinvestment Act of 2009 (Pub. L. 111--.5) (Recovery Act) as required by Congress and in
accordance with 2 CFR 215.21 "Uniform Administrative Requirements for Grants and Agreements"
and OMB Circular A - -102 Common Rules provisions, recipients agree to maintain records that
identify adequately the source and application of Recovery Act funds. OMB Circular A - -102 is
available at http: / /www.whitehouse.gov /omb /circulars /al02 /a102.html
b. For recipients covered by the Single Audit Act Amendments of 1996 and OMB Circular A - -133,
"Audits of States, Local Governments, and Nun- Profit Organizations," recipients agree to separately
identify the expenditures for Federal awards under the Recovery Act on the Schedule of Expenditures
of Federal Awards (SEFA) and the Data Collection Form (SF - -SAC) required by OMB Circular A --
133. OMB Circular A - -133 is available at ht4): / /www.whitehouse.gov /omb /circulars /al33 /al33.html.
This shall be accomplished by identifying expenditures for Federal awards made under the Recovery
Act separately on the SEFA, and as separate rows under Item 9 of Part III on the SF - -SAC by CFDA
number, and inclusion of the prefix "ARRA -" in identifying the name of the Federal program on the
SEFA and as the first characters in Item 9d of'Part III on the SF - -SAC.
c. Recipients agree to separately identify to each subrecipient, and document at the time of subaward and
at the time of disbursement of funds, the Federal award number, CFDA number, and amount of
Recovery Act funds. When a recipient awards. Recovery Act funds for an existing program, the
information furnished to subrecipients shall distinguish the subawards of incremental Recovery Act
funds from regular subawards under the existing program.
d. Recipients agree to require their subrecipients to include on their SEFA information to specifically
identify Recovery Act funding similar to the requirements for the recipient SEFA described above.
This information is needed to allow the recipient to properly monitor subrecipient expenditure of
ARRA funds as well as oversight by the Federal awarding agencies, Offices of Inspector General and
the Government Accountability Office.
30. DAVIS BACON ACT REQUIREMENTS (MAY 2009)
This award term is applicable to ARRA award when WAGE RATE REOUIREMENTS UNDER
SECTION 1606 OF THE RECOVERY ACT term is applicable. This award term is also applicable
to suberants and contracts.
Note: Where necessary to make the context of these articles applicable to this award, the term "Contractor"
shall mean "Recipient" and the term " Subcontractor" shall mean "Subrecipient or Subcontractor" per the
following definitions.
Recipient means the organization, individual, or other entity that receives an award from DOE and is
financially accountable for the use of any DOE funds or property provided for the performance of the
project, and is legally responsible for carrying out the terms and conditions of the award.
Subrecipient means the legal entity to which a subaward is made and which is accountable to the recipient
for the use of the funds provided. The term may include foreign or international organizations (such as
agencies of the United Nations).
Not Specified/Other 18
16 -73
Not Specified/Other
Davis -Bacon Act
(a) Definition. — " Site of the work " —
(1) Means- -
(i) The primary site of the work. The physical place or places where the construction called for in
the award will remain when work on it is completed; and
(ii) The secondary site of the work, if any. Any other site where a significant portion of the
building or work is constructed, provided that such site is—
(A) Located in the United States; and
(B) Established specifically for the performance of the award or project;
(2) Except as provided in paragraph (3) of this definition, includes any fabrication plants, mobile
factories, batch plants, borrow pits, job headquarters, tool yards, etc., provided —
(i) They are dedicated exclusively, or nearly so, to performance of the award or project; and
(ii) They are adjacent or virtually adjacent to the "primary site of the work" as defined in
paragraph (a)(1)(i), or the "secondary site of the work" as defined in paragraph (a)(1)(ii) of
this definition;
(3) Does not include permanent home offices, branch plant establishments, fabrication plants, or tool
yards of a Contractor or subcontractor whose locations and continuance in operation are
determined wholly without regard to a particular Federal award or project. In addition, fabrication
plants, batch plants, borrow pits, job headquarters, yards, etc., of a commercial or material supplier
which are established by a supplier of materials for the project before opening of bids and not on
the Project site, are not included in the "site of the work." Such permanent, previously established
facilities are not a part of the "site of the work" even if the operations for a period of time may be
dedicated exclusively or nearly so, to the performance of a award.
(b) (1) All laborers and mechanics employed or working upon the site of the work will be paid
unconditionally and not less often than once a week, and without subsequent deduction or rebate
on any account (except such payroll deductions as are permitted by regulations issued by the
Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona
fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less
than those contained in the wage determination of the Secretary of Labor which is attached hereto
and made a part hereof, or as may be incorporated for a secondary site of the work, regardless of
any contractual relationship which may be alleged to exist between the Contractor and such
laborers and mechanics. Any wage determination incorporated for a secondary site of the work
shall be effective from the first day on which work under the award was performed at that site and
shall be incorporated without any adjustment in award price or estimated cost. Laborers employed
by the construction Contractor or construction subcontractor that are transporting portions of the
building or work between the secondary site of the work and the primary site of the work shall be
paid in accordance with the wage determination applicable to the primary site of the work.
(2) Contributions made or costs reasonably anticipated for bona fide fringe benefits under section
1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to
such laborers or mechanics, subject to the provisions of paragraph (e) of this article; also, regular
contributions made or costs incurred for more than a weekly period (but not less often than
quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed
to be constructively made or incurred during such period.
(3) Such laborers and mechanics shall be paid not less than the appropriate wage rate and fringe
benefits in the wage determination for the classification of work actually performed, without
regard to skill, except as provided in the article entitled Apprentices and Trainees. Laborers or
mechanics performing work in more than one classification may be compensated at the rate
specified for each classification for the time actually worked therein; provided, that the employer's
Not Specified/Other 19
16 -74
Not Specified/Other
payroll records accurately set forth the time spent in each classification in which work is
performed.
(4) The wage determination (including any additional classifications and wage rates conformed under
paragraph (c) of this article) and the Davis -Bacon poster (WH -1321) shall be posted at all times by
the Contractor and its subcontractors at the site of the work in a prominent and accessible place
where it can be easily seen by the workers.
c. (1) The Contracting Officer shall require that any class of laborers or mechanics which is not listed in
the wage determination and which is to be employed under the award shall be classified in
conformance with the wage determination. The Contracting Officer shall approve an additional
classification and wage rate and fringe benefits therefore only when all the following criteria have
been met:
(i) The work to be performed by the classification requested is not performed by a classification
in the wage determination.
(ii) The classification is utilized in the area by the construction industry.
(iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable
relationship to the wage rates contained in the wage determination.
(2) If the Contractor and the laborers and mechanics to be employed in the classification (if known),
or their representatives and the Contracting Officer agree on the classification and wage rate
(including the amount designated for fringe benefits, where appropriate), a report of the action
taken shall be sent by the Contracting Of icer to the Administrator of the:
Wage and. Hour Division
Employment Standards Administration
U.S. Department of Labor
Washington, DC 20210
The Administrator or an authorized representative will approve, modify, or disapprove every
additional classification action within 30 days of receipt and so advise the Contracting Officer or
will notify the Contracting Officer within the 30 -day period that additional time is necessary.
(3) In the event the Contractor, the laborers cr mechanics to be employed in the classification, or their
representatives, and the Contracting Officer do not agree on the proposed classification and wage
rate (including the amount designated for fringe benefits, where appropriate), the Contracting
Officer shall refer the questions, includin;; the views of all interested parties and the
recommendation of the Contracting Officer, to the Administrator of the Wage and Hour Division
for determination. The Administrator, or an authorized representative, will issue a determination
within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting
Officer within the 30 -day period that additional time is necessary.
(4) The wage rate (including fringe benefits, where appropriate) determined pursuant to
subparagraphs (c)(2) and (c)(3) of this article shall be paid to all workers performing work in the
classification under this award from the f;.rst day on which work is performed in the classification.
(d) Whenever the minimum wage rate prescribed in 6 e award for a class of laborers or mechanics includes a
fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated
in the wage determination or shall pay another bor a fide fringe benefit or an hourly cash equivalent thereof.
(e) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as
part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing
bona fide fringe benefits under a plan or program; provided, that the Secretary of Labor has found, upon the
written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The
Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of
obligations under the plan or program.
Not Specified/Other 20
16 -75
Not Specified/Other
Rates of Wages
The minimum wages to be paid laborers and mechanics under this award involved in performance of work at
the project site, as determined by the Secretary of Labor to be prevailing for the corresponding classes of
laborers and mechanics employed on projects of a character similar to the contract work in the pertinent
locality, are included as an attachment to this award. These wage rates are minimum rates and are not intended
to represent the actual wage rates that the Contractor may have to pay.
Payrolls and Basic Records
(a) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the
work and preserved for a period of 3 years thereafter for all laborers and mechanics working at the site of
the work. Such records shall contain the name, address, and social security number of each such worker, his
or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated
for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the
Davis -Bacon Act), daily and weekly number of hours worked, deductions made, and actual wages paid.
Whenever the Secretary of Labor has found, under paragraph (d) of the article entitled Davis -Bacon Act,
that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in
providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the
Contractor shall maintain records which show that the commitment to provide such benefits is enforceable,
that the plan or program is financially responsible, and that the plan or program has been communicated in
writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual
cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved
programs shall maintain written evidence of the registration of apprenticeship programs and certification of
trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed
in the applicable programs.
(b) (1) The Contractor shall submit weekly for each week in which any award work is performed a copy of all
payrolls to the Contracting Officer. The payrolls submitted shall set out accurately and completely all
of the information required to be maintained under paragraph (a) of this article. This information may
be submitted in any form desired. Optional Form WH -347 (Federal Stock Number 029 - 005- 00014 -1)
is available for this purpose and may be purchased from the --
Superintendent of Documents U.S. Government Printing Office Washington, DC 20402
The Prime Contractor is responsible for the submission of copies of payrolls by all subcontractors.
(2) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the
Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons
employed under the award and shall certify --
(i) That the payroll for the payroll period contains the information required to be maintained under
paragraph (a) of this article and that such information is correct and complete;
(ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the
award during the payroll period has been paid the full weekly wages earned, without rebate, either
directly or indirectly, and that no deductions have been made either directly or indirectly from the
full wages earned, other than permissible deductions as set forth in the Regulations, 29 CFR Part
3; and
(iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe
benefits or cash equivalents for the classification of work performed, as specified in the applicable
wage determination incorporated into the award.
(3) The weekly submission of a properly executed certification set forth on the reverse side of Optional
Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required
by subparagraph (b)(2) of this article.
Not Specified/Other 21
16 -76
Not S7 ?ecified/Other
(4) The falsification of any of the certifications in this article may subject the Contractor or subcontractor
to civil or criminal prosecution under Section 1001 of Title 18 and Section 3729 of Title 31 of the
United States Code.
(c) The Contractor or subcontractor shall make the re ords required under paragraph (a) of this article available
for inspection, copying, or transcription by the Contracting Officer or authorized representatives of the
Contracting Officer or the Department of Labor. The Contractor or subcontractor shall permit the
Contracting Officer or representatives of the Contracting Officer or the Department of Labor to interview
employees during working hours on the job. If the Contractor or subcontractor fails to submit required
records or to make them available, the Contracting Officer may, after written notice to the Contractor, take
such action as may be necessary to cause the suspension of any further payment. Furthermore, failure to
submit the required records upon request or to make such records available may be grounds for debarment
action pursuant to 29 CFR 5.12.
Withholding of Funds
The Contracting Officer shall, upon his or her own action or upon written request of an authorized
representative of the Department of Labor, withhold or cause to be withheld from the Contractor under this
award or any other Federal award with the same Prime Contractor, or any other federally assisted award
subject to Davis -Bacon prevailing wage requirements, which is held by the same Prime Contractor, so
much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics,
including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full
amount of wages required by the award. In the event of failure to pay any laborer or mechanic, including
any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages
required by the award, the Contracting Officer ma;y, after written notice to the Contractor, take such action
as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until
such violations have ceased.
Apprentices and Trainees
(a) Apprentices.
(1) An apprentice will be permitted to work at less than the predetermined rate for the work they
performed when they are employed —
(i) Pursuant to and individually registered in a bona fide apprenticeship program registered with
the U.S. Department of Labor, Employment and Training Administration, Office of
Apprenticeship and Training, Employer, and Labor Services ( OATELS) or with a State
Apprenticeship Agency recognized by the OATELS; or
(ii) In the first 90 days of probationary employment as an apprentice in such an apprenticeship
program, even though not individually registered in the program, if certified by the OATELS
or a State Apprenticeship Agency (where appropriate) to be eligible for probationary
employment as an apprentice.
(2) The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not
be greater than the ratio permitted to the Contractor as to the entire work force under the registered
program.
(3) Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise
employed as stated in paragraph (a)(1) of this article, shall be paid not less than the applicable
wage determination for the classification of work actually performed. In addition, any apprentice
performing work on the job site in excess of the ratio permitted under the registered program shall
be paid not less than the applicable wage rate on the wage determination for the work actually
performed.
(4) Where a contractor is performing construction on a project in a locality other than that in which its
program is registered, the ratios and wage rates (expressed in percentages of the journeyman's
Not Specified/Other 22
16 -77
Not Specified/Other
hourly rate) specified in the Contractor's or subcontractor's registered program shall be observed.
Every apprentice must be paid at not less than the rate specified in the registered program for the
apprentice's level of progress, expressed as a percentage of the journeyman hourly rate specified
in the applicable wage determination.
(5) Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship
program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid
the full amount of fringe benefits listed on the wage determination for the applicable classification.
If the Administrator determines that a different practice prevails for the applicable apprentice
classification, fringes shall be paid in accordance with that determination.
(6) In the event OATELS, or a State Apprenticeship Agency recognized by OATELS, withdraws
approval of an apprenticeship program, the Contractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for the work performed until an
acceptable program is approved.
(b) Trainees.
(1) Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the
predetermined rate for the work performed unless they are employed pursuant to and individually
registered in a program which has received prior approval, evidenced by formal certification by
the U.S. Department of Labor, Employment and Training Administration, Office of
Apprenticeship Training, Employer, and Labor Services ( OATELS). The ratio of trainees to
journeymen on the job site shall not be greater than permitted under the plan approved by
OATELS.
(2) Every trainee must be paid at not less than the rate specified in the approved program for the
trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in
the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the
provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees
shall be paid the full amount of fringe benefits listed in the wage determination unless the
Administrator of the Wage and Hour Division determines that there is an apprenticeship program
associated with the corresponding journeyman wage rate in the wage determination which
provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a
trainee rate who is not registered and participating in a training plan approved by the OATELS
shall be paid not less than the applicable wage rate in the wage determination for the classification
of work actually performed. In addition, any trainee performing work on the job site in excess of
the ratio permitted under the registered program shall be paid not less than the applicable wage
rate in the wage determination for the work actually performed.
(3) In the event OATELS withdraws approval of a training program, the Contractor will no longer be
permitted to utilize trainees at less than the applicable predetermined rate for the work performed
until an acceptable program is approved.
(d) Equal employment opportunity. The utilization of apprentices, trainees, and journeymen under this
article shall be in conformity with the equal employment opportunity requirements of Executive
Order 11246, as amended, and 29 CFR Part 30.
Compliance with Copeland Act Requirements
The Contractor shall comply with the requirements of 29 CFR Part 3, which are hereby incorporated by
reference in this award.
Not Specified/Other 23
16 -78
Not Specified/Other
Subcontracts (Labor Standards)
(a) Definition. "Construction, alteration or repair," as used in this article means all types of work done by
laborers and mechanics employed by the construction Contractor or construction subcontractor on a
particular building or work at the site thereof, including without limitation—
(1) Altering, remodeling, installation (if appropriate) on the site of the work of items fabricated off -
site;
(2) Painting and decorating;
(3) Manufacturing or furnishing of materials, articles, supplies, or equipment on the site of the
building or work;
(4) Transportation of materials and supplies between the site of the work within the meaning of
paragraphs (a)(1)(i) and (ii) of the "site of the work" as defined in the article entitled Davis Bacon
Act of this award, and a facility which is dedicated to the construction of the building or work and
is deemed part of the site of the work within the meaning of paragraph (2) of the "site of work"
definition; and
(5) Transportation of portions of the building; or work between a secondary site where a significant
portion of the building or work is constructed, which is part of the "site of the work" definition in
paragraph (a)(1)(ii) of the Davis -Bacon Act article, and the physical place or places where the
building or work will remain (paragraph i,a)(1)(i) of the Davis Bacon Act article, in the "site of the
work" definition).
(b) The Contractor or subcontractor shall insert in any subcontracts for construction, alterations and repairs
within the United States the articles entitled --
(1) Davis -Bacon Act;
(2) Contract Work Hours and Safety Standards Act -- Overtime Compensation (if the article is
included in this award);
(3) Apprentices and Trainees;
(4) Payrolls and Basic Records;
(5) Compliance with Copeland Act Requirements;
(6) Withholding of Funds;
(7) Subcontracts (Labor Standards);
(8) Contract Termination – Debarment;
(9) Disputes Concerning Labor Standards;
(10) Compliance with Davis -Bacon and Related Act Regulations; and
(11) Certification of Eligibility.
(c) The Prime Contractor shall be responsible for compliance by any subcontractor or lower tier
subcontractor performing construction within the United States with all the award articles cited in
paragraph (b).
Not Specified/Other
24
16 -79
Not Specified/Other
(d) (1)Within 14 days after issuance of the award, the Contractor shall deliver to the Contracting Officer a
completed Standard Form (SF) 1413, Statement and Acknowledgment, for each subcontract for
construction within the United States, including the subcontractor's signed and dated acknowledgment
that the articles set forth in paragraph (b) of this article have been included in the subcontract.
Within 14 days after the award of any subsequently awarded subcontract the Contractor shall deliver to
the Contracting Officer an updated completed SF 1413 for such additional subcontract.
(e) The Contractor shall insert the substance of this article, including this paragraph (e) in all subcontracts
for construction within the United States.
Contract Termination -- Debarment
A breach of the award articles entitled Davis -Bacon Act, Contract Work Hours and Safety Standards Act --
Overtime Compensation, Apprentices and Trainees, Payrolls and Basic Records, Compliance with
Copeland Act Requirements, Subcontracts (Labor Standards), Compliance with Davis -Bacon and Related
Act Regulations, or Certification of Eligibility may be grounds for termination of the whole award or in
part for the Recovery Act covered work only, and for debarment as a Contractor and subcontractor as
provided in 29 CFR 5.12.
Compliance with Davis -Bacon and Related Act Regulations
All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5
are hereby incorporated by reference in this award.
Disputes Concerning Labor Standards
The United States Department of Labor has set forth in 29 CFR Parts 5, 6, and 7 procedures for resolving
disputes concerning labor standards requirements. Such disputes shall be resolved in accordance with those
procedures and not the Disputes and Appeals as defined in 10 CFR 600.22. Disputes within the meaning of
this article include disputes between the Contractor (or any of its subcontractors) and the contracting
agency, the U.S. Department of Labor, or the employees or their representatives.
Certification of Eligibility
(a) By entering into this award, the Contractor certifies that neither it (nor he or she) nor any person or
firm who has an interest in the Contractor's firm is a person or firm ineligible to be awarded
Government awards by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1).
(b) No part of this award shall be subcontracted to any person or firm ineligible for award of a
Government award by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1).
(c) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
Approval of Wage Rates
All straight time wage rates, and overtime rates based thereon, for laborers and mechanics engaged in work
under this award must be submitted for approval in writing by the head of the contracting activity or a
representative expressly designated for this purpose, if the straight time wages exceed the rates for
corresponding classifications contained in the applicable Davis -Bacon Act minimum wage determination
included in the award. Any amount paid by the Contractor to any laborer or mechanic in excess of the
agency approved wage rate shall be at the expense of the Contractor and shall not be reimbursed by the
Government. If the Government refuses to authorize the use of the overtime, the Contractor is not released
from the obligation to pay employees at the required overtime rates for any overtime actually worked.
Not Specified/Other 25
16 -80
DOE F 4600.2
( ATTACHMENT 3
All Other Editions Are Obsolete
U.S. Departinent of Energy
FEDERAL ASSISTANCE: REPORTING CHECKLIST
AND INS'rRUCTIONS
1. Identification Number:
2. Program/Project Title:
DESC0001398
EECBG
3. Recipient:
CA -City of Cupertino
4. Reporting Requirements:
Frequency
No. of Copies
Addressees
Upload only 1 copy
A. MANAGEMENT REPORTING
❑ Progress Report
to the address in the
® Special Status Report
A
next column at the
interval specked in
EECBG0oo.doe.00v
Contracting Officer listed in Block 25
the previous column.
of Assistance Agreement
B. SCIENTIFIC/TECHNICAL REPORTING
(Reports/Products must be submitted with appropriate DOE F 241. The
241 forms are available at www.osti.gov /elink)
Report/Product Form
❑ Final ScientificlTechnical Report DOE F 241.3
❑ Conference papers /proceedings' DOE F 241.3
❑ Software /Manual DOE F 241.4
❑ Other (see Special Instructions) DOE F 241.3
Scientific and technical conferences only
C. FINANCIAL REPORTING
® SF -425, Federal Financial Report
Q, F
EECBG(boo.doe.00v
Contracting Officer listed in Block
25 of Assistance Agreement
D. CLOSEOUT REPORTING
❑ Patent Certification
® Property Certification
F
EECBG0ao.doe.aov
Contracting Officer listed in
❑ Other (see Special Instructions)
Block 25 of Assistance Agreement
E. OTHER REPORTING
❑ Annual Indirect Cost Proposal
❑ Annual Inventory Report of Federally Owned Property, if any
® Other — See Section 5 below:
Q, F, A
See Special Instructions Below
FREQUENCY CODES AND DUE DATES:
A - Within 5 calendar days after events or as specified. S - Semiannually; within 30 days after end of reporting period.
F - Final; 90 calendar days after expiration or termination of the award. Q - Quarterly; within 30 days after end of the reporting period.
Y - Yearly; 90 days after the end of the reporting riod.
5. Special Instructions: Forms are available at hftps : //www.eere- pmc.energg cloy /forms.asp
Other Reporting is as follows:
Energy Efficiency and Conservation Strategy (if applicable )
ANNUAL REPORTS
ARRA — Performance Progress Report
See Federal Assistance Reporting Instructions on following pages for more delails.
Please note: All quarterly reports are due no later than 30 days after the end of the reporting period. Because this award is funded under the
Recovery Act, the ARRA Performance Progress Report is due no later than 10 days after the end of the reporting period.
16 -81
Federal Assistance Reporting Instructions
Reporting requirements under the EECBG Program consist of the following types of reports:
SPECIAL STATUS REPORT
The recipient must report the following events by e-mail as soon as possible after they occur:
1. Developments that have a significant favorable impact on the project.
2. Problems, delays, or adverse conditions which materially impair the recipient's ability to meet the objectives of
the award or which may require DOE to respond to questions relating to such events from the public. For
example, the recipient must report any of the following incidents and include the anticipated impact and remedial
action to be taken to correct or resolve the problem /condition:
a. Any single fatality or injuries requiring hospitalization of five or more individuals.
b. Any significant environmental permit violation.
c. Any verbal or written Notice of Violation of any Environmental, Safety, and Health statutes or
regulations.
d. Any incident which causes a significant process or hazard control system failure.
e. Any event which is anticipated to cause a significant schedule slippage or cost increase.
f. Any damage to Government -owned equipment in excess of $50,000.
g. Any other incident that has the potential for high visibility in the media.
FINANCIAL REPORTING
■ FOR ALL RECIPIENTS: Submit a Quarterly Progress Report and the SF-425 Federal Financial
Report. Instructions for the Quarterly Progress Report are below. The SF-425 is available at
hftp://www.whitehouse.gov/omb/grants/index.html
CLOSEOUT REPORTING
Property Certification
The recipient must provide the Property Certification, including the required inventories of non - exempt
property, located at http: / /grants.pr.doe.gov
EECS STRATEGY (for units of local government and Indian tribes only)
■ FOR UNITS OF LOCAL GOVERNMENT AND INDIAN TRIBES: units of local government and Indian
tribes that do not submit an Energy Efficiency and Conservation Strategy (EECS) with their
application must submit one not later than one - hundred twenty (120) days after the effective date of
the award. The EECS shall be a comprehensive strategy that covers, at a minimum, all items details
in Attachment D as well as the following:
• Jurisdictional area covered by plan and governing body and /or office with direct authority over
plan
• Plan implementation partners and any leverages funds from private or other public sources
• Baseline energy use and GHG emissions inventory and forecast
• Goals /objectives for total energy use and emissions reductions, and energy efficiency increase
(including deployment of renewable technologies)
• Goals can be qualitative
16 -82
• Actions /plans /strategies and implementation schedule to meet goals
• Actions and strategies included in the plan can be eligible activities for use of funds under
EECBG as well as activities that are ineligible; comprehensive planning is encouraged.
The eligible activities'should be marked as such.
• Applicants are encouraged, in particular, to include the potential impact of anticipated
leveraged funds from private as. well as other public sources.
• Expected outcomes and benefits of plan:
• Jobs created and /or retained
• Energy saved
• Renewable energy capacity
• GHG emissions reduced
• Funds leveraged
• Obstacles to reaching goals and strategies to remove obstacles
• Policies and /or administrative actions adopted or needed to support
actions /plans /strategies /targets /schedule
• Evaluation, monitoring and verification plan
• Plan for how activities will be sustained beyond grant period
• Plans for the use of funds by adjacent eligible units of local governments that receive grants
under the program; and plans to coordinate and share information with the state in which the eligible
unit of local government is located regarding activities carried out using the grant to maximize the
energy efficiency and conservation benefits under this part.
• Plans for how these funds will be coordinated with leverages funds, including other Recovery Act
funds, to maximize benefits for local and regional communities.
ANNUALREPORTS
■ FOR UNITS OF LOCAL GOVERNMENT AND INDIAN TRIBES: Submit annual reports not later than
two (2) years after the effective date of this award and annually thereafter. The annual report shall
describe the status of development and implementation of the energy efficiency and conservation
strategy and an assessment of energy efficiency gains within the jurisdiction of the eligible unit of
local government or Indian Tribe. The annual report shall also address the metrics listed below.
FOR STATES: Submit annual reports not later than one (1) year after the effective date of this award
and annually thereafter. The annual report will include the metrics listed below as well as:
• The status of development and implementation of the energy efficiency and conservation
strategy of the state during the prnceding calendar year;
• The status of the subgrant program of the state;
• Specific energy efficiency and conservation goals of the state for subsequent calendar years;
and
• Activities (list all programs created or supported by program funds and amount of program
funds spent on each activity, indicate which programs are new and which are existing,
indicate which programs are supported solely by program funds, and which have other
funding sources.
ARRA PERFORMANCE PROGRESS REPORT
Failure to comply with this reporting requirement may result in termination of that part of the award funding by
Recovery Act.
Not later than 10 days after the end of each calendar quarter, each recipient shall submit a report to the grantor
agency that contains:
• The total amount of American Recovery and Reinvestment Act of 2009, Pub. L. 111 -5, covered funds
received from that agency;
• The amount of American Recovery and Reinvestment Act of 2009, Pub. L. 111 -5, covered funds received that
were expended or obligated to project or activities;
• A detailed list of all projects or activities for which American Recovery and Reinvestment Act of 2009, Pub. L.
111 -5, covered funds were expended or obligated including:
16 -83
• Name of project or activity
• Description of project or activity
• Evaluation of the completion status of project or activity
• Estimate of number of jobs created and retained by project or activity in the manner and form prescribed
by DOE
• Infrastructure investments made by State and local governments, purpose, total cost, rationale or agency
for funding infrastructure investment, name of agency contact.
• Information on subcontracts or subgrants awarded by recipient to include data elements required to
comply with the Federal Accountability and Transparency Act of 2006 (Pub. L. 109 -282).
• Compliance: As a condition of receipt of funds under this Act, no later than 180 days of enactment, all
recipients shall provide the information described above.
DOE intends to append the periodic ARRA — Performance Progress Report to include reporting on the following, at a
minimum:
The results of the funding provided for the EECBG Program through the American Recovery and
Reinvestment Act (ARRA) will be assessed according to the following performance metrics:
• Jobs created and /or retained
• Energy (kwh /therms /gallons /BTUs /etc.) saved
• Renewable energy generated
• GHG emissions reduced
• Cost savings
The metrics described below are designed to track the accomplishments of projects funded by EECBG.
States must not include results reported by direct grant recipients. Grant recipients will be presented with
reporting requirements at the time they receive funding and will be expected to report their achievements in
terms of the specified metrics presented below.
Grant recipients will be required to report quarterly on project expenditures, and also on specific activities and
achievements, such as square feet of buildings retrofitted. These items tend to be outputs (actions taken by
grant recipients) but also include some short-term outcomes (results achieved relatively soon after project
outputs occur that lead toward attainment of ultimate project objectives).
Expenditures: Accurate records should be kept on project expenditures for all EECBG ARRA funded efforts.
The specific information to be gathered and tracked is listed below. It will be the same for all project types:
• Expenditures for project activities
• Expenditures for administration
• Expenditures for evaluation
• Leveraged funds
Metrics Activity: The key metrics to be reported will vary by project type. The minimum information to be
reported, by project activity type, is reported below.
Building Codes and Standards
• Name of new code adopted
• Name of old code replaced
• Number of new and existing buildings covered by new code
Building Retrofits
• Number of buildings retrofitted, by sector
• Square footage of buildings retrofitted, by sector
Clean Energy Policy
Number of alternative energy plans developed or improved
Number of renewable portfolio standards established or improved
Number of interconnection standards established or improved
16 -84
• Number of energy efficiency portfolio standards established or improved
• Number of other policies developed or improved
Building Energy Audits
Number of audits performed, by sector
Floor space audited, by sector
Auditor's projection of energy savings, by sector
Energy Efficiency Rating and Labeling
• Types of energy - consuming devices for which energy - efficiency rating and labeling
systems were endorsed by the grantee
Government, School, Institutional Procurement
• Number of units purchased, by type (e.g., vehicles, office equipment, HVAC
equipment, streetlights, exit signs)
Industrial Process Efficiency (kwh equivalents)
• Reduction in natural gas consumption (mmcf)
• Reduction in fuel oil consumption (gallons)
• Reduction in electricity consumption (MWh)
Loans and Grants
• Number and monetary value of loans given
• Number and monetary value of grants given
Renewable Energy Market Development
• Number and size of solar energy systems installed
• Number and size of wind energy systems installed
• Number and size of other renewable energy systems installed
Financial Incentives for Energy Efficiency and Other Covered Investments
• Monetary value of financ al incentive provided, by sector
• Total value of investments incentivized, by sector
Technical Assistance
Transportation
• Number of information transactions contacts (for example, webinar, site visit, media,
fact sheet) in which energy efficiency or renewable energy measure were
recommended, by sector
• Number of alternative fuE:l vehicles purchased
• Number of conventional vehicles converted to alternative fuel use
• Number of new alternative refueling stations emplaced
• Number of new carpools and vanpools formed
• Number of energy- efficieit traffic signals installed
• Number of street lane -miles for which synchronized traffic signals were installed
Workshops, Training, and Education
• Number of workshops, training, and education sessions held, by sector
• Number of people attending workshops, training, and education sessions, by sector
Other Activities Not Previously Defined
• Pertinent metric information for any activity not defined above should be captured
and included as needed
Short-term Outcomes (DOE will provide supplemental guidance on how to calculate these outcomes
to ensure consistent approaches that results can be aggregated at a regional, State and national
level):
16 -85
Energy Savings (kwh equivalents)
•
Annual reduction in natural gas consumption (mmcf) by sector and end -use category
•
Annual reduction in electricity consumption (MWh) by sector and end -use category
•
Annual reduction in electricity demand (MW) by sector and end -use category
•
Annual reduction in fuel oil consumption (gallons) by sector and end -use category
•
Annual reduction in propane consumption (gallons) by sector and end -use category
•
Annual reduction in gasoline and diesel fuel consumption (gallons) by sector and
end -use category
Job Creation /Retention
•
Number
•
Type
•
Duration
Renewable Energy Capacity and Generation
•
Amount of wind - powered electric generating capacity installed (MW)
•
Amount of electricity generated from wind systems (MWh)
•
Amount of photovoltaic generating capacity installed (MW)
•
Amount of electricity generated from photovoltaic systems (MWh)
•
Amount of electric generating capacity from other renewable sources installed (MW)
•
Amount of electricity generated from other renewable sources (MWh)
Emissions Reductions (tons) (CO2 equivalents)
•
Methane
• Carbon
• Sulfur dioxide
• Nitrogen oxide
• Carbon monoxide
Protected Personally Identifiable Information (PII)
Reports must not contain any Protected PII. PH is any information about an individual which can be used to
distinguish or trace an individual's identity. Some information that is considered to be PH is available in public
sources such as telephone books, public websites, university listings, etc. This type of information is considered
to be Public PH and includes, for example, first and last name, address, work telephone number, e-mail address,
home telephone number, and general educational credentials. In contrast, Protected PH is defined as an
individual's first name or first initial and last name in combination with any one or more of types of information,
including, but not limited to, social security number, passport number, credit card numbers, clearances, bank
numbers, biometrics, date and place of birth, mother's maiden name, criminal, medical and financial records,
educational transcripts, etc.
16 -86
Contract No. 2008 -06
DOCUMENT 00482
BIDDER CERTIFICATIONS
CITY OF CUI'ERTINO
SIEMENS PERFORMANCE CONTRACT
The undersigned Bidder certifies to the City of Cupertino as set forth in sections 1 through 7 below.
1. STATEMENT OF CONVICTIONS
By my signature hereunder, I hereby swear, under penalty of perjury, that no more than one final, unappealable
finding of contempt of court by a Federal Court has been issued against Bidder within the past two years because of
failure to comply with an order of a Federal Court or to comply with an order of the National Labor Relations Board.
2. CERTIFICATION OF WORKER'S COMPEL\ SATION INSURANCE
By my signature hereunder, as the Bidder, I certify that I am aware of the provisions of Section 3700 of the
Labor Code which require every employer to be insured against liability for worker's compensation or to undertake self -
insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the
performance of the work of this Contract.
3. CERTIFICATION OF PREVAILING WAGE RATES AND RECORDS
By my signature hereunder, as the Bidder, I cert:,fy that I am aware of the provisions of Section 1773 of the
California Labor Code, which requires the payment of prevailing wage on public projects. Also, that the Bidder and any
sub bidders under the Bidder shall comply with California Labor Code § 1776, regarding wage records, and with
California Labor Code § 1777.5, regarding the employment and training of apprentices. It is the Bidder's responsibility to
ensure compliance by any and all subcontractors performin;; work under this Contract.
4. CERTIFICATION OF COMPLIANCE WITH PUBLIC WORKS CHAPTER OF LABOR CODE
By my. signature hereunder, as the Bidder, I certify that I am aware of Sections 1777.1 and 1777.7 of the
California Labor Code and Bidder and Subcontractors are eligible to bid and work on public works projects.
5. CERTIFICATE OF NON - DISCRIMINATION
By my signature hereunder, on behalf of the Bidder making this Bid, the undersigned certifies that there will be
no discrimination in employment with regard to race, color, religion, gender, sexual orientation, age or national origin;
that all federal, state, and local directives and executive orders regarding non - discrimination in employment will be
complied with; and that the principle of equal opportimity in employment will be demonstrated positively and
aggressively.
6. CERTIFICATION REGARDING PREVIOUS DISQUALIFICATIONS
By my signature hereunder, I hereby swear, under penalty of perjury, that the below indicated Bidder, any
officer of such Bidder, or any employee of such Bidder who has a proprietary interest in such Bidder, has never been
disqualified, removed or otherwise prevented from bidding on, or completing a Federal, State, or local government
project because of a violation of law or a safety regulation except as indicated on the separate sheet attached hereto
entitled "Previous Disqualifications." If such exceptions arc; attached, please explain the circumstances.
City of Cupertino 010482-1 Bidder Certifications
Sports Center Upgrades — Re -Bid
16 -87
Contract No. 2008 -06
CERTIFICATION OF ADEQUACY OF CONTRACT AMOUNT
By my signature hereunder, as the Contractor, pursuant to Labor Code Section 2810(a), I certify that, if awarded
the Contract based on the undersigned's Bid, the Contract will include funds sufficient to allow the Contractor to comply
with all applicable local, state, and federal laws or regulations governing the labor or services to be provided. I
understand that the City will be relying on this certification if it awards the Contract to the undersigned.
BIDDER:
Date: 5 2009 By:
(Name of Bidder)
(Signature)
Name:
(Print Name)
(Title)
City of Cupertino 00482-2 Bidder Certifications
Sports Center Upgrades — Re -Bid
16 -88
Project No.
DOCUMENT 00610
CONSTRUCTION PERFORMANCE BOND
THIS CONSTRUCTION PERFORMANCE BOND ( "Bond ") is dated , is in the penal sum of
[which is one hundred percent of the Contract Price],
and is entered into by and between the parties listed below to ensure the faithful performance of the Construction
Contract listed below. This Bond consists of this page and the Bond Terms and Conditions, paragraphs 1 through 12,
attached to this page. Any singular reference to ( "Contractor "),
( "Surety "), the City of Cupertino, a Municipal Corporation of the
State of California ( "City") or other party shall be considered plural where applicable.
CONTRACTOR:
Name
Address
City/State /Zip
SURETY:
Name
Principal Place of Business
City/State /Zip
CONSTRUCTION CONTRACT:
SIEMENS PERFORMANCE CONTRACT AGREEMENT
at Cupertino, California.
DATED , 20 in the Amount of $ (the "Penal Sum ")
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corp. Seal) Company: (Corp. Seal)
Signature: Signature:
Name and Title:
Name and Title:
BOND TERMS ELND CONDITIONS
Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors
and assigns to City for the complete and proper performance of the Construction Contract, which is
incorporated herein by reference.
2. If Contractor completely and properly performs all of its obligations under the Construction Contract, Surety
and Contractor shall have no obligation under this Bond.
3. If there is no City Default, Surety's obligation under this Bond shall arise after:
3.1 City has declared a Contractor Default under the Construction Contract pursuant to the terms of the
Construction Contract; and
3.2 City has agreed to pay the Balance of the Contract Sum:
3.2.1 To Surety in accordance with the terns of this Bond and the Construction Contract; or
3.2.2 To a contractor selected to perform the Construction Contract in accordance with the terms of this
Bond and the Construction Contract.
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMEIIJT00610 -1
16 -89
Project No.
4. When City has satisfied the conditions of paragraph 3, Surety shall promptly (within 30 days) and at Surety's
expense elect to take one of the following actions:
4.1 Arrange for Contractor, with consent of City, to perform and complete the Construction Contract (but
City may withhold consent, in which case the Surety must elect an option described in paragraphs 4.2,
4.3 or 4.4, below); or
4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through
independent contractors; provided, that Surety may not select Contractor as its agent or independent
contractor without City's consent; or
4.3 Undertake to perform and complete the Construction Contract by obtaining bids from qualified
contractors acceptable to City for a contract for performance and completion of the Construction
Contract, and, upon determination by City of the lowest responsible bidder, arrange for a contract to be
prepared for execution by City and the contractor selected with City's concurrence, to be secured with
performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the
Construction Contract; and, if Surety's obligations defined in paragraph 6, below, exceed the Balance of
the Contract Sum, then Surety shall pay to City the amount of such excess; or
4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with
reasonable promptness under the circumstances, and, after investigation and consultation with City,
determine in good faith its monetary obligation to City under paragraph 6, below, for the performance
and completion of the Construction Contract and, as soon as practicable after the amount is determined,
tender payment therefor to City with full explanation of the payment's calculation. If City accepts
Surety's tender under this paragraph 4.4, City may still hold Surety liable for future damages then
unknown or unliquidated resulting from the Contractor Default. If City disputes the amount of Surety's
tender under this paragraph 4.4, City may exercise all remedies available to it at law to enforce Surety's
liability under paragraph 6, below.
5. If Surety does not proceed as provided in paragraph 4, above, then Surety shall be deemed to be in default on
this Bond ten days after receipt of an additional written notice from City to Surety demanding that Surety
perform its obligations under this Bond. At all times City shall be entitled to enforce any remedy available to
City at law or under the Construction Contract including, without limitation, and by way of example only, rights
to perform work, protect work, mitigate damages, advance critical work to mitigate schedule delay, or
coordinate work with other consultants or contractors.
6. Surety's monetary obligation under this Bond is limited by the Amount of this Bond identified herein as the
Penal Sum. This monetary obligation shall augment the Balance of the Contract Sum. Subject to these limits,
Surety's obligations under this Bond are commensurate with the obligations of Contractor under the
Construction Contract. Surety's obligations shall include, but are not limited to:
6.1 The responsibilities of Contractor under the Construction Contract for completion of the Construction
Contract and correction of defective work;
6.2 The responsibilities of Contractor under the Construction Contract to pay liquidated damages, and for
damages for which no liquidated damages are specified in the Construction Contract, actual damages
caused by non - performance of the Construction Contract including, but not limited to, all valid and
proper backcharges, offsets, payments, indemnities, or other damages;
6.3 Additional legal, design professional and delay costs resulting from Contractor Default or resulting from
the actions or failure to act of the Surety under paragraph 4, above (but excluding attorney's fees incurred
to enforce this Bond).
No right of action shall accrue on this Bond to any person or entity other than City or its successors or assigns
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT00610 - 2
16 -90
Project No.
8. Surety hereby waives notice of any change, alteration or addition to the Construction Contract or to related
subcontracts, purchase orders and other obligations, including changes of time. Surety consents to all terms of
the Construction Contract, including provisions on changes to the Contract. No extension of time, change,
alteration, modification, deletion, or addition to the Contract Documents, or of the work required thereunder,
shall release or exonerate Surety on this Bond or hi any way affect the obligations of Surety on this Bond.
9. Any proceeding, legal or equitable, under this Bond shall be instituted in any court of competent jurisdiction
where a proceeding is pending between City and Contractor regarding the Construction Contract, or in the
courts of the County of Santa Clara, or in a court of competent jurisdiction in the location in which the work is
located. Communications from City to Surety unc:er paragraph 3.1 of this Bond shall be deemed to include the
necessary contracts under paragraph 3.2 of this Bond unless expressly stated otherwise.
10. All notices to Surety or Contractor shall be mailed or delivered (at the address set forth on the signature page of
this Bond), and all notices to City shall be mailed or delivered as provided in Document 00520 (Contract).
Actual receipt of notice by Surety, City or Contractor, however accomplished, shall be sufficient compliance as
of the date received at the foregoing addresses.
11. Any provision in this Bond conflicting with any statutory or regulatory requirement shall be deemed deleted
herefrom and provisions conforming to such statutory requirement shall be deemed incorporated herein.
12. Definitions.
12.1 Balance of the Contract Sum: The total amount payable by City to Contractor pursuant to the terms of the
Construction Contract after all proper adjustments have been made under the Construction Contract, for
example, deductions for progress payments made, and increases /decreases for approved modifications to
the Construction Contract.
12.2 Construction Contract: The contract between City and Contractor identified on the signature page of this
Bond, including all Contract Documents and changes thereto.
12.3 Contractor Default: Material failure of Contractor, which has neither been remedied nor waived, to
perform or otherwise to comply with the terms of the Construction Contract including, but not limited to,
"default" or any other condition allowing a termination for cause as provided in Document 00700
(General Conditions).
12.4 City Default: Material failure of City, which has neither been remedied nor waived, to pay Contractor
progress payments due under the Constn►ction Contract or to perform other material terms of the
Construction Contract, if such failure is the cause of the asserted Contractor Default and is sufficient to
justify Contractor termination of the Constriction Contract.
END OF D OCUMENT
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT00610 - 3
16 -91
Project No.
DOCUMENT 00620
CONSTRUCTION LABOR AND MATERIAL PAYMENT BOND
THIS CONSTRUCTION LABOR AND MATERIAL PAYMENT BOND ("Bond") is dated , is in the
penal sum
[one hundred percent of the Contract Price], and is entered into by and between the parties listed below to ensure the
payment of claimants under the Construction Contract listed below. This Bond consists of this page and the Bond Terms
and Conditions, paragraphs 1 through 14, attached to this page. Any singular reference to
( "Surety"), the City of Cupertino,
considered plural where applicable.
CONTRACTOR:
Name
Address
City/State /Zip
CONSTRUCTION CONTRACT:
( "Contractor "),
a Municipal Corporation of the State of California ( "City") or other party shall be
SURETY:
Name
Principal Place of Business
City/State /Zip
SIEMENS PERFORMANCE CONTRACT AGREEMENT
at Cupertino, California.
DATED 1 20 in the Amount of $ (the "Penal Sum")
CONTRACTOR AS PRINCIPAL
Company: (Corp. Seal)
SURETY
Company: (Corp. Seal)
Signature: Signature:
Name and Title: Name and Title:
BOND TERMS AND CONDITIONS
1. Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors
and assigns to City and to Claimants, to pay for labor, materials and equipment furnished for use in the
performance of the Construction Contract, which is incorporated herein by reference.
2. With respect to City, this obligation shall be null and void if Contractor:
2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants; and
2.2 Defends, indemnifies and holds harmless City from all claims, demands, liens or suits by any person or
entity who furnished labor, materials or equipment for use in the performance of the Construction
Contact, provided City has promptly notified Contractor and Surety (at the address set forth on the
signature page of this Bond) of any claims, demands, liens or suits and tendered defense of such
claims, demands, liens or suits to Contractor and Surety, and provided there is no City Default.
With respect to Claimants, this obligation shall be null and void if Contractor promptly makes payment, directly
or indirectly through its Subcontractors, for all sums due Claimants. If Contractor or its Subcontractors,
however, fail to pay any of the persons named in Section 3181 of the California Civil Code, or amounts due
under the Unemployment Insurance Code with respect to Work or labor performed under the Contract, or for
Construction Labor and Material
City of Cupertino Payment Bond
SIEMENS PERFORMANCE CONTRACT AGREEMENT00620 - 1 16-92
Project No.
any amounts required to be deducted, withheld, and paid over to the Employment Development Department
from the wages of employees of Contractor or Subcontractors pursuant to Section 13020 of the Unemployment
Insurance Code, with respect to such Work and labor, then Surety shall pay for the same, and also, in case suit
is brought upon this Bond, a reasonable attorney' fee, to be fixed by the court.
4. Consistent with the California Mechanic's Lien Law, Civil Code §3082, et seq., Surety shall have no obligation
to Claimants under this Bond unless the Claimant has satisfied all applicable notice requirements.
5. Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited
for any payments made in good faith by Surety under this Bond.
6. Amounts due Contractor under the Construction Contract shall be applied first to satisfy claims, if any, under
any Construction Performance Bond and second, to satisfy obligations of Contractor and Surety under this
Bond.
7. City shall not be liable for payment of any costs, expenses, or attorney's fees of any Claimant under this Bond,
and shall have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have
obligations to Claimants under this Bond.
8. Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related
subcontracts, purchase orders and other obligations. Surety further hereby stipulates and agrees that no change,
extension of time, alteration or addition to the terms of the Construction Contract, or to the Work to be
performed thereunder, or materials or equipment t o be furnished thereunder or the Specifications accompanying
the same, shall in any way affect its obligations tinder this Bond, and it does hereby waive any requirement of
notice or any such change, extension of time, alteration or addition to the terms of the Construction Contract or
to the Work or to the Specifications or any other changes.
Suit against Surety on this Bond may be brought by any Claimant, or its assigns, at any time after the Claimant
has furnished the last of the labor or materials, or both, but, per Civil Code §3249, must be commenced before
the expiration of six months after the period in which stop notices may be filed as provided in Civil Code
§3184.
10. All notices to Surety or Contractor shall be mailed or delivered (at the address set forth on the signature page of
this Bond), and all notices to City shall be mailed or delivered as provided in Document 00520 (Contract).
Actual receipt of notice by Surety, City or Contractor, however accomplished, shall be sufficient compliance as
of the date received at the foregoing addresses.
11. This Bond has been furnished to comply with the California Mechanic's Lien Law including, but not limited to,
Civil Code § §3247, 3248, et seq. Any provision in this Bond conflicting with said statutory requirements shall
be deemed deleted herefrom and provisions conforming to such statutory or other legal requirements shall be
deemed incorporated herein. The intent is that fais Bond shall be construed as a statutory bond and not as a
common law bond.
12. Upon request by any person or entity appearing to be a potential beneficiary of this Bond, Contractor shall
promptly furnish a copy of this Bond or shall permit a copy to be made.
13. Contractor shall pay to persons performing labor in and about Work provided for in the Contract Documents an
amount equal to or more than the general prevailing rate of per diem wages for (1) work of a similar character
in the locality in which the Work is performed and (2) legal holiday and overtime work in said locality. The per
diem wages shall be an amount equal to or more than the stipulated rates contained in a schedule that has been
ascertained and determined by the Director of the; State Department of Industrial Relations and City to be the
general prevailing rate of per diem wages for eact, craft or type of workman or mechanic needed to execute this
Contract. Contractor shall also cause a copy of tkS determination of the prevailing rate of per diem wages to be
posted at each Site.
City of Cupertino Construction Labor and Material
SIEMENS PERFORMANCE CONTRACT AGREEME:\TT00620 - 2 Payment Bond
16 -93
Project No.
14. Definitions.
14.1 Claimant: An individual or entity having a direct contract with Contractor or with a Subcontractor of
Contractor to furnish labor, materials or equipment for use in the performance of the Contract, as
further defined in California Civil Code §3181. The intent of this Bond shall be to include without
limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil,
gasoline, telephone service or rental equipment used in the Construction Contract, architectural and
engineering services required for performance of the Work of Contractor and Contractor's
Subcontractors, and all other items for which a stop notice might be asserted. The term Claimant shall
also include the Unemployment Development Department as referred to in Civil Code §3248(b).
14.2 Construction Contract: The contract between City and Contractor identified on the signature page of
this Bond, including all Contract Documents and changes thereto.
14.3 City Default: Material failure of City, which has neither been remedied nor waived, to pay the
Contractor as required by the Construction Contract, provided that failure is the cause of the failure of
Contractor to pay the Claimants and is sufficient to justify termination of the Construction Contract.
END OF DOCUMENT
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT00620 - 3
Construction Labor and Material
Payment Bond
16 -94
Project No.
DOCUMENT 00821
INSLrRANCE
A. At or before the date specified in Document 00200 (Instructions to Bidders), Contractor shall furnish to City
satisfactory proof that Contractor has taken out for the entire period covered by the Contract the following classes of
insurance in the form and with limits and deductibles specified below:
1. Comprehensive General Liability Insurance covering claims for personal injury, bodily injury
and property damage arising out of the Work and in a form providing coverage not less than that of a standard
Commercial General Liability Insurance policy ( "Occurrence Form "). Such insurance shall provide for all
operations and include independent contractors, products liability, completed operations for one year after Final
Completion of the last Phase to be completed and acceptance of the final payment for the Work, contractual
liability, and coverage for explosion, collapse and underground hazards. The limits of such insurance shall not
be coverage of less than $2,000,000 each occurrence, $4,000,000 general aggregate limit.. The policies shall be
endorsed to provide Broad Form Property Damage: Coverage.
2. Comprehensive Automobile Liability Insurance covering all owned, non - owned, and hired
vehicles. Such insurance shall provide covert ge not less than the standard Comprehensive Automobile
Liability policy with limits not less than $1,000,000 each person Bodily Injury, $1,000,000 each occurrence
Bodily Injury, and $1,000,000 each occurrence Property Damage.
3. All-Risk Course of Construction Insurance N/A for physical loss or damage to the Work,
temporary buildings, falsework, and materials and equipment in transit, and shall insure against at least the
following perils or causes of loss: fire, lightning, extended coverage, theft, vandalism and malicious mischief,
earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws, water damage, flood, and
damage caused by frost and freezing, in the amount of 100 percent of the completed value of the Work to be
performed under this Contract. Deductible shall not exceed $25,000. Each loss shall be borne by Contractor.
4. Workers' Compensation Insurance for all persons whom the Contractor may employ in carrying
out Work contemplated under Contract Documents, in accordance with the Act of Legislature of State of
California, known as "Workers' Compensation Insurance and Safety Act," approved May 26, 1913, and all acts
amendatory or supplemental thereto, in the statutory amount, $1,000,000 each occurrence.
B. All policies of insurance shall be placed with insurers acceptable to City. The insurance underwriter(s) must have an
A. M. Best Company rating of A, 7 or better or otherwise acceptable to the City. Required minimum amounts of
insurance may be increased should conditions of Work, in opinion of City, warrant such increase. Contractor shall
increase required insurance amounts upon direction by City.
C. Required Endorsements: The policies required under paragraphs A.1, A.2 and A.3 of this Document shall be
endorsed as follows:
1. Name the City of Cupertino, a Municipal Corporation of the State of California, its City Council, and their
employees, representatives, consultants (including without limitation Consulting Engineer), and agents, and
Engineers, as additional insureds, but only with respect to liability arising out of the activities of the named
insured. Said insurance coverage obtained by the Contractor, excepting worker's compensation coverage, shall
also name Santa Clara Valley Water District, and its officers, agents and employees, and Cupertino Sanitary
District, and its officers, agents and employees, as additional insureds on said policies.
2. Each such policy shall apply separately to each insured against whom claim is made or suit is brought, except
with respect to the limit of the insurance company's liability required under paragraphs A.1, A.2 and A.3 of this
Document 00821.(Endorsement of Aggregate Limits of Insurance Per Project)
3. Insurance shall be primary and no other insurance or self-insured retention carried or held by City shall be
called upon to contribute to a loss covered by insurance for the named insured.
4. Insurance shall contain a provision requiring the insurance carriers to waive their rights of subrogation against
City and all additional insureds, as well as other insurance carriers for the Work.
D. Certificates of insurance and endorsements shall be on forms provided in Document 00530, (Insurance Forms) have
clearly typed thereon City Project Number and title of Contract Documents. Written notice of cancellation, non -
renewal, or reduction in coverage of any policy shall be mailed to City (Attention: Contract
Administration/Inspection) at the address listed in Document 00520 (Contract), 30 Days in advance of the effective
date of the cancellation, non - renewal, or reduction in coverage. Contractor shall maintain insurance in full force and
effect during entire period of performance of Contract Documents, the following insurance in amounts not less than
City of Cupertino
SIEMENS PERFORMANCE CONTRACT 0082:.- 1 hsuranc
e16 -95
Project No.
the amounts specified. Contractor shall keep insurance in force during warranty and guarantee periods, except that
Contractor may discontinue All -Risk Course of Construction Insurance after Final Payment. At time of making
application for extension of time, and during all periods exceeding the Contract Time resulting from any cause,
Contractor shall submit evidence that insurance policies will be in effect during requested additional period of time.
Upon City's request, Contractor shall submit to City, within 30 Days, copies of the actual insurance policies or
renewals or replacements.
E. Contractor shall pay all insurance premiums, including any charges for required waivers of subrogation or the
endorsement of additional insureds. If Contractor fails to maintain insurance, City may take out comparable
insurance, and deduct and retain amount of premium from any sums due Contractor under Contract Documents.
F. If injury occurs to any employee of Contractor, Subcontractor or sub - subcontractor for which the employee, or the
employee's dependents in the event of employee's death, is entitled to compensation from City under provisions of
the Workers' Compensation Insurance and Safety Act, as amended, or for which compensation is claimed from City,
City may retain out of sums due Contractor under Contract Documents, amount sufficient to cover such
compensation, as fixed by the Act, as amended, until such compensation is paid, or until it is determined that no
compensation is due. If City is compelled to pay compensation, City may, in its discretion, either deduct and retain
from the Contract Sum the amount so paid, or require Contractor to reimburse City.
G. Nothing in this Document 00821 shall be construed as limiting in any way the extent to which Contractor or any
Subcontractor may be held responsible for payment of damages resulting from their operations.
H. Except that Subcontractors need to obtain coverage of not less than $2,000,000 each occurrence, $4,000,000 general
aggregate limit of Comprehensive General Liability insurance, all Subcontractors shall maintain the same insurance
required to be maintained by Contractor with respect to their portions of the Work, and Contractor shall cause the
Subcontractors to furnish proof thereof to City within ten Days of City's request.
I. The following provisions apply to any licensed professional engaged by Contractor to perform portions of the Work
( "Professional ").
1. Each Professional shall maintain the following insurance at its sole cost and expense:
a. Provided such insurance is customarily required by City when professionals engaged in the profession
practiced by Professional directly contract with City, Professional Liability Insurance, insuring against
professional errors and omissions arising from Professional's work on the Project, in an amount not less than
$1,000,000 combined single limit for each occurrence. If Professional cannot provide an occurrence policy,
Professional shall provide insurance covering claims made as a result of performance of Work on this Project
and shall maintain such insurance in effect for not less than two years following Final Completion of the
Project.
b. All insurance required by paragraphs A.1, A.2 and AA of this Document 00821. Professional shall satisfy all
other provisions of paragraphs A, B, C, D, E and F of this Document 00821 relating to that insurance,
including without limitation providing required insurance certificates (containing the required endorsements)
before commencing its Work on the Project.
J. If required by City, Contractor shall obtain and maintain Contractor's Pollution Legal Liability Insurance in
a form, with limits, and from an insuring entity reasonably satisfactory to City.
END OF DOCUMENT
City of Cupertino
SIEMENS PERFORMANCE CONTRACT 00821-2 Insuranc
T6 - 96
Project No.
DOCUMENT 00530
INSURANCE FORMS
INSURANCE FORMS INSTRUCTIONS
FOR ITEMS 3, 4 AND 5, THE FORMS PROVIDED BY THE CITY OF CUPERTINO
MUST BE USED. FORMS OTHER THAN THESE WILL NOT BE ACCEPTED.
ALL DOCUMENTS MUST BE ORIGINALS - SUBMIT IN TRIPLICATE
1. Insurance Agreement - Must be signed by Contractor.
2. Certificate of Insurance to the City of Cupertino - must be completed by the insurance
agent or must provide a certificate on the company's form. They must contain the same
information.
3. Endorsement of Additional Insured and Primary Insurance and Notice of Cancellation - must be
signed by the insurance agent for general liability Emd automobile liability only.
4. Comprehensive general liability /commercial general liability endorsement of aggregate limits of
insurance per project - must be signed by the insurance agent for general liability only.
5. Waiver of subrogation endorsement worker's compensation insurance - must be signed by the
insurance agent for worker's compensation only.
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT 00530 - 1 Insurance Forms
16 -97
Project No.
INSURANCE AGREEMENT
A. Contractor is aware of the provisions of Section 3700 of the Labor Code, which requires
every employer to be insured against liability for worker's compensation or undertake self -
insurance in accordance with the provisions of that Code, and will comply with such provisions
before commencing the performance of the work of this Contract.
B. Contractor and all subcontractors will carry worker's compensation insurance for the
protection of its employees during the progress of the work. The insurer shall waive its rights of
subrogation against the City, the City's officers, agents and employees and shall issue an
endorsement to the policy evidencing same.
C. Contractor shall carry at all times, on all operations hereunder, commercial general liability
insurance, automobile liability insurance and builder's all risk insurance. All insurance coverage
shall be in amounts required by the City and shall be evidenced by the issuance of a certificate in a
form prescribed by the City and shall be underwritten by insurance companies satisfactory to the
City for all operations, sub - contract work, contractual obligations, product or completed operations,
all owned vehicles and non -owned vehicles. Said insurance coverage obtained by the Contractor,'
excepting worker's compensation coverage, shall name the City, its engineer, and each of its
directors, officers, agents and employees, as determined by the City, as additional insureds on said
policies. Insurers must be licensed to do business in the State of California. The Insurers must also
have an "A" policyholder's rating and a financial rating of at least Class VII in accordance with the
current Best's Guide Rating or that is otherwise acceptable to the City.
D. Before Contractor performs any work at, or prepares or delivers materials to, the site of
construction, Contractor shall furnish certificates of insurance evidencing the foregoing insurance
coverages and such certificates shall provide the name and policy number of each carrier and policy
and that the insurance is in force and will not be canceled or modified without thirty (30) days
written notice to the City. Contractor shall maintain all of the foregoing insurance coverages in
force until the work under this Contract is fully completed. The requirement for carrying the
foregoing insurance shall not derogate from the provisions for indemnification of the City by
Contractor under this Contract and for the duration of the warranty period. Notwithstanding nor
diminishing the obligations of Contractor with respect to the foregoing, Contractor shall maintain in
full force and effect during the life of this Contract, the following insurance in amounts not less than
the amounts specified and having a Best's Guide Rating of A, Class VII or better or that is
otherwise acceptable to the City.
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT
Insurance Forms
00530-2
16 -98
LIMITS
Project No.
Worker's Compensation In accordance with the Worker's Compensation
& Employers' Liability Act of the State of California — Worker's comp
"statutory" per CA Law; Employers' Liability
$1,000,000 per occurrence.
General Liability - commercial general liability; Combined single limit of $2.0 million per
including provisions for contractual liability, occurrence; $4.0 million in the aggregate
personal injury, independent contractors and
products — completed operations hazard.
Automobile Liability - comprehensive covering Combined single limit of $1.0 million per
owned, non -owned and hired automobiles. occurrence.
LIM
(Contractor's Name)
Dated: 20
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT 00530-3
Insurance Forms
16 -99
Project No.
CERTIFICATE OF INSURANCE TO THE CITY OF CUPERTINO
This certifies to the City of Cupertino that the following described policies have been issued to the
insured named below and are in force at this time.
Insured:
Address:
Description of operations /locations /products insured (show contract name and/or number, if any):
WORKER'S COMPENSATION * Statutory Min.
* Employer's
Liability
(name of insurer)
Insurance Company's State License No.
Check Policy Type:
Each Occurrence
$
COMPREHENSIVE GENERAL
LIABILITY
[ ] Premises /Operations
General Aggregate
$
(if applicable)
[ ] Owners & Contractors
Protective
Aggregate
$
[ ] Contractual for Specific
Contract
Personal Injury
[ ] Products Liability
[ ] XCU Hazards
[ ] Broad Form P.D.
Fire Damage (any one fire)
$
[ ] Severability of Interest
Clause
[ ] Personal Injury with
Medical Expense
$
Employee Exclusion Removed
(any one person)
or
Self - Insured
COMMERCIAL GENERAL LIABILITY Retention
$
(name of insurer)
Policy No. Expiration Date,
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT 00530-4
Insurance Forms
16-100
Project No.
AUTOMOTIVENEHICLE LIABILITY BODILY INJURY PROPERTY DAMAGE
Commercial Form Each Person Each Accident
Liability Coverage
Each Accident
(name of insurer)
$ or
Combined Single Limit $
Policy No. Expiration Date
BUILDER'S RISK "ALL RISK"
This is to certify that the following policy has been issued by the below- stated company in
conformance with the requirements of the project documents and is in force at this time.
N/A
(Name of insurer)
Policy No. Expiration Date
Limits of Liability: Deductible:
A copy of all Endorsements to the policy(ies) which in any way
(agent's initial) limit the above - liste& types of coverage are attached to this
Certificate of Insurance.
This Certificate of Insurance is not an insurance policy and does not amend, extend or alter the
coverage afforded by the policies listed herein. Notwithstanding any requirement, term, or
condition of any contract or any other document with respect to which this Certificate of Insurance
may be issued or may pertain, the insurance afforded by the policies described herein is subject to
all the terms, exclusions and conditions of such policies.
IT IS HEREBY CERTIFIED that the above policy(ies) provide liability insurance as required by
the Agreement between the City and the insured.
M
Dated:
20
Attach Certificate of Insurance and Additional Insvxed Endorsement on company forms.
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT
Insurance Forms
00530-5
16-101
Project No.
ADDITIONAL INSURED ENDORSEMENT
and
ENDORSEMENT OF PRIMARY INSURANCE
and
NOTICE OF POLICY
CANCELLATION ENDORSEMENT
Project Title and Number:
In consideration of the policy premium and notwithstanding any inconsistent statement in the policy
to which this Endorsement is attached or any other Endorsement attached thereto, it is agreed as
follows:
The City of Cupertino ( "City ") and its directors, officers, engineers, agents and employees,
and all public agencies from whom permits will be obtained and their directors, officers, engineers,
agents and employees, and the State of California, and its officers, agents and employees, are
hereby declared to be additional insureds under the terms of this policy, but only with respect to the
operations of the Contractor at or upon any of the premises of the City in connection with the
Contract with the City, or acts or omissions of the additional insureds in connection with, but
limited to its general supervision or inspection of said operations.
The insurance afforded by this policy is primary insurance, and no additional insurance held
or owned by the designated additional insured(s) shall be called upon to cover a loss under said
additional policy.
Cancellation Notice. The insurance afforded by this policy shall not be suspended, voided,
canceled, reduced in coverage or in limits, or materially altered, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City of Cupertino
( "City "). Such notice shall be addressed to the City as indicated below.
POLICY INFORMATION
1. Insurance Company:
2. Insurance Policy Number:
3. Effective Date of this Endorsement:
4. Insured:
20
All notices herein provided to be given by the Insurance Company to the City in connection
with this policy and these Endorsements, shall be mailed to or delivered to the City at 10300 Torre
Avenue; Cupertino, California 95014.
I ,
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT
Insurance Forms
(print/type name)
1Ij17 911wel
16-102
Project No.
warrant that I have authority to bind the below listed Insurance Company and by my signature'
hereon do so bind this Company.
Signature of Authorized Representative:
(Original signature required on all Endorsements furnished to the District)
Names of
Agent/Agency:
Address:
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT
Insurance Forms
Title:
Telephone:
Facsimile:
00530-7
16-103
CITY OF
CUPERTINO
COMPREHENSIVE GENERAL LIABILITY
COMMERCIAL GENERAL LIABILITY
ENDORSEMENT OF AGGREGATE LIMITS OF
INSURANCE PER PROJECT
Project Title and Number:
Project No.
In consideration of the policy premium and notwithstanding any inconsistent statement in the policy
to which this Endorsement is attached or any other Endorsement attached thereto, it is as follows:
This Endorsement modifies the insurance provided under the General Liability Coverage part of the
below- referenced policy of insurance.
The general aggregate limit under LIMITS OF INSURANCE applies separately to the project
described as
POLICY INFORMATION
1. Insurance Company:
2. Insurance Policy Number:
3. Effective Date of this Endorsement:
4. Insured:
20
5. Additional Insured: City of Cupertino, its directors, officers, agents and employees.
All notices herein provided to be given by the Insurance Company to the City in connection with
this policy and this Endorsement, shall be mailed to or delivered to the City at 10300 Torre Avenue;
Cupertino, California 95014.
I, (print/type name)
warrant that I have authority to bind the below listed Insurance Company and by my signature hereon do
so bind this Company.
Signature of Authorized Representative:
(Original signature required on all Endorsements furnished to the District)
Names of
Agent/Agency:
Address:
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT
Insurance Forms
Title:
Telephone:
Facsimile:
00530-8
16-104
Project No.
WAIVER OF SUBROGATION ENDORSEMENT
WORKER'S COMPENSATION INSURANCE
Project Title and Number:
In consideration of the policy premium and notwithstanding any inconsistent statement in the policy
to which this Endorsement is attached or any other Endorsement attached thereto, it is agreed as follows:
It is agreed that with respect to such insurance as is afforded by the policy, the Insurance Company
waives any right of subrogation against the City of Cupertino, and each of its directors, officers, agents,
consultants and employees by reason of any payment made on account of injury, including death
resulting therefrom, sustained by any employee of the insured, arising out of the performance of the
above - referenced Contract.
POLICY INFORMATION
1. Insurance Company:
2. Insurance Policy Number:
3. Effective Date of this Endorsement:
20
4. Insured:
All notices herein provided to be given by the Insurance Company to the City in connection with
this policy and this Endorsement, shall be mailed to or delivered to the City at 10300 Torre Avenue;
Cupertino, California 95014.
I, (print/type name)
warrant that I have authority to bind the below listed Insurance Company and by my signature hereon do
so bind this Company.
Signature of Authorized Representative:
(Original signature required on all Endorsements furnished to the District)
Names of
Agent/Agency:
Address:
City of Cupertino
SIEMENS PERFORMANCE CONTRACT AGREEMENT
Insurance Forms
Title:
Telephone:
Facsimile:
00530-9
16 -105
EXHIBIT S
BEGIN
HERE
CC Kf2C//O
Linda Lagergren *l'/
From: denise east [deast7 @yahoo.comI
Sent: Sunday, April 18, 2010 6:37 PM
To: Kris Wang; Kris Wang
Cc: glatshaw @gmail.com
Subject: Agenda Item 16
Honorable Kris Wang, Mayor
Li
Cupertino City Hall
10300 Torre Avenue
Cupertino, CA 95014
Dear Mayor Wang,
In regards to the following:
AGENDA
CUPERTINO CITY COUNCIL
Regular Meeting
10350 Torre Avenue, Cupertino Community Hall
April 20, 2010, 6:45 pm
UNFINISHED BUSINESS
"Item 16. Consider authorizing the City Manager to enter into an energy savings performance contract with Siemens in substantially
the same form as attached for an amount not to exceed $2,133,845. Consider appropriating 2009 -10 capital improvement funds of
$2,133,845 for this project, financed by $438,000 in Department of Energy, Energy Efficiency and Conservation Block Grant Funds,
$562,000 from capital improvement reserves and $1,133,845 from a private financing lender."
Per Cupertino's Environmental Services Department, this proposed energy performance contract with Siemens
is for management of only lighting and irrigation. This S2.13 million of available funding can be used more
efficiently and effectively if spent on accountable, itemized building equipment upgrades and system
makeovers. For example:
The Cupertino School District's Grounds Management urgently needs to buy and install underground
irrigation flow switches and control valves to stop water loss immediately and remotely from
unexpected underground pipe breaks at 26 school sites.
The School District urgently needs to buy and install a number of evapo- transpiration systems to regulate
the volume of irrigation water based on weather and soil moisture.
The majority of the Schools' irrigation components and control systems are manufactured by Toro.
Siemens manufactures and installs their own proprietary equipment and control systems which are not
designed to interface with the equipment of other manufacturers.
Upgrading and expanding their existing Toro irrigation system would be the most prudent decision
unless changeover to Calsense irrigation systems could be justified.
1
Cupertino needs to invest in building energy management systems that can interface with lighting control
panels for remote scheduling revisions and power monitoring. Upgrades to the existing lighting control
systems can include installing motion sensors and daylight harvesting systems with interior
photosensors. We would be most prudent in acquiring a building management system that is non-
proprietary, operates on true, native BACnet protocol, and is serviced by more than one local vendor.
The lighting control panels that the City owns are not manufactured by Siemens. It would only be in
Siemens' best interest to recommend a proprietary building energy management system manufactured
and solely serviced by Siemens. Operation and rnaintenance of proprietary equipment with one sole -
service vendor is undoubtedly at risk of unnecessary higher costs.
Cupertino Schools currently has two different energy management systems in operation, one of which is
Delta Controls a non - proprietary system serviced by several local vendors. Automated Logic Controls
is another recommended non - proprietary energy management system serviced by more than one local
vendor.
As a U.C. Berkeley Natural Resources graduate, Cupertino Resident, co- leader for the Sierra Club Cool Cities
Campaign in Cupertino, an ICC- certified commercial building, electrical and mechanical construction inspector
for over 32 years, and LEED AP, I do not recommend City Council to enter an energy savings performance
contract with Siemens.
Most Sincerely,
Denise East
10635 Johnson Avenue
Cupertino, CA 95014
2
C C (( ,2c (i0
Linda Lagergren l(
From: denise east [deast7 @yahoo.com
Sent: Monday, April 19, 2010 7:28 PM
To: Kris Wang
Cc: glatshaw @gmail.com
Subject: Revised Outlook to Agenda Item 16
Honorable Kris Wang, Mayor
Cupertino City Hall
10300 Torre Avenue L
Cupertino, CA 95014
Dear Mayor Wang,
In regards to the following, my opinion has changed:
AGENDA
CUPERTINO CITY COUNCIL
Regular Meeting
10350 Torre Avenue, Cupertino Community Hall
April 20, 2010, 6:45 pm
UNFINISHED BUSINESS
"Item 16. Consider authorizing the City Manager to enter into an energy savings performance contract with Siemens...."
Accessment of this proposed energy performance contract appears to be primarily for the replacement of
existing site light luminaires and existing irrigation controllers, products not manufactured or sole - serviceable
by Siemens.
Replacement of the existing street light luminaires with more efficient units will not involve system lighting
control panels.
Weather Trak evapo- transpiration irrigation system controllers will replace the City's existing
Rainbird /RainMaster to regulate the volume of irrigation water based on weather, soil moisture, plant
physiology, etc. More than one local service vendor exists.
Future irrigation upgrades can include underground irrigation flow switches and control valves to remotely
stop water loss from unexpected underground pipe breaks.
Cupertino public and commercial buildings do need to invest in building energy management systems that
can interface with lighting control panels for remote scheduling revisions and power monitoring.
Upgrades to existing building lighting control systems can include installing motion sensors and
daylight harvesting systems with interior photosensors. An optimal building energy management
system should be non - proprietary that operates on true native BACnet protocol, and is serviced by more
than one local vendor.
As a U.C. Berkeley Natural Resources graduate, Cupertino Resident, co- leader for the Sierra Club Cool Cities
Campaign in Cupertino, an ICC- certified commercial building, electrical and mechanical construction inspector
for over 32 years, and LEED AP, I have no reservations with the City Council entering this respective energy
savings performance contract with Siemens.
1
CITY OF CUPERTINO
STREETLIGHT AND IRRIGATION SYSTEM PROJECT CASH FLOW
AS OF 4/20/10
2009/10 2010/11 2011/12 2012/13 2013/14 2014/15 2015/16 2016/17 2017/18 2018/19 2019/20 Total
Sources of Funds
EECBG Grant 438,000 438,000
Debt Financing 1,133,845 1,133,845
CIP Reserve 562,000 562,000
Electricity & Water Savings 235,882 248,576 264,209 274,798 288,529 353,419 309,087 321,471 334,309 350,441 2,980,721
Subtotal 2,133,845 235,882 248,576 264,209 274,798 288,529 353,419 309,087 321,471 334,309 350,441 5,114,566
Uses of Funds
Project Cost 2,071,845 2,071,845
Savings Guarantee 62,000 62,000
Debt Service 257,775 257,775 257,775 257,775 257,775 1,288,875
Subtotal 2,133,845 257,775 257,775 257,775 257,775 257,775 - - - - - 3,422,720
Net Cash In / (Out) - (21,893) (9,199) 6,434 17,023 30,754 353,419 309,087 321,471 334,309 350,441 1,691,846
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G: \Finance \Grants \EECBG Street Light Irrigation Project \Siemens Project CashFlow 4- 20- 10.xlsx
CITY OF CUPERTINO
CAPITAL IMPROVEMENT PROJECT (CIP) RESERVES - Actual and Projected
AS OF 4/20/10
2009/10 2010/11 2011/12
CIP Reserve
Beginning Balance 699,000 548,000 1,081,000
Siemens Project (562,000)
UUT Reserve
Beginning Balance 1,600,000
To Balance Mid -Year Deficit (122,000)
Balance 1,478,000
Transfer to CIP Reserve (1,478,000) > 411,000 533.000 534.000
UUT Ending Balance -
Projected CIP Reserve - Ending Balance 548,000 1,081,000 1,615,000
G: \finance \Budget \2010 -11 Budget \CIP Reserves 2010 thru 2012.xlsx