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10-052 Performance Contracting Agreement, Siemens Industry, Inc., Building Technologies Division Amendment No. 3 to Performance Contracting Agreement THIS AMENDMENT No. 3 ( "Amendment ") is made this 21st day of September, 2011, by and between Siemens Industry, Inc., through its Building Technologies Division (f /k/a Siemens Building Technologies, Inc.) ( "SIEMENS "), and the party identified below as CLIENT, and effective upon execution, amends and modifies the Performance Contracting Agreement dated 5/26/2010 (SIEMENS Job No. 440P- 073525) between SIEMENS and CLIENT, and all prior amendments thereto, if any (collectively the "Agreement "). PROJECT: City of Cupertino Energy Savings Performance Contract This amendment modifies the scope of work to be performed on the Streetlight and Irrigation Controller FIMs, which reduces the original Project price from $2,131,407.10 to $1,977,921.19. CLIENT: The City of Cupertino SIEMENS: Siemens Industry, Inc. 10300 Torre Avenue 1000 Deerfield Parkway Cupertino, CA 95014 Buffalo Grove IL 60089 Local office at: DESIGNATED REPRESENTATIVE: 25821 Industrial Boulevard David Knapp, City Manager Hayward, CA 94545 Phone: (408)777 - 3200, Fax: (408) 777 - 3366 DESIGNATED REPRESENTATIVE: Michael R. Emmons, Operations Manager EES Phone: (510) 723 -7762, Fax: (510) 293 -2100 1. The Agreement and any amendments thereto are incorporated by reference herein and made a part hereof. 2. The Parties agree to modify the Agreement's Exhibit A (Scope of Work) as follows: A) Reduce quantity of installed street light retrofits from 2,950 units to 2,913 units (37 unit reduction) ... ($13,659.07) B) Reduce quantity of installed irrigation controllers from 111 units to 92 units (19 unit reduction) ... ($143,781.43) C) Provide 15 Multi -Tap spare cobra head fixl:ures ... $3,954.59 3. The Parties agree to modify the Agreement's Exhibit B as follows: The changes identified above result in a net reduction of $153,485.92, so the Price identified in Section 1.1 of Exhibit B is reduced to $1. 977.921.19. (remainder of page intentionally left blank) Cupertino /SII -BTD Page 1 of 2 Amendment3 BT Job #440P- 073525 Amendment No. 3 to Performance Contracting Agreement WHEREFORE, this Amendment amends and modifies the Agreement. In all other respects, the terms and conditions of the Agreement remain in full force and effect. The Parties have caused this Amendment No. 3 to be signed by their duly authorized representatives on the date first above written, and this Amendment No. 3 may be executed in counterparts, each of which shall be deemed an original and together shall constitute one and the same instrument. CLIENT: City of<upertino SIEMENS: Siem s Industry, Inc. Signature: 6 X/, Signature: `---'1 Printed Printed ` -_ Name: Roger S. Lee Name: George T. Burck, JR. Director, SOX & !US Title: Assistant Director of Public Works Title: CLIENT: ity of Cupertino Signature: r (,1) ii� '.M I it. (( Printed Name: David Knapp Title: City Manager Approved as to form: 72 Cit A rney Approved By Legal Digitally signed by Foley Molly DN: serialNumber= Z001PCNK, givenName= Molly, sn= Foley, o= Siemens, cn =Foley Molly Date: 2011.10.06 14:44:18 -05'00' Cupertino /SII -BTD Page 2 of 2 Amendment3 BT Job #440P- 073525 Amendment No. 2 to Performance Contracting Agreement THIS AMENDMENT No. 2 ( "Amendment ") is made this 19th day of October, 2010, by and between Siemens Industry, Inc., through its Building Technologies Division ( "SIEMENS "), and the party identified below as CLIENT, and effective upon execution, amends and modifies the Performance Contracting Agreement dated 5/7/2010 (SIEMENS Job No. 440P- 073525) between SIEMENS and CLIENT, and all prior amendments thereto, if any (collectively, the "Agreement"). PROJECT: City of Cupertino Energy Savings Performance Contract This Amendment No. 2 modifies the scope of work to be performed on the Street - lighting Induction Retrofit described in Section 1.2.1 of Exhibit A of the Agreement. CLIENT: The City of Cupertino SIEMENS: Siemens Industry, Inc. 10300 Torre Avenue 1000 Deerfield Parkway Cupertino, CA 95014 Buffalo Grove IL 60089 at: DESIGNATED REPRESENTATIVE: Local office t 25821 In du David Knapp, City Manager Hayward, CA A 94545 Boulevard Phone: (408)777 -3200, Fax: (408) 777 -3366 DESIGNATED 9 REPRESENTATIVE: REPRESENTATIVE: Larry Hillman, Area Sales Manager Phone: (510) 731 -3120, Fax: (949) 272 -4965 1. The Agreement and any amendments thereto are incorporated by reference herein and made a part hereof. 2. Pursuant to Section 7.3 of the Agreement, the parties agree to modify the Agreement as follows: EXHIBIT A, Section 1.2.1: This section is supplemented with the following EcoWatt Lighting scope of work: ECOWATT STREET LIGHTS 1) Substitute Nexlume lamp and driver with EcoWatt lamp and driver. 2) Retrofit of fixtures is to occur off -site with the following items of work to be completed: a) Up to 600 fixtures of various wattages are to be provided outside of CLIENT stock. These fixtures are to be consistent with existing fixtures and selected to increase uniformity among the various existing fixture types. These fixtures will be retrofitted per the Agreement and this Amendment. b) Fixtures with deficient housings will be replaced. c) Fixtures will be disassembled, thoroughly cleaned and inspected. d) Any inspected items with deficiencies shall be replaced including, but not limited to: mounting bolts, terminal blocks, reflectors, photo -cells receptacles. e) Substitute acrylic full cutoff lens with tempered glass. f) Install new felt gaskets and replace missing bird / wildlife guards. g) Paint all exteriors with Break Through series 70 gloss paint. h) As available, the installation shall be consistent by model type in line of sight. i) Work to be per industry standard with each provided component reaching rated design life. 3) Warranty shall be per Tanko Streetlighting Services Inc.'s Warranty Letter dated October 15, 2010 4) Photometrics meet applicable standards for luminosity and glare. 5) Full coordination with PG &E for timely changing of rate structures. 6) Completion of CLIENT - provided checklist on a pole -by -pole basis on items not within the scope of this FIM (i.e. missing hand covers, reporting if source of power overhead / underground) Customer /BT Amendment Page 1 of 2 BT Job #440P- 073525 Amendment No. 2 to Performance Contracting Agreement WHEREFORE, this Amendment No. 2 amends and modifies the Agreement. In all other respects, the terms and conditions of the Agreement remain in full force and effect. The Parties have caused this Amendment No. 2 to be signed by their duly authorized representatives on the date first above written, and this Amendment No. 2 may be executed in counterparts, each of which shall be deemed an original and together shall constitute one and the same instrument. CLIENT: City of Cupertino SIEMENS: Siemens In • ustry, c. Ap roved as to Fgf Signature: C Signature: Printed �-_, AINIMEN Printed Name: Carol Korade Name: George T. Burck, JR. Director, SOX & ICS Title: City Attorney Title: CLIENT: ity of upertino Signature: Printed Name: David Knapp Title: City Manager / apt by 1 gal mall, m. ful_. ni Customer /BT Page 2 of 2 Amendment BT Job #440P- 073525 0 0 TABLE OF ARTICLES 1. Agreement 2F 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 1, Ma.intenance Services Program Page 1 of 1 PERFORMANCE CONTRACTING AGREEMENT Number: er: Article I AGREEMENT THIS PERFORMANCE CONTRACTING AGREEMENT "A reemenf' is trade this 7th day of !Mays 2010 (the "Effective Contract fate ", defined below), b and between Siemens Industry, Inc., Building Technologies Division 'SI MENS" and the party identified below as the CLIENT. The LMNT: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 DESIGNATED REPRESENTATIVE- D vid Knapp ,RHONE-A-4408) 777 -3200 FAX: (408) 777 -3366 eemnens Industry, Inc *, Building Technologies Division 1 oo Deerfield Parkway Buffalo Grove, Illinois 60089 With offices at: 25821 Industrial Blvd, Suite 300 Hayward, CA 94545 DESIGNATED REPRESENTATIVE: Mike Emmons PH NE: 1 723 -7782 FAX: 10 293 -2100 For Work and Services in connection with the fol10' win project (the "Project"): City of Cupertino Energy Savings Performance Contract The CLIENT considered performing the following F[Ms but at this time, has determined to exclude then from the Scope of Work and Services, Exhibit A: Energy Management System Solar Thermal Water Heating M AC Upgrades Solar Photorroltaics Park Lighting Interior and Exterior Lighting at additional locations Page 2 of 17 Agreement PCA-1 00 PUBLIC version 2009R PERFORMANCE CONTRACTING AGREEMENT Articles and Attachments This Agreement consists of this document, which includes the following articles and exhibits which are acknowledged nowledged by the CLIENT and SIEMENS and incorporated into the Agreement by this reference: Articles I . Agreement 2. Glossary 3. General 4. Performance Guarantee 5, Work BY SIEMENS 6. The LIFT'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 EECG Program Attachment 1 Intellectual Property Provisions (for reference only Appendix r Attachment 3 U.S. Department of Energy Federal Assistance Reporting Checklist and I ntructions Exhibit E Form of City of Cupertino Standard Form 482 - Bidder's Certifications Exhibit F Fora of City of Cupertino Standard Fora 610-Construction Performance Bond Exhibit G Fora of City of Cupertino Standard Form 20- Construction Labor and Materials ri is Bond Exhibit H Form of City of Cupertino Standard Fern 1-- 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. COMPENSATIONITERMS 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 CLl ENT -sha[I pay S EM EN S in such manner end amounts as agreed to in Exhibit B. Agreed for Chl't of G prtino Approved As To Form-, (Signature) by: (Signature) by: Print Marne and Title: David Knapp, City Manager Print Name and Title: � (Signature) by: Print Name and Title: Agreed for Sle : , .rid 'r y, Inc. (Signature) by: Print Name and Title: (Signature) b: Print Name e and Title: Page 3 of 17 Agreement PCA- oo PUS v rsio Q0 9R ,APpRO BY LE, PERFORMANCE CONTRACTING AGREEMENT Article 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 *f r -nears the date on which the CLIENT signs or is deemed to have signed a Certificate of Substantial Completion. "Annual Perfonnance Assurance Report" means the document prepared by SIEMENS and submitted to the CLIENT as part of the Perf=ormance Assurance Service Program, which identifies the Savings achieved for the applicable Annual Period. " "Annual edod"I' ne ns a twelve 1 month period beginning on th,e Guarantee late or on any anniversary date thereof. "Annual Realized Savings "' means the actual Savings achieved by the CLIENT during an Annual period, calculated as the sure of the pleasured &Verfied Savings. plus the Stip4lated Savings. "Baseline" means the measurements of Facility energy wage taken prior to the Effective Contract Date, and the Facility operating practices in effect prior- to the Effective Contract Gate, as set forth in the Performance Assurance, Exhibit C. "Baseline Perlod" 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 rid /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 e ms nt ti " means the person identified to SlEME S by the CLIENT as the person authorized to make decisions on behaif 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, "Constructfon Pedod a In s" means the actual accumulated Measured & Verified Savings plus the Stipulated Savings achieved from the Effective Contract Date until the Guarantee lute. ""Contracted Baseline "r means the post -FIM- Implementation Facility operating profile used on parameters described in Exhibit C, which the CLIENT shall maintain throughout the Performance Guarantee Period and are relied upon by SiEl MEN 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 - biended, utility rates. " "Deferred Maintenance" means a sub- dategory of operational Savings where Savings results from a reduction of current or potential future repair and maintenance a costs due to certain work being performed hereunder where such work had been previously postponed. " ell era le" means a report or drawing specifically prepared for and deliverable to the CLIENT. "'Effective Comet Date" is the date appearing at the top of this Agreement, unless specifically indicated otherwise. Page 4 of 17 Agreement PCA-100 PUBLIC version 20991 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 efficiency of utility consumption. "'Equipment" means the instal led products to be provided by SIEME NS as described in the Scope of Work and Services, Exhibit A. ""Escalation Rate-, means an annual percentage increase to be applied to the previous years energy savings, operational savings and service pricing, beginning and occurring on dates outlined in the Performance Assurance, Exhibit C. A different Escalation Rafe may be applied to differing Savings calculations and/or payment schedules depending on the percentage agreed upon by the Parties. 'T oill r" or "Facilities" means the buildings) or structures) where Work gill be installed or implemented. "Facility Improveme t Measures" or "FlMs" means the methods, tech.niguesf 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 E i is as well as any non-conservation-related activities, means or methods, "f ' i " means the Federal Energy Man agement Program managed by the United States f epartment of Energy. "TEMP Guidelines "r means the FEI P M&V Guidelines v, 3,0 published by FE MP as M&V Guidelines- Measurement and i err ication for Fe doraI Energy Ma n ag e m 9 n t 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 & Verified 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 A aterials"' refers to the definition found in Section 11.1. "Insburnen s" means all reports, notes, calculations, data, drawings, esfimat s, specifications, manuals, documents, all computer programs, codes and computerized materials prepared by or for SIE EI IS., a cluding Deliverables. f €l VP'-" means the International Performance Measurement and verification Protocol, volume 1, EVO 10000-1.2007 oW1.2007 as prepared by the Efficiency Valuation Organization. '*W and "kWh" means i ilowaft and kilowatt hour, respectively. "Maintenance Services ro r m" or "VSP" means the Services performed by SIEMENS to maintain the Equipment in good working order. The LISP 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. "I'Ma erial Change" means a measurable deviation in the Contracted Baseline such that there is an adverse irripact on the Annual Realized Savings which results or will result in a Savings Shortfall. " "Measures & Vedfied Savings "' means those Savings that can be calculated and ascertained by the methodology set forth in the Performance Assurance, Exhibit C. Page 5 of 1 Agreement P A -100 PUBLIC version 2009R PERFORMANCE CONTRACTING AGREEMENT ",Oft"' 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 FlMs are performing at the level necessary to achieve the Guaranteed Savings. ""Performance Assurance Services Program" or "PASP" means the Services rewired to monitor the operation of the lMs so that SIEMENS can provide the Annual Performance Assurance Deport detailing the Annual Realized Savings arid, where applicable, the Accumulated Realized ed avin s, and comparing the same to the Annual Guaranteed Savings and, where applicable, tine Guaranteed Accumulated Savings based upon the calculations agreed to by the Parties in the Performance Assurance, Exhibit C. The Services provided under the PAP are described in the Scope of Work and Services, Exhibit A. ""Performance Guaranteewy 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 tir eframe from the Guarantee Date to the lest 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' int nded result from implementing all Fl Ms. 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 41.1 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 B or ah "I means the Annual Realized Savings less the Guaranteed Annual Savings for the Annual Period resulting in an amount less than zero. "Services 11 means those services to be provided by SIEMENS as described in the Scope of Work and Services, Exhibit A. Stipulated Savings Irl are a sub - category of Guaranteed Savings that do not require post -1~II I implementation measurement and verification because they are operational Savings as agreed upon by the Parties based upon representations made to SIEMENS by the C LIENT. As such, Stipulated Savings are agreed upon in advance by the Parties and cannot be charged. 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 CompletWl means the Work, or any identifiable portion thereof, is suffidently complate, in accordance with the provisions of this Agreement relating to the Scope of the. Work and Services, Exhibit A, such that the CLIENT w! 11 be able to realize from such Work substantially alt of the practical benefits intended to be gained therefrom, or otherwise employ the Rork or the Flips for their intended purposes. To the extent that the Work rewires multiple Acceptances, the Work's final Substantial Completion date shall determine the Guarantee Cate. "Therm" is a measure of energy equal to 100,000 BTUs, ` "Totef 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 FlMs to be performed by SIEMENS, as described in the Scope of Work and Services, Exhibit A. Page of '1 Agreement PCA -100 PUBLIC version 20098 PERFORMANCE CONTRACTING AGREEMENT Article General' 11 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 mafter of this Agreement. Each party has conferred, or has had the opportunity to confer, with their respective legal counsel. Accordingly, in the evert any claim is made relating to any conflict, omission, or ambiguity in this Agreement, no presur pfion, 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 E hibit A in accordance with the terms and conditions of this Agre meat* 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 mal e any agreements or representations on behalf of the CLIENT. T. 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 j6 hereby expressly denied. No employee or agent of S1EME NS 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 eater into this Agreement, and that its execution hereof has been duly �authoril ed and does not and will not constitute a breach or violation of any of SIEMENS' ENS' organizational documents,' any applicable leas 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; 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 against or affecting S EM ENS that aff=ects the validity or enforceabiRy 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 poorer and or statutory authority to eater into this Agreement, and that its execution hereof ties 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; e 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 SlEMENS in this regard. Article 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 4.3. The measurement and verification calculation methodology for determining the Measured & Verified Savings is set forth in the Performance Assurance, Exhibit G. 4.1.1 General. Except as otherwise provided, energy savings will be calculated for each month of each Annual Period as the product of a "units of energy saved" kWh, Therms, G,.1, etc.) multiplied by b ; "o st of energy." �Fl�.rw.w.�.ww Irr� 1 Page of1 Agreement PA -1 00 PUBLIC version 2009R PERFORMANCE cE CO TRAC 1 I G AGREEMENT A (a ) Units of energy sacred are calculated by 1 assuming the Contracted Baseline has been maintained per Section 4. below, and subtracting the then current period measured units of energy consumed from the Baseline units of energy defined in Article 5 of Exhibit 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 B 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 Baseline 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 terra of the Performance Guarantee Period. 4.4 The CLI ENT agrees to notify SIEMENS prior to or within 30 days of CLIE 1T'S knowledge of any Material Change. 4.5 Within 30 days of notice of a Material Change, SIEMENS' discovery of a Material Charge, 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 adi u stm ent 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 g days of the Guarantee Date, the Construction Period Savings shall be reconciled and applied to the calculation of the fiat Annual' Period's Annual Realized Savings. b At the conclusion of each Annual Period, S-11EIVIENS will calculate the Annual Realized Ba ings and compare the calculated amount to the applicable Guaranteed Annual Savings amount. 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 skull be paid by SIEMENS within sixty g 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 g oal 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 o.per'atiornal expenses, and the CLIENT declines to alloy 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 Perfprnrnance 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 gold 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 TS MADE OR TO BE TRADE TO THE CLIENT UNDER THE TERMS F THIS PERFORMANCE CE GUA. AC TEE SHALL NOT EXCEED THE PAYMENTS A TUALLY MADE BY CLIENT To EITHER SIEMENS AND/OR A THIRD- PATTY (IN THE EVENT THAT THE CLIENT HAS FINANCED THE TRANSACTION) FOR THE AGGREGATE Off`. THE PRICE, AS DEFINED IN EXHIBIT B, ARTICLE 1.1; THE PASP PAYMENTS; THE BP PAYMENTS, TS, IF ANY; ; Ali , IF APPLICABLE, THE CLIENT'S COST OF FINANCING THE WORK. The Page 8 of 17 Agreement PCA -1 go P 1BLIC version 2 0098 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 .2; or, b On the Effective Contract Date if the escrow requirement is 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 Deport arid, if necessary, the Performance Guarantee shall be adjusted accordingly, 4,10 if the Equipment or the existing equipment is a,ftered 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 reanceptance test on, or if necessary a re-commissioning of, the system at the CLIENT'S expense in order to determine if a Material Charge has occurred. 4.11 SIEME N S will have no iiability or obligation to continue providing PAS P Services or any Guaranteed Savings under the Performance Guarantee in the event that the CLIENT fails fie: 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 reasonable available to the CLIENT, including energy usage and cost, executed preventive maintenance a 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 days prior written notice and in such notice indicate that the CLIENT has selected one of the following: (a) The CLIENT trill re-invest the avoided cost of cancellation of the PAS P into Facility improvements end services that improve the overall Facility's performance and which h improvements and services are implemented by SIEMENS; or, b The CLIENT will pay to SIEME N S 100% of the remaining value left in the PAS P Annual Period, as a Iiquidated damage and not as a penalty, to compensate SIElilliENS for SIEMENS' up -front costs and expenses in preparing to perform the PASP as contracted for the Annual Period. .1 unless expressly contrary to lair, any disputes concerning the calculation of the Annual Realized Savings or charges to the Contracted Baseline,that are not resolved by negotiation .between the Parties within thirty g 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. SIEMEI S and the C UENT will each be responsible for half of the fees of such firm. Article 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 a 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 rake the Facility available so Work may proceed in an efficient manner. 5.3 SIEMENS is not required to oonduct safety, rea ceptance 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 a mutually agreed change order, effective only when executed by the Parties. Page g of 1 Agreement PCA -1 00 PUBLIC version 2009R PERFORMANCE CE CONT ACTT G AGREEMENT 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 Use& 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 ether 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 then to be used for any extension of the Work or any other project or purpose without SIEMENS' express wri t n consent. Any reuse of Deliverables o� 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 users 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. 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' S' work and/or presence at the Facility shell not relieve others of their responsibility to the CLIENT or to others, 5.6 SIEMENS warrants that: a Unless otherwise agreed, all Equipment shall be 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 frorn 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 gg days after the Services are performed. 5.7 Warranty Limitation: a The limited warranties set forth in Section 5.6 will be void as tot and shall not apply to, any Equipment i repaired, altered or improperly installed by any person ether than SIEMENS or its authorized representative; H 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 manufacturers 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 rust be made in writing to SIEMENS Vithin thirty 0 days after discovery of the claimed defect unless discovered directly by SIEMENS, ENS, 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, ed, 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 components 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 NTIES PF IC ED ABOVE ARE IN LIEU F AND EXCLUDE ALL OTHER WARRANTIES, STATUTORY, EXPI ES x OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY of MERCHANTABILITY OR FITNESS FOR A PARTICULAR LAI PURPOSE, SE, vvH ICH ARE HEREBY EXPRESSLY DISCLAIMED. THE LIMITED EXPRESS WARRANTIES ITIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A WRITING EXECUTED BY A DULY AUTHORIZED SIGNATORY Y F EACH PARTY. Page 10 of 1 Agreement P A -1 00 PUBLIC version 2009R PERFORMANCE co TRAc 1 I G AGREEMENT 5.9 SIEMENS will not be responsible for the maintenance, repair or replacement of, or Services necessitated by reason of: a lion- maintain PERFORMANCE CONTRACTING AGREEMENT l 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, 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. 62 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 rr`ften'consent, 6.3 The CLIENT acknowledges that it is now and shell at all tires 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, the CLIEi,IIT shall not hold, or attempt to hold, SIEMENS S liable or responsible on account thereof. Article Changes and Delays 7.1 As the Work is performed, existing laws or conditions may change, or circumstances outside SIEMENS' reasonable control may develp, 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 term inatedSllsMENS 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. 71 SIEMENS may, in its sole discretion, substitute alternative parts, goods or equipment in the perlomiance of tine Work, provided that any such substitution shall be of are 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, strifes, 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 corn pensation shall be equitably adjusted to compensate for. additional costs SIEM ENS incurs due to such delay. if any such delay exceeds sixty o days, SIEMENS S 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 wor� completed, for any costs and expenses of termination, and for any loss or damage incurred with respect to materials, equipment, tools and rmachinery, including reasonable overhead and profit. Article 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. 3. SLE ET S 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 are 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. Page 12 of 17 Agreement PCA -1 og PUBLIC version Zoo PERFORMANCE CONTRACTING AGREEMENT 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 costs reasonably incurred in connection with the suspension or termination. 8.4 On amounts not paid within thirty days of invoice dates the CLIENT shall pay interest from invoice date until payment is received at the lesser of 12% per annum or the maxirnurn rate allowed by law. The CLIENT shall reimburse SIEMENS for SIEMENS' S' 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. Th6 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 carne. 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 SI EM ENS' normal work ing 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 Acceptance 9.1 When SIEMENS believes that all, or an independent, definable phase or portion, of the o�k is Substantially Complete, 1EM ENS will subm it a Certificate of Sub tantial Co mpletion to the C LlE NT which'shall be subject to the folio gyring: (a) If the CLIENT concurs that the described portion of the Work as performed is Substantially Complete, the QUENT will accept that Work by signing the Certificate of Substantial Completion and returning it to SlEM ENS; {b if the CLIENT does not concur that the Work is Substantially Complete: then the CLIENT shall notify SIEMENS within fire 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 disc.repancie raised -by the CLIENT, SIEMENS shall notify the CLIENT of a dispute and such dispute shall be resolved in accordance with Section g. 3 herein; e If the CLIENT Representative does not deliver w tten notice to SIEMENS within five business days of receiving the Certificate of Substanficbl Completion, in the mutual interests of the Project proceeding in a timely ,Wanner, 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 completi n, the final Certificate of Substantial Completion shall detemi -ine the date on which the Construction Period is completed. 9.3 Any disputes concerning the Substantial Completion of the Fork 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 oor pleti n or Surbstantial 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 1 Insurance and Alloc lion of Risk 10.1 SIE i.ENS shall ,maintain, at SIEMEN ° expense, the following insurances while performing the Work and shall add the CLIENT as an "Additional Insured" to each policy that is referenced in subsections (c)-through and including hereof: Page 13 of 1 Agreement en CA-'10o PUBLIC version 2009R PERFORMANCE CONTRACTING AGREEMENT (a) Workers' Compensation at the statutory amounts and limits as prescribed by applicable law. b Employers Liability insurance (and, where applicable, Stop Gap extended protection endorsement) limits of liarbilitr 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 oovering 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 wrned automobiles and trucks used by or on behalf of SIEMENS providing insurance for bodily injury I lab ility and property damage liability for the limits of: $1,000,000 per occurrencelaggregate (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 self - insure for the equivalent risks, property insurance written on a builder's HalI -rise or equivalent policy form in an amount no less than the Price identified in Exhibit E, Article 1,1 , plus the value of subsequent rnodrfiations 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. This insurance shall cover portions of the Work off the Facility, and also portions of the Work in transit. Partial occupancy or use harll 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 insurance 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 such insurance held by the CLIENT a s fid ucilary. 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 wiil indemnify the CLIENT from and against losses, claims, expenses and damages (including reasonable attorney'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 1 g ree ens P -1 00 PUBLIC version 20091 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 ifs agents, contractors or employees. SIEMENS reserves the right to control the defense and settlement of any claim for which SIEMENS has an obligation to indemnify hereunder. UNLESS CO N"I'"I Ai Y TO APPLICABLE LAW, 1N No EVENT SHALL TIT C L1ENT 0 R SIEMENS EE LIABLE UNDER THIS INDEMNITY OR OTHERWISE UNDER THIS AGREEMENT FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY 1 . CONSEQUENTIAL DAMAGES, INCLUDING COMMERCIAL LOSS, LOSS of USE, OR LOST PROFITS, HOWEVER CAUSED, EVEN IF SIEMENS OR THE CLIENT HAVE BEEN ADVISED l= THE POSSIBILITY OF SUCH DAMAGES AGES AI D, 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 LET OF ANY GOODS OR SERVICES FURNISHED UNDER THiS AGREEMENT, WHETHER BASED 1N CONTRACT, NEGLIGENCE, STRICT LIABILITY, AGENCY, WARRANTY, TRESPASS, INDEMNITY OR ANY OTHER THEORY OF LIABILITY, SMALL BE LIMITED To THE LESSEN 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 Copyrightsb 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 gI en authority, information 'and assistance in a t1iM- ely manner for the - defense of said su-it or proceeding. SIEMENS will pay the darnages 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 pert thereof, as a result of any suft 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: 1 procure for the CLIENT the right to continue using said Work; ; 1i replace it with substantially equivalent non- infringing Work; or (fil) modify the Work so it becomes non-infringing. {b ) SIEMENS will have no duty or obligation to the CLIENT under Section 10. a to the extent that the Work. is: i supplied according to the CLIENT'S design or instructions, wherein compliance therewith has caused SIEMENS to deviate from its normal course of performance; li modified by the CLIENT or its contractors after delivery; or, its combined by the CLIENT or its contractors with items not furnished hereunder, and by reason of said design, instruction, modifi ation, 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 C LlENT shall protect SIEMENS in the same manner and to the same extent that S I EM EN S has agreed to protect the CLIENT under the provisions of Section 10. 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 o NTF IB T F Y PATENT OR COPYRIGHT AND OF ALL THE REMEDIES OF THE CLIENT RELATING To ANY CLAIMS, SKITS, OR PROCEEDINGS INVOL I NG PATENTS AN D C 0 PY I G FITS. 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 'l 1 Hazardous Materials Provisions 11.1 The Work does not include dire tl r or indirectly performing or arranging for the detection, testing, handling, storage, removal, treatment, transportation, disposal, monitoring, abatement or r mediation of any contamination of any Facility at which fork 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 F DI A, GERCLA or any other federal, state or local environmental laws, regulations, statutes, rules, standards or ordinances collectively called "Hazardous Materials',), including without limitation: ionization smoke detectors, ballasts, mercury bulb thermostats, used oil, contaminated filters, contaminated absorbents, and refrigerant. Except as expressly disclosed pursuant to Section 11 .21 the CLIENT represents and warrants that, to the best of its Page 15 of 1 Agreement PCA-1 00 PUBLIC version 2009R PERFORMANCE CONTRACTING AGaEEMENT 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 IL#ENT'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 112, shall entitle SIEMENS to suspend the for immediately, subject to mutual agreement of terms and conditions applicable to any further Work, or to terminate the Wok and to be paid for work previously performed. 11.2 The CLlEl NT warrants that, prior to the execration of the Agreement, [t notified S I E M ENS in writing - of any and al 10 iI or Hazardous Materials, to the best of its knowledge following due inquiry, known to be present, potentially present or likely to be om 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, Mate, 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 frorrl 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 rermediation. In no event small SIEMENS be required or construed to take title, ownership or responsibility for such Oil of 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 CLI ENT 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 Cell 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 rho should have knowledge of the subject matter of such inquiry. Article 1 Miscellaneous Provision 12.1 Notices between the Parties small be in writing and shall be hand- delivered or seat 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 ire- person or when sent by telefa , or five business clays 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 moth Parties. 12.3 This Agreement shall be governed by and construed in accordance with the lags 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 arming under Article 4 or Article g, all disputes not resolved by negotiation between the Parties shall be resolved in accordance with the Commercial Rules of the A edcan 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 shal l 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. Page 16 of 1 Agreement PCA-1 00 PU . BLIC version 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 ratter. 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 submifted 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 terns 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 invaiidity, and deemed severed herefrorm, without invalidating the remainder of this Agreement. All other provisions hereof shall remain in full force and effect. 12b'S 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 loured thereby. 12.9 In the event that the applicable law or the CLIENT rewires that SIEMENS procure a performance bond and /or a payment bond, SIEMENS shall provide a performance and payment bond in the amount of 2,071,845.02. 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. Furthernore, the CLIENT'S TT'S funding source may be named as "Co- Obligee" on the performen a bond of so requested by the CLIENT. Article 1 maintenance Services Program 13. 1 1f applicable, the scope of Services provided by SIEMENS for the Ma 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 M P is in satisfactory wo rk in co ndNon. S1 E M ENS will have inspected all such equipment within the first thirty o days of MS P 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 equiprment is altered or moved by any person, including the CLIENT, other than S EM Er S or a person authorized by S I EM ENS, the CLIENT shall immediately notify Slips in writing, and SI•EM ENS reserves the right to perform a reac eptance 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 rep it or replacement, the CU ENT will be so notified and shall take correcdve action. within thirty 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 MS P and adjust the MS P 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 gill void the M SP and release SiEME NS from any further obligations with respect to the MSP. 13.6 If the WISP 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 1 Agreement PCA -1 00 P BLI c version 2009 1 Exhibit A - scope of Work and Services City of Cupertino Article 1 scope of Work 1.1 Description: Except as other rise expressly provided herein, SIEMENS shall provide each and every item of cost and expense necessary fog-: 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: a City of Cupertino streetlights will be retrofitted with new induction lamps and generators % With a 10 -year warranty. SIEMENS will retrofit up to #960 streetlights under this scope 0 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 lighting. 0 i eAurne 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. 0 Unlike many induction systems which .have poor lumen maintenance, the Iexlurne system has- superb lumen rnainten a nce of 0% at end -of life. Scope Includes 1, Coordination of the field installation and quality control process with Public !'ors 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 cement 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. B. Signage and decals for lamp. pole identification. 9. Project management and procur~erent -of materials and subcontractors. 10. Field coordination with Public Works prior to installation of retrofit. Includes notification of public and businesses. 1. SIEMENS will gather information and coordinate steps necessary to apply for- PG&E strut lighting rebates. 12. SIEMENS S will report to the City of Cupertinozon a one -tire basis, information that will include but not be limited for 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 I of Siemens Industry, Inc., Building Technologies Division Exhibit A - Scope of Work and Services v. 2009 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 ent has identified that approximately % 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. N overtime is estimated at this time for the project. Schedule: Str etilght retrofit will be completed 6 months from signing of contract. 1.2.2 Irrigation % of City Controllers) General Description* The up to 11 existing irrigation controllers, manufactured by either Fain Bird and Rain Master, will be replaced with new Weather Trak eva po -tran plrative T weather-based controllers. This upgrade provides wireless connectivity to each of the up to 11 controllers, programming ming and professional services to develop an irrigation plan for the City of Cupertino, modern irrigation technology with intern et web portal control and Breather based controller management. Public Works will be able to monitor and control irrigation 2417 via any computer with int rnet capability and irrigation will be aut mati ally adjusted based upon current weather conditions. The controller technology has four integrated components: I. Hardware oontr ller which automatically adjusts irrigation schedules based on landscape reeds and local Breather conditions 2. Irrigation scheduling softwar.e engine with Remote Internet Management capability 3. W atherTRA K daily weather s ubscripti o n service for 10 years 4. Web -based Internet management portal for all irrigation controllers. 5. Professional SerViGes to review and evaluate existing irrigation controller programming, and plan and program the new system and software. SIEMENS, in working with the City, has selected to upgrade the existing irrigation control system as opposed to recommending mending ar add -on to the existing controllers supplied by two manufacturers, , Rain Bird Evolution DX2 and Baia Master S ntaur. Such an add-on does not in Jude 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 --ores is anaiogo s to Page 2 of Siemens Industry, Inc., Building Technologies Division Exhibit A - Scope of Work and Services v. 2009 Exhibit A - Scope of Work and Service City of Cupertino 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- ontlegacy system i not accurate down to l square kilometer as with our proposed system, which is critical ire terms of predictable weather data, proper irrigation quantities and scheduling, and ultimately maAmi ing water savings. Scope Includes: 1. SIEMENS s 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). , Removal emo al 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. '. Ten years of subscription service to WeatherT AK service and controller connectivity' B. Extensive training includes web based overview and programming of the controller and zones. Scheduling and Granges 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 n and coordinate steps necessary for applying for abates. 11, SIEMENS will report to the City of Cupertino, on a ore -tire basis, information that will include, a summary of all existing controllers, their replacernent #. estimated water savings and GHG reductions. 12. SiEMENS will train appropriate City of Cupertino personnel to properly maintain and operate the equipment that has been installed by SIEMENS C a rif1c ti o n : 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. 4. Existing sprinkler heads or drip systems will not be removed, replaced or repaired as part of this scope. 5. Master flour valves are in use at the City of Cupertino and are not included in the scope of word 6. SIEMENS will provide to the City a Site Assessment Report. The City will be responsible for all repairs as identified in the SAID. This is typically all repairs or replacements of equipment or hard irrigation parts associated with the irrigation distribution piping systems. Page 3 of Siemens Industry, Inc., Building Technologies Division Exhibit A Scope of Work and Services v, 2009 Exhibit A - Scope of Work and Service City of Cupertino 7. If new sprinkler heads, drip systems, distribution p1ping 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 Mutually agreed upon grater consumption baseline -should guarantee be desired. Schedule* Irrigation System Upgrade should be completed 3 months from contract xe uti o n . 1. 2.3 Pricing Summary SIEMENS has provided pricing to the City of Cupertino at an agreed upon overhead rate of 18,1%, Vie have included the profit column to .demonstrate the cost reduction provided by SIEMENS to the City to move the project forward. Street Lighting 922pl29.00 Irrigation Controller and Conservation � 711,250.00 Program Development 57,000.00 Project Manager 63,935.16 Proiet Total l Acid Alternates for Consideration Add Alternate #1 Annual M&V/Guarantee $ 16,934.80 Add Alternate # Bonds and-insurance 16,564.00 Base Project Total of $2,071,845--do.esmot include Add Alternates #1 (Annual M&V/Gu rante nor Add Alternate 2 (Bonds and Insurance). 1.2.4 Measurement & Verification SIEMENS will provide 'annual measurement ment and verification -reporting for up to Ten 1 years of the program CLIENT has the option to discontinue measurement and verification at its sole discretion at any trine. 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. s t forth in Exhibit C7 Performance Assurance. Page 4 of 7 { Siemens Industry, Inc., Building Technologies Division Exhibit A -- Scope of Work and Services v. 2009 Exhibit A - Scope of Work and Services City of Cupertino 1.3 CLIENT'S Responsibilities (ire addition to those in Article 6 of the Agreement): Article : Work implementation Period 2.1 Commencement of Work (select one): 2.1.1 Ej SIEMENS shall commence the Work on TB � 201 _, and shall perform the Work diligently and 'shall complete the Work no later than TD 2010,; or, 2.1.1 Ej SIEMENS shall commence the Work calendar days from the notice to Proceed, and shall perform the ork diligently and shall complete the Work no later than 180calendar days from the day of commencement. 2.2 Milestones: Specific scheduling milestones rid coordination requirements are as follows: Page 5 of Siemens Industry, In .t building Technologies Division Exhibit A - Scope of Work and Services v. 2009 Exhibit A -- Scope of Work and Services City of Cupertino Article R Scope of Services - Performance Assurdnee Services Program 3.1 Measurement & Verification SIEMENS will provide annual measurement and verification reporting for up to Ten years of the program-CLIENT T. has the option t des r'tinu e rmea urer e t and verification at its sole., discretion at any tine. The measurement and verification plan will provide annual - reports documenting results of actual peiferr an e compared to adjusted base year performance. Savings will be reconciled according to the methodologies set forth in Exhibit C, Performance Assurance. 3.1.1 Pre and Post Street Lighting power reading measurements 3.1.2 Irrigation Pre and Post water usage 3.1. SIEMENS will provide annual reports documenting: 1. T tai street lighting energy t aving s -for the year and associated greenh o use gas emissions reductions 2. Irrigation grater savings over the course of the year based on runtime on ample of controllers 3. Summary of weather data Inventory and summary of landscape area characteristics: a. plant material type (and overall percentage of each type) b. Cur ti micro -zones within city . Soil types Article : 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 n services, although the Parties may negotiate a separate agreement for such services at a later date, CLIENT agrees th t 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 Arti le 4 of the Agreement. Page 6 of Sierriens Industry, Inc., Building Technologies Divi ion Exhibit A - Scope of Work and Services , 2009 Exhibit A - Scope of Work and Services City of Cupertino By sinning beiow, this Exhibit is attached to and made a pert of the Agreement between SIEMENS and the CLIENT. LIENT.� Ci of ire SIEMENS: f S: Signature' Si'ured Printed ame: avid Kn .r Printed Name, Title, City Manager er Title. Cate: P4 rc T F Signature: Printed Name. , Title, . Date: A Date: Sig nature: Printed Ire: Title: Cate: t PP 'W LEGAL Page 7 of 7 Siemens 1ndustry, Inc., Building Technologies Division ,. Exhibit A - Scope of Work and Services v, 2009 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 gable B.1 below. CLIENT agrees to pay all invoices submitted by SIEMENS per Arflle B of the Agreement. In the event that the work called for in Exhibit A Scope of Work cannot be performed by SIEMENS duo to conditions outside the control of either party, such as street lights found to be too old or not properly grounded} or the nurnber of irrigation controllers is less ths n 111, CLIENT shall realize savings on the total contract price. Deducts end /or credits shall be determ lned as follows Equipment not used. 100% of the cost of equipment not used, minus any substantial restocking foe 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. "able B.1 — FIM Work Pa rnent Schedule Article 1 of Exhibit B is attached to and made a part of the Agreement between SIEMENS and the CLIENT. CLIENT: ofC Per in. Signature: CA, Printed Name: David Knapp__ Title: D y� bane. -er r.,. �. ....r.�.;..,w..�errarniaLe��eo r Lute; SIEMENS: Slern I:. t. I w Signature: Printed Name* Title'. Date: pproved TO F0 Signature: Signature: ff Printed Name: Printed Name: ,.. Title: Title: Date'. Date. - 'age 1 of Siemens Industry, Inc., Building Technologies Division A W'1AN r Jt'4 + inhibit -- P yment Sch dules NZW Mobilization & Development Fees $2071184.50 10% Final Contract Lighting & irrigation Procurement nt $ 1473% 0 g % 30% Completion Lighting & Irrigation Installation $4141369.00 0% % Completion Lighting g Irrigation Inst llation moo 20% o- o o orE pl tan Lighting & Irrigation Installation $414k 369.00 1 20% % Completion Final Inspection & Punch List Item 110 , g .� % 95% Completion Project Close -out $103,592.25 % Upon 100% Completion � � . Y era' 1'�L: "� �F r �., ,::ham: �.'V r.. «s sa -.-.+- • r .L: i-'�-- - •'i:� ".w.:".:. - Y'' ^} �jJ'. Article 1 of Exhibit B is attached to and made a part of the Agreement between SIEMENS and the CLIENT. CLIENT: ofC Per in. Signature: CA, Printed Name: David Knapp__ Title: D y� bane. -er r.,. �. ....r.�.;..,w..�errarniaLe��eo r Lute; SIEMENS: Slern I:. t. I w Signature: Printed Name* Title'. Date: pproved TO F0 Signature: Signature: ff Printed Name: Printed Name: ,.. Title: Title: Date'. Date. - 'age 1 of Siemens Industry, Inc., Building Technologies Division A W'1AN r Jt'4 + inhibit -- P yment Sch dules NZW Exhibit B — Payment Schedules City of Cupertino Energy Saving Performance Contract Article : Payment for Performance Assurance Services Program (PASP) 2.1 Price,.- As full consideration of the Services as described in Exhibit Af Article 3, the CLIENT shall pay to SIEMENS the amounts identified in Table B,2 plus takes, if applicable, on the dates identified therein. 22 Performance Assurance Services Program Terra: The terra of the PASP shall commence on the Guarantee Date and shall. extend for either; the terra of the Performance Guarantee Period wh ere multi ^year obligations are allowed; or for twelve 12 month periods corresponding to the terra of each Annual P eriod. 2.3 Automatic Renewal: l: Where the PASP terra 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 1 months notice to SIElES. 2.4 Termination: See Section 4.7 of the Agreement. Fable B.2 — Performance-Assurance Program Payment Schedule 100% Completion $20,000.00 2011 Anniversary $20,000.00 of 100% Dora letion 2012 Anniversary 1 $20,000.00 Of 100% Completion Guarantee Cate Article 2 of Exhibit B is attached to and made a part of the Agreement between SIEMENS and the CLIENT. CLIENT: • Signature: Printed blame: David Knapp Title: City Manager. }ate: prove "s To I= r : Signature: ..�.w Printed Name: (v,"- �:�fthk Titles Date: . III: Sie .. n. try, inc. Signature: Printed Marne: Title: Jh Date: Signature: printed blame: Title; Date: Page 2 of Siemens Industry, Inc., Building Technologies Division ,� Exhibit B - Payment Schedules v. 2009 Exhibit C — Performance Assurance City of Cupertino The following Articles and Tables are hereby included and made part of this Exhibit C: Article 1: Summary of Articles and Total Guaranteed Savings Article I Summary of Articles and Total Guaranteed Savings Article 2 Guarantee Savings Types Article 3 Guarantee Term Responsibilities of CLIENT Article 4 Measurement and Verification Plan Article 5 Baseline Data Articie 6 Utility Rate Structures and Escalation Rates Article 7 Contracted Baseline Data Table 1.1 -P-F Total Guaranteed Sri (Units Table 1 .1 shows the CL E NT",.13 guara.ntd 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 t I by MUltr lying 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 coat 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 EnergyNtility Savings will follow current best practice, as defined in the IPM P, or the FEMP Guidelines where required, unless otherwise agreed to by the Parties. Paige 1 of 1 . SIEMENS Industry, Inc., Building Technologies.Division Exhibit C — Performance Assurance v. 20098 Electric Electric Natural Gas Igo. 2 Fuel Water Saved Performance Energy Power Saved oil Sacred (C CF) Period Saved (Mh) , Saved Tier (Gallo.ns)_ Construction o 0 0 Annual Period j--L— 813F003 81 O3 o� 0 46,952 Table 1 ,-2 — Total Guaranteed Savings Cost _ Performance Energy/Utility Operational Savings Total Savings Period S-avings Construction $0 $0 $0 Annual Period 1 $235 2 rt $235,802 Annual F rid 2 $248,676 576 Annual l Period $264,209 . .� $264,209 Annual Period 4 $274j778 2 $2741798 Annual Period $285,769 -- X2,760 _ $288,629 Ar u l Period $2970199 �_- 22 5 3 4 " 4 W Annual Period 7 $30.9 ' $309Y O87 Annual Period a $321245 2 --w- $3211471 Annual Period 9 $334Y309 � Annual Period 10 $347Z681 $ 5 TOTALS $39765 #284 $120J7.80. - -- - - $3,886yO64 Table 1 .1 shows the CL E NT",.13 guara.ntd 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 t I by MUltr lying 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 coat 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 EnergyNtility Savings will follow current best practice, as defined in the IPM P, or the FEMP Guidelines where required, unless otherwise agreed to by the Parties. Paige 1 of 1 . SIEMENS Industry, Inc., Building Technologies.Division Exhibit C — Performance Assurance v. 20098 Exhibit C — Performance Assurance City of Cupertino This inhibit C comprising of 15 pages is attached to and rude a part of the Agreement between SIEMENS and the CLIENT. CLIENT: U. Y of C. Pei !. Signature: Panted Name: avid Kna p Title: Cit Man q er ate roved Signature Printed Naive: Title: Date: i * # � Oct Signature: Printed Marne: Title: Date: APPR VE UV LIEGAL S ! IA 7 i4Ofl4 *-Z1 CFA Page 2 of 1 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 20098 Exhibit C -- Performance Assurance City of Cupertino Article 2: Guaranteed Savings options 2.1 Guarantee Savings Options for Energy /Utility Savings: Utilizing IPMVP, there are four guarantee savings options to measure and verify Energy /Utility Savings: Option A - Retrofit Isolation: Key Parameter Measurement; Option B W Retrofit Isolation: All Parameter Measurement; urer ent; Option C - Whole Facility; and, Option D -- Calibrated Simulation. Option A - Retrofit Isolation: Key Parameter Measurement, urement, Savings are determined by field measurement of the key performance parameter which define the energy use of the FIM's Ill ' affected system(s) and/or the success of_ the project. Measurement frequency ranges from short-term to continuous, depending on the expected variations in the measured parameter, and the length of the reporting period, Parameters not selected for field measurement urement are estimated} Estimates can be based on historical data, manufacturer's cturer' specifications, or engineering judgment. Documentation of the source or justification of the estimated parameter is required, 'rhe plausible savings error arising from estimation ation rather than measurement i evaluated. The predetermined schedule. dul for data collection, evaluation, and reporting is defined in Exhibit A, Article - Performance Assurance Services Program Option B — Retrofit isolation. All Parameter Measurement. Savings are determined by field measurement of the energy use of the I^1 - affected system. Measurement frequency ranges from short -terra 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 - Performance Assurance Services Program. Option C - Whole Facility: Savings are determined by measuring energy use at the ,bole facility or sub-facility level. Continuous measurements of the entire facility's energy use are taken throughout the reporting period The predetermined schedule f r data collection, evaluation, and reporting is defined in Exhibit A, Article 3-Perforrnance 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 ined chedule for data collection, evaluation, and reporting is defined -in Exhibit A, Article3-Performance Assurance Servioes 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 bate 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 teed to be performed. Page 3 of 1 SIEMENS Industry, Inc.} Building TechnolDgies Division ion Exhibit G — Performance Assurance v. 2009R Exhibit C -- Performance Assurance City of Cupertino 2.2 Table 2.1 below summarizes the first Annual Period's Guaranteed Savings (See Article 1 � Tables 1.1 and 1.2 ) utilizing the applicable Options as applied to the referenced Fl i valued pursuant to the agreed upon amounts identified in Article hereof. Table 2.1 Savings for First Annual Period by Option Energy/Utility Operational Savings Saving Guarantee Type Options A B Total Operational Total Retrofit Retrofit Whole calibrated EnergyMillity Savings Savings FPM lsolattort:Key I alatlon:Alf Facility imula#ion Savings Stipulated parameter Parameter Measurement Measurement Street $105,562 $105,562 $105,562 Lighting I rri ati n $130,320 $130,320 0 $130,320 TOTALS $235,882 $235,882 0 $235,882 Note, Refer to Table 1.2 for Annual Savings in subsequent gears. 2.3 Table .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 ED MONITORED IT ED DURING THE PERFORMANCE GUARANTEE AI TEE PEf I D. Table 2.2 - Source of 0 erationall Saving f Annual First Year Periods Annual Savings Are Savings A ural "Vendor Description Annual Cost - Applied Allowe i Street Lighting Costs Replacement Lamp costs savings 0 Year 4 ILIA only.. No labor Stre t Lighting Costs replacement Lamp costs savings $2,760 Year 5 /A onl No labor Street Lighting Costs Replacement Lamp costs savings $56,220 Year 6 NIA only.... to labor tre t Lighting Costs Replacement Lamp costs savings 0 Year 1A only. o labor Street Ughting Costs Repiao anent Lamp costs savings $2,760 Year 10 NIA only. No labor 2.4 SIEMENS has explained to the CLIENT and the CLIENT has satisfied itself as to how Operational Savings are incorporated into the Annual realized Savings. 13Y SIGN1NG BELOW, THE PARTIES CONFIRM THAT THEY HAVE REVIEWED THE INCLUDED GUARANTEE TEE SAVINGS OPTIONS AND THEIR APPLICATION TO BE USED IN CALCULATING SAVINGS UNDER THE AGREEMENT. Page 4 of 1 SIEMENS Industry, Inc., Building Technologies Division Exhibit C �- Performance Assurance v. 2009R Exhibit C — Performance Assurance City of Cupertino CLIENT: Git of Cu Ord" 0 0 -U iarx Signature.*. Printed Name: David Kra Title: CEt Cana ar Date: SIEMENS: SIE I ustry, I c. Signature: e Printed Name: Title: Date: rov As To Form: Signature: �igr to ' Print Mama: Printed Name: Title: Title: Date: L P G JOV LIEGAL LEGAL 1; 7: iS r E1 Jk fir) 4E .,1'H FrIANt 7 AMMER Page: 5 of 1 _. SIEMENS Industry, r, 1n ., Building Technologies Division Exhibit C — Performance Assurance v. 20098 Exhibit C -- Performance Assurance City of Cupertino rti l Y Grz r ntee Term Responsibilities of the CLIENT In addition to the CLIENT'S responsibilities under Article 6 of the Agreement, this Article details the responsibilities of the CLIENT in connection with the management and administration of the Performance Guarantee. 3.1 The CLIENT will provide a representative at each Facility to coordinate work and provide required -rata described below. The CLIENT will provide SIEMENS with accurate facility operating information ation as defined below and in the Contracted Baseline article of this Exhibit C during each Annual Period, within thirty days of any Material Change that may increase or decrease energy usage. 3.3 CLIENT will provide SlEIi EI S with copies of utility bills within 30 days of receipt by CLIENT or provide access to utility vendor information. .4 If required for the Work, CLIENT v Rl provide telephone/data remote access, as SIEMENS reasonably requests, All charges related to telephone /data line V nstallation, activation and communication services are the responsibility of the CLIENT. 3.5 If required for the Work, CLIE JT will provide and coordinate utility meter upgrade for interface with SIEMENS metering and data collection. All charges related for these upgrades are the responsibility f the CLIENT. Page 6 of 1 SIEMENS Industry, Inc., Building Technologies Division n Exhibit C — Performan e Assurance Exhibit C Performance Assurance City of Cupertino Article : Measurement and Verification PE The following information is applicable to this Agreement: Article .1 General Overview Article 4.2 Option A - Retrofit Isolation: Key Parameter Measurement Article 4.3 0 ption. B - Retrofit Isolation: All Pa ra meter l easur m e nt Article 4.4 Option C - Whole Facility Article 4.5 Option D - Calibrated Simulation 4.1 General Overview The purpose of the Measurement and verification v Plan is to identify the methods, measurements, procedures and tools that will be used to verify the Saving' for each FIM which has Energy /Utility Savings. Savings are determined by comparing prior usage, consumption or efficiencies defined as the Baseline to the selected Flips being implemented nted against the post I^ I implementation usage, consumption or efficiencies. The Baseline usage, consumption or efficiencies is deserib d in this Exhibit C, Article 5. The usage, consumption or efficiencies associated with the FI i implementation is defined as the Contracted Baseline, and are described in this Exhibit C, Article 7. 4.2 option A - Retrof it Isolation; Key Pa ram et+ r Meas u rement 4. 2.1 Fi ll 1: Street Lighting Method io,y Guaranteed energy savings for FN 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 celculate energy savings. Pacific Gas & Electric (PG E) wattages will be used for fixture codes when It is net feasible to take actual measurements. Lighting Born Hours used in the energy calculations for each fixture are based on agreed upon hears 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 Penrod I kWh savings multiplied by the applicable electric rate. 1 Ul fion Existing Li'ghti'ng Power. kWE>j Page 7 of 1 SIEMENS Industry, 1ne., Building Technologies Division Exhibit C — Performances Assurance v. 20098 Exhibit C — Performance Assurance City of Cupertino Fixtures) Fx x (Watts / Fixture) E / 1,000 WIk = kll Ex Proposed Lighting Power. M PRI { (# Fixtures) PR x (Watts f Fixture) PR (1,000 /k 11 = kW PF, Existing Lighting Power Consumption: [kWh Eyl . (kW , x (Annual Burn Tours) = k1 h Ex Proposed Lighting Power Consumption: [kWh PRI kW p x Annual Burn Fours) = kWh inr, Annual Lighting Power Savings: kw I- T] Annual Lighting bower Consumption vjngs: [kWh IGHJ kWh Ex — I (kWh rR = kWh L HT Annual Lighting Power Savings: kw LHT Savings = kWh L H'r * Electrical Energy Rate Calculations Variables Index Emil Stipulated Existing Annual Burn Hours: See Table .+. (Based on interviews with (Annual Hours) facility per on e Existing Fixture Power: (kWEA TBD Onetimepre measurement E � ter g y. o fixtures: s. of Fixtures) ' � Article ter Stipulated Confirmed daring lighting audit Greater of Current Blended Electrical Energy fate: /kWh See Table 5.1.1 Rate or Scheduled Rate r /escalation Proposed Fixture Power W BD One time post measurement r Proposed Oty. of fires of Frxtu e P f Exhibit l ee x Stipulated (Confirmed during commissioning) Measurement r Reference ren Tables Street Lighting Inventory, see Article 5, Item 5.4. Responsibility for SIEMENS and CLIENT SIEMENS Responsibilities Page 8 oft SIEMENS Industry, Inc., Building Technologies Division 2009R Exhibit C — Performance Assurance v. Exhibit C — Performance ur rn e City of Cupertino V Identify the amount and location of equipment to be measured and or verified. ■ Provide tools used in the measurement process. r Conduct all measurement and verification that will be needed for the carvings calculations. ■ Provide the results of the measurement and verification to the customer. CLIENT Responsibilities ff The CLIENT will provide a representative for all facilities to coordinate work and provide required data described below. ff C L I ENT will provide a II i nform ati o n as it relates to the measured equlpm ent. i CLIENT will provide access to any area that contains equipment to e measured and or verified. eoifio tions on Measurement ent Tools The existing power W X and post retrofit poorer M P will be measured using a FLUKE model multi aster on number of fixtures listed in Exhibit E for each unique fixture code. 4.2.2 FIM :Irrigation lltbdol w Guaranteed energy savings for FIM 2. Irrigation shall be based upon one -f rn before and after measurements. Water consumption before the retrofit (baseline) will be validated on a 10% sampling of irrigation sites, by establishing the usage per station and the baseline schedule. The post retrofit grater consumption will be established for the same 10% sample by programming in the base year weather conditions into the new controllers, and downloading di the proposed schedule and the usage per station. The diff renca 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 wirings (excess or shortfall) are established for Annual Period 1, the dollar savings for future; Annual Periods will be calculated using Annual period I water savings multiplied by the applicable water rate. Calculations Baseline Page 9 of 1 SIEMENS ENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 20 Exhibit C Performance Assurance City of Cupertino SIEMENS will validate baseline irrigation consumption on 10% sampling of sites by quantifying the baseline schedule and the grater usage per station at these sites: a. Typically, one to four irrigation programs a ist on each old controller, b, irrigation zones stations are there assigned to each program, For example. 1. Program "K might run 20 minutes per day x 5 days per week 2. Program "B" might run 5 minutes per day x 7 days per week c. At the time of installation, SIEMENS S records these existing irrigation schedules on a program worksheet for each antiquated timer Baseline eline consumption per'site = 7, (Water flow rate for each irrigation station x recorded baseline annual time schedule for each irrigation station) Post-retrofit • 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 oontr'oller. Thus, the new schedule will be reflective of the baseline weather conditions. 0 The new schedule is recorded on the sane worksheet The system grill provide reporting on all run time. m inute , for each zone on every controller in the customers' network. These run time reports will be downloaded. Post - retrofit consu m pti on per site = Water flog rate for each irrigation station x recorded annual run time schedule for each irrigation station) Water savings per site s Baseline consumption per site , most- retrofit consumption per site Adjustments If the following situations exist at a site, ether adjustments will be rude 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 gone. b. Some customers simply tarn controllers off during printer months. The new controller may irrigate during winter ,months, depending on Breather conditions and the reeds of plants. c. Some plants require grater at certain times in their growing season, to fruit, flower, etc. since the new controllers contain the crop coefficient of these plant materials, the controller grill water according to the needs of the plant. Page 10 of1 SIEMENS Industry, Inc., Building Technologies Division Exhibit C Performance Assurance v. 2009 Exhibit C — Performance Assurance City of Cupertino Calculations Vari ble Index _...__.. _ . One time measurement Existing irrigation schedule per station TBD (From pre - retrofit controiler prog rare S ipUlatedk based on Existing water usage per station TBD manufacturers data or facility personnel interviews Proposed irrigation schedule ter' TD One time measurement downloaded �'rr�n the usage per station new controller program Designated based on values Base year ET TBD in the Hydropoint Climate Centers database Measurement or Reference Tables Irrigation Scope of Work, see Inhibit A. Responsibility for SIEMENS and CLIENT SIEMENS. Responsibilities a Identify the amount and location of equipment ent t be measured and or verified. N provide tools used in the measurement process. Conduct a II rneas u rem ent and v rifi catio n that wili be needed for the savings calculations. s Provide the results of the measurement ent and verification -to the customer. CLIENT responsibilities 9 The CLIENT Will provide a representative for all facilities to coordinate work and provide required data described below. 9 CLIENT will provide all information n as it relates to the measured equipment, CLI EN r gill provide access to ny area that contains equipment to measured and or verified. e ifi ati r on Measurement Tools Spreadsheet for reGording baseline and post-retrofit run times. 4.3 Option B - Retrofit fit Isolation: All Parameter Measurement— NIA Option C - Whole Facility — NIA 4.5 Option D — Calibrated simulation — N/A Page 11 of 1 SIEMENS industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 20098 Exhibit C - Performance Assurance City of Cupertino Article : Baseline Data 5.1 The year(s) selected as the Baseline Period starts on January 2009 and ends on December 2009. Table 5.1 outlines the utility consumption that occurred during this Baseline Period. This Baseline Period's Facility utility consumption will be used as the reference for comparing the actual Facility utility consumption during the Performance Guarantee Period in order to determine the Actual Realized Savings. Table 5.1 - Baseline Utility consumption Units Jan Feb far I Apr Mff I Jun Jul I_Aug I Sep Oct NOV Dec Elect�c I kWh 136699 123470 136699 1 132289 136639 1 132289 136699 136699 132259 138699 132289 136699 . The year(s) selected as the Baseline Period for irrigation starts in Jamul' 2-008 and ends December-2008. Table 5.2 outlines the utility consumption that occurred during this Baseline Pe 'riod. This Baseline Period's utility consumption will be used s the reference for comparing the actual utility consumption during the Performance Guarantee Period ire order to determin iD the Actual Realized Savings. Refer to Article item 4.2.2, for validation methodology gy for water baseline. Table * - Baseline Utillity Consumption Units Jsin Feb Mar r � Jun �Jul Au se Oct Nov Dep Water L 1,388 1,76 6,497 15,97 23,898 28,26" 0 O?n 26,961 A_ n52 16,128 1 7-159 9 4,985 5.3 The operating practices during the baseline Period determine the utility consumption shown in Table 5.1. This data indicates the operating characteristics that -'ere 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 Date Schedule. l te: It is. important to note that PG A charges a fiat rate per reported lamp type regardless of the actual lamp, consumption oir run hours. Th e refo re, actuaI caIculated cost savi n gs may vary from PG &E bi IIs. 5.4 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. 5.4.1 Current code compliance (identify the applicable code citation); N/A 5.4.2 Code changes: 1A Page 12 of 1 SIEMENS Industry, Inc., Building Technologies Division Exhibit C - Performance Assurance v. 2009R Exhibit C .-- Performance Assurance City of Cupertino 5.5 Street Lighting Inventory - The following in rm tion 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. LAMP P S I �w Total S4H -100 31 4H -1 59 5 . ............ S4H-2DO viwwrrrcur+. xw+�rrir+xrrA-h- Yx'w'- *- u1+v -W �..� 430 Arrr rmvMmmMMTWhV.YNhS n4 S4 H -250 S41+31 0 �- ltaut': �, -: �.}u�-: x-.x� 4 r.4t'- ++4'fxuuxvw` w�_w_Sw_w�,vwt yvnwx':: . r: xmY�xSY ,FhSITYAYnY�`MUM�+- SFu -4 V y V_wr�up�wniwvru r,virmv'rn+++�x*.�+yr+�. -wi_y n...wry n.wwiNrr+r.�w�rv� V rv�urM1tS+ -N t+"/.+- ' -.u-: �.x'_ -70 1 _H S■ J�'� uyovu -,: Y': y.WrvoWn;154nHN M4NVf 192, �x '- '::aifw_uwwMV,MWhrrvv.5-rw- -H -1 9 wwwtwwvrwxrrrm-rrr- r�r.- =S.: At ••_5•= ',•'4wrvr / f /} 7 .xmr...._:NrfxYl FYw�+� yuw. �rM1 79 '1785 S-L-90 swwww. wv+ sxr�mm-+ �*vF�•ri +w.�xivw-ri.m-nw�nvrxnm nrHw '- '- ;'- ti+- 'F'Nt5 "xw.nwvevwws. S - -1 00 S - -175 T-+ +.� +Mx++/+�+M1tr_:x'_rx.}nwr_nn nrN�MMWnvr4..vu:.v_u_�1_u�_uuru 15 arxwvwwvn i+rJFr N+�W+�++�- - m S - -400 M• A" AAAA +R'IM+/f1H1- Yh'FFr::x_r�.:nrxaW 117 rilrr/.YN,Wr1f1,44 A'+"'Y- +�'+�w+x'x uiwxwr...rt r. �- �+• S-V-175 m.}YhYS-h'L'hhY1.NWNMYS v- Nk' N- '- +'- '�+o'fx�4vstubxwxw-r�txn }t'wr wMM+'++•xxu- rs.-m,cr. r�r. S-V-250 1 Grand Total 2950 Key 4H -xxx Street lamp, 240V, High Pressure Sodium (HP S), xx mWatt ge S -H -xxx Street Lamp, 120V, HP S, Wattage S-I-xm Street Lamp, 120V, Incandescent: Wattage S-L->= Street Lamp, 120V, Low Pressure Softrn (LP S), Wattage S-M-xxx Street L rnp, 1201, Metal Halide H), Wattage S-V-xxx Street Lamp, 1 OV, Mercury Vapor (MV), Wattage Article : Utility Rate Structures and Es'ealation Rates 6.1 Utility casts used for Savings calculations will be based on the utility rates and rate escalation percentages provided in the tables below. The rate identified d below is a stipulated rate, and is shown below for each utility. Are escalation rata (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 an lamp type and is not based on $ per kWh speGlftally. Fl r, monthly energy charges per lamp are alauited using the f0ilaing farrnui: Lrnp wttg e + hilt wattage) x 4, 100 hours / 12 months i 1 000 W/kWh x Street Light energy rate per kWh. Where ballast wattage � ballast factor x i rnp 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 rte schedule.) . Page 13 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 29098 Exhibit C — Performance Assurance City of Cupertino Table 6.1.1 Electricity Tariff" Cumber or Designation: Utility Name: Rate Structure: Rate Escalation: Table R1 . Water Tariff number or Designation: tlon: Utility l ame: San Jo'se Rate Structure': California Water Rate Structure : Fate olartlon: LS-2A (March 1, 2009 —April , 200.9) PG&E $0.12206 $per kWh NIA $per kW 3 % per Annual Period Schedule 1 — San Jose Water Schedule LS -1- ll — Cal 1f rni a Water San Jose Water and California Water $2.2926 per 100 cu. Ft. $3.0372 per 100 cu. Ft. % per Annual Period 1 Rate Structure based on Schedule I Effective 911712009 Fate Structure based on Schedule LS-I- i R up to 6 inch meter no a 'edve date shown) 3 Rates for gears I through 3 for San Jose Water based on recent published escalation rates of 18,44% in 2010, 6.52% in 2011 , and B. 1 % on 2012. Years 4 through 10 estimated at %. San Jose Water Public Notice aftached as Figure 1 at end of this Exhibit. rtii * 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 oonflgur tlgn 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 Fours for Street Lighting 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.) 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AAA s r:w dwi i s 64- fi msl h��n %)r , , l.d will b5i a l F dc�I M-WIM. W 'MC, It4niI to i w ii01A6 -09-01 !, A 9 r#. oW ..tu'-rrlONY -ssli cr p rrL;Dr e. ALA-prq�� rrl; Wrii#m M. fi;m. IV b,' ci�#'fr,�r:rtr,firc�aa� ►1:11 #,�'h'�:'}�sr;���- - 1<'mlem-,#othpk *pliV,uNI 41s *d H.to4)e kA6virrr Mi0,�, F Or- or W K*xwiss -pnLr11oip44 on thtrpowAina . p1mw ex%mi8a 00i M. ask? V%[.u,rac i A v�nuq, [r I4sm, "n VA 94I. Ti41; �r a��v alga x 1f R W;R (1611 V O-Al 5.703.2074. Tli w z k [11r ")[Y'a..w. 's[ u. ;n0i;x r aaa rare 2111ty, Ut ' ak -. Adviwk 1.4 il] >! -d Vddox c: Exhibit D — Addendum loo. I City of Cupertino Addendum Flo. I to the Performance contracting Agreement between Siemens Industry, Inc., Building Technologies Division i ("SIEMENS") and City of Cupertino ("CLIENT") T" Dated May 7, 2010 . The Parties agree to modify and to supplement the Performance Contracting Agreement `Agreement" as follo sm 1. To the extent that any terms and conditions contained in the Agreement conflict with any terms and conditions contained in this Addendum No, 1, then the terms contained in this Addendum No. 1 shall control. 2. Defined ined terms that are not' specifically defined herein 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 CEECBGP")which is derived from the , American n Recover and Reinvestment stment Act of 2009 ("ARFZN'). As e result, certain reporting requirements under both the EE BGP and the AI RA are required of each party and additional terms and conditlons are to be included herein. The following list identifies appendices to this Addendum loo. 1 that Gontain trans and conditions incorporated by their reference herein and to the extent modified, the modifications tions appear under the. listing: A. Addendum o. 1-Appendix A: Special Terms and Conditions For The Energy Efficiency And Conservation Block Grant Program—Formula Grants-July 2009 i. Modification: The Parties ties knowledge 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 I are inapplicable and are not included herein, as are the terms referenced in Section 1 that are contained in the document identified as �'Aftac meat 1® Intellectual Property Provisions ". E. Addendum o.1-- Appendix B: Aft chment 3-Federal ederal Assistance Reporting Checklist and Instructions-DOE F• 4600.2 209. 4. Section 3.3 of the Agreement is modified as follows: "SIEMENS shall perform the Work as are independent contractor mfith 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 orogress and direct SIEMENS to std Work if in the CLIE IT's reasonable determination of the Work is not in accordance with the terms and conditions of this rear ant. To the extent that it is later determined that LIEI T's Stop Work Order Was issued in error, SIEMENS shall incur no prejudice 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, and shall not be construed to create, between the CLIENT and SIEMENS, the reiabonship'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, are employee or agent of the CLIENT." 5. Section 5.2 of the Agreement is modified with the addition of the foliowing: I of Siemens Industry, Inc., Building Technologies Division v. 2009 Exhibit I -Addendum loo. 1 Exhibit D — Addendum . 1 City of Cupertino "(a) SIEMENS shall notify the CLIENT at least seven days in advance of proposed work sched ie for the week following. (b) SIEMENS shall stop Work as directed by the CLIENT on any field installation." 6. Article 6 of the Agreement is modified with the addition of the following: The 9L1 ENT may, be pitsenj to review ! field installation while Work is being perfort ed T'.he SLIT a direst «S to..=,.YV rl ors ray fieldntlltiort, T . C T shall­p ro Lida written resppa to SIEME.NS..eNRlaiQLU any Sto n Work Order within sever : . � � �� � su nee of the � .� for girder.P Section 7.1 of the Agreement is modified as follows: As the -Work is performed, existing laves or conditions may charge, or circumstances outside SIEMENS' reasonable controf may develop, which would require.S[EMENS to expend additional costs, effort or time to complete the Work, in which case SIEMENS will notify the CLIENT and an equitable adjustment v ilI be made to S1EME N S' com pen ati n and the tine for. perform an e. Bull EN s un deMignds and agreesjhat CLIENT May-swipend term irate r h n .e a . ortion of v ork 12grlormed and an gguftable d'u tment Vill., be made to SIEMENS.C.OmPensation and time forReLormance,. In the evert such changes require the Work to be upended -, terminated er chaff, SIEMENS shall be compensated for Work previously performed and for costs reasonably incurred in connection with the suspension or termination. 8. Article 8 of the Agreement nt i modified with the addition of the following: 12.10 It is understood that incorporated into this Agreement are CLIENT's CLIENT' standard forms, 482 (Bidder's Certifications), 620 (Construction Labor and Material Bond), and 821 (Insurance Requirements) along with CLI I T's standard insurance form instructions noted on Form 530. In the case of conflict between the provisions of CLIENT's forms and the provisions of this Agreement, the provisions of CLIENT's forms shall control. The parties agree that this hibit D Addendum Flo. 1 modifies the Agreement between the Parties, dated May 7, 2010 and Is attaGhed to and made a part of the Agreement. CLIENT: of SIEMENS: Signature: Signature.:. Printed Name: id Knapp Printed Dame: Title: City M�ana�er. Title: ww aar�tere�ero :eo Date: Date: -ApproXed AsJo Foa - Signature- Signature: Printed Marne: Printed Nerve: Title: Title: Date: Die: - IiM+�F'rF' 5brr4rn�r� roY4 -i HIM— ARM �. APPROY LF O Y KRZIAN of Siemens Industry, Inc., Building Technologies Division v. 2009 Exhibit D- Addend m No. txmbit u-AaaenaUM NO. -i-iAppenaix /-k SPECS TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND CONSERVATION BLOCK GAT PROGRAM - F RMI A GRANTS - XWY 2009 . jahle pf o &tents 1. RESOLUTION F CONFLICTING CONDITIONS.... j'� Yr.rw +k *. *Y r..... ........ ..................... o rs.........................�... L • a WARD RENT TERMS AND ONDM ,/''�� 4 ■srr rs o-++ P ...ra..I.,. + +.r.Yr +Y.....tYr�rY R............................... T... I 3, AWARD PROJECT PERIOD AND BUDGET PERIODS it S .........Y ......................... .... +k......................... 4. STAGED AGED D I UR- ENVM F FUNDS • ..... ................. rr*. ai............. ro-r + * #r........ar..F......... r.............. I.......... 5. PAYMENT PROCEDURES ADVANCES THROUGH .f.+ rYiTF+.H* E Yr# i AUTOMATED S* r} Trtf Aff �N. FD► .rAr.cR.�rD PLI ii R FOR P Y NT (ASAP) SYSTEM , pig T o-r*. rs Y ri P *Tai FF.#1. 'Fed a *r F r rt o-f +o-#r.0Yt &avrrr3sY *I WFVnPer . r.a r*Yi.%Y9f i# -#4 4wrr 4 if **r i h.* f9 6. I CREVM TAL FUNDING AND OBLIGATION - COEXTENSIVE BUDGET PERIOD ANDPROJECT PERIOD ....a r .............#.........► Y..r.. Yrl rsI...+. Fk +hraF911..Y.tr r +rP&i t a&1f t 4'.4. 11. t a&00- . +4 lYF 7. COST SHARING RD NOT INVOLVED ..... .# P Frt Y 8, RFBUD ETIN AND RECOVERY OF INDIRECT T COSTS ...# r+.i..... aa+rf.......... ......rr..........rr� +.fa.r.rtrr Fa #YrY4 9. CEILING 09- ADMM' T ' TIVE j STS, -, 0% rft ... r..ss.4..Rr.rtr #�a ra r.ryas..aa..rh +ii rr Yrrri. �r....rir.i 10. l..Tii.L1 7u J�I N i ■ E FUNDS ,r% mbk..#..r......R1 Fl..sa 11. PRE -AWARD COSTS ...... ............. r ........ + #ra................. irk+. ........0..........rrrr.....r ............. o... P......:.r.4 # ey J F PROGRAM INCOME - ADDI TON r.rrar FafrF+rF.. ...............fr..r........... r... P.. 1 ............... F....... .......... 4 13. T #�T �+ }T FEDERAL STEWARDS ws.r + +•rr rrt.r.rMrtf..r. rarr..rr.rr.r rrs...s...r."tra.r...rare I..r.F.. ...... ...tri .r r.ri }J1 14. SITE VI ITS ..............f*......+....fr o-...*. r ......siY.4kf.r #r.afY #F4 +r #afii r. rr. rr.r rr#.. r} r... .r.ir.rrYt#w'+.a.+irrr +r... ►ii. PF0 #11} #L. k k Y..I r...YF..if 15P REPORTING REUIREENT..#.. r.►. ffi4FRr. F. ra. r+.+# ri} r. r'**. Fo-. tr. r. srF. r. Ff+. r. it. Ft..}} r.*... r. FS. rr. t , *o-'.YT.kFrYk.Y.Yr*44.6R '- Y4Xk4. 16■ PUBLICATIONS ....... l4.. F 6. 0 r. i n& r rr rr Y..� w a+ 4 r&asa.ra+.a#F.+ .+r ra rir F .... M. r.+. r ..#M. oa d 6 a 0 a s. a 6 b 6 dp0toar...Y.i19604 Fi 14 #r#.: r4.4. F o-w F 0 a... Ph 6.664 b.... 17. FEDERAL, T T o �i MUNICIPAL T s........... � . F # *Fw. kp.,. a.Fa. ai 18. I INTELLECTUAL op T PROVISIONS ND 1 T CT INFORMATION op. ............. +r *rr #rrt /' 19. LOBBYING RESTRICTIONS arr...%... ...........s }Yk # #fFr.waa.a�Pr6F rt #iffrf.r.r.ra +r #ar. ri artF.irtf + +ttf..l.r.sr.. # *...rf kf FrF.r.}r..rwt..s.. #4, b6 0k NOTICE - R ICE REGARDING TIM PURCHASE A I A -MA EQUIPMENT AND PRODUCTS - SENSEO CONGRESS ...... A-i ........................... ..aa.+a +#... a. P....rr...........+... t...r F......r Fr.... ...tt . ...........FT 21 . INSOLVENCY,, BANKRUPTCY RECEIVERSHIP.. .......... +0 .0Phha r +Y►wrt+ 109 r 1. s.# ss fY* #F 6440-0 tek r. Y. Y rf 6 f f\..#Y 22+ NATIONAL ENVIRONMENTAL POLICY ACT G�EP& D NTAMe'CATION AND/OR D NMSSI G(D COSTS ... #..r...r..w....w..F..F...... r........ hrr.... 24. SR S A I I I NS REL .TII 1 W 3C U D UNDER AMERICAN RE VER AND RERNETMENT ACT 2009 (MA 0 . riari. s. .r..frr..at #.rt.F # + ►F.rYSF.Pa+tf 4ai.. FarFr...fFrrr..ri r..s...rr.i rwotk 4 YfTf►fs.r4 7 25. REpORTING AND REGISTRATION IE I RBI�MNTS UDR. SECTION 1512 F '� J� R T� " C VER ACT (MAY 9 Yk�......Y ra......... F. F............ra.■.. ......................fr.r■■rF. 12 26. 12 6. R E D USE Op A.NMRI AN IRON, STEEL, AND MANUFACTURED GOODS - SECTION 1605 OF THE AIERI AN RECOVERY AND R R%TV STS T ACT OF 2009 (MAY 2009) .........1 7k REQUIRED USE ANERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED DER W'R ATI NAL AGRE E T -/ -S1 � TA T 1605 THE RICAN RECOVERY ANDRENVE TYMNT ACT 1 2009 9 � �+ V V .rrR'.r Fifa4.ar +ri.r #ti.si...ri YFlf }Ffr.r.n.i F..a ►�aa rw 4 +Y. a*be ri r.... s i.r ►66.1 4 28. WAGE RATE R � � S UNDER SECTION 1606 DR = RECOVERY ACT � . 2009)1'7 29.. RECOVERY ACT TRANSACTIONS LISTED IN SCBEDULE OF EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT RESPONSMILITIES FOR INFORMING SUBR IPIBI TS SAY 2 0 ....... ■..... .qq # 606000+0& 0 * ri. #rr.r 4r F'.i ►rr Yi r F-*T 1 30. DAVIS BACON ACT RE UFM� �; 20 09) r. i...... F.. r.. rrst FFt F.. YrFY... rFf........ .r.. + .......................... 1 16-55 Not Specied/ther SPECLkL TERMS AND CONDITIONS FOR TUE ENERGY EFFICIENCY AND CONSERVATION I CK GRANT PROGRAM � FORMULA GRANTS — JULY 2009 1, RESOLUTION OF CONFLICTING CONDITIONS Any apparent Lneonsiste cy between Federal statutes and regulations and the terms and conditions contained in this award must be re 'eixed to the DOE Award Administrator fbr guidance. 2. .WARD AGREEMENT TERMS AND CONDITJONS This award/agreement consists of the ant and Coopemtive Agreement wirer page, plus the following: a. Special terms acid conditions, i_i. Attachme ts: ttachrnet No. Tithe I Intelle tual Property Provisions Project Activity Worksheet(s) Fodc,-ml Assistance Reporting Checklist Budget Pages Davis Bacon wage Determination minatio c. Applicable program r g ations: Title V, Subtitle E of the Energy Indeprndence Security Act (EIS,A. of . o , Public Law 110 -140. d. DOE Assistance Regulations, 1 F Part 600 at http://rc.fr.gpoacoess.gov and if the award is for research and to a university or non- profit, the Research 'berms & Conditions and the DOE A.genoy Specific Requirements at http://www.nsf.gov/bfa/dias/policy/rto/index-isp. e. A plicafionlparoposal as approved by DOE. f. National Policy A.ssuranoQs to Be Incorporated as Award Toms in effect on date of award at h : //m na ent.ener ov business doel137 .htm 3* AWARD PROJECT PERIOD AND BUDGET PERIODS The project and Budget P oriods for this award is. o 8/1.4/2009 through 09/13/2012. F 4. STAGED DISBURSEMENT OF FURS F MA R KED. THIS TERM LS APPLICABLE The total funding allocation for this award is shown in Block 13 of the Assistanco Agreement Covor Page. However, ids will be released according to a staged disbursement schedule. All fimds must he expended within 36 months of the eetiye date of the award. [ J For Enorgy Efficiency Conser a. ion Strategy (E S ) Only awards, finds in the amount of are released to the F eoipient to begin work 'on the EELS. The approved activities are listed in Attachment 2, Project Activity Worksheets, The rernai m g ids will br, released for disbursement upon DOE approval of th EELS and smondment of the award to include the autbori ed Project Activity Worksheets. [ ] Funds in the amount of [ ) are released to the Recipient to begin work on the activities Hsted in Attachment 2, Project Activity Worksheets, The remaining funds will be released for disbursement upon. Not pciiedlthr 1 Not Specified /Other DOE approval of additional activxtias 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 es such as eligibility, technical issues, NEPA, historic preservation, budgetary items, or similar issues, The'remainmig finds will be released upon successful resolution of these issues and ,amen' meat of the award. ]PA .EI T pRocEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD APPLICATION FOR PAYMENTS (ASAP) SYSTEM IF MA LERM DOES SOT AP —SEE TTY. a. N. thod of Payment. Payment will be made by advances through the Department of Treasury's ASAP system. h. Requesting Advances. Requests for advances must bo made through the ASAP system. You may submit requests as frequently as required to meet your needs to disburse funds for the Federal sh= of project costs. fffeasible, you should time each request so that y6u receive-payment on'the same day that you disburse funds for direot 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 cash. You must disburse any finds that are available from repayments to and interest carved on a revolving fund, program income, rebates, arefinds, contract settlements, audit recoveries, credits, discounts, and interest earned on any of'those fands before requesting additional cash payments from DOEIWSA. d. Payments, All payments are made by electronic funds transfer to the bank acwuait identified on the ASAP Bank formation Form that you filed with the `,S. Department of Treasury. INCREMENTAL F-UNDING AND OBLIGATION - COEXTENSWE BUDGET C` PERIOD AND PROJECT PERIOD This award is ftmdcd on an incremental basis. The maximum obligation of the DOENNSA 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 coats, if cost sharing is required. Additional funding is c ntingont upon the availability of appropriated funds and substantial progress towards meeting the objectives of the award. COST SING FFRDC'S NOT INVOLVED AV icable only if cost s riurr is `n u, d e in the a V ard. a. 'dotal Estimated project Cost is the sum of the Guvmmment share and Recipient share of the estimated project costs. The ocipienfs cost share roust come, from iron- Federal spur es unless otherwise allowed by law. By accepting federal funds under this award, you agree that you are Bauble for your percentage share of total allowable projoot coats, on a budget period basis, even if the project is term inated earl} or is not funded to its oo pletion- This cost is shared as follows: Budget Budget Government Share Recipient Share "`o � stintated host Period period Start °o loo No. 08/14/2009 $526,200-00 $2, 431196.00 $2,964,396;00 Total Proiect $5269200-00 - $27438s,196-00 9645396.00 Not Speciedlther 16-57 K Not Specified/ Other b. If you discovor that you may be unable to provide _cost sharing of at least the arnouut identified Ire paragraph a of this article, you should iediatcly provide writ'�en noti cation to the .ward Administrator indicating whether you will continue or phase out the project. If you plan to continue the project, the notification must describe how replaccment cost sharing will be secured, c. You must maintain records of all project eons that you claim as st sharing, including in -kind costs,.- as well as records of costs to be paid by DOE/NN . Such records are subject to audit. d, Failure to provide the cost sharing required by this Art! ole may result in the subsequent row very by DOENNSA of some or all the ids provided under the - award. REBU T AND RECOVERY OF INDIRECT COSTS THE APPLICABLE CLA USE IS MARKED BELO W REBUDGE TING AND RECOVERY OF INDIRECT COSTS - REDABURSABLE INDlE CT COSTS AND FRINGE N Y'M 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 dung the project period. If at the completion of the award the Govenunenfs share of total allowable costs i.e., direct, indirect, fringe benefits), is less ftm the total costs reimbursed, you roust rend the difference. b. Recipients are expected to manage their indirect cosh and ftirige benefits. DOE will not amend an award solely to provide additional ids four ehangm in indirect costs and fringe benefits. DOE re izes that the inability to obtain full reirnburse ent for indirect costs and ffin e benefits means the rwzpient must absorb the,, and rmw ery. Such land rmccvery maybe allocated as part of the organization's required cost star g. REBUDGETING AND RECOVERY of INDIRECT COSTS — RELYMURSABLE DIE T COSTS a. If actual allocable indirect casts are less than those budgeted and Banded under the award, you may use the difference to pay additional allowable direct costs dig the project: period. If at the cornplefion of the award the o r rent's share of total allowable costs ix, ditrect 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 cast rates. DOE recognizes that the inability to obtain fall reimbur emont for indirect costs means the mcipient must absorb the un.derr co ery, Such undDmoovGry may be allocated as part of the organization's required cost sharing. c. The budget for this award includes indirect costs, but does not micludo fringe benefits. Tlaeref'ore, fringe benefit costs shall not be charged to nor shall reirnbursement be reqijested for this project nor shall the ffinge benefit co sts for this project be allocated to any other federally sponsored project. In addition, fring e benefit costs shall not be courted as cost share unless approved by the Contraotimg Officer. I UDG TT. AND RECOVERY OF DIET COSTS - DIE T COSTS AND FRINGE BENEFITS ARE NOT REMOURABL 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 proj ect nor shall the f age and indi=ot costs from this project be allocated to any other federally sponsored project. In addition, Not pecifiedl tb r 16-58 Not Specified/Other indirect vests or fringe benefits shall not be courted as cost share unless approved by the Contracting Officer. 9, CEILING ON ADMINISTRikTIVE COS'T'S a. Recipients may not use more than 10 percent of amounts provided under this program, or $75,000, whichever is greater EI A Sec 5 5 A , for administrative expenses, excluding the costs of meeting the reporting requirements under Title V, Subtitle E ofEI A. These costs should be captured and summarized for each activating and r the Projected Costs Within Budget: Administration. b, Recipients are expceted to manage their administrative costs. DOE will not amend an award solely to provi dr, addltiona,l ids for changes in administrative cosh. The Recipient shall not be reimbursed on this project for any fmal administrative costs that are in excess ofth e designated 10 percent administrative cost ceiling. In addition, the Recipient shall neither count costs in excess of the administrative cost coiling as cost share, -n r allocate such cosh to other federally sponsored projects, unless approved by the Contracting Officer. 10. LIWFALTIONS ON USE FMS f eoipients may not use more than 20 perccnt or $250,000, -whichever is greater EISA Sec 45 b 3 , fbr the establishment of revolving loan funds. ba Recipients may not use more than 20 percent or $250,000, whichever is greater I A Sec 54 b 3 , for subgrants to nongovernmental organizations for the purpose of assisting in the plemuntation of the energy efficiency and conservation strategy of the eligible unit of local goverment. 11. PRE-AWARD COSTS You are entitled to reimbursement for oasts itcurred on or -after [NIA], as authorized b ► the pre - award costs letter dated [NIA], if such ousts are allowable in accordance with the applicable Federal cast principles referenced it 10 CFR Part 600* 1, USE OF PROGRAM INCOME - ADDITION If you eam prograrn.income during the project period as a result o f this ward, you may add the program inco me to the funds wmmitted to the award and use it to further eligible project objectives. 13. STATEMINT OF FEDERAL TEWA DS I, E K A will exercise normal Pcder stewardship overseeing th project activities pe `orrrXed under this ward. Stewardship activities include, but are not limited to, conducting site visits; reviewing performan -m and fmancial reports; providing technical assistance and/or temporary intervention in unusual circumstances to -correct deficiencies v6ich develop during the project-- assuring compliance with tenns and conditions; and reviewing technical performance after project completion to ensure that the award objectives have been accomplished, 14. SYM VII' E' s authored representatives have the right to ma a site visits at reasonable 6M es to revie w proiect accomplishments and management control systems and to provide technical assistance, if required. You must provide, and must require your sub award ees to provide, reasonable access to facilities, office space, Not Specified/Other 1 -9 Not Specified/Other resources, and assistance for the safety and con enimce of the government representatives in the performance of their duties, All site. visits and evaluation& evaluation must be performed in a manner that does not unduly interfere with or delay the work. 15, REPORTING REQUIREMENTS a. Requirements. The reporting requiroments for this award are identified on the Federal Assistance . Reporting CheckJist, DOE F 4600.2, attaacb d 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 faturc payments, suspr'nslon, 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 ancUor other fmianciai assistance awards, may also result in a debarment action to preclude future awards by Federal agencies. b. Dissemination of scientificAechnioal reports, Soientificft=hnical reports submitted 'und r this award will be disseminated on the Internet via the DOE Information Bridge (www.o,;ti.gov/bridge), unless the report contains patentable material, protected data, or l lSTIR data. Citations for jouma.I articles c. produced under the award will appear on the DOE Energy Citations Daabase (www. gg T l e er tion F d, Resftictions, Reports submitted to the DOE Information Bridge must not contain any Protected Personal Identifiable Information (P11), limited rights data (proprietary data), classified information, information subject to export control alassi ication, or caber information not subj Oct to release. 1. PUBLICATIONS aY You are encouraged to publish or otherwise make publicity available the results of the work conducted under the award, b. A acknowledgment of Foderal support and a disalainier must appear i the publication of any material, wbether copyrighted or not based on or developed under this project, as follows: Ac,kno rledgmont; "This material is based upon world supported by the Department of Energy under Award Number DE 13 9 Disclaimer. "This report was prepared as an account of ror sponsored by an agency of the United Mates Govomment. Neither the United Mates Govemment nor any agc=y 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 ink e privately owned rights. Rcferenoe,, here to any specific commercial product, process, or service by trade name, trademark, , manufacturer, or otherwise. does-not necessarily cons t to or imply its endorsement re oar endation, or favoring by the United Stales ro eminent or any agenoy thureof. The views and opinions of authors expressed herein do not nece,ssarlly state or re. ect those of the Uni d States Goveniment or any agency thereof." 17, + D om , 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 FORMATION a. The intellectual pmperty provisions applicable to this award are provided as an attachment to this award or arc rof rent d on the Agreernent Face .Page. A list of all intellectual property provisions may be found at hM://www.ac.doe. /finaBoial assistance awards.htm. Not pecied/thcr 1 -o 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 i Not Specified /Other If this award includes construction activities, you must submit an viromn ntal evaluation reporVevaluation notification form addressing NEPA issues prior to D F1INN .A initiating the NEPA process. 23. DECONTANffNATION AND MRSSI NING COSTS Notwithstanding any other provisions of this Agreement, the xo crn rat shall not be responsible for or have any obligation to the recipient for i Decontamination dlor Decommissioning I of fly of the rer,iplenVs facilities, or H any cons which may be incurred by the reex lent in conne tion with the D&D of any of its facilities due to the performance of the work under this Agreement, whether said work was perfon -ned prior to or subsequent to the. effective date of this Agreement. 4. SPEC., PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY VE A" REEWE TMENT AC's' OF 2009 Q4AY 2009) Preamble The American Recovery and Reinve.strnent Act of 2009, Pub. L. 111-5, (Recovery Act) was enacted to preserve and create jobs and promote a vnomic recovery, assist those most impacted by the recession,' provide investmrmts needed to increase econonuc of Wency by spurring too nological advances in science and health, invest in transportation, environmental protection, and other infiwtructure that will provide long -term economic be ef*it , stabilize State and local g vemm nt budgets, in order to minninim and avold reductions in essential services acid counterproductive State and local tax increases. Recipients shall use Vwt funds in a manner that maximizes job creation and ownomic benefit. The Recipi nt shall comply with all terms and conditions in the Recovery .Act relating generally to govomance, accountability, transparency, data collection and resources as specified in Art itself` and as discussed below. Recipients should begin planmm�g activities for their first tier subreoipifmts, including obtaining a DUN number or updating the exisdng DUNS record), and registering -with the Central Contractor Registration CR Be advised that oover-y Act funds ran be used in conjunction with other f nding as neeessary to complete projeots, but tracking and reporting mast be separate to meet thec rep orting re u irem ents of the Recovery Act and related guidance. For projects funded by sources other than the R000very Recovery Acts Contractors must keep separate records for Recovery A t funds and to ensure those records comply with the req re ents of the Act. The Go e rent has not fully developed the i pkc cnt g instructions of the Recovcry Art, pa ac Marl nc m g specific procedural requirements for the new reporting requirements. ents. Th Recipient will be provided these details as they become available. The Recipient mist comply with all requirements of the Act. If the recipient believes there is any inconsistency between ARRA requirements and current award. tern. s and conditions, the issues will be refer d to the Contracting Officer for reconciliation. Definitions For purposes ofthis.elause, Covered Funds means funds expended or obligated frorn appropriadom under the American Recovory a nd em" estmont Act of 2009, Pub. L. 111-5. Covered Funds will have .special accounting codes and will be identified as Re o ery Act ends in the gran ooperative agme ent or TIA and/or modification using Recovory Aot funds. Covered Funds roust be reimbursed by September 30, 2015. Nora - Federal employer paeans any employer with respect to covorad funds — the contrador,, subcontractor, grantee, or reorpi a t, as the case may be, if the contractor', subcontractor, grantee, or mcipia nt is an e ployor; and any prof ssional membership organization, oer Y icati n of other lyrof ssiornal body, any Not peoiedther 16- Not Specified /Other agent or hoensee of the Federal goverment, or any person aketing directly or indirectly �n the interest of an employer rceeiving covered funds; or with respect to covered funds received by a State or local government, the State or local goverment receiving the funds and any contractor or subcontractor receiving the funds and any contractor or subcontractor of the State 'or to of gov rr ment; and does not mean any department, agency, or other entity of the federal government. Recipient means any emtit'y that receives Recovery Act funds directly from the Federal go went (including Re wv ry Act funds received through grant, loan, or ontraot ) other than anindividual and includes a State that receives Recovery Act Funds. mial Provisions A. Flow Down Re nirern rr� Recipients must include these special tmm and wnditions in any gubaward. B. Segregation of Costs Recipients must segregate the obligWon and expenditures reI d to funding under the Revery Act. Financial and accounting systems should be revised as necessary to segregate, ack and maintain these finds 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 ids prodded under this agroement derived from the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, may be used by any Stato or local govermnent, or any . private entity, for any casino or other gambag a tablishment, aquarium, zoo, gold` curse, or swimming pool, C, Access to Records With respect to each financial assistance agreement awarded utilxg at lust some of the funds. appropriated or otherwise made available by the American Recovery and Reinvestment Act of 20090 Pub. L. 111-5, arry representative of an appropriate inspector general appointed under section 3 or of the Inspector General Act of 1988 (5 U.S.C. App.) or of the Comptroller General is authorized l to examine any records oft the contraetori or grantee, any of its subcontractors or subgrantms, or any State or local agency administering such contraot that pert Yn to, and. inyol e tans acdo s relation to, the subcontract, subcontract,, gram or subgrant; and to inter vim any a "ioor or cmployoe of the contractor, grantee, subgmntee, or agency regarding such transactions. D. Pnblioatin An application may contain tochnical 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 Govff,m ent for any pose other than the application. To protect such data, the applicant should speoi Bally identify each }gage including each line or pamgraph thereof containing the data to he protected and mark the cover sheet of the application with the following Nobee as woll as refbrring to the Notice on each page to which the Notice applies: Notice- of Restriotion on Disclosure and Use, of Data Not peeied/ther 1 - Not pecifiedlther The data contained pages - - -- of this application have been submittod in confidence and contain trade secrets or propri etary i Not Specifie&Other American Recovery and Reinvestment Art of 20K Pub. L. 111-5, shall post notice of the rights and rem dies as required therein. (Refer to section 1553 of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, w w. ecovery.go,v, for specific ruquirements of this section and prescribed language for the notices.). F. Request for ReimbursqMen Reserved G. False Claims Act coipient and sub - recipients shall promptly refer to the DOE or other appropriate Inspector General any credible evidence that a principal, employee, agent, wntraotor,, sub - grantee, subcontractor or other person has submitted a false claim under the False Claims Act or has cone itted a criminal or civil violation of laws pertaining to fraud, coact or interest., bribery, gratuity or similar misconduct 0 mvolving those funds. H. Information in SURROrting of ecoe pct e ortilx Recipient may be required. to submit back-up documpmtation for expenditures of ids under the Recovery Act including such items as timceards and invoices. Recipient shall provide. copies of backup documentation at the request of the Contracting Officer or dcinee. x, Avaflabi'UN of Funds Funds appropriated under the Recovery Act and obligated to .this award are available for reimbursement of costs until Scptembur 30, 2015. J. Additional Funding Distribution and Assurance of Appropriate Use of Funds A. livable if award is to State Government or an Agency Certification by Governor -- Not later than April 3, 2009, for funds provided to any State or ag w y thereof by the American Reinvestmont and Recovery Act of 9, Pub. L. 111-5, the Govemor of the Mate shall certify that: 1 the state will request and use ids provided by the Act; and 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 the ovemor, then acceptance by the Mate legislature, by means o the adoption of a .o current resolution, shall be sufficient to provide ceding to such State. Distribution — ,der adoption of a Mate legislature," s convm=nt resolution, funding to the State will be for distdbution to local goerxYent, councils of govemment, public entities, and public.- Nate pr entities within the State either by formula or at the State "s discretion,. K. Certifications With respect to funds made available to State or local govemments for infiwtractare, investments under the A me., -rioan recovery and Reinvestment Act of 2009, Pub. L. 111-5, the Govemor, mayor, or other chief execrative, as appropriate, certified by acceptance of this award that the infrastructure m estment has received the full review and vetting required by law and that the chief" a m'utive accepts responsibility that the .infra tru ur investment is an appropriate use o taxpayer dollars. Recipient shall provide an additional certification that includes a description of the investm.en the estimated total cost; and the amount of covered funds to be used for posting on the Inte et. A. State or local agency may not receive infrastructure investmemt funding from funds made available by the Act unless this certification is made and posted. Not Specified/Other 1 16-65 Not Specified/Other Not idOthz' 16 - ET Not Specified / thuz 25. REPOR'T'ING AND REGISTRATION REMS DER SECTION 1512 OF THE RECOVERY ACT (MAY 2003) a. This award requires the recipient to complete projects OF activities which are funded under the terioan 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 of ar each calendar quarter In whicb the recipient receives the assistance award funded in whole or in part by the Recovery Act. c. l eoipie is and their first-tier recipionts must maintain current registrations in the Central Contractor Registration (http://www.cor.gov) at'all times dung which they have active federal awards funded with Recovery Act ids. A Dart and Bradstrrect Data Universal Numbering System (DUNS) umber (http:[/www.dnb.com) is ono off'the requirements for registration in the Central Contractor Registration. d, The recipient shall report the information described in scotion 1512(c) of the Recovery Act using the reporting instructions and data elements that will be provided online at http: ww .F deraL epo ing.g v and ensure that any information that is pre-filled is corrected or updated as needed. 26. REQUMED USE OF AMERICAN TRON5 STEELo AND MANUFACTURED GOODS -- SECTION 1605 oy THE ANMRICAN RECOVERY AND RErIVESTMENT ACT OV 2009 (MAY 2009) ; `his award ftm is , I l t� ' Recovery Act funk for on Lruetion., alt.eratign,. maintenance, r repair LDfa-pablic d or 12ublic ]Mork aud the total grgiect value is estimated less than 442 This award term also applies to all ntracts. a. Definitions. As used in this award term and conditian- (1 laaufactared goad means a good brought to the onstructiou site for into orati on into the building or work that has been- 0) Processed into a spe ific form and s16Ve; or it Combined ith other raw material to oreate a material that has di 'ferent 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 govemmental entity (the United States, the ��ct of Columbla; commonwealths, tern cries, and nor outlying islands of the United Mates; State and local governments; and multi- State, regional, or interstate entities which have govemmanW functions). " e-se buildings and wDrks may include, without limitation, bridges, darns, plants, highways,, parr ,way , streets, subways, tunnels, sewers, mains, power lames, pumping stations, heavy g aerators, 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 mains an alloy that includes at least 50 percent iron, between .02 and 2 percent carbon, and may include other elements. b, DDmestic preference. (x ) This award term and condition implornents Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery .Act) (Pub. L. 111-5), by requir'J that all horn, steel, and manufactured goods used in the proje t ar 'prod c d Ln the Ignited States except as provided in Not peciedlther 12 16-67 Not Specified/Other paragraph and of this se tron and condition. This requirement does not apply to the matcrial listed by the /Federal Govcmment as follows: None 3 'fie award of#icia[ may add other irons, steel, and/or ma.nufa t red goods to the list in paragraph of this section and condition if the Federal Govemmerit dete rririm that— - i The cost of the domestic iron, steel, andJorTnanuLetured goods would be unreasonable. The cast of domestic iron, steel, or manufactured goods used in the project is unreasonable when the cumulative oust of such material will increase the cost of the overall project by more than percent; H The iron, steel, and/or maanufaetured good is not produced, or manufaa din. the United Mates in s uffi dent and r asonably available quant.Ytles and of a satisfactory quality; or (iii) The application of the restriction of section 1 605 of the Recovery Act would be inconsistent with the public interest. c. Request for determination of inapplicability of Sectio 1605 of the :Recovery Act ; i) Any recipient request to use foreign iron, steel, and/or ma ufactur d goods in accordance with paragraph 3 of this section shall includ z adequate in,f'onnation. for Federal Government valuation of the request, including— (A) description of the foreip and domestic iron, steel, and/or mauf"actared goods- (B) 'knit of measure; C Quantity; Cost; Time of delivery or availability; Location of the project; Name and address of the proposed supplier; and P A detailed justification of the reason for use of foreign iron, steel, and/or manufactured goods aped in aceordanoo with paragaph (b)(3) of this section. (ii) request based on unreasonable oust shall include a reasonable survey of the market and a compl t d cost comparison table in the format in pamgrapb d of'this section.. Off) The cost of iron, steel, and/or manufactured goods matGnial shO include all deli ory costs to the construction site and any applicable dirty. iv Any recipient request for a deterznxnation submitted after Recovery .pct funds have boon obligated for a project fbr w nstraction, alteration, ma to -nance, 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 ids were obligated, If the recipient does not submit asatisfactory explanafion, the award of oral steed not make a determination, If the /Federal Goverment determines after ids have been obligated for a project for construction, alteration, maintenance, or repair that an exception to section 1605 of the keeovery et applies, the aware/ official will amend the award to allow use of the foreign �ror� steel, and/or relevant rnanufactur d goods, whon the basis for the e ccpt�on is n.onavailability or public interest, the mended ward shall reflect adjustment of the award amount, redistribution of budgeted funds, and or caber actions taken to cover cysts associated with acqumi ing or rising the foreign iron, stool, and/or relevant manufaotured goods. Whcn for, basis for the cxwption is the urweasonable cost of'the domestic iron, steel, or manufactured goods, the award official shall adjust the award amount or redist bate budgeted funds by at least the differonfi l established in 2 CR 1.1.1.. Unless the Federal Govemment determines that an exception to section 1 605 of the Recovery .pct applies, use of foreign iron, steel, and/or manufactured goods is noncompliant with section 1 of the American Recovery and Reinvestment Aot. Not pecifXed}ther 1. 1 •. Not Specifiodlther d. Data, To permit evaluation of requests under paragraph b) of this section based on unreasonable cost, the Recipient shall include the following information and any applicable supporting data based on the survey of suppliers: Foreign and Domestic Items Cost Comparison Description Unit of Measure Quantity Cost dollars ' Item 1: Forcie steel iron, or manufactured good _ Domestic steel, iron or manufactured _good Item : Forei2 steel, iron or manufactured izood Domestic steel, iron or manufactured good...., List name, address, tolephone number, email address, and oontact for suppliers surveyed. Attach copy of re. ponsc; if oral, attach summary. Include other applicable supporting information. *Include all delivery costs to the construotion site. 7. REQUIRED USE OF ANMRICAN IRONS STEEL, AND MANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS)—SECTION 1605 OF THE AAWRICAN RECOWRY AND 1E TV STMENT ACT OF 2009 (MAY 2009) TWE slyard a is a flea to o an ee 4, t u ds for � nst ti n alteration ain jp ee r re ai: ublie !Luilding oLj2ILblic work MLath a total project value over 17,443,000, at revolves lrp& steel and/or mangf.40ttre cl ands materials.covered.under inttmational agreements. This award terns al Lo a lies to all sale rage. an co tracts. a. Dofmi ions. As used in this award term and condition— Designated country 1) A world Trade Organization Govemment Procuremont AgrooMent country (Aruba, Austfia, Belgium, Bulgaria, Canada, Cyprus, Czech republic, Denmark, Estonia, Finland, France, earl , Greece, Hong Kong, Hungary, Iceland, Ireland, 19ra 1, Maly, Japan, Korea {Republic of, Latvia, Liechtenstein, Lithuania, Luxrmbourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and United Kingdom; () A Free Trade Agme e t (FT) country (Australia, Bahrain, Canada, Chile, Costa Rica, Dome' mi can Republic, El Salvador, Guaternala, Honduras, Israel, Mexico, Morocco, Ni6aragua, Oman, Peru, or Singapore); or ( A United States - European Cor=unifies Exchange of Letters (May 15, 1995) country.' Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Oermany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Motherlands, Poland, Not Specified/ Cher 14 1 - Not pecified/thcr Portugal, Romania, Slovak Republic, SloyDnla, 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 ( 1n the case of a manufactured good that consist in whole or ire part Df materials from another country, has been substantially transfo ed in a designated 60imtry 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 ( the case of a manufactured goad that consists in whole or its part of materials fmm another country, has b mn substantially transformed, in the Unitod States into anew and different manufactured good distinct from the maltexiats from which it was t=sformcd. Tbere. is no r qufrement with rogard to the origin of components or subcomponents in manufactured goads or pxoducts, as long as the manufacture of the goods oc urs in the United States. Foreign iron, steel, and/or manufactured good means iron, steel andlor manufacWred 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 Wilding or work that has beorri­ (1 ) Processed into a speoffis -form and shape; or ( Combined with other raw material to create a matefial that has different properties than the properties of the individual raw materials. ublio building and public work means a public building of, and a public work o a govemmtntal entity (the United States; the District of Columbia; commonwealths., tenitonies, and minor outlying islands of the United States; State and local go emments; and multi - State, regional, or terst to entities which have governmental actions ). Th se buildings and works may include, without limitation, bridges, dams, plants, highways, parkways, struts, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, terminals, docks, piers, wharves, wars, lighthouses, buoys, jetties, breakwaters, levees, and oanals, and the w struction, alteration, rnaintenan e, or repair of such buildings and works. Steel means an alloy that includes at least 50 percent iron., bet een .o 2 and 2 percent carbon, and may include other elements. fir. Iron,, steel, and manufacturod goods. (1 ) The award term and condition described in this section pio ents­ (.i Section 1.605(a) oftbo AmeTi an Recovery and . invu ent Act of 2009 (Pub. L, 1 I 1 ~ -5 (1 ecovury Act), by requining that all iron, steel, and manufaoturod goods used in the project are produced in the United Mates; and ii Section 1605(d), which requires application of the Buy American requirement in a manner consistvnt with U.S. obligations under international agreements. The restrictions of section 1605 of the Recovery Aot do not apply to designated country iron, steel, and/or manufactured goods. The Buy American regpirement in sertion 1605 shall not be applied where the iron, steel or .manufactured goods used in The project are from a Pam to an imtemational agreement that obligates the recipient to treat the goods and services of that Pam the same as domestic goods and services. This obligation shall only apply to projccts with an estimated value of Not pcifiedlther 1 1 -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 its whole or pant with this award, except as provided in paragraphs b and (b)(4) of this section. 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 its paragraph b of this section if the Federal ove axnent determines that- (i) The cast of domestic iron, steel, and/or manufactured goods would be unreasonable. The cost of domestic 'iron, steel, and/or manufactured goods -used in the project is unreasonable when the cumulative cast of such material will increase the overall cost of the prof ;t by more, than percent; ii The iron, steel, and/or manufactured good is not produced, or rnanufactared in the United r States in sufficient and Treasonably available commercial quantities of a satisfactory quality; or (iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest. c. Request for determination of applicability of section 1605 of the recovery Act or the Buy American Act. (i ) Any recipient request to use foreign iron, steep and/or manufactured goods in accordance with paragraph b of this section shall include adequate information for Federal Goverment evaluation of the request, including— (A) A description of the fbrei n and domestic iron, steel, and/or manufactured goods; Unit of measure; C Quantity; Oust; Time of delivery or availability; ovation of the prof ect; Name and address of the proposed supplier; and 0 A detailed jusUication of the reason for use of foreign iron, steel, and/or manufactured goods cued in accordance with paragraph (b)(4) of this section. (ii ) A request based on unreao. able cost shall include a reasonable survey of the market and a completed cast wmpari on table in the format in paragraph d of this section, (iii) The cost -of iron, steel, or manufactured goods shall incl de all delivory rests to the construction site and any applicable duty. i Any reolplent request for a determination submitted after Recovery Act funds have been obligated for a prof ea for construction, alteration, maintenance, or repair shall explain why the recipient could not reasDnabiy foresee the need for such determination and could not have requested the determination before the funds were obligated. If t'he recipient does not submit a satisfactory explanation, the award official recd not make a dotermination. If the Federal Govemment 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 of eial will amend the award to allow use of the foreign iron, steel, and/or relevant manufactured goods. when the basis for the excoption is nonavailability or public interest, the amended award small reflect 4ustment of the award mount, 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 manufaotu ed 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 1 X16-71 Not peca ied thcr differential rential established in 2 CFR 176.11 D a . Unless the Federal Goven=ent determines that an exception to section, 1 605 of the Rewvery Act applies, use of foreign iron, steel, and/or manufactured goods other than designated country iron, steel, and/or manufactured goods is oncomplxant pith the appiicablo Act. d._ Data. To permit evaluation of requests under paragraph b of this section based on unrmonable, 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 oar item I. Forei2 steel iron, or manufactured ood Domestic steel iron, or manufactured g good Item 2: .Foreign steel iron or manufactured gq od Domestic steel, iron, or manufactured good �Y List name, address, telephone number, email address, and wntact for suppliers surveyed. Attach copy of response; if oral, attach summary. In lode other applicable supporting i form tion. *Inolude all delivery casts to the wnstiuction site. 28. WAGE RATE REQUMEMENTS UNDER SECTION 1606 OF THE RECOVERY ACT (MA 2009) This award term, is aRplicable t , Act pLoIMMLor activitles that may involve eg Las I„ ors, aft ration tracts. �Ii a b a. Section 1606 of the Recovery Act requires that all laborers and mechanics employed by contractors and subcDntractors on projects Ended directly by or assist in whole or in part by and through the Federal Government pursuant to the Recovery Act shall be paid wages at rates not Ims than those prevaiIing on prof ects o f a character s iiar in the locality as determined by the Secretary ofLabor in accordance with subchapter IV of obapter 3 1 of title 40, United States Code. Pursuant to Reorganization Flan No. 14 and the Copeland Act, 40 U.S.C. 3145, the Department of 5 Labor has issued regulations at 29 CFR pads J, 3, and 5 to implement the Davis-Bacon and related Acts. Regulations in 29 C .1 . 5,5 instruct agencies concerning applioation of the standard Davis-Bacon contract clauses set fortb iu that section. Federal agencies providing grants, cooperative agreements, and loans under the Recovery Act shall ensure that the standard f a is -Bacon contract Glaus s found in 29 CFR 5.5(a) are incorporated in any resultant oo eared contrads that are in exce8s of $2,000 for construction, alteration or repair (including painting and decorating). b. For additional guidance on the wage rate requirements of section 1 606, contact your awarding agency. Recipients of grants, cooperative agreements and loans should direct their initial inquiries concemimg the application of Davis-Bacon requirements to a particular fedaradly assisted project to the Federal Not Specified/Other 1 1 -7 Not Speciedther agency finding the pr4ojed. The Secretary of Labor retains tai coverage authority under Re:organization Flan Number 14. 2, RECOVERY ACS' TRANSACTIONS LISTED IN sCHEDULF, OF EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR YNFORM-ENG IIE T (MAY 2009) a. To maximize the transparency and accountability offends authorized under the American Recovery and Reinvestnent Act of 2009 (Pub, L. 111 -- (Recovery Act) as required by Congress and in accordance with 2 CPR 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 appiicaflon of ecovery Act farads. OMB Circular A. - 402 is available at http://www.whitchouse.gov/omb/circulars/al 0 / l 02.html b. 'For recipients covered by the Single Audit Act Arne dmcnts of 1996 and OMB Circular A- 133, "Audits of States, Local Governments, and Non - profit organizations,11 recipients agree to separately identify the expenditures for Federal awards under the Recovery Act on the Schedule of E poudit es of Federal .Awards (SEPA ) and the Data Collection Form (SF--SAC) required by COMB Ciroular AAA 133. OMIB Circular A.W -I33 is available at http-// www. whitchouse,.gov /omb /circularslal33 /a13 3.htM1. This shall be awornplished by identifying expenditures for Fedcral awards made under the Recovery Act separately on the SEFA, and a separate rows under Item 9 of art III on the - -SAC by CF DA nuEmbcr, and inclusion of the prey "ARRA- " identifying the name of the Federal prograrn on the FA and as the first chameters in Item 9d of pad M on the F- -SAC. c, Re ipients agree to separately identify to each subrecipienfi and document at the time of subaward end at the time of disbursement of funds, the Federal awed number, CF A. number, and amount of Recovery Act ids, When a recipient awards Recovery Act funds for an a istimg program, the information furnished to subreoipients shall distinguish the subawards of incremental RoDovery Act funds *om regular subawar s trader the a fist g program. d. Recipients agree to require their subrecipients to iac %de on their SEFA information to specifically idenrtlfy Recovery Act fan ding similar to the. requirements for the recipient SEFA des c bed above. This information is needed to allow the recipient to properly monitor subreoipient expenditure of AREA maids as well as oversight by the Federal awarding agencies, Offices of Inspector General and the Govemment Acoounta iiity Ogee, 0. DAVIS IS BA.0 d ACT REQUIREMENTS 01AY 2009) This alward term is applicable 1g.AIMA wards h WAGE l�T UI RE—M—E. N I S. 11 N D E. R SEgTION 1606 Off' THE IE l VE rrn 1s livable 'I'1►ls award to 's also ll 1 to sub rants and. contracts. Note: where nemssary to make the context of these articles applicable to this award, the term "Conti a toil' shall mean "recipient" and the term "Subcontractor' shall mean "Subrecipient or Subcontractor" per the following defaxxitions. Recipient means the organization, individual, or other entity ihat receives an award firom DOE and is rnancialiy accountable for the use of any DOE ids or property provided for the performance of the project, and is T eg ally responsible for carrying out the terms and conditions of the award. S r *ienf �eatrs the legal entity to which ubaward i made and which is accountable to the recipient for the use of the ids provided, The term may include foreign or international organizations (such as agencies of the United Nations). Not Sp i ed/Other 1 18 -7 Not Specified /Other Davis -Bacon Act a Definition.----" S Ito of the work" 1 Means- 0 The primary site of the work. The physical place or places where the con tniction called f r i n the award will remain when work on it is completed; and R The secondary site of the work, if arty. Any other site where a significant portions oft the buildi Not peczedther payroll records accurately set forth the time spent in each classification in which work is perf'onned. The wage determination (including any additional classifications and wage rates conformed under paragraph c of this article) and the Davis-Bacon poster WH-132I shall be posted at all titnes 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. f c, l The Contracting Officer skull require that any class of laborers or mechanics which is not listed in the wage detemiination 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 followmig erhena have been met: i The work to be perfomed by the classification requested is not performed by a classification in the wage determination. it ``he, clas iflcation is utilized In the area by the construction industry. (iii) The proposed wage ratr, includi any bona- fide fringe benefits, bean a reasonable relationship to the wage rates contained in the wage deter-min ation. 2 If the Contractor axed the laborers and mechanics to be employed in the classification if known), or their representatives and the Contracting Officor agree on the classification and wage rate i chiding the wnount designated for fringe benefits, where appropriate), .a report of the action taken shall be sent by the Contracting Officer to the Administrator of thc: Wage and Hour Division Employment Standards Administration U.S. Department of Labor Washington, DC 2021 The AdministratoTor an authaized representative will approve, modify, or disapprove every additional classification action within 30 days of reipt and so advise the Contracting Offloer or will notify the Contracting Officer within the 30-day period that additional tie is neeessary8 3 In the event the .Contractor, the laborers or meahanics to be employed in the classification, or their representatives, and the Contracting Officer do not agree on th.e propogpd classification and wage crate (including the amount designated for ftge benefits, where appropriate), the Contracting Officer shall refer the questions, i n ludiu'g the views of all interested parties and the recommendation of the Contracting Officer, to the d mi istrator of the wage and Hour Division for determination. The Administrator, or an authori =d repro entafi , will issue a determination with 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Queer within the 30-day period that additional time is necessary. 4 The wage rate (including age benefits, where appropriate) d eterrnd pursuant to subparagraphs c and (c)(3) of this arti lc sha be paid to all workers performing work in the classification under this award from the first day on which work is pwfor ned in the classification. d Whenever the minimum wage rate prescribed in the award for a class of laborers or mechanics includes a fringe benefit which is not a pressed as an hourly rate, the Contractor shall either pay the bone-fit as stand in the wage detrxmination or shall pay another bona fide mange benefit or an hourly cash equivalent thereof. e fifth e Contractor does not make payments to a trustDe or other third persDn, the Contractor may consider as paw 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-B aeon Act have been met. The Secretary of Labor may require the CDntractor to set - aside in a separate account assets for the meeting of obligations under the plarl or progra.rn. Not pcciiedlther 20 1 - Not peaiedther Rates of Wages The minimum wages to be paid laborers and mechanics under this award hivolved in performance of work at the pro, eat site, as determin ed by tho 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 are attachment to this award. These wage rates arr, 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 relatLng thereto shall be maintained by the ContTactor during the course. of the worm and preserved for a period of 3 years thereafter for all laborers and me ha lcs working at the site of the work. Such records shall contain the panne, address, and social security number of eaoh such worker, his or her correct classification, hourly rotes of wages paid (including rates ofcontributions or costs anticipated for bona fide fringe benefits on cash eqinival en thereof o f the types described 1n section 1 b) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made, and actual wages paid. NNIanever the Secretary of Labor bas found, under paragraph d of the article entitled Davis- Bacon Act, that the wages of any laborer or meohanit include the amount of any costs reasonably anticipated in providing benefits under a plan or pro Tam described in section 1 b) (B) of the Davis-B ac on Act, the Contractor shall maintain records which show that the co =it ent to provide such benefits is enforceable, that the plan or program is financially responsible, and that the Plan or program has been comrnunioated in uniting to the laborers or mechardics affected, and records which show the costs anticipated or the actual cost Micurred in providing such benefits. Contractors employing apprentices or trainees under approved. programs shall maintain written evidence of the registration of appreatioeship programs and certification of trainee programs, the registration of the appmnfices and trainees, and the ratios and wage rates prescribe d in the appli Not Specified/ Other 4 The falsification of any of the certifications Mi this araclo may subject the Contractor or subcontractor to civil or oriminal prosecution urger Scotion 1001 of Title 18 and Section 3 729 of Title 3 1 of the United States Code. c The Contractor or subcontractor shall make the records required under paragraph a of this article available for inspection, copying, or tran scripti o n by th e z' Contracting Officer or authorized representatives of the Contracting Officer or the Department of Labor. The Contractor or subcontractor shall permit tie Contracting fair= or representatives of the Contracting Offloor or the }department of Labor to interview employees during working hours on the job. If'the Contractor or subcontractor fails to s b.mit required records or to male there available, tine Oontraoting 0 ffloe r may, after written notice to the Contractor, tak o 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 male such records available may be rounds 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 authotized representative of the Department of Labor, withhold or cause to be withheld from the Contractor under this award or any outer Federal award-with the same Prime Contractor, or any other federally assisted award subject to. Davis—Bacon prevaWng wage require eats, which is held by the same Prime Contractor, so much of the aocrued 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 fall amount of wages required by the award~ In the event of failure to pay any labo r or medbanic, including any apprentice, trainee, or helper, employed or working on the site of tine work, all or part of the wages required by the award, the Contracting Officer may, after wrkten 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, (x ) An apprentice will be pon- pitted to work at less than the' predetermined rate for the work they . perfomed when they are employed- 0) Pursuant to and individually registered in a bona fide apprentioeship program registered with the U.S. Department of Labor, Employment and 'training Administration, Office of Apprenticeship and Training, Employer, and Labor Services O T L or with a State .pprenti e lrip Agency recognized by the O TLS; or it 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 O T L or a State Apprenticuship Agency (where appropriate to be eligible for pr bationary employment as an appreuti e. The allowable ratio of apprentices to jou eymen on the ,fob site in any craft classification shad 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 gage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site. in excess afthe ratio permitted under the registered pro grarn shall be paid not loss than the applicable wage rate on the wage determination for the work actually performed. (4 ) Mere a contractor is per'f'orming construotion on a projeot in a locality other that that in which its program is registered, the ratios and wage rates (expressed in porcentages of the jou eyme n's Not peci c,-& then 16-77 Not Sp cified/ Offi r Hourly rate) specified in the Contractor's or sub tractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered pro gmfn for the appr ntice's Iev l n f progress, expressed as a percentage of the jou eyman hourly rate speoi fled in the applicablc wage determination. (5) Apprentices sh all be paid frin ge benefits in aocord anoe with the provisions of'the apprenticeship program. If the apprentice ship program does not specify ftge bene ts, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the dmm' lstrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. the event OATELS, or a State Apprenticeship Agency recognized by OATELS, withdraws approval of an apprenticeship program, the Contractor will no longer be p r imed to utilize apprentices at less than the applicable predetex i_ned rate for the work performed until an acceptable program is approved. Trainee . l Except as provided in 29 CFR 5:16, trainees will not be pennitted to work at less than the predete i- nod ratc for the work performed unless they are eMployed pursuant to and individually registered in a program which has received prior{ approval, evidenced by form a[ Gertifi 0ation by the U.S. Department of Labor, Employment and Training Administmflon, Office of Apprenticeship Training, Employer, and Labor Services TEL . The ratio of trainees to journeymen on the job site shall not be greater than permitted udder the plan approved by T L . Every trainoe must be paid at not less than the rate specified in the approved pro rare for the trainee's level. of progress, expressed as a percentage of' the joumeyman hourly mate specified in the applicable gage d t r ination. 'trainees shall be paid age bemeffts in accordance with the provisions of the trainee program. If the trainee program does not mention range benefits, trainees shall be paid the full amount of fr g benefits'listed in the wage determination Mess the Administrator of the wage and Hoer Division determines that there is an apprentice bip program a of t d with the corresponding journeyman gage rats in the wage determination hich provides for less than full fringe benefits for apprentices; Any employee listed on the payroll at a trainee rate who is not ro istcrcd and participating in a tramming plan approved by the ."T' L shall be pain not less than the applicable wage rate the wage determination for the classification of woTk actually performed. bi addition, any trainee perforraing work on the job site in excess of the ratio permitted under the registered program shalt be paid not loss than the applicable wage rate in then wage defenmination for the work actually performed, In the event OATELS withdraws approval of a training program, the Contractor will no longer be permitted to tin trainees at less than the applicable pre .etez fined rate for the work performed until an acceptable pmgram is approved. d Equal ernployinent oppart pity. 'lac utilizadoin of apprentices, trainees, and joumeymen under this article shall he in confbrmity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part Compliance nth Copeland Act Requirements The Contractor shall comply with the requirements of 29 CFR Fart 3, which are her by incorporated by reference in this award. 5 Not clicdlfher 7 -7$ Not Specified/Other Subcontracts (Labor Standards a fmition. "Co nstra cti o n, alteration oar rep air," as used in this artiele means AI types of work do ne by labor'ers and mezhanics employed by the construction Contractor or construction subcontractor on a p atti cular building or wo rk at the situ thereof, including without limitation - 1 Alt r ng, remodeling, installation if appropria�tc on the site of the work of items fabricated off- site; Painting and decorating; �anuf'a turlr�g or famishing of atexials, 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 ij) bf the `'she of the work". as defined in .the article entitled Davis Bacon .A t 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 ( of the "`site of wort" definition; and ( Transportation of portions of the building or work between a secondary site where a significant portion of the -building or work is constmeted, which is part of the `site of the work} definition in paragraph a 1 ii of the Davis-Bacon Act aril fie, and the physical plaoe or places whem the building or work will remain (paragraph 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 subcontrats for construction, alterations and repairs within the United Mates the articles enti led— i Davis-Bacon Act; ontiract work Hours and Safety Standards Act Overtime Compensation (if the article is included in this award); Apprentices and 'trainees; Payrolls and Basic Records; ompliance with Copeland Act Requirements; Withholding of Funds; (7 ) Subcontracts (Labor Standards); ( Contract Termination — cba ent; Disputes Conc=ing Labor Standards; 1 Compliance with Davis - Bacon and Related Act eguiations; and 11 Certification of ligibility, (c ) The Prime Contractor shall be responsible for compliance b any subcontr for or lower tier subcontractor performing construction within the United States with all the award articles cited in paraUaph (b). Not Specified/ Other 16-79 Not Specified/Other d (I)Within 14 days after issuance ofthc award, the Contractor shall doliver to the Contracting Officer completed Standard Form S 1413, Statement and Aoknowledgment, for each subcontract for construction within the United States, inoluding the subcontractor's signtd and dated acknowledgment that the articles set forth in paragraph b ofthis article have berg included in the subcontract. Within 14 days after the award of any subsequently awarded subcontract the Contractor shall deliver to the Contrw g Offinr an updated completed SF 1413 for such additional subcontract. e The Contractor skull insmt the substance of this article, including this paragraph a in all subcontracts for construction within the Unitod States. Contract Termination Debarment breach ' of the award uncles entitled f avis- Bacon Act, Contract work Hours and Safety Standards Act -- Overtime Compensation, Apprentices and `trainees, Payrolls and Basic Records, Compliance with Co,p i ud Act RequArem,ents, Subcontracts (Labor Standards), ComplianGe 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 Rewvery Act covered work 'only, and for debarment as a Cont ctor and subcontractor as provided in 29 CFR 5.12. Compliance With Davis-Bacon and Related .ct Regulations All ruUngs and interpretations of the Davis -Bacon and Related Acts oontained in 29 CFA. Farts 1, 3, and are heroby incorporated by reference in this a 4rard. Disputes Concerning Labor Standards The United States Department of Labor has sot forth in 29 CTR paw 5, 6, and 7 procedures for resolving disputes concerning labor standards requirements. Such disputes shall he resolved in accordance with those procedures and not the Disputes and Appeals as defamed in 10 CFR 600.22. Disputes within the meaning of this whole include disputes between the Contractor or any of its subcontractor and the contracting agency,, the U.S. Department of`Labor, or the employees or tbei repros &ative . Certieation of ElIgIbIffity a By catering into this award, the Contractor certifj a s 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, Mi eli ible to be awarded Goverment awards by 'virtue of section a of the Davis-Bacon Art or 29 CPS. 5. 12(a)(1). {b No part of this award shall be subcontracted to any person or flan ineligible for award of a vemment award by vie of sermon 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. 1002. Approval of wage Rates Alf straight time wage rates, and overtime rates based thereon, for laborers and e.0hanics engaged in work under this award must be submitted for approval in wrifing by the brad of the watracting activity or a representadve expressly designated for this purpose, if the straight time wages c e cd the crates for corresponding classifications contained in the applicable Davis-Bacon Act minimum wage deter ina6on. included in the award, Any amount paid by the Contractor to any laborer or mechanic ire 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 Govez ment refuses to authority 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 16-80 Exhibit D - Addendum N. 1 - Appendix Attachment I (for reference purposes only) Intellectual Property Provisions (N RD-1003) Nouresearch and Development onpro fit organizations are subi ect to the intellectual pro paty requirements at 10 CFR 6 0 0.13 6 (a), c and (d). All other organizations are subject to the intellectual property requirements at 10 CFR 600.136(a) and i 600.136 Intangible property. a Recipients may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award. DOE reserves a royalty -free, nonexclusive and irrevocable right to reproduce, publish or otherwise use the work for Federal purposes, and to authorize others to do so, (c) DOE has the right to: 1 Obtain, reproduce, publish or otherwise use the data first produced under an award; and Authorize others to receive, reproduce, publish, or otberwise use such data for federal purposes. d In addition, in response to a Freedom of Information acct F IA request for re 'search data relating to published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law, the DOE shall request, and the recipient shall provide, within a reasonable tinge, the research data so that they can be made available to the public through the procedures established tmder the F 1A. if the DOE obtains the research data solely in response to a F 1A request, the agency may charge the requester a reasonable fee equaling the full incremental cost of obtaining the research data. This fee should reflect the cosh incurred by the agency, the recipient, and applicable subr elpients. This fee is in addition to any fees the agency may assess Under the F1A T.S.C. aA• tr �!% 1 go 1J [ 1V 1-W I IL %,A %A K %,A %,4 F 1 F PL 'm %wI b N t X V r \../ R R %off a 4V %k h--or (M9) - AnACHMENT All otherMfiaasAre bsalele � U.S. Department of Energy FEDERAL ASSISTANCE REPORTING CHECKLIST AND INSTRUCTIONS 1. ldentif caf 0 Number: 2. Program/Project Title: DE O 01398 ESCBG . Recipient: CA- City of Cupertino 4. RepDrUng Requirements'. -Prequenpy —Frequency No. of Copies Addressees A. MANAGEMENT REPORTING Upload only 1 r-op Progress Report to the address In the A next C ol UM n at thia EM9 aa.ctov Special Status Report Interval sparlfmd In ire n� t"ir.�r�I.�t in �Iack � the previoum column. of Ass!GWnav Agreement S. IENTIFIC MCHNI L REPORTING (Reports/Products (Reports/Products must be submitted v4th appropriate DOE F 241, The 241 farms are available at .o LgovIelink l ePDNProduct Form El Final SclentifirdTechnical Deport DOE F 241.3 C3 Conference paper 1pr ce dings* DOE F 241.3 El softwarefmanual DDE la 241.4 + [:3 Oftr a peciial InstructiDns DDE F 2413 iary0 an technical confe ences only - C. FINANCIAL REPORTING R SF -425, Federal Finan ral Report Q, F o v antmr,U g Offiner listed In Block a of Msiatarm Agreement I. CLOSEOUT REPORIING D Patent Certification 0 Properly Certification antracting Ow ]tsti In O[hRr (see Special lnstru DnE;) Bloc 25 of Ass Istan ce Ap mmertt E. OTHER REPORn N A inu l Indir of Cost Proposal Annual inventory Report of Federally Owned Property, if any Other — See Section 5 below. Q, F, A See Spe4cM instru ens Below FREQUENCY GODES AND DUE DATES: A - Within 5 calendar days after everts or as specified. S - Semiannually; wif In 3D days after end of reporting period. F - Final; 90 calendar days after expiratlion or termination of the award. Q - Quarterly; vAthin 30 days after end of the reporting period, Years- LN days after the end of the reporting period. . Special Instructions. Forms are av tlable at hft +Ifw r rre- mo.pner e lformsa . Other Reportingb as follovn: Energy Efficiency and C o rtservaOo n Strategy (if appifcable ANNUAL REPORTS ARIA — Performance Progress Report See F decal Assistance Reporting Instructions an f0owlng pages fDr more details. Please mete} All quartedy rep art are clue no later thta n 30 days after the end of the reporting period. Because th is award is funded under the Recovery Act, the AR R Perform ance P rog res s Deport is due no later than 10 days after the end of the rep artirrg period. 1 -1 Federal Assistance Reporting Instructions Deporting requirements under the E EC 13G Program consist of the following types of reports: SPECIAL STATICS REPORT The recipient gust report the following events by e-mail as soon as possible after they occur: 1, Developments that have a significant favorable impact on the prgjeot. 2. problems, delays, or adverse condiflons 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 followtng 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 fire or more Individuals. _ b. Any significant environmental permit violation. c. Any verbal or wri en Notice of Violation of any Environmental, Safety, and health statutes or regulations. d. Any incident which causes a significant cant process or hazard c ntrni 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. . 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 F Federal Financial Report. Instructions for the Quarterly Progress Deport are below. The F is available at httP:L/www.whitehouse.c o mb rents / inde c.html. CLOSEOUT REPORTING Propertv.Gertification The recipient must provide the Property Certification, including the required inventories of non-exempt property, located t htt vfl rants. r,d e o . CS STRATEGY (for units of local government and Indian tribes only ■ FOR UNITS OF LOCAL GOVERNMENT AND INDAN 'TITHES: units of local government and Indian tribes that do not submit an Energy Efficlenry and Conservation Strategy EEC with their application must submit one not lamer than one - hundred twenty 0 days after the effective data of the award. The EECS shall be a comprehensive strategy that covers, at a minimum, um, all items details in Attachment as Drell as the following: Jurisdictional area cowered 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 +� Goalstobjectives for total enemy use and emissions reductions, and energy efficiency increase (including deployment of renewable to hnolo les • Goals can be qualitative 2 1 - • 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- EE CBG as well as activities that are ineligible; comprehend a 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 strat6gies W remove obstacles • Policies and /or administrative actions adopted or needed to support actions /plan /strategi s /targets /schedule • Evaluation, monitoring and verification plan • Plea for how activities will be sustained beyond grant period Plans for the use of funds by adjacent ellgible' units of local governments that receive grants under the program; and plans to coordinate and sure 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 iocal and regional communities, NNU L EP RT • FOR UNITS OF LOCAL GOVERNMENT AND INDIAN TRIBES: S: Submit annual reports not later than two 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 fisted below. FOR STATES: Submit annu l reports not later than one 1 year after the of ective 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 preceding calendar year; a 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 pro rare funds spent on each activity, indicate which programs are now and which are existing, indicate which programs are supported solely by program funds, and which have other funding sources, RA PERFORMANCE PROGRESS REPORT Fa#ure to comply with this reporting requirement may result in t nninat on of that part of the award funding by Recovery Act. Not later than 10 days after the end of each calendar quarter, each recipient small submit a report to the grantor agency that contains; • The total amount of American Recovery and Reinvestment Act of 2009, Pub. L. 111 w5, covered funds received from that agency; The amount of American, Recovery and Reinvestment Act of 2 009, Pub. L. 111- , covered Binds received that were expanded or obllgat d to project or activities; • A detailed fist 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: 16.8 o. Name of project or activity o Description of project or activity o Ev luaflon of the completion status of project or activity o Estimate of number of jobs created and retained by project or acti • Number of energy efficiency portfolio standards established or improved • Number r of other policies developed or improved Building Energy Audits • Number of audits performed, by sector 0 Floor space audited, by sector a Audiltoes projection of energy savings, by sector Energy Efficiency Rating and Labeling Types of energy - consuming devices for which energ y -ef cllency rating and labeling systems were endorsed by the grantee ovemment, School, Institutional Procurement • Number of units purchased, by type e.g., vehicles, office equipment, HVAC equipment, streetlights, exit signs) Industrial Process Efficiency k h equivalents) • Reduction in natural gas consumption mcf a Deduction in fuel oil consumption (gallons) • eduction in electricity consumption (MWh Loans and Greats a Number and monetary value of loans given a Number and monetary ry 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 glue of financial incentive provided, by sector Is Total value of investments lncenti i ed, by sector Technical Assistance Number ber f information transactions contacts (for example, webinar, site visit, rnedi , fact sheet) in which energy efficienoy or renew bie energy measure were recommended, by sector Transportation Number of altemative fuel vehlcles purchased Number of conventional vehicles converted to alternative fuel use Number of new alternative refueling stations emplaced • Number of new carpools and vnpols formed ui ber of eneragy -effi ient traffic signals installed Number of street lame -r lies for which synchronized traffic signals were installed Workshops, Training, and Education • lumber of workshops, training, and education sessions meld, by sector • Number of people attending workshops, shops, training, and education sessions, by saGtor Other otivlties Not Previously Defined Petnent metric information for any activity not defined above should be captured and included as needed Short-term Outcomes (DoE will provide supplement al guidance on how to calculate these outcomes to ensure consistent approaches that results can be aggregated at a reglohall, State and national level) 1 - Energy Savings kwb equivalents) • Annual reduction in natural gas consumption rnr c� by sector and and -use category a Annual reduction in electricity consumption I Wb by se for and end -use category Annual reduction in electricity demand (M VV) 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 Capacitor and Generation + mount of wind - powered electric generating capacity installed VV • count of electricity generated from wind systems MWh a Amount of photovoltaic generating capacity installed M • Yount of electricity generated from photovoltaic systems Vh 0 Amount of electric generating capacity from other renewable sources installed VV) • Amount of'electricity generated frorrx other renewable sources Wh Emissions Reductions (tons) (G02 equivalents) a Methane a Carbon N Sulfur dioxide a Nitrogen oxide • Carbon monoxide P otected Eerson lly Identiflable.Informati r . ' Reports must not contain any Protected P#I. PCI 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 boobs, . public websites, university listings, etc. This type of information is considered to be Public P11 and includes, for example, first and Cast name, address, work telephone number, e-mail address, home telephone number, and general educational credentials. in contrast, Protected Pli 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 Girth, mother's maiden name, criminal, medical and financial records, educational transcripts, etc. 16-86 xnloll r- Contract No. 2008 -o DOCUYMNT 00482 UDDER CERTMCATIONS CITY OF CUPERTINO SIEEMENS PERFORMANCE CONTRACT ,-.The undersigned Bidder cortifies to the City of Cupertino as set forth in sections I through. 7 below. 1. STATEMENT OF CONVICTIONS By my signature hereunder, i hereby swear, under penalty of perjury, that no more than one dal, uznappealable finding of contempt of eoual by a Federal Court has been issued against Bidder witbh the past two years because of Mure to comply with an order 'of a Federal Court or to comply with an order of the National Labor Relations Board, CERTIFICATION OF WORKER'S C MEP S .TI N INSURANCE By my signature hereunder, as to bidder, I cep that I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against Hability for worker's compensation or to underfAe self- insurance in accordance with the provisions of that Code, and r wiU comply with- such provisions before commencing the performance of the work of this Contract. 3, CERTIFICATION OF PREVAMANG WAGE RA'C'ES AND RECORDS By my signature hereunder, as the Bidder, 1-certify that I am aware of the provisions of Section 1 773 of the Catifornia Labor Code, which requires the payment of prevailing wage on public projects. Also, that the Bidder and any snub bidders under the Bidder shall comply with Califomia Labor Code §1776, regarding wage records, and with Califomia Labor Code § 177T5, regarding the employment and tranining of apprentices. It is the Bidder's respom1bility to ensure compliance by any and all subcontrartors pc om�hg work under this Contract, 4. CERTIFICATION OF COMPLUNCE WITH PUBLIC WORKS CHAPTER LABOR CODE By my. signature hereunder, as the Bidder, I certify that I am aware of Sections 1777. and 1777.7 of the Califomia LaVor Code and Bidder and Subcontractors are eligible to bid and work on public works proiects. 5. CERTMCATE OF NON-DISCRDMATION r By my signature her, ader, on behalf of the Bidder making is did, the undersigned cord es that there N iU be no diserim= atiorn in employment with mgard to race, color, religion, gender, sexual onientatio'n, age or national origin; that aU federal, state, and local directives and executive orders regarding non - discrimination mi employment will be complied with; and that the principle of equal' opporw&y in employment will be demonstrated positively and aggressively* 6. CERTIFICATION REGARDING PREVIOUS DISQUALIFICKrIONS By my signature hereunder, I hereby swear, under penalty of pe w, 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 disquai ed, 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 are attached, p3ease explain the circumstances. City of Cupertino 00482-1 Bidder Certifications Sports Center Upgrades ^ Re-Bid • 1 - Contract No. 20 0�0 7. CERTI CATION OF ADEQUACY OF CONTRACT AMOUNT By my signature hereunder, as the Contractor, pursuant to Labor Code Section 2 8 1 0(a), I certify that, if awarded 'the Contract based on the undersigned's Bid, the Contract will include maids sufficient to allow the Contractor to comply vith all applicable local, state, and Federal laws or regulations goveming the labor or services to be provided, I understand that the City wiU be relying on this certification if it awards t i Contract to the undersigned. gas BIODDER: (Name of Bidder Data! 0 Signature) N F (Print Name) Its. ltl Y END OF DOCENT ire LEGAL SEBASTIAN N. DANtWER City of Cupertino 00482-2 Bidder Certifications Sports Center Upgrades Re-Bid Exhibit F Project No. CCYWNT ooh i CONSTRUCTfON PERFORMANCE BOND THIS CONSTRUCTION RUCTI RF RMANC BOND "Bond" is dated � is in the penal sum of [which is one hundred percent of the Contract Price], and is entered Ito by and between ,the parties fisted below to ensure the faithful performance of the Construction Contract listed below. This Bond oonslks of this page and the B xid 'terms and Conditions, paragraphs I through 12, attached to this page. Any singular ref renee to _ .�� � ��.. (ontra.eto ' ), oro - the City of Cupertino, a Municipal Corporation of the state of Cali 'omia 'City" or other party shall be considered plural where appHca ie, CONTRACTOR: S TY: Name Namo Address Principal Place of B sincss City /State /Zip City /state /.dip CONSTRUCTION CONTRACT: SI-EMENS PERFORMANCE CONTRACT AGREEMENT at Cupertino, Calif=Lia- DATED 20 in the .mount of CONTRACTOR AS PRINCEPAL SUETY Company: (Corp. Seal) Company: (Corp. Seal) Signature: � . � Signature: Name and Title; Name and Title: BOND TERMS AND CONDITIONS Contractor and Surety, jointly and severalty, mind themselves, their beirs, 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 perfa.rms all of its obligations under the Const ction Contract, Surety . and Contractor shall have no obligation under this Bons. - -- 3. If there is no City Dafault Surety's obligatiou under this Bond shall arise Ricer: 3.1 City has declared a Contractor Default under the Con,st e ou Contract pusuant to the terns of the Const xotio . Contract; and City has areal to pay the Balance of the Contract Sum; o xrety in accordance with tie teens of this Bond and e Co strr ti on Contract or .. To a contractor selected to perform the Construction Contract m accordanoo with the terms of this Bond and the Cont7ructin Contract.. the "Penal Bunn') City of Cuperfino SIEMENS PERFORMANCE COACT .REMENT 10 -1 Project No. 4. When City has satisfied the conditions of paragraph. , Surety shah promptly (within o days) and at Surety's expense elect t take one of the fo lx owing actions: 4.1 Arrange for Contractor, with cons nt 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 r 4.4, below) ; or 4.2 Undertake to. perform and complete tine Construction Contract itself, through its agents or through independent contractors; provided, that Surety may not selaet Contractor as its agent or Midependent ontractor without City's consent; or 4. 3 Undertak to perform and complete the Construction Contract by obtabaing bids from qualified c6ntractors acceptable to City for a contract for performance and completion of the Co struefion Contract, arod, upon determination by City of the lowest responsible bidder, arrange for a contra t 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 suety equivalent to the bonds issued on the Construction. Contract; and, if Surety's obligations doffed in paragraph 6, below, exceed the Balance of the Contract Sum, then Surety shall pay to City the amount of such excess; or 4A waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances, arid, after investigation Md consultation with City, , determine in goad faith its monetary obligation to City under paragraph 6, below, for the performane and completion of the Construction Contract aad� as soon as prac6cabl c after the amount is dote fined, 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 fi m the Contractor Default. If City disputes the amount of Surety's tender under this paragraph 4. 4, City may exercise alb 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 bo in default on this Bond ton days after receipt of an additional written notice from City to Surety demanding that Surety perforra its obligations under this Bond. At all times City shah be entitled to enforce any remedy available to City at law or under the Construetion 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 consaltants or contractors. 6. Surety" s monetary obligation under this Bond is lir cited by the Amount of this Bond identified herein. as the Venal 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 Const uction Contract. 'Surety's obligations shah include, but are not limited to: 6.1 The responsiblilifles 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 spocified in the Con ttuctio t Contract, actual darn ges caused by non - perfarmance of the Construction Contract including, but not meted to, aril vaUd and proper backcharges, offsets, payments, indemnities, or other damages; 6.3 Additional legal, design professional and defy costs resulting from Contractor Default or resulting from the actions or failure to act of the Surety under paragpph 4, above (but excluding attorney's fees inourred 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 s[EMENS PERFORMANCE CONTRACT A REEME T00 I o F 16-90 l'roj ect 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 0 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 Documonts, or of the work required thereunder, shah release or exonerate Surety on this Bond or in any way affect the obligations of Surety on this Bond, 9. Any proceeding, legal or equitable, under this Bond shall he instituted in any curt of competent jurisdiction where a proceeding is pending, between City and Contractor regarding the Const acfion Contract, or in the courts of the County of Santa Clara, or in a CULUt of competent jurisdieflon in the location in which the work is located. Communications from City to Surety under paragraph 3.1 of this Bond shall be deemed to include the necessary contracts under paragraph 3.2 of this Bond Mess expressly stated otherwise. 10. All notices to Surety or Contractor shall be mailed or delivered t the address set forth on the signature page of this Bond), -arid all notices to City shall be mailed or delivered as provided in Document 000 (Contract). Actual - receipt of notice by Surety, City or Contractor, however accomplished, shall be sufficient compliance as of the date received at the foreotg addresses. 11, Any provision in this Bond conflicting with any statutory or regulatory requirement shah. he deemed deleted her5from and provisions conforming to such statutory requirement shall be deemed incorporated herein. 12. Dofinitions. 12.1 Balance of the Contract Sum. The total amount payable by City to Contractor pursuant to the tor ms of the Con truedon 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 het eD.n City and Contractor identified on the signature page of this Bond, inaluding all Contract Documents and changes thereto. 123 Contractor Default: Material failure of Contractor, which has neith r been remedied nor waived, to perform or otherwise -to comply with the, terms of the CorLstruction Contract including, but net limited to, ;`default' or any other condition allowing a termination fur cause as provided in Document 00 700 (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. Construction 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 Construction Contract. END OF DOCUMENT City of Cupertino 1 -1 "^I %J rcjct No. CST 00620 CONSTRUCTION LABOR. AND MATER AL PAYMENT T BOND THIS CONSTRUCTION LABOR AND MATERIAL PAYMENT BOND "Bond" is dated , is in the penal sum [one hundred percent of the Contract rice], and is entered into by and betty en the parties listed below to ensure the paymant of claimants under the Construction Contract listed blow. This Bond consists of this page and the Bond Term and Conditions, paragraphs I through 14, attached to this page. Any si Project No. any amounts required to be deducted, with.eld, and paid over to the Employment Development Depart ent 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 ease suit is brought upon this Band, a reasonable attorney's fee, to he wed by the court. 4. Consi teiit with the California Mechanic's Lien Law, Civil Code §3082, et seq., Surety shall have no obligation to Claimants under this Bond mess the Claimant has satisfied all applicable notice requirements. Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any paymonts made in good faith by Surety under this Bond. 6. Amotints due Contractor under the Construction Contract shall be applied first to satisfy claims, if any, under any Construction Perfor ance 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 attomey'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 othe3,Ywiso have obligations to Claimants under this Bond, 8. Surety hereby waives notice of any rhanxge, includimg changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. Surety f their hereby stipulates and agrees that n6 change, extension of time, alteration or addition to the terms of the Construc on Contract or to the Work to be performed thereunder, or materials or equipment to be Punished thereunder or the Specifications accompanying the same, shad in any war affect its obligations under 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 C nstnwfion Contract or to the Work or to the Specifications on any other changes. 9. Suit against Surety on this Bond may br, brougbt by any Claimant, or its assigns, at any thme 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 wed as provided in Civil Code 184. 10. All notices to Surety or Contractor shall be mailed or delivered (amt the address set fort, 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, shy be sufficient coy pHance as of the date received at the foregoing addresses. 11. This Bond has been fumished to comply with the California. Mechanic's Lien Law including, but of limited to, Civil Code §3247, 3248, et sect. Any provision in this Bond conffletiffig with said statutory requirements shall be deemed deleted herefrom and provisions conLfor ing to such ,statutory or other legal requirements shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law band. 12. Upon request by any person or entity appearing to be a potential beneficiary of this Bond, Contractor shall promptly famish a copy of this Bond or shah permit a copy to be made. 13, Contractor shall pay to persons perfor ng labor Mi 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 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 a,scert mi ed and dv,,termined by the ,l ircctor of the State Department of l du.strial Relations and City to be the general prevailing rate of per diem wages for each craft or type of workman or mechanic needed to execute this Contract. Contractor shall also cause a copy of this determination nation of the prevailing rate of per diem wages to be posted at eab Site. City of Cupertino Construction Labor and Material SIEMENS PERFORMANCE CONTRACT A RE lEN'o o - 2 pa nent Bond 16- Project No. 1. Demotions. 14.1 Claimant: An individual or entity having a direct contract with Contractor or with a Subcontractor of Contractor to famish labor, materials or equipment for use in the performance of the Contract, as Sher deed in California Cif l Code 181. The intent of this Bond shall bo to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, beat, oil, gasolmne., te.19phone service or rental equipment used in the Construction Contract, architectural and cr►gineer�ng services require, for performance o the Work o Co tractor and Contractor's Sulacontractom, and all other items for which a stop notice might be asserted. he term Claimant shall also include the Unemployment Development Department as referred to in Ciyil 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 charges thereto. 14.3 City Default: Material failure of City, which has neither been remedied nor waived, to pay the Contractor as required by the Constructio3a Contract, provided that failure is 1he cause of the failure of Contractor to pay the Claimants- and is sufficient to justify termination of the Construction Contract. FD OF DO CLIMENT City of C pertffio SIENMNS PERFORMANCE COACT A REEME 700620 Const uction Labor a-ad Material Payment Bond 16-94 rzx 1 a m Project No. DOCUMENT 00821 INSURANCE A. At or before the date specified in Document 000 lnstacxtions 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• Cgm D r ' ing claims for personal Miury, bodily i Jury and property damage ansing out of the Work and in a form providing coverage not less than that of a standard Commercial General Liability Insurance policy O'Occurrenoe orr a" i 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 off` the final payment for the Fork, contractual liability, and coverage for explosion, collapse and underground hands. The limits of such insurance shall not be coverage of less than $2,000,000 each occurrence, $4,000,000 general aggregate tiinit, The policies swl be endorsed to provide Broad Form Properly Damage Coverage. 2. Comprehensive Automobile Liability, hisurance covering all owned, non-owned, and wed vehicles, Such insurance shall provide coverage not less than the standard Comprehensive Automobile. Liability policy with liraits not less than $1,000,000 each person. Bodily Injury, $1,000,000 each occu ence Bodily Injury, and $1,000,000 each -occwence Propcwty Damage. 3. All-Risk COUM. Df Constraction Insurance I for physical loss or damage to e, Work, temporary buildings, falsework, and matcrials and equipment in tTaasit, and shag insure against at least the following perils or causes of loss: ire, lighttling, extended coverage, theft, vandalism and malicious mischief, ewthqu-ake, collapse, debris removal, demolition occasioned by enforcement of Laws, water damage, flood, and damage caused by frost and freezing, in the amount of loo percent of the completed value of the Work to be performed under tMs Contract. Deductible shah not exceed $25,000. Each loss shall be borne by Conixactor. Workers' Compensation Insurance for all persons whom the Contractor may employ Mn carrying out. Work contemplated under Contract Documents, ih accordance with the Act of Legislature of State of lifomia., known as "Workers' Compensation Insurance and Safety Act," approved May 26, 1913, and all acts amendatory or supplemental thereto, in the statutmy amount, $1,000,000 each occurrence. . All policies of insurance shall be placed with insurers acceptable to City, The misura= underwriter(s) roust have an A. M. Best Company rating of A, 7 or better or otherwise acceptable to the City. Required xnmi=ium amuunts of insurance may be incased should concEtions `of Work, in opinion of City, warrant such increase. Contra tDr shaU increase required �asurance amounts upon direction by City. C. Required u.ired . ndorse eats: The policies required under puagraphs A.1, A.2 and A..3 of this l orn ent 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, representati es, consultant (including without li tation Consulting Engineer), and angelus, and Engineers, as additional l ured , but only with aspect to liability arising out of the activities of the limned imuuted. Said insurance coverage obtaiued by the Contractor, excepting worker's compensa on cayDrage, sh.a also name Santa Clam Valley Water District, and its officers, agents and empl yces, and Cupertino SarAtary itrct and its officers, agents and employees, as additional insureds n said policies. 2. Each such policy shall apply separately to each i'sured against when China is made or suit is brouuht, except with respect to .e limit of the insurance company's liability regWmd under paragraphs A. 1, A.2 and A.3 of this Document 00821. (End rsement ofAggregate 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. Thsurance shall contain a provision requiring the insurance carriers to waive their rights of subrogation against- City and all additional ins =ds, as well as other inswance carriers for the Work. D. CerEficates of insurance and endorsements shall be on forms prDvid-ed in Document 00 530, In urance Forms) have clearly type thereon City Project Ntunber and title of Contract Documents. Whitten notice of cancellation, non - renewal, or reduction in coverage of any policy shall be mimed to City Attention: Contract Administration/Inspection at the address listed in Document 00520 (Contract), 30 Days Mi advance of the effective date of tbo cancellation, non-renewal, or reduction in coverage. Contractor shall m4mi to insurance in hill force and effect during entire period of performance of Contract Docummts, the follo mi g insurance m amounts not less than City of Cupertino 1ENffi S PERFORMANCE CONTRACT 00821-1 Insur -aac 4 Project No. the amounts specified. Contractor shall keep insurance i Project Ida. DUIT 00530 Vi,SURANCE FORMS INSURANCE FORMS INSTRUCTIONS Exhibit f FOR ITEMS 3� 4 AND 5, TIRE FORMS PROBED BY THE CITY OF CUPERTINO MUST BE USED. FORMS OTHER THAN THESE WILL NOT BE ACCEPTER, ALL DOCENTS MUST BE ORIGINALS - SUBNH L'4' TR-UPLICATE { 1. Insurance Agreement - Alust be signed by Cont-actor. 2. Certificate, of Insurance to the City, of Cupertino - must be completed by the insurance agent or must provide a ceitificate on the `company's Form. They must contain the same 3. Endorsement of Additional Insured and Primes Insurance and Notice of Cancellation - must b signed by the insusance agent for general liability and automobile liability only. 4. Comprehennsive gc-nG-ral liability/commercial general liability endorsement of aggregate Iffinits of msura-uoe p , p µ ject - must be signed by the insirance agent for general liability ordy. 5. Waiver of su-brogation, endorsement work r "s compensation insurance must be signed by the insurance agent for worker's compensation only. City of Cupertino SIEMENS R' � CE A. T �RE MBN' 00530 - I .ran Forms - 16-97 Project No. INSURANCE AGREEMENT t 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 compfmsation or undertake self- insurance in accordance with the provisions of that Code, and Will comply with such provisions before commencing the porformance of the work of this Contract. B. Contractor and all subcontractors will cam worker's compensation insure for the protection of its employees during the progress of the word.. 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, corn erolal 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 shah. be tmde�tten by insurance compar es satisfactory to the City for all operations, sub - contract work, contractual obligations, product or completed operations, all owned vehicles and nonrowned vehicles. Said ins - ranee coverage obtained by the Contractor, excepting worker's compensation coverage, shall rune the City, its engineer, and each of its directors, officers, agents and employees, as determined by the Cif, as additional insureds on said policies. Iusur rs must be licensed to do business in the Mate of Califorrda. The Insurers must also have an "N' policyholder's rating and ii financial rating of at least Class V11 in accordance with t he current Best's Guide Rating or that is otherwise acceptable to the. City. Before Contractor performs any work at, or prepares, or delivers materials to, the site of construction, Contractor shall ash certificates of insurance evidencing the foregoing insurance covcrages 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 arty days written notice to the City. Contractor shall maintain all of the foregoing insurance coverages in Force until the work under this Contract ins fully completed, The requirement for caing �e foregoing insurance shall not derogate from the provisions for indenmifi.cation 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 maintrdn in full force and effect during the life of this Contract, the following ffisurance m amounts not loss than the mounts specified and having a Best's Guide Rating of A, Class VIl or better or that is otherwise acceptable to the City. City of Cupertino SIEMENS PERFORMANCE CONTRACT AGREEMENT 005302 - Insurance Form 1 - { INUS Projta No. Worker's Compensation In accordance with Worker's Compensation Emorr' Liability. Act of the State of California — Worker" comp "st . for y" per CA Lair; Ernplo rs' Liability � 1,000,000 per Occurrence. Goner t Liability - commercial general. liability; Combined sm'gle limit of . o minx on pQr I. mcluding provisions for contractual liability, OccutTelleeoll$4.0 on in the aggregate personal injury, hadependent oontractors and products — completed operations fir.. Automobile bility - comprehensive covering Combined single limit of i ffio per owned, non-o-"rned and wed automobiles. occurrence. (Contractor's Name) By: Dated* City of Cures SEEMENS PERFORM"CE CONTRACT AGREEMENT Imsuranoo Forms 00530-3 1 -99 Project No. CERTIFICATE of INSURANCE I CITY of CUPERTINO This certifies to the City of u ert .o that the Following desen'bed policies have been issue. to the insured named below and art,% m For, this time. Insured: Address: - - -- Description of } er ion. l o .ti ro ducts insured (show contract natne 5 and/or number, if any): ...- - - - .._.`.��. �� - •--- .,�„�rt - rr.rt�...'".".'""'+"" WORKER'S COMPENSATION - ..-mot. - - .T.tw.,...... ..,,. -�_ * Statutory Min. Employer's Liability (name of insurer) liasurance Company's State License Nil r Check Policy `hype. Each OccwTence LkBITY Premises/Operations General Aggregate -' .x-14 applicable) Owners & Contractors Protecfive Aggregate Cotatul for Specific Contrail Personal Injury Products Liability XCU Hazards Broad Form P.D. Fire Damage (any one fire) Srability of tre Clause, Personal Injury v.th Medical Expense $ Employee Exclusion Removed (any one person) or Self -fur. COMMERCIAL G N RA1 LIABILITY Retention (narne of .s r Policy No. Expiration Date City Cupertino SIEMENS PERFORMANCE CONTRACT AGRE ME? T 00530-4 Insurnee Forms 16-100 AUTOMOTIVEfVEHICLE LUBILI Y BODILY INJURY Commercial. Form Each `Person Liability Coverage Each Accident - (narne of purer) policy No. Combined Smn le Limit Expiration Date Project No. PROPERTY DAMAG Each Accident or BUILDER'S RISK "ALA. RISK7 + This is to certify that the following policy has been 'Issued. by the below - stated company conformance with the re ulreme t o the project o cum ents and 's force t t e. N/A (Name of insurer) Policy No, Expiration Date Lints of Li biliiy: Deductible: , - -- - copy of all Endorsements to the olicie which in any w --(agent's initial) limit the above - listed types of co era are attached to this 4 Certifieate of Insuxance. This Certificate of Insurance is not an mnsurance policy and does not amend, extend or alter the coverage afforded. by the policies listed herein. Notwithstanding any requirement, term, or condition o an .contract or any other document with respect to wbich this Certificate of i anc may be issued or may pertgn, the insurance afforded the policies described herein is subject to all the terns, exclusions and conditions of such policies. IT IS HEREBY CERTIFIED that the above , lic ies - provide liability insurance as required by the Agreement between the City and the insured. Dated; Attach Ceri rcate of Insurance and Additional lured Endorsement on company forms. City of Cupertino. SIEMENS PERFORMANCE CONTRACT rAGRE BENT o - srance Forms o 16-101 Proj eat No. ADDITIONA1 INSURED ENDORSEMIENT and ENDORSEMIENT of PRICY INSURANCE and NOTICE of POLICY CANCELLATION ENDORSEMENT Project Tide and Number: In consideration of the policy premium and notwithstanding any inconsistent statement in the policy to which this Endorsement 'I's attached or any other Endorsement attached thereto, it is agreed as follows: The -City of Cupertino ` Cit3e' and its directors,, officers, engineers, agents mid employees,. and all public agencias from whom permits will be obtained and their directors, officers, . gi crs, agents and employees, and the State of California, and its officers, agents and employees, a.r 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 th 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 ffisurance afforded by this policy is prhnary insurance, and no additional insurmice held � or ovm d by the d signatcd additional inns reds shall be called upon to cover a loss under said additional policy. 6neellation ]notice. The insurance afforded by this policy shall not be suspended, voided, canceled, reduced in coverage or ffi limits, or mate6ally altered, except-after thirty days" n'o Witten. notice by oil ed mail, rte receipt requested, has been given to the City of Cupertino ("City"). Such notice sal bo addressed to t .o City as indicated below. POLICY INFORMATION .1. Insurance Company: 2* durance Policy Dumber; 3. Effective Date of this Endorsement: ent: 14. Insured: 20 All notices herein provided to be given by the Insurance Company to the City in eonnfnction With this policy and these Endorsements, shall be mailed to or delivered to the City at 103 00 Tonne Avenue; Cupertino, California 95014. (print /type name) City of u ltino SEEMENS PERFORMANCE CONTRACT AGREEMENT 00 53 0 R Insurance 'orn 16-102 r. Frog Oct No. warrant that I have utho t to bind the below listed Insurance Company and by my sigriatare hereon do so bird this Loan. Signawre of Authorized Representative; (Original sipature required on all Endorsements furnished to the istrict) Names of Agent/Agency: Titl : Address: Telephone: acs =I: City of Cupertino sX NM s PERFORMANCE CONTRACT A RE MM T. 00530-7 Insurance Forms 16-103 ITT OF Project No. FM COWREHENSIVE GENERAL LLABILITY COMMERCUL GENERAL LIA131 ITY ENDORSEMENT OF AGGREGATE LMTS of CUPERTINO INSURANCE PER PROJECT Project Title and Number: In c6nsideration of the polky premium and notwitlistanding any inconsistent statement ire the policy to which this Endorsement is tta cd or any 9ther Endorsement attacbed thereto, it is .s follows: This Endorsement modifies the iasurance provided undo~ the General Liability Coverage part of c below - referenced policy of insurance. F The general aggregate limit under LIN41TS OF INKMANCE applies scp rat ly to the project d scrib d as I POLICY INFORMATION 1. Imurance Company; 2,, Insurance Policy N b : 3. Effeofiw Date of this Endorsement: 20 14. Inrd: 5. Additional Lisured: City of Cupertino, its directors, officers, agonts and employees All . oti es herein provided to be given by -the Insuranm Company to the City i connect ion with this pony and this Endorsement, shall be maned to or delivered -to the City at 10300 Torre Avenue,; Cupertino, California 95014, - - - - - -- F - - - -- - T (print typ name) warrant that I have authority to b the below listed Insurance Company and by my sigiiabire hereon do o bind this Comp-ay. Signature of Authorized . epre enta i : (Original signature required o all Endorsements furnished to the District) dames of , t e cy: Title: Address: Telephone: City of Cupertino SEEMENS PERFORMANCE CONTRACT AGRMANT durance Form oo0 1 - 104 Project, No. WAWER OF SUBROGATION ENDORSEMENT WORKER'S COMPENSATION INSURANCE Project TitlD and Dumber: 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 a greed 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, .gents, consultants and employees by reason of any payment made on account of i jury, including death results 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: 13. Effective Date of this Endorsement: 20 �— 14. in red: All notices herein provided to be given by the Insurance Company to the City in ormection with this olicy and this Endorsement, shall be mailed to or delivered to the City at 10300 orre Avenue; Cupertino, California 95014. 1 (print/type name) warrant that I have authority to bind the belo w listed Insurance Company and by my signature hereon do so bind this Company. Signature of Authorized Representative: (Original signature required -on all Endorsemeats furnished to the District) J a£ Agent/Agency': kl Address: City Of Cupertino SIEMENS PERFORMANCE NTRA T A RE W T Insurance FDrms 'title: Telephone: -- Facsimile; 00530 16-105 June 10, 201 OFFICE of THE CITY CLERK CITY HALL 10300 T H E AVENUE a CUPERTINO, CA 95014 -3255 TELEPHONE: (408) 777 -3223 • FAX' (408) 777-3366 WEBSITE; www,cupertino.org Siemens Industry, Inc. Building Technologies Division 25821 Industrial Boulevard, suite 300 Hayward, CA To Whom It May Concern: Enclosed for your records is a fully executed copy of the agreement with the City of Cupertino. If you have any questions or need additional information, please contact the Environmental Affairs department at g -3262, Sincerely, CITY CLERK'S OFFICE Enclosure c: Environmental Affairs --� ©9// o 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 PERFORMANCE CONTRACTING AGREEMENT Number: Article 1 AGREEMENT THIS PERFORMANCE CONTRACTING AGREEMENT ( "Agreement ") is made this 7th day of May, 2010 (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 �Pkii9NE�(408) 777 -3200 FAX: (408) 777 -3366 V/ iemens 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 version 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) Appendix B - Attachment 3 U.S. Department of Energy Federal Assistance Reporting Checklist and Instructions 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 (Signature) by: Print Name and Title: (Signature) by: Print Name and Title: Citx of C pertino (.J David Knapp, City Manager Approved As To Form: (Signature) by : X K Print Name and Title: Q,,,,, Agreed for Sie nd , Inc. (Signature) by: Print Name and Title: IVAL (Signature) by: Print Name and Title: Page c; of 17 Agreement PCA -100 PUB C versior�2A�09R APPRO BY LE SEBASTIAN . UAN71(.F,R 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 & Verged 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 Operational 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 4 of 17 Agreement PCA -100 PUBLIC version 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 efficiency 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 & Verified 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 Gan be calculated and ascertained by the methodology set forth in the Performance Assurance, Exhibit C. Page 5 o 17 Agreement PCA -100 PUBLIC version 2009R PERFORMANCE CONTRACTING AGREEMENT "Oil" 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 based 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 implementing 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 FIMs 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. Page 6 of 17 Agreement PCA -100 PUBLIC version 20098 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 against 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 Annual 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 version 2009R PERFORMANCE CONTRACTING 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 Exhibit 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 Baseline 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 30 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 CLIENTS 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 Page 8of17 Agreement PCA -100 PUBLIC version 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 is 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 then' Performance Guarantee Period, the CLIENT will give SIEMENS thirty (30) days prior written notice and in such notice 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 100% 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 a mutually agreed change order, effective only when execu'ed by the Parties. Page gof17 Agreement PCA -100 PUBLIC version 2009R PERFORMANCE CONTRACTING AGREEMENT 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 be 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 Services 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. Page 10 of 17 Agreement PCA -100 PUBLIC version 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 and 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 available 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 Faciliiy 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; Q) 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 and connectivity as required by such Equipment; and (3) heat, light, air conditioning or other environmental controls, and other utilities in accordance with the specifications for the Equipment; Page 11 of 17 Agreement PCA -100 PUBLIC version 2009R PERFORMANCE CONTRACTING 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, the 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 terminatedSIEMENS 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. Page 12 of 17 Agreement PCA -100 PUBLIC version 2009R 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 costs 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 no 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 the 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 version 2009R PERFORMANCE CONTRACTING AGREEMENT (a) Workers' Compensation at the statutory amounts and limits as prescribed by applicable law. (b) Employer's Liability insurance (and, where applicable, 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 cant' Automobile Liability Insurance in the Occurrence Coverage Form covering all owned, hired and non -owned automobiles and trucks used 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 self- 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. This 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 insurance 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 such 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 attorney'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 version 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 to control the defense and settlement of any claim for which SIEMENS has an obligation to indemnify hereunder. 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 ad: 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 caused 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 ailocations 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 smoke 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 version 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. Page 16 of 17 Agreement PCA -100 PUBLIC version 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 $ 2,071,845.02. 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, 8 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 version 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 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 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 up to 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. 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 doers 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 Page 2 of 7 Siemens Industry, Inc., Building Technologies Division Exhibit A - Scope of Work and Services v. 2009 Exhibit A - Scope of Work and Services City of Cupertino 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 Cupertino 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. 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. Page 3of7 Siemens Industry, Inc., Building Technologies Division Exhibit A - Scope of Work and Services v. 2009 Exhibit A - Scope of Work and Services City of Cupertino 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. 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 SIEMENS will provide annual measurement and verification reporting for up to Ten (10) years of the program CLIENT has the option to discontinue measurement and verification 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. Page 4 of 7 Siemens Industry, Inc., Building Technologies Division Exhibit A - Scope of Work and Services v. 2009 Exhibit A - Scope of Work and Services City of Cupertino 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 5 calendar days from the Notice to Proceed, 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. 2009 Exhibit A - Scope of Work and Services City of Cupertino Article 3: Scope of Services - Performance Assurance Services Program 3.1 Measurement & Verification SIEMENS will provide annual measurement and verification reporting for up to Ten (10) years of the program - CLIENT has the option to discontinue measurement and verification 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. 3.1.1 Pre and Post Street Lighting power reading measurements 3.1.2 Irrigation Pre and Post water usage 3.1.3 SIEMENS will provide annual reports documenting: 1. Total street lighting energy savings for the year and associated greenhouse gas emissions reductions 2. Irrigation water savings over the course of the year based on runtime on sample of controllers 3. Summary of weather data 4. Inventory and summary of landscape area characteristics: a. Plant material types (and overall percentage of each type) b. Climatic micro -zones within city c. Soil types 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. Page 6 of 7 Siemens Industry, Inc., Building Technologies Division Exhibit A - Scope of Work and Services v. 2009 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: Cl f VIL SIEMENS: S'� In stry, In Signature Signature. Printed Name: avid Knapp ON Printed Name: Title: City Manager Title: Date: Date: pprov To For( p: Signature: Signature: Printed Name: Printed Name: Title: 0 �_ _, v ._d o Title: Date: 5 ,fin, o Date: APPRrV1iD BY LEGAL - Z�2 SE ASTIAN N. UANZWER Page 7 of 7 Siemens Industry, Inc., Building Technologies Division Exhibit A - Scope of Work and Services v. 2009 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 6.1 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 part�f, 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 Mobilization & Development Fees $207,184.50 10% 11 V Sri= _7 , ; Final Contract Approval/Startup Lighting & Irrigation Procurement $414,369.00 20% 30% Completion Lighting & Irrigation Installation $4'14,369.00 20% 50% Completion Lighting & Irrigation Installation $4'14,369.00 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 PR fi;.. . ,. . ,. Article 1 of Exhibit B is attached to and made a part of the Agreement between SIEMENS and the CLIENT. CLIENT: I of .0 t i in Signature: Printed Name: David Knapp Title: City Manager Date: SIEMENS: Siem I{ISt , I Signature: 4 Printed Name: / Title: 2 _ Date: ppro ed To Fo Signature: Signature: �__ Printed Name: Printed Name: cis Title: Title: _ Date: Date: Page 'I of 2 Siemens Industry, Inc., Building Technologies Division Ar�t�ci ; v $ 4tIEGAL XL Exhibit B - Payment Schedules . 2009 SE8,4,' 1AN N: AriZIGIER 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 Services as described in Exhibit A, Article 3, the CLIENT shall pay to SIEMENS the amounts identified in Table B.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.2 — Performance Assurance Program Payment Schedule Article 2 of Exhibit B is attached to and made a part of the Agreement between SIEMENS and the CLIENT. CLIENT: ity of, pe i o Signature: Printed Name: David Knapp Title: City Manager Date: ,Jkpprov lo s To Form: Signature: Signature: _ _ Printed Name: Printed Name: Title: Title: 0 Date: Date: S Page 2 of 2 Siemens Industry, Inc., Building Technologies Division APPRt)V LEGAL Exhibit B - Payment Schedules v. 2009 SFBASTIAN . DANZIGER 100% Completion $20,000.00 Guarantee Date 2011 Anniversary $20,000.00 Of 100% Completion 2012 Anniversary $20,000.00 Of 100% Completion Article 2 of Exhibit B is attached to and made a part of the Agreement between SIEMENS and the CLIENT. CLIENT: ity of, pe i o Signature: Printed Name: David Knapp Title: City Manager Date: ,Jkpprov lo s To Form: Signature: Signature: _ _ Printed Name: Printed Name: Title: Title: 0 Date: Date: S Page 2 of 2 Siemens Industry, Inc., Building Technologies Division APPRt)V LEGAL Exhibit B - Payment Schedules v. 2009 SFBASTIAN . DANZIGER Exhibit C — Performance Assurance City of Cupertino The following Articles and Tables are hereby included and made part of this Exhibit C: Article 1: Summary of Articles and Total Guaranteed Savings Article 1 Summary of Articles and Total Guaranteed Savings Article 2 Guarantee Savings Types Article 3 Guarantee Term Responsibilities of CLIENT Article 4 Measurement and Verification Plan Article 5 Baseline Data Article 6 Utility Rate Structures and Escalation Rates Article 7 Contracted Baseline Data Table 1.1 —Total Guaranteed Savinas (Units) Table 1.2 — Total Guaranteed Savin s Cost Performance Period Energy /Utility Savings Electric Electric Natural Gas No. 2 Fuel Water Saved Performance Annual Period 1 Energy Power Saved Oil Saved (CCF) Period $248,576 Saved (kWh), Savc kW Therms Gallons Annual Period 4 Construction $20 0 0 0 0 0 Annual Period 1 $297,199 813,003 0 0 0 45,952 Table 1.2 — Total Guaranteed Savin s Cost Performance Period Energy /Utility Savings Operational Savings Total Savings Construction $0 $0 $0 Annual Period 1 $236,882 $0 $235,882 Annual Period 2 $248,576 $0 $248,576 Annual Period 3 $264,209 $0 $264,209 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 $321,451 $20 $321,471 Annual Period 9 $334,309 $0 $334,309 Annual Period 10 $347,681 $2,760 $350,441 TOTALS $3,766.284 $120,780 $3,886,064 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. 2009R Exhibit C — Performance Assurance City of Cupertino This Exhibit C comprising of 15 pages is attached to and made a part of the Agreement between SIEMENS and the CLIENT. CLIENT: C' of C peg i Signature: Printed Name: David Knapp Title: City Manager Date: proved s To FQrm: Signature: `8r —�q- Printed Name: � _ .,.,r„rL4 Title: Date: SIEMENS: SIE S 1 dustry c. Signature: Printed Name: 1� Title: Date: Signature: Printed Name: Title: Date: Page 2 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance AP V£ V L4GAL tit' R STIAN N.'VANZICER v. 2009R Exhibit C — Performance Assurance City of Cupertino Article 2: Guaranteed Savings Options 2.1 Guarantee Savings Options for Enemy /Utility Savings: Utilizing IPMVP, there are four guarantee savings options to measure and verify Energy /Utility Savings: Option A - Retrofit Isolation: Key Parameter Measurement; Option B - Retrofit Isolation: All Parameter Measurement; Option C - Whole Facility; and, Option D — Calibrated Simulation. Option A - Retrofit Isolation: Key Parameter Measurement. Savings are determined by field measurement of the key performance parameter(s) which define the energy use of the FIM's affected system(s) and /or the success of the project. Measurement frequency ranges from short-term to continuous, depending on the expected variations in the measured parameter, and the length of the reporting period. Parameters not selected for field measurement are estimated. Estimates can be based on historical data, manufacturer's specifications, or engineering judgment. Documentation 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 8 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R Exhibit C — Performance Assurance City of Cupertino 2.2 Table 2.1 below summarizes the first Annual Period's Guaranteed Savings (See Article 1, Tables 1.1 and 1.2) utilizing the applicable Options as applied to the referenced FIMs valued pursuant to the agreed upon amounts identified in Article 6 hereof. Tmihln 9 4 — Cwinnc fnr First Annual Ppriod 6v Ontion 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. T�hln 9 9 _ Cnnrra of Onaratinnal Saving Energy/Utility Energy/Utility Operational Savings $ # of Annual Saving $ Guarantee Type Options Periods Annual A B C D Total Operational Total Applied Retrofit Retrofit Whole Calibrated Energy/Utllky Savings Savings $ FIM Isolation: Key Isolation: All Facility Simulation Savings Stipulated Year 5 N/A Parameter Parameter Street Lighting Costs Replacement Lamp costs savings $56,220 Measurement Measurement only. No labor Street $105,562 $20 Year 8 N/A $105,562 0 $105,562 Lighting Street Lighting Costs Replacement Lamp costs savings $2,760 Year 10 N/A Irri ation $130,320 $130,320 0 $130,320 TOTALS $235,882 $235,882 0 $235,882 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. T�hln 9 9 _ Cnnrra of Onaratinnal Saving 2.4 SIEMENS has explained to the CLIENT 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. Page 4 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R # of Annual First Year Periods Annual Savings Are Savings Account/'Vendor 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 CLIENT 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. Page 4 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R Exhibit C — Performance Assurance City of Cupertino CLIENT: ci of Cu rti' o Signature: Printed Name: David Knapp Title: City Manager Date: prove As To Form: Signature: Signature: Printed Name: Printed Name: Title: Title: C' 4� ,jy{,�e Date: PROV, LEGAL LEGAL It ks N ZI(;ER ,.B.AST1AN I DANZIGER Page 5 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R y 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 Agreement, this Article details the responsibilities of the CLIENT in connection with the management and administration of the Performance Guarantee. 3.1 The CLIENT will provide a representative at each Facility to coordinate work and provide required data described below. 3.2 The CLIENT will provide SIEMENS with accurate facility operating information as defined below and in the Contracted Baseline article of this Exhibit C during each Annual Period, within thirty (30) days of any Material Change that may increase or decrease energy usage. 3.3 CLIENT will provide SIEMENS with copies of utility bills within 30 days of receipt by CLIENT or provide access to utility vendor information. 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 6 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R 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 Measurement Article 4.3 Option B - Retrofit Isolation: All Parameter Measurement Article 4.4 Option C - Whole Facility Article 4.5 Option D - Calibrated Simulation 4.1 General Overview — The purpose of the Measurement and Verification (M &V) Plan is to identify the methods, measurements, procedures and tools that will be used to verify the Savings for each FIM which has Energy /Utility Savings. Savings are determined by comparing prior usage, consumption or efficiencies defined as the Baseline to the selected FIMs being implemented 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 20Y) 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 Ex] Page 7 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R Exhibit C — Performance Assurance City of Cupertino ((# Fixtures) Ex x (Watts / Fixture) Ex) / (1,000 W/kW) = kW Ex Proposed Lighting Power. [kW PR] ((# Fixtures) PR x (Watts / Fixture) PR) / (1,000 W /kW) = kW PR Existing Lighting Power Consumption: [kWh or] (kW Ex) x (Annual Burn Hours) = kWh Ex Proposed Lighting Power Consumption: (kWh PR] (kW PR) x (Annual Bum Hours) = kWh PR Annual Lighting Power Savings: [kW LGHT1 E (kW EX) — E (kW' PR) = kW LGHT Annual Lighting Power Consumption Savings: [kWh LGHr1 E (kWh Fx) — E (kWh PR) = kWh LGHT Annual Lighting Power Savings: (kW LGHT] $ Savings = kWh LGHT * Electrical Energy Rate Calculations Variables Index Measurement or Reference Tables Street Lighting Inventory, see Article 5, Item 5.4. Responsibility for SIEMENS and CLIENT SIEMENS Responsibilities Page 8of15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R Stipulated Existing Annual Bum Hours: See Table 5.2.1 (Based on interviews with (Annual Burn Hours) facility personnel) Existing Fixture Power: kW TBD Onetime pre measurement Existing Qty. of fixtures: (# of Fixtures) Ex See Article 5, Item 5.4 Stipulated (Confirmed during lighting audit Greater of Current Blended Electrical Energy Rate: ($ /kWh) See Table 5.1.1 Rate or Scheduled Rate w /escalation Proposed Fixture Power kW TBD One time post 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 8of15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R 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 for the savings calculations. • Provide the results of the measurement and verification to the customer. CLIENT 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 ■ 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 validated 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. 2009R Exhibit C - Performance Assurance City of Cupertino SIEMENS will validate baseline irrigation consumption on 10% sampling of sites by quantifying the baseline schedule and the water usage per station at these sites: a. Typically, one to four irrigation programs exist on each old controller. b. Irrigation zones / stations are then assigned to each program. For example: 1. Program "A" might run 20 minutes per day x 5 days per week 2. Program "B° might run 5 minutes per day x 7 days per week c. At the time of installation, SIEMENS records these existing irrigation schedules on a program worksheet for each antiquated timer Baseline consumption per site = E (Water flow rate for each irrigation station x recorded baseline annual time schedule for each irrigation station) Post - retrofit • 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 new 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. 2009R 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. CLIENT 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 — NIA 4.4 Option C - Whole Facility — NIA 4.5 Option D — Calibrated Simulation — NIA Page 11 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R One time measurement Existing irrigation schedule per station TBD (From pre- retrofit controller program) Stipulated, based on Existing water usage per station TBD manufacturer's data or facility personnel interviews One time measurement Proposed irrigation schedule & water TBD (As downloaded from the usage per station new controller program) Designated 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. CLIENT 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 — NIA 4.4 Option C - Whole Facility — NIA 4.5 Option D — Calibrated Simulation — NIA Page 11 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R Exhibit C — Performance Assurance City of Cupertino Article 5: Baseline Data 5.1 The year(s) selected as the Baseline Period starts on January 2009 and ends on December 2009. Table 5.1 outlines the utility consumption that occurred during this Baseline Period. This Baseline Period's Facility utility consumption will be used as the reference for comparing the actual Facility utility consumption during the Performance Guarantee Period in order to determine the Actual Realized Savings. Table 5.1 — Baseline Utilitt Consumption Units Jan Feb Mar A r May Jun I Jul Aug Sep I Oct I Nov I Dec Electric I kWh 136699 123470 136699 132289 136699 1 132289 1 136699 1 136699 1 132289 1 136699 1 132269 1 136699 5.2 The year(s) selected as the Baseline Period for irrigation starts in January 2008 and ends December 2008. Table 5.2 outlines the utility consumption that occurred during this Baseline Period. This Baseline Period's utility consumption will be used as the reference for comparing the actual utility consumption during the Performance Guarantee Period in order to determine the Actual Realized Savings. Refer to Article 4, item 4.2.2, for validation methodology for water baseline. Table 5.2 — Baseline Utility Consumption Units Jan Feb Mar I Apr I May Jun I Jul I Aug Sep I Oct I Nov I Dec Water cCf 1,388 1,762 6,497 1 15,975 1 23,898 1 28,261 1 30,020 1 26,961 1 24,052 1 16,128 1 7,159 1 4,985 5.3 The operating practices during the Baseline Period 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.) 5.4 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. 5.4.1 Current code compliance (identify the applicable code citation): N/A 5.4.2 Code changes: N/A Page 12 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R Exhibit C — Performance Assurance City of Cupertino 5.5 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. LAMP SIZE IS Total S4H -1_00 31 __ -56 S4H 150 ­­ _ _ ...................... ...._._ _ . _..__ ...... .... ....... ......__. S4H -200 430 S4H 250 61 �S4H -310 4_..__ S4H 400 5 S_4H_70_.___ 165.____ S -H -100 192:.__._. S -H -150 77 -_- -1785 S- H- 70____.._._._.__.___.. S -M -1_0_0 -- ._.._._ _.... _._. 6 S- M- 175....... 15......_, _..1.17_.._._. S- M- 400 _.. __._..4._._..__ ,S-V-250 i­._ Grand Total 2950 Key S4H -roa Street lamp, 240V, High Pressure Sodium (HPS), root= Wattage S -H -root Street Lamp, 120V, HPS, Wattage S -I -roa Street Lamp, 120V, Incandescent, Wattage S -L -root Street Lamp, 120V, Low Pressure Sodium (LPS), Wattage S -M -roa Street Lamp, 120V, Metal Halide (MH), Wattage S -V -root 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 'I of LS -2 rate schedule.) Page 13 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R Exhibit C — Performance Assurance City of Cupertino Table 6.1.1 Electricity Tariff Number or Designation: Utility Name: Rate Structure: Rate Escalation: Table 6.1.3 Water Tariff Number or Designation: Utility Name: San Jose Rate Structure': California Water Rate Structure 2: Rate Escalation3: LS -2A (March 1, 2009 — April 30, 2009) PG &E $0.12206 $ per kWh N/A $ per kW 3 % per Annual Period Schedule 1 — San Jose Water Schedule LS -1 -NR — California Water San Jose Water and California Water $2.2926 $ per 100 cu. Ft. $3.0372 $ per 100 cu. Ft. 3 % per Annual Period ' 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 Lighting 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.) Page 14 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C — Performance Assurance v. 2009R Exhibit C - Performance Assurance City of Cupertino Figure 1 - Back up Documentation for Water Escalation Notice of Application by San Jose Rrater Company for a Rate Increase Request for public Comments in Application NO. 0-01-W his Culifornir. Public Utilinm Commis- (CPI--C) is t1wJ.• ng pubhc cmrunenss m %4>pltcatwti 09-0] •rJLK` liltd Iry we San Jose tirdu "..,�:. �..- As pm aftttdsrxmnNnakeng prac.txt, ttw Cpl)(: is interested in yoor e[muoeva on any asrw+et of the wmpam'"s operation including promsed ratan, .,i- qualm, --Y tithm issue ihm mar bo of ur-. T'.he pmpax of this nett is to inform S1WC'n customers of the tiling of the Applicaunn and to Site matruaitns on bms w provida inpo in the revise Ptncass 1'i3F APPLICATID" .' is also r q-6o8 e[an didation of the tat. of-pod in ha M-nom Dotkid with the rotas eh.Sed tluoughmn 5]K`Cb rersairdng smvi- aMr Fitalty, 5lAC is rooi*iming duo flit Cmtmi*viw autbormx due. (1) disburstmtun of 31,649,106 from 1is Hslan[atgAt -AN at 12- tnomth$0.0276!cdciratorsror xutadil, aud(2) allow rtcovary Of X90.60 lion the lima Quelily Frpave Memorandum ArLnlmt tier a nne4fma etsnwna aas3iar3c 6rt' 0741. SJWC isprop[nmg Ibis cute in-odon to ratalutirig Rid'ating eopmwesaa wa]l as signih aot xysum infrwvnetrnio raplarwomn.rsguiramcma ate the w'O several yeas. . 31w c4piw btttum fw 0. pa sol are Ast> iwati aing?Iar tw aigrsdleatii$r higher« Ar- mmxramas TJra bsfnn[t�nme anfxnt rota sm4e as water risrpt stti wad ore, lncenan4, irprwamrnm in p[mpi ig mionn and -11 iiolib,, as raft m wma tank upilmdaa and rcplactansms thrmiotota SlWC,'s about 140 aquart, trtiks -im area are sic anry in or&r m maidam sale and rcliablc water torticc 3lre fnuowingtablts wmmatizc SAVC "s Nio asked ram changes in- cotta size Schedule I - Geacr -d1 Metered Scroice hpglIlix 5fy':hame Schedule 1 C - Momltain District 5114 "i "s Rai - pro22nd m SMIC's Amshrntion Mawr Size Possum Rates ;o1 Rates. nfill Rata 2012 Rates fV9 a 3A -inch $1507 51,7.47 519.19 527,30 . iA -irrch $1507 $17.47 $19.19 $2100 1 -inch 52_5.12 529.12 &1138 $34.16 1 I' inch 550.26 55708 Sl.397 569.33 2 -inch $80.40 173.20 S102_33 S109.33 3 -mch 5130.75 S174.74 5191.91 5204:99 4.ittch $251.26 S291.2f V11095 0341:63 c mrJ 1502.52 $58248 5639.70 5(:83:30 8 -inch S304,03 6931.9,1 $1,02331 51;193.29 ]0 -ioch S ?,15580 51 3H9.69 SL 471 30 X1,57L59 KOMITUVEMMIRR Rai V4-i 0 to 13 Ccf S"2.20r. 82.6.39 S23! 1 52,Y15 Cover 13 Ccf S2 .42i2 X2.902 S2.981 S.It711 Reaidenna_1 Ckrstornm% with 1 U forth r.r i-h miner O 1, 26 C[4 a S2':! 2 62.639 52711 3'.:918 Uver 26 Ccf S2 4282 $2.902 52.981 S3 209 All (J-h, tn =• All Usage 5:2821 57..7272 S2,8017 S3r7159 For dit, ty-piral residential watomer with a 'k -mob nuns using 16 ocf (one ncf = 748 gau0ngl of wafer pm month, flu -Pa* wain hill trill increase to $9:42 or IS 45% front $51,W aI pooaam rates its 560AS an X1(1 by.' S2.9aar 4.7944" RU,M in 2UI1, sod l Yi.63 [n 7 44: ki 469.06 in Alf 2 1 h-- kitl mrwnla roulade f 3!i chergt u fxndtl3r;aiiliaa'at Pvrki utiliitia7 C+rmrnis.ir41. 71>craaea ul.,v, err "V water hill may +vvy jighily from the --ire, ram, ahowo ah.- due to I-I nary =m,d door surchnrrpos in dfect from tamu to turn. For 0. tywal.A3mnutin Per -iet. rasi&- 7ual t a -. with . i. it h alder ,sing 16 ecr (a-f -748 eWtami of w slaMas -AX ds mcadlN-aw, big will draeaee:±g S6t.% a46.655strOM- X136.34 r. pres!AiL sw=& io i"W, ax1w6A Urr aureau[' by t2.89 cX;.M1! b te+573.SR et 7nl 1, and tg' S4ff3 ur ftk! " +kt'JS>'t."7tin J1C2. Stash br71. w `ahlxi otcluie U". .huge to fwd Orc Cali K7 Ilw na drown on your water bat may vary slightly fttaa du existing nuts!dx-. uhwe due wtanprnary aure -fit, rr amchnp.a in .line., from ume to times Un& axr" frofrtuil, rakx for exdryrw would Ixaame effwu im Larav ' I for that punituta ymx. As -pie d. Sal rate mcr For 2011 and 2012 are doiruf ,round inflaiion fwm pr-i&A by dw 11'1C. The t tors -sod to calcmlaw:rat[x m if.a yeas will 1s the raosi reuri inflation f-an d lhin point to timu. In ns Application, SlWC has rq and to moot- its rai. M actual mRvJun wilhotx furrha naioc w.ttrltinam 'Ihismeam lbai it mllalior, itgraata than dial aweanedlrrr. rtes for 21111. and 201: may he how law iil nsainthis noLioc. TlIE (IN r PROCESS The (TUO's Diriaim of Rikmi,, Advocates (DRA) will reriaw ilr r'yipliallim oval ttolims it, mdi paulerdmtvlviis and racommartllMMts ut a wrio& r". A fa dx C9113CS ix.nidcratimn 11m "Pon will became urailnble w the public. DRA is =9W with oWriaetn, audimis, and odM pinfeisimal ta(faltd 4t -tamed wm fr3lr.i itirj the inart`a .fall tadur ratq.,e -. Other uaemrsad pmwt may A.,psrb f»fo!I: the pr-ding. Fvidmtisry 1 -irrgs may bur held u'hemby of -Mu of rt-d will prmna their testimony imt will be wtj,c in cross <a matimt befmc the ---red Admimotnstrc IA. Ju e(Al -1). Theo - kirnti.ry h- triltc ore ofvn w Arc public, VIA only Joni. w the lx[ccrAatg may pmaml oxkrcc w [atzn- erruaine w4rtesxs ifyvowidt to F-ra, a party and porn iFam h din e. +' &rmayy hcarirg}S, pease ocnt d the CPtIC's Ththl. Advisor mfl> addrtu ati[vsn hdmr. Purim at thu hmsuigs may after Iaolxawls wine (--aeam dial :dill fnm th[ru .q.. J bySJWC. Add - Wtiarg all propomis mid evidmrt lxt mod diving me formal hearing pr acre.. dtr amlgrcdAM will issue a pror& i d deoiri n Vvbm ilia MIC note[ a final dararion on AMlicwtim 09.01.00I!I, it may s[kt)k amoral m modify sll or pmt of du AIX. p"-d dxuiwr as wntlmr. The UVLK 't ffn:J docisirar may be diffmau. h[im S.IV C'staarlicnd FftC1TESTP:61i iA MAC.Ai 1'ruew w this appfrcmion dmdd h mailed w tfa CPLfi'n Hr ?ilre AdJvv i CNtice. Fnr easisuita in Lliag a pmkv or [xherw•iec partwipmi% in the pr x ding. please comas the prddicAds or'a ORiee m: Cslif rein Publk lhilitic+(Sanmiasimt, lhi4ic Advi -'t ORicc 501 Mari Near A,-. San Frarw . CA 94102 it -.mail prdtlit ndviwr�wro ta.goy You may alw wit W, 849R3A1(kX fiiz) or 415.753.2074. Please maai[m dot ymj are w'raing abolA.Appliealloa ft!)i(O- 1)i.•*. PUBLWI XH1n41 t ih'edt,at pu➢dm - insinag may Ix !QS m as; liubis hdir -r's CA* to dw aWaos, .kwro xb.:wo_ Tl,- -naa ns wal t,--, pw . of dx f-L oc6sc4ad[ant file a` Or 1><riaw laig and wgd he :kr[adJla9t fa 1evWA w the a a49W AIJ. tlt aii:tetww' Cmnmiaauaur and thcapprooinlrCF'UC:r:afL (,`ummrada will ix: udks:tod on unorgnagr bows until swh time dim dw ,vidmtiary hnan V am menx. Please arnd momnreu to dr,ClrX1. P iblKA[h'ixx's Offiiw lailni al-1. addition,. pablirFom6arvti[nhuvaws mm- be beki. Please rcfa to 5a71me Watm Cmp.Wx Appliwb -Na. 04A (79 in all d'twr rcamninkwtimx. A -1n, f SIVvC's Application awl frvdra WnirmAkm may be 9hlaxil Fran Ae xmparn''a nvs omm aariox n.f' uw IPUncd d &t mkiresi be1ow- 11i�1�.�a } 10 A%ryt 7avlor Strax • 5an 1nsr; CA 95l l0 408.279.710W . www.siw•atamm Page 15 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C - Performance Assurance v. 2009R Schedule 1 C - Momltain District 5114 "i "s Anelicnix jyry}�h Savire 'Y1 Casi'S (:1>vme lhrsent ltntm RntesPmrorsod ?0101, tes Ip ?011 Rai, 0 318 x 34-mch $3137 $17.47 S79:19 $20.50 :L4 -inch 581,37 517.47 53919 $20.50 i -indr X8137 529.12 531.98 Y4.II i l;'2 -mah $81.37 SA825 563.97 $a 33 2.30th $81.11 873.20 5102.33 S109.33 ±•inch $*L37 $174.74 $191.91 $204 "99 Oumar Cbart'as 0 to 13 Ccf Mar Ctfe 53.43 526.39 &1711 $2918 14 to 16 Ccf $3.43 52.902. $2.981 13.209 17 to 22 C0f 54.29 S'_S -Exi 525.00 53.00 231.025 Cef 56.68 ir5:00 525.00 525.00 26 to 35V f 510.32 525.00 $25A0 5--500 36 to 46 (:-62 513.76 $25.00 525.00 V-55 00 47 to 55 044' $17.20 $25,10 525.00 525100 56 Ccf and above 520.64 $23.fG S25.00 X25.W El-ti- CMrxr, par Cef NiA $0.7632 $0.7632 50.7632 For 0. tywal.A3mnutin Per -iet. rasi&- 7ual t a -. with . i. it h alder ,sing 16 ecr (a-f -748 eWtami of w slaMas -AX ds mcadlN-aw, big will draeaee:±g S6t.% a46.655strOM- X136.34 r. pres!AiL sw=& io i"W, ax1w6A Urr aureau[' by t2.89 cX;.M1! b te+573.SR et 7nl 1, and tg' S4ff3 ur ftk! " +kt'JS>'t."7tin J1C2. Stash br71. w `ahlxi otcluie U". .huge to fwd Orc Cali K7 Ilw na drown on your water bat may vary slightly fttaa du existing nuts!dx-. uhwe due wtanprnary aure -fit, rr amchnp.a in .line., from ume to times Un& axr" frofrtuil, rakx for exdryrw would Ixaame effwu im Larav ' I for that punituta ymx. As -pie d. Sal rate mcr For 2011 and 2012 are doiruf ,round inflaiion fwm pr-i&A by dw 11'1C. The t tors -sod to calcmlaw:rat[x m if.a yeas will 1s the raosi reuri inflation f-an d lhin point to timu. In ns Application, SlWC has rq and to moot- its rai. M actual mRvJun wilhotx furrha naioc w.ttrltinam 'Ihismeam lbai it mllalior, itgraata than dial aweanedlrrr. rtes for 21111. and 201: may he how law iil nsainthis noLioc. TlIE (IN r PROCESS The (TUO's Diriaim of Rikmi,, Advocates (DRA) will reriaw ilr r'yipliallim oval ttolims it, mdi paulerdmtvlviis and racommartllMMts ut a wrio& r". A fa dx C9113CS ix.nidcratimn 11m "Pon will became urailnble w the public. DRA is =9W with oWriaetn, audimis, and odM pinfeisimal ta(faltd 4t -tamed wm fr3lr.i itirj the inart`a .fall tadur ratq.,e -. Other uaemrsad pmwt may A.,psrb f»fo!I: the pr-ding. Fvidmtisry 1 -irrgs may bur held u'hemby of -Mu of rt-d will prmna their testimony imt will be wtj,c in cross <a matimt befmc the ---red Admimotnstrc IA. Ju e(Al -1). Theo - kirnti.ry h- triltc ore ofvn w Arc public, VIA only Joni. w the lx[ccrAatg may pmaml oxkrcc w [atzn- erruaine w4rtesxs ifyvowidt to F-ra, a party and porn iFam h din e. +' &rmayy hcarirg}S, pease ocnt d the CPtIC's Ththl. Advisor mfl> addrtu ati[vsn hdmr. Purim at thu hmsuigs may after Iaolxawls wine (--aeam dial :dill fnm th[ru .q.. J bySJWC. Add - Wtiarg all propomis mid evidmrt lxt mod diving me formal hearing pr acre.. dtr amlgrcdAM will issue a pror& i d deoiri n Vvbm ilia MIC note[ a final dararion on AMlicwtim 09.01.00I!I, it may s[kt)k amoral m modify sll or pmt of du AIX. p"-d dxuiwr as wntlmr. The UVLK 't ffn:J docisirar may be diffmau. h[im S.IV C'staarlicnd FftC1TESTP:61i iA MAC.Ai 1'ruew w this appfrcmion dmdd h mailed w tfa CPLfi'n Hr ?ilre AdJvv i CNtice. Fnr easisuita in Lliag a pmkv or [xherw•iec partwipmi% in the pr x ding. please comas the prddicAds or'a ORiee m: Cslif rein Publk lhilitic+(Sanmiasimt, lhi4ic Advi -'t ORicc 501 Mari Near A,-. San Frarw . CA 94102 it -.mail prdtlit ndviwr�wro ta.goy You may alw wit W, 849R3A1(kX fiiz) or 415.753.2074. Please maai[m dot ymj are w'raing abolA.Appliealloa ft!)i(O- 1)i.•*. PUBLWI XH1n41 t ih'edt,at pu➢dm - insinag may Ix !QS m as; liubis hdir -r's CA* to dw aWaos, .kwro xb.:wo_ Tl,- -naa ns wal t,--, pw . of dx f-L oc6sc4ad[ant file a` Or 1><riaw laig and wgd he :kr[adJla9t fa 1evWA w the a a49W AIJ. tlt aii:tetww' Cmnmiaauaur and thcapprooinlrCF'UC:r:afL (,`ummrada will ix: udks:tod on unorgnagr bows until swh time dim dw ,vidmtiary hnan V am menx. Please arnd momnreu to dr,ClrX1. P iblKA[h'ixx's Offiiw lailni al-1. addition,. pablirFom6arvti[nhuvaws mm- be beki. Please rcfa to 5a71me Watm Cmp.Wx Appliwb -Na. 04A (79 in all d'twr rcamninkwtimx. A -1n, f SIVvC's Application awl frvdra WnirmAkm may be 9hlaxil Fran Ae xmparn''a nvs omm aariox n.f' uw IPUncd d &t mkiresi be1ow- 11i�1�.�a } 10 A%ryt 7avlor Strax • 5an 1nsr; CA 95l l0 408.279.710W . www.siw•atamm Page 15 of 15 SIEMENS Industry, Inc., Building Technologies Division Exhibit C - Performance Assurance v. 2009R Exhibit D — Addendum No. 1 City of Cupertino Addendum No. 1 to the Performance Contracting Agreement between Siemens Industry, Inc., Building Technologies Division ( "SIEMENS ") and City of Cupertino ( "CLIENT ") Dated May 7, 2010 No. 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 No. 1, then the terms contained in this Addendum No. 1 shall control. 2. Defined terms that are not specifically defined herein 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 Program - 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 3- Federal Assistance Reporting Checklist and Instructions -DOE F 4600.2 (2/09). 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 progress 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 later determined that CLIENT's Stop _Work Order was issued in error, SIEMENS shall incur no preiudice due to the issuance of the Stop Worts Order. 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." 5. Section 5.2 of the Agreement is modified with the addition of the following: 1 of 2 Siemens Industry, Inc., Building Technologies Division v. 2009 Exhibit D- Addendum No. 1 Exhibit D — Addendum No. 1 City of Cupertino "(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." 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'Nork 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." Section 7.1 of the Agreement is modified as follows: 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. SIEMENS understands and agrees that CLIENT may suspend terminate or chance a portion of work performed and an equitable adjustment will be made to SIEMENS compensation and time for performance. In the event such changes require the Work to be suspended, terminated or changed, SIEMENS shall be compensated for Work previously performed and for costs reasonably incurred in connection with the suspension or termination. 8. Article 8 of the Agreement is modified with the addition of the following: 12.10 It is understood that incorporated into this Agreement are CLIENT's standard forms: 482 (Bidder's Certifications), 620 (Construction Labor and Materials Bond), and 821 (Insurance Requirements) along with CLIENT's standard insurance form instructions noted on Form 530. In the case of conflict between the provisions of CLIENT's forms and the provisions of this Agreement, the provisions of CLIENT's forms shall control. The Parties agree that this Exhibit D- Addendum No. 1 modifies the Agreement between the Parties, dated May 7, 2010 and is attached to and made a part of the Agreement. CLIENT: P4y of Cipert'n SIEMENS: Sie M IMbJu , Inc. Signature: Signature: Printed Name: avid Knapp Printed Name: Title: City Manager Title: !/1 Date: Date: Appro ed As To Fo Signature: Signature: �._.__ Printed Name: Printed Name: Title: Title: Date: Date: T-��1���� AppRo E V LEGAL SEBAS IAN . UANZIGER 2of2 Siemens Industry, Inc., Building Technologies Division v. 2009 Exhibit D- Addendum No. 1 txhibit U- AaaenaUM NO. -1- Hppenaix H SPECIAL TERMS AND CONDITIONS FOR THE ENERGY EFFICIENCY AND CONSERVATION BLOCK GRANT PROGRAM — FORMULA GRANTS — JULY 2009 Table of Contents 1. RESOLUTION OF CONFLICTING CONDITIONS .................................................... ..............................1 2. AWARD AGREEMENT TERMS AND CONDITIONS .............................................. ..............................1 3. AWARD PROJECT PERIOD AND BUDGET PERIODS ........................................... ..............................1 'NT OF FUNDS .................................................................... ..............................1 4. STAGED DISBURSE 5. PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD APPLICATION FOR PAYMENTS (ASAP) SYSTEM ................................................ ..............................2 6. INCREMENTAL FUNDING AND MAXIMUM OBLIGATION - COEXTENSIVE BUDGET PERIOD ANDPROJECT PERIOD .............................................................................................. ..............................2 7. COST SHARING FFRDC'S NOT INVOLVED ............................................................ ..............................2 8. REBUDGETING AND RECOVERY OF INDIRECT COSTS .................................... ..............................3 9. CEILING ONADMINISTRATIVE COSTS ................................................................. ..............................4 10. LIMITATIONS ON USE OF FUNDS ........................................................................... ..............................4 11. PRE -AWARD COSTS ................................................................................................... ..............................4 12. USE OF PROGRAM INCOME - ADDITION .............................................................. ..............................4 13. STATEMENT OF FEDERAL STEWARDSHIP .......................................................... ..............................4 14. SITE VISITS .................................................................................................................. ..............................4 15. REPORTING REQUIREMENTS .................................................................................. ..............................5 16. PUBLICATIONS ........................................................................................................... ..............................5 17. FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS ...................................... ..............................5 18. INTELLECTUAL PROPERTY PROVISIONS AND CONTACT INFORMATION .. ..............................5 19. LOBBYING RESTRICTIONS ...................................................................................... ..............................6 20. NOTICE REGARDING THE PURCHASE OF AMERICAN -MADE EQUIPMENT AND PRODUCTS - - SENSE OF CONGRESS ............................................................................................. ..............................6 21. INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP .............................................. ..............................6 22. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS .......... ..............................6 23. DECONTAMINATION AND /ORDECOMMISSIONING (D &D) COSTS ................ ..............................7 24. SPECIAL PROVISIONS RELATING TO WORK FUNDED UNDER AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009) ........................................................... ..............................7 25. REPORTING AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERYACT (MAY 2009) .................................................................................. .............................12 26. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS -- SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009) .........12 27. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) -- SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009) ....... ............................... ......14 . ............................... . 28. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT (MAY 2009)17 29. RECOVERY ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS (MAY 2009) ............................................................................................................................. .............................18 30. 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: / /eefr.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.govfbfa/dias/policy/rte/index.jsp. e. Application/proposal as approved by DOE. f. National Policy Assurances to Be Incorporated as Award Terms in effect on date of award at hgp : / /management.energy.aov/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 F 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 worlc'on the SECS. 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. PAYMENT PROCEDURES - ADVANCES THROUGH THE AUTOMATED STANDARD APPLICATION FOR PAYMENTS (ASAP) SYSTEM I 1 IF MARKED THIS TERM DOES NOT APPLY— SEE ATTACHMENT 6 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 cash. You must disburse any funds that are available from repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries, credits, discounts, and interest earned on any of those funds before requesting additional cash payments from DOE/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 the availability of appropriated funds and substantial progress towards meeting the objectives of the award. COST SHARING FFRDC'S NOT INVOLVED Applicable only if cost sharing is included in the award. 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 completion. 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 maybe 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 CLAUSE IS MARKED BELOW. [ ] REBUDGETING AND RECOVERY OF INDIRECT COSTS - RFDvMURSABLE INDIRECT COSTS AND FRINGE BENEFITS 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 thee- 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 I]DIRECT COSTS — RED MURSABLE INDIRECT COSTS If actual allowable indirect costs are less than those budgeted and funded under the award, you may use the difference to pay additiowd 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. 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 imsts means the recipient must absorb the underrecovery. Such underrecovery may be allocated as part of the organization's required cost sharing. 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. [XI REBUDGETING AND RECOVERY OF INDIRECT COSTS - INDIRECT COSTS AND FRINGE BENEFITS ARE NOT REIMBURSABLE The budget for this award does not include indirect costs or fringe benefits. Therefore, these expenses shall not be charged to nor reimbursement requested for this project nor shall the fringe and indirect costs from this project be allocated to any other federally sponsored project. In addition, Not Specified/Other 16 -58 Not Specified/Other indirect costs or fringe benefits shall not be counted as cost share unless approved by the Contracting Officer. CEILING ON ADMINISTRATIVE COSTS 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. Recipients are expected to manage their administrative costs. DOE will not amend an award solely to provide additional funds for changes in administrative costs. The Recipient shall not be reimbursed on this project for any final administrative costs that are in excess of the designated 10 percent administrative cost ceiling. In addition, the Recipient shall neither count costs in excess of the administrative cost ceiling as cost share, nor allocate such costs to other federally sponsored 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 COMPLETED 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 accordance 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 DOEINNSA 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 to make site visits at reasonable times to review project accomplishments and management control systems and to provide technical assistance, if required. You must provide, and must require your 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 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 /energvcitations). Restrictions. Reports submitted to the DOE Information Bridge must not contain any Protected Personal Identifiable Information (PII), limited rights data (proprietary data), classified information, information subject to export control classification, or other information not subject to release. 16. PUBLICATIONS 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 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 bt!p://www.gc.doe.izov/financial assistance awards.btm. 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 htti)-://www.ec.doe.gov/documents/Intellectual Property Service Providers for Aeouisition.ndf 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 NEI'A issues prior to DOE/NNSA initiating the NEPA process. 23. DECONTAMINATION AND /OR DECOMIMSSIONING (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 corditions 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), surd 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 goverment receiving the funds and any contractor or subcontractor receiving the funds and any contractor or subcontractor of the State or local government; and does not mean any department, agency, or other entity of the federal government. Recipient means any entity that receives Recovery Act funds directly from the Federal government (including Recovery Act funds received through grant, loan, or contract) other than an individual and includes a State that receives Recovery Act Funds. Special Provisions A. Flow Down Requirement Recipients must include these special terms and conditions in any subaward. B. Segregation of Costs Recipients must segregate the obligations and expenditures related to funding under the Recovery Act. Financial and accounting systems should be revised as necessary to segregate, track and maintain these funds apart and separate from other revenue streams. No part of the funds from the Recovery Act shall be commingled with any other funds or used for a purpose other than that of making payments for costs allowable for Recovery Act projects. Prohibition on Use of Funds None of the funds provided under this agreement derived from the American Recovery and Reinvestment Act of 2009, Pub. L. 111 -5, may be used by any State or local government, or any private entity, for any casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool. 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 applies: 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 websi'.e 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 re],ated 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 empltoyee 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 be.ck 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/Other 16 -64 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 or interest, bribery, gratuity or similar misconduct involving those funds. H. Information in supporting of Recovery Act Reportins 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 back-up documentation at the request of the Contracting Officer or designee. 1. 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 Assurance of Appropriate Use of Funds Applicable if award is to a State Government or an A¢ency 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 at 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, certified by acceptance of this award that the infrastructure investment has received the full review and vetting required by law and that the chief executive accepts responsibility that the infrastructure investment is an appropriate use of taxpayer dollars. Recipient shall provide an additional certification that includes a description of the investment, the estimated total cost, and the amount of covered funds to be used for posting on the Internet. A State or local agency may not receive infrastructure investment funding from funds made available by the Act unless this certification is made and posted. Not Specified/Other 10 16 -65 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.cer.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.FedemiReporting.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 buildine or public work and the total vroiect value is estimated less than $7,443,000. This award term also applies to all suberants 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; commonwea)ths, 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 16 -67 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; (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 (M 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 16 -68 Not Specified/Other d. Data. To permit evaluation of requests under paragraph (b) of this section based on unreasonable cost, the Recipient shall include the following information and any applicable supporting data based on the survey of suppliers: Foreign and Domestic Items Cost Comparison Description Unit of Measure Quantity Cost (dollars)* Item 1: Foreign steel iron, or manufactured good Domestic steel, iron or manufactured good Item 2: Foreign steel, iron or manufactured good Domestic steel, iron or manufactured good List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary. Include other applicable supporting information. *Include all delivery costs to the construction site. 27. REQUIRED USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS (COVERED UNDER INTERNATIONAL AGREEMENTS) — SECTION 1605 OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (MAY 2009) This award term is applicable to any Recovery Act funds for construction alteration maintenanc% or repair of a public building or public work with a total proiect value over 57,443,000 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 Specified/Other 14 16 -69 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 anew and different manufactured good distinct from the materials from which it was transformed. There is no requirement with regard to the origin of G)mponents 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, ancVor 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 Rex very 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 S pecified/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, and/or manufactured goods would be unreasonable. The cost of domestic iron, steel, and/or manufactured goods used in the project is unreasonable when the cumulative cost of such material will increase the overall cost of the project by more than 25 percent, (ii) The iron, steel, and/or manufactured good is not produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality; or (iii) The application of the restriction of section 1605 of the Recovery Act would be inconsistent with the public interest. c. Request for determination of inapplicability of section 1605 of the Recovery Actor 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 determuies 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. Data. To permit evaluation of requests under; paragraph (b) of this section based on unreasonable cost, the applicant shall include the following information and any applicable supporting data based on the survey of suppliers: Foreign and Domestic Items Cost Comparison Description Unit of Measure Quantity Cost dollars * Item I: Foreign steel iron, or manufactured good Domestic steel iron, or manufactured good 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 situ. 28. WAGE RATE REQUIREMENTS UNDER SECTION 1606 OF THE RECOVERY ACT (MAY 2009) This award term is applicable to Recovery Act programs or activities that may involve construction, alteration, maintenance, or repair. This award term also applies to all subgrants and contracts. 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 ,3pecified/Other 17 16 -72 Not Specified/Other agency finding 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/aIO2 /aIO2.htm] b. For recipients covered by the Single Audit Act Amendments of 1996 and OMB Circular A -433, "Audits of States, Local Governments, and Non - Profit Organizations," recipients agree to separately identify the expenditures for Federal awards under the Recovery Act on the Schedule of Expenditures of Federal Awards (SEFA) and the Data Collection Form (SF- -SAC) required by OMB Circular A =- 133. OMB Circular A--133 is available at http: / /www. whitehouse. gov /omb /circulars/al33 /al33.htmi. 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 awards when WAGE RATE REQUIREMENTS 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 ;;ite 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 z.nticipated for bona fide fringe benefits under section 1(b)(2) of the Davis -Bacon Act on behali'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 dw-ing 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 Officer to the Administrator of the: Wage and Hour Division Employment Standards Administration U.S. Department of Labor Washington, DC 20210 The Administrator or an authorized representative will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30 -day period that additional time is necessary. (3) In the event the Contractor, the laborers or mechanics to be employed in the classification, or their representatives, and the Contracting Officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the Contracting Officer shall refer the questions, including the views of all interested parties and the recommendation of the Contracting Officer, to the Administrator of the Wage and Hour Division for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30 -day period that additional time is necessary. (4) The wage rate (including fringe benefits, where appropriate) determined pursuant to subparagraphs (c)(2) and (c)(3) of this article shall be paid to all workers performing work in the classification under this award from the first day on which work is performed in the classification. (d) Whenever the minimum wage rate prescribed in the award for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (e) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program; provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. Not Specified/Other 20 16 -75 Not Specified/Other Rates of Wages The minimum wages to be paid laborers and mechanii;s 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 bi- 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 l(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. Governor ant 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 S cecified/Other 21 16 -76 Not Specified/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 records 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 may, 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 requiremems 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 (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 Soecified/Other (d) (I)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- Bacor.. 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 farm 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 Exhibit D - Addendum No. 1 - Appendix A Attachment 1 (for reference purposes only) ATTACHMENT 1— INTELLECTUAL PROPERTY PROVISIONS Intellectual Property Provisions (NRD -1003) Nonresearch and Development Nonprofit organizations are subject to the intellectual property requirements at 10 CFR 600.136(a), (c) and (d). All other organizations are subject to the intellectual property requirements at 10 CFR 600.136(a) and (c). 600.136 Intangible property. (a) Recipients may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award. DOE reserves a royalty -free, nonexclusive and irrevocable right to reproduce, publish or otherwise use the work for Federal purposes, and to authorize others to do so. (c) DOE has the right to: (1) Obtain, reproduce, publish or otherwise use the data first produced under an award; and (2) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes. (d) In addition, in response to a Freedom of Information act (FOIA) request for research data relating to published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law, the DOE shall request, and the recipient shall provide, within a reasonable time, the research data so that they can be made available to the public through the procedures established under the FOIA. If the DOE obtains the research data solely in response to a FOIA request, the agency may charge the requester a reasonable fee equaling the full incremental cost of obtaining the research data. This fee should reflect the costs incurred by the agency, the recipient, and applicable subrecipients. This fee is in addition to any fees the agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A)). ipasoo.z ATTACHMENT 3 All Oercr Editions Are Obsolete U.S. Department of Energy FEDERAL ASSISTANCE REPORTING CHECKLIST AND INSTRUCTIONS 1. identification Number: 2. Program/Project Title: DE-SC0001398 IEECBG 3. Recipient: CA-City of Cupertino 4. Reporting Requirements: Frequency No. of Copies Addressees A. MANAGEMENT REPORTING Upload only 1 copy to the address in the ❑ Progress Report next column at the FFCBG0oo.dce.aov ® Special Status Report A Interval specified in contracting Officer listed in Block 25 the previous column. of Assistance Agreement S. SCIENTIFIC/TECHNICAL REPORTING (Reports/Products must be submitted with appropriate DOE F 241. The 241 forms are available at www.osti.00v /elink) Report/Product Form ❑ Final Scientific/Technical Report DOE F 241.3 ❑ Conference paperslproceedings• 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 Q, F Fr- Mgboo.doe oov ® SF -425, Federal Financial Report Contracting Officer listed In Block 25 of Assistance Agreement D. CLOSEOUT REPORTING ❑ Patent Certification EECBGrtQoo.doe.aov ® Property Certification F 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 - Yean 90 days after the end of the reporting eriod. 5. Special Instructions: Forms are available at httos:// www .eere- omc.eneroy.00v /forms.aso. 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 details. Please note: All quarterly reports are due no later than 30 days after the end Df 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 http: / /www.whitehouse. gov /omb /grantsfiindex. html. CLOSEOUT REPORTING Property Certification The recipient must provide the Property Certification, including the required inventories of non - exempt property, located at htto: / /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 1s -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 pan: • 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 preceding calendar year; • The status of the subgrant program of the state; • Specific energy efficiency and ccnservation 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 Clean Energy Policy • Number of buildings retrofitted, by sector • Square footage of buildings retrofitted, by sector Number of alternative energy plans developed or improved Number of renewable portfolio standards established or improved Number of interconnection standards established or improved 4 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 financial 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 fuel 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 - efficient 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 Pil. 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. 1s -86 cxnloit c Contract No. 2008 -06 DOCUMENT 00482 BIDDER CERTIFICATIONS CITY OF CUPERTINO SIEMENS PERFOIRA ANCE 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 COMPENSATION 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 cerlify 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 performir:g 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 oppori.unity 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 are attached, please explain the circumstances. City of Cupertino 00482-1 Bidder Certifications Sports Center Upgrades — Re -Bid 16 -87 Contract No. 2008 -06 7. 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. S OMM �!@. BIDDER: (Name of Bidder) ff0�� Date: , 206;' By: --Zk - / - (Signature) Name: 4/X)V) (Print Name) Its: (Title) END OF DOCUMENT APPR VFW BV LEGAL SEBASTIAN N. DANZIGER City of Cupertino 00482-2 Bidder Certifications Sports Center Upgrades — Re -Bid 1s -sa Exhibit F 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 CONTRACTOR AS PRINCIPAL Company: (Corp. Seal) Signature: Name and Title: SURETY Company: (Corp. Seal) Signature: Name and Title: BOND TERMS AND CONDITIONS (the "Penal Sum") 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 wider 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 terms 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 AGREEMENT00610 - 1 is -as 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). 7. 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 CON'T'RACT AGREEYMNT00610 - 2 1s -s0 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 i;i 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 under 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 payment., 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 to ms 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 Construction 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 Construction Contract. END OF DOCUMENT City of Cupertino SIEMENS PERFORMANCE CONTRACT AGREEMENT00610 - 3 16 -91 ` ^I nun v 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 ( "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: SURETY: Name Name Address Principal Place of Business City/State /Zip City/State /Zip CONSTRUCTION CONTRACT: SIEMENS PERFORMANCE CONTRACT AGREEMENT at Cupertino, California. DATED , 20 in the Amount of $ (the "Penal Sum ") CONTRACTOR AS PRINCIPAL Company: (Corp. Sea]) Signature: Name and Title: SURETY Company: (Corp. Seal) Signature: Name and BOND TERMS AND CONDITIONS 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. 3. 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's 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 -ias 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 to be furnished thereunder or the Specifications accompanying the same, shall in any way affect its obligations under this Bond, and it does hereby waive any requirement of notice or any such change, extension of time, alte;-ation or addition to the terms of the Construction Contract or to the Work or to the Specifications or any other changes. 9. 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 this 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 each craft or type of workman or mechanic needed to execute this Contract. Contractor shall also cause a copy of this 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 AGREEMENT00620 - 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, beat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the Work of Comtractor 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 Construction Labor and Material City of Cupertino Payment Bond SIEMENS PERFORMANCE CONTRACT AGREEMENT00620 - 3 16-94 L11119116 Project No. DOCUMENT 00821 INSURANCE A. At or before the date specified in Document 0020) (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 :; pecified 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 coverage 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, wan -ant 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 (includiig 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 al 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 Administrationtinspection) at the address listed in Document 00520 (Contract), 30 Days in advance of the effective date of the cancellation, non - renewal, or reduction in :overage. 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 00821- 1 Insuranc i6 -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 A.4 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 gs - 96 Project No. DOCUME'.VT 00530 INSURANCE FORMS INSURANCE FORMS INSTRUCTIONS Exhibit I FOR ITEMS 3, 4 AND 5, THE FORMS PP:OVIDED 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 and 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 AGREEMEN- 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 00530-2 Insurance Forms 16 -98 Project No. LIMITS 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 owned, non -owned and hired automobiles. (Contractor's Name) Dated City of Cupertino SIEMENS PERFORMANCE CONTRACT AGREEMENT Insurance Form,3 Combined single limit of $1.0 million per occurrence. 20 00530-3 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 j ] 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) II Policy No. 0 Expiration Date, City of Cupertino SIEMENS PERFORMANCE CONTRACT AGREEMENT 00530-4 Insurance Forms 16-100 AUTOMOTIVE/VEHICLE LIABILITY Commercial Form Liability Coverage (name of insurer) Policy No. BODILY INJURY Each Person Each Accident E9 Project No. PROPERTY DAMAGE Each Accident or Combined Single Limit $. 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: (agent's initial) A copy of all Endorsements to the policy(ies) which in any way limit the above - listed 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. Un Dated: Attach Certificate of Insurance and Additional Insured Endorsement on company forms. City of Cupertino SIEMENS PERFORMANCE CONTRACT AGREEMENT Insurance Forms PIC 00530-5 16-101 Project No. ADDITIONAL INSURED ENDORSEMENT and ENDORSEMENT OF PRIMARY INSURANCE and NOTICE OF POLICY CANCELLATION ENDORSEMENT Project Title and Number: [n 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: 20 14. Insured: 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 Tone Avenue; Cupertino, California 95014. I, (print/type name) City of Cupertino SIEMENS PERFORMANCE CONTRACT AGREEMENT 00530-6 Insurance Forms 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: Title: Telephone: Facsimile: City of Cupertino SIEMENS PERFORMANCE CONTRACT AGREEMENT 00530-7 Insurance Forms 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 j below - referenced policy of insurance. The general aggregate limit under LIMITS O:? 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: 5. Additional Insured: City of Cupertino, its directors, officers, agents and employees. 20 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 Fonns 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: 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 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: I Address: Title: Telephone: Facsimile: City of Cupertino SIEMENS PERFORMANCE CONTRACT AGREEMENT 00530-9 Insurance Forms 16 -105 ~Pr AUTHORIZATION TO: RECEIVE CUSTOMER SUBMITTED TO THE FOLLOWING. Please check all that apply: INFORMATION OR ACT ON A CUSTOMER'S BEHALF /^ PG1fE ^ SoCalGas ^ SCE ^ SDG~E THIS IS A LEGALLY BINDING CONTRACT READ IT CAREFULLY (Please Pmt or Type) I, ~ A y ~ O 1L~ t}~ (~ Ci T`-~ M N-^~ ~ C,t~L NAME TITLE (IF APPLICABLE of T~~~ ~~~ ~ ~ L ~ P E 2Ti ~ O (Customer) have the following mailing address NAME OF CUSTOMER OF RECORD l O 3u O '` c7 VZ2-E ~ J E N ~ ~ (,UPC= (1-T I N l~ ~ Per- ~SO i ~-- ,and do hereby appoint MAILING ADDRESS CITY STATE ZIP Siemens Building Technologies, Inc. of 25821 Industrial Blvd., Suite 300 NAME OF THIRD PARTY MAILING ADDRESS Hayward CA 94545 ZIP CITY STATE to act as my agent and consultant (Agent) for the listed account(s) and in the categories indicated below: ACCOUNTS INCLUDED IN THIS AUTHORIZATION: /k 1. L (Z.r~ cLZV a/ a i E L> 1. SERVICE ADDRESS CITY SERVICE ADDRESS caTY 3. SERVICE ADDRESS CITY (For more than three accounts, please list additional accounts on a separate sheet and attar it to this form) SERVICE ACCOUNT NUMBER SERVICE ACCOUNT NUMBER SERVICE ACCOUNT NUMBER INFORMATION, ACTS AND FUNCTIONS AUTHORIZED -This authori;cation provides authority to the Agent. The Agent must thereafter provide specific written instructionslrequests (e-mail is acceptable) about the particular account(s) before any information is released or action is taken. In certain instances, the requested act or function may result in cost to you, the customer. Requests for information may be limited to the most recent 12 month period. I (Customer) authorize my Agent to act on my behalf to perform the following specific acts and functions initial all applicable boxes): 1. Request and receive billing records, billing history and all meter usage data used for bill calculation for all of my account(s), as specified herein, regarding utility services furnished by the Utility. ^ 2. Request and receive copies of correspondence in connection vrith my account(s) concerning (initial all that apply): 0 a. Verification of rate, date of rate change, anc related information; 0 b. Contracts and Service Agreements; 0 c. Previous or proposed issuance of adjustme~tslcredits; or ~ d. Other previously issued or unresolved/disputed billing adjustments. 0 3. Request investigation of my utility bill(s). 4. Request special metering, and the right to access interval usage and other metering data on my account(s). 0 5. Request rate analysis. ^ 6. Request rate changes. ^ 7. Request and receive verification of balances on my account(s) and discontinuance notices. ~ The U61ity will provide standard customer information without charge up to two times in a '12 month period per service account After lwo requests in a year, I understand I may be responsible for charges that maybe incurred to process this request Revised 1/11/00 Page 1 of 2 t~,i~' AUTHORIZATION TO: RECEIVE CUSTOMER INFORMATION OR ACT ON A CUSTOMER'S BEHALF I (CUSTOMER) AUTHORIZE THE RELEASE OF MY ACCOUNT INFORMATION AND AUTHORIZE MY AGENT TO ACT ON MY BEHALF ON THE FOLLOWING BASISZ initial one box only): zlf no time period is specified, authorization will be limited to a one-time authorization One time authorization only (limited to a one-time request for information and/or the acts and functions specified above at the time of receipt of this Authorization). ^ One year authorization -Requests for information and/or for the acts and functions specified above will be accepted and processed each time requested within the twelve month period from the date of execution of this Authorization. Authorization is given for the period commencing with the date of execution until (Limited induration to three years from the date of execution.) Requests for information and/or for the acts and functions specified above will be accepted and processed each time requested within the authorization period specified herein. RELEASE OF ACCOUNT INFORMATION: The Utility will provide the information requested above. to the extent available, via any one of the following. My (Agent) preferred format is (check all that apply): ^ Hard copy via US Mail (if applicable). ^ Facsimile at this telephone number: Electronic format via electronic mail (if applicable) to this a-mail address: condonh@siemens.com I (Customer), ~~J t D k-I~ ~ ~ ~ (print name of authorized signatory), declare under penalty of perjury under the laws of the State of California that I am authorized to execute this document on behalf of the Customer of Record listed at the top of this form and that I have authority to financially bind the Customer of Record. I further certify that my Agent has authority to act on my behalf and request the release of information for the accounts listed on this form and perform the specific acts and functions listed above. I understand the Utility reserves the right to verify any authorization request submitted before releasing information or taking any action on my behalf. I authorize the Utility to release the requested information on my account or faalities to the above Agent who is acting on my behalf regarding the matters listed above. I hereby release, hold harmless, and indemnify the Utility from any liability, claims, demands, causes of action, damages, or expenses resulting from: 1) any release of information to my Agent pursuant to this Authorization; 2) the unauthorized use of this information by my Agent; and 3) from any actions taken by my Agent pursuant to this Authorization, including rate changes. I understand that I may cancel this authorization at any time by submitting a written request. [This form must be signed by someone who has authority to financially bind the customer (for example, CFO of a company or TELEPHONE NUMBER at ~ (J ~ C~ CITY AND TATE WHERE EXECUTED I (Agent), hereby release, hold harmless, and indemnify the Utility from any liability, claims, demand, causes of action, damages, or expenses resulting from the use of customer information obtained pursuant to this authorization and from the taking of any action pursuant to this authorization, including rate changes. AGENT SIGNATURE TELFPHONENUMBER Siemens Building Technologies, Inc. coMaANY Executed this day of MONTH YEAR Revised 1/11/00 Page 2 of 2 Executed this / ~ day of >~ (D 5' MONTH YEAR