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2432 Agreement Between COS & Honeywell Int'lC) V3A AGREEMENT BETWEEN CITY OF SANFORD AND HONEYWELL INTERNATIONAL INC; RFO 21/22-61 ENERGY SAVINGS AUDIT (FEASIBILITY STUDY) This Energy Audit Agreement ("Agreement"), effective the last date signed below, is by and between, The City of Sanford, a political subdivision of the State of Florida with an office at 300 N. Park Avenue, Sanford, FL 32771 (the "City") and Honeywell International Inc., acting through its Honeywell Building Technologies business unit, with a principal place of business at 300 South Tryon Street - Charlotte, North Carolina 28202 ("Honeywell") (each a "Party" and collectively the "Parties"). Whereas, the City is responsible for the operation, management and maintenance of the facilities identified on Attachment A to this Agreement (the "Facility(s)"or individually the "Facility"); and Whereas, a comprehensive investment grade technical energy audit (the "Energy Audit") and savings analysis (the "Report") must be performed at the Facility in order to determine the feasibility of entering into a guaranteed energy performance savings contract ("Energy Performance Contract") to provide for the installation and implementation of energy conservation measures ("ECMs") at the Facility; and Whereas, if the ECMs are demonstrated to be feasible, and if the amount of energy cost savings can be reasonably ascertained and guaranteed in an amount sufficient to cover all costs associated with an energy performance contracting project at the Facility(s), the Parties may negotiate an Energy Performance Contract under which Honeywell shall design, procure, install, implement, maintain and monitor such ECMs at the Facility(s); Therefore, the Parties agree as follows: Article 1: Scope of Energy Audi Honeywell will perform the Energy Audit and prepare the Report that specifically identifies the energy improvements and operational changes which are recommended to be installed or implemented at the Facility(s). The Report shall contain detailed projections of energy and cost savings to be obtained at the Facility(s) as a result of the installation of the recommended ECMs. The savings calculations must utilize assumptions, projections and baselines which best represent the true value of future energy or operational savings for the Facility(s) (i.e., accurate marginal cost for each unit of savings at the time the audit is performed; documented material and operational costs actually avoided; adjustments to the baseline to reflect current conditions at the Facility(s) compared to the historic base period; calculations which account for the interactive effects of the recommended ECMs; etc.). The Report shall clearly describe how utility tariffs were used to calculate savings for all ECMs. The Report shall describe Honeywell's plan for installing or implementing the ECMs in the Facility(s), including all anticipated costs associated with such installation and implementation. The primary purpose of the Report is to provide an engineering RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page I of 18 and economic basis for negotiating an Energy Performance Contract between the City and Honeywell; however, the City shall be under no obligation to negotiate such a contract. Honeywell shall perform the following tasks in performing the Energy Audit and preparing the Report: A. Collect General Facility(s) Information Honeywell shall collect general Facility(s) information such as: size, age, construction type, condition and general use of the Facility(s). Honeywell shall also collect and summarize Facility(s) utility cost and consumption data for the most recent 24-36 month period. Honeywell shall evaluate the impact on utility cost and consumption of any energy initiatives currently being installed or currently planned to be installed by the City in the Facility(s) which will remain separate from the Energy Performance Contract throughout the duration of that agreement. The City shall make available (or cause its energy suppliers to make available) all available records and data concerning energy and water usage for the Facility(s) for the most current 24-36 month period, if available, including: Utility records; occupancy information; descriptions of any changes in the structure of the Facility(s) or its heating, cooling, lighting or other systems or energy requirements; descriptions of all major energy and water consuming or energy and water saving equipment used in the Facility(s); any comfort problems, code deficiencies and description of energy management procedures presently utilized. The City shall also make available a record of any energy related improvements or modifications that have been installed during the past three years, or are currently being installed or are currently planned to be installed by the City in the Facility(s) separate from the energy service agreement throughout the duration of that agreement. The City shall also make available copies of drawings, equipment logs and maintenance work orders to Honeywell. B. Analyze Existing Systems and Equipment Honeywell shall compile an analysis based on a physical inspection of the major electrical and mechanical systems at the Facility(s), which may include: I. Cooling systems and related equipment 2. Heating and heat distribution systems 3. Automatic temperature control systems and equipment 4. Air distribution systems and equipment 5. Outdoor ventilation systems and equipment 6. Kitchen and associated dining room equipment, if applicable 7. Exhaust systems and equipment 8. Hot water systems 9. Electric motors 5 HP and above, transmission and drive systems 10. Interior and exterior lighting 11. Laundry equipment, if applicable RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 2 of 18 12. Building Envelope 13. Water consumption end uses, such as restroom fixtures, water fountains, irrigation, swimming pools, etc. 14. Other major energy using systems, if applicable. The analysis shall address the following considerations: the loads, efficiencies or hours of operation for each system (where Facility(s) operating or climatic conditions necessitate, engineering estimates may be used, but for large fluctuating loads with high potential savings appropriate measurements are required unless waived by the City); and 2. current operating condition for each system. Honeywell shall conduct inter -views with Facility(s) operation and maintenance staff regarding the Facility(s)s mechanical systems operation, occupancy patterns and problems with comfort levels or equipment reliability. C. Establish Base Year Consumption and Reconcile with End Use Consumption Estimates Honeywell may, upon recommendation by the City, analyze loading, usage and/or hours of operation for all major end uses representing more than 5% of total Facility(s) consumption including, but not limited to: 1. Lighting 2. Heating 3. Cooling 4. HVAC motors (fans and pumps) S. Plug load 6. Kitchen equipment 7. Other equipment 8. Miscellaneous Where loading and/or usage are highly uncertain, Honeywell may employ spot measurement and/or short term monitoring at its discretion, or at the request of the City. Reasonable applications of measurement typically include variable loads that are likely candidates for conservation measures, such as cooling equipment. Honeywell shall consult with Facility(s) staff and account for any unusual or anomalous utility bills which may skew Base Year consumption from a reasonable representation. Baseline Development: Honeywell shall develop the City's Baseline model as part of the Audit. Honeywell and the City shall mutually agree on the Baseline model prior to final contract approval by the City. The Baseline model shall represent pre-existing energy consumption for all end uses within the building(s), not just those end uses affected by Honeywell's proposed Conservation Measures. RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 3 of 18 The Baseline model may be developed using excel calculation models which are based on a bin analysis method or with a whole -building simulation approach using one of the following commercially -available energy simulation software packages: • Carrier HAP • Trane TRACE • Elite (EZDOE) • DOE-2 and variations (requires prior City approval) Honeywell shall use the same energy simulation software to develop the projected energy cost savings that was used to develop the Baseline. Projected energy consumption must be modeled using the same weather data and operating conditions as the established Baseline model. The Baseline model shall reflect all energy -related effects of the current design features of the building(s) such as, but not limited to, quantity and type of glass, building orientation with respect to the physical site, overall wall and roof thermal resistance values, ventilation air requirements, humidity level, occupancy, and actual operating schedules. The Baseline model shall incorporate the energy -related effects of all renovations and/or modifications to the building envelope, internal spaces, and energy -consuming systems subsequent to the date of original construction. The Baseline model shall be developed in accordance with recommendations and methods promulgated by professional societies and governmental organizations such as: The Federal Energy Management Program's M&V Guidelines: Measurement and Verification for Federal Energy Management Projects v. 3. 0 The American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE) Baseline Calibration: The Baseline model shall be developed and calibrated with the assistance of utility bill data for no less than the immediately preceding 24-month period in order to develop an energy baseline model that is suitable for City consideration. A detailed description of all existing Baseline conditions, development methods, calibration procedures, adjustments, and assumptions for each building must be provided. D. Develop List of Potential ECMs Honeywell shall: 1. Identify and propose potential ECMs for installation or implementation at the Facility(s), including water conservation measures. 2. Estimate the cost, savings and life expectancy of each proposed ECM; specify Facility(s) operations and maintenance procedures which will be affected by the installation/implementation of the proposed ECMs. RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 4 of 18 3. Provide analysis methodology, supporting calculations and assumptions used to estimate savings, which shall be based on the life cycle cost calculations described in section 255.255 of the Florida Statutes. Parties may reduce financing amount by grants, rebates, or capital funding. However, pursuant to Florida Statute 489.145 (4)0), grants, rebates, or capital funding shall not be applied to life cycle cost calculations. 4. Provide a life cycle cost analysis for the proposed project in accordance with Rule 60D-4.006, of the Florida Administrative Code. As stated in Rule 60D- 4.004(4)(g)(1), of the Florida Administrative Code, one alternative design shall be considered acceptable. The life cycle cost analysis shall compare the baseline condition of the building(s) to the final proposed project ECMs. 5. Calculate projected energy cost savings as the difference between Baseline energy costs and the costs that are expected to result from the proposed ECMs. 6. Provide access to the computer simulation program and all inputs and assumptions used, if requested by the City. 7. Provide a preliminary commissioning plan for the proposed ECMs. Provide detailed calculations for any rate savings proposals. 9. Provide detailed supporting calculations for any proposed maintenance or other operational savings. 10. Estimate any environmental costs or benefits of the proposed ECMs (e.g., disposal costs, avoided emissions, water conservation, etc.). 11. Comply with all applicable state, federal and local codes and regulations in effect at the time of this analysis for all proposed ECMs. E. Select Final Recommended ECMs Honeywell shall, in consultation with the City, recommend specific ECMs from its preliminary compilation for installation and implementation at the Facility(s). F. Establish Measurement & Verification Methods Measurement & Verification of cost savings shall be performed using a methodology consistent with The Federal Energy Management Program's M&V Guidelines: Measurement and Yerificationfor Federal Energy Management Projects v. 3. 0 and account for actual savings as required in § 489.145(3)(d)(2) Florida Statutes. Actual savings are to be measured against the Baseline in Honeywell's Annual Reconciliation. Honeywell shall state which of the following Measurement & Verification methods will be used in Honeywell's Annual Reconciliation: RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 5 of 18 • Method A: Stipulated savings from maintenance or outside contracts shall show the origin and signed agreement of acceptance by the City. • Methods B, C, and D: Only verifiable data will be accepted. Degree Day and related data sources shall be identified and agreed to in the audit document. • All Measurement & Verification Methods: Honeywell and City shall agree to the exact Measurement & Verification method for each audit on an individual ECM basis and stipulate it in the Audit. • Each Audit: Each audit shall include the names of Honeywell, City, and review person(s) as well as the phone number, email address, and credentials of each team member. G. Provide Cost and Fee Estimates Honeywell shall provide detailed estimates of all costs and fees associated with the installation and implementation of the ECMs including: 1. engineering/design costs for individual ECMs 2. contractor/vendor estimates for individual ECM material and labor unit costs 3. company construction management fees for the project 4. overhead and profit 5. commissioning costs for individual ECMs 6. contingency costs 7. initial training costs 8. annual service fees including: - measurement and verification - maintenance - performance monitoring - ongoing training services 9. other costs/fee (specify) H. Develop Savings Estimates The City has endeavored to provide Honeywell with sufficient general and specific guidance in this Article I to develop the savings estimates for the Report. In the event that questions arise as to the calculation of savings or whether certain items will be allowed as savings, Honeywell shall seek written guidance from the City. City's rejection of certain calculations of savings or rejection of certain items as allowable savings in the Report shall be at the risk of Honeywell. The following items will be allowed as savings or in the development of savings: I '• Unless otherwise agreed in writing, projected escalation rates shall tie to the Consumer Price Index. The value of fuel and water unit savings shall be escalated using actual rate increases RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 6 of 18 City material/commodity cost Outside maintenance labor cost (if applicable) Agreed escalation rates for natural gas Agreed escalation rates for electricity Agreed escalation rates for water Agreed escalation rates for material/commodity cost savings Agreed escalation rates for allowable labor savings The following items will not be allowed as savings or in the development of savings without prior City approval: City in-house labor cost City deferred maintenance cost Offset of future City capital cost I. Deliver the Report Honeywell shall complete and deliver the Report to the City by a mutually agreed upon date by both Parties not to exceed the term of this Agreement in the following format: 1 An executive summary which describes the Facility(s), ECMs evaluated, analysis methodology, results and a summary table presenting the cost and savings estimates for each ECM. 2. A discussion of ECMs not evaluated in detail and the explanation of why a detailed analysis was not performed. 3. A summary of all utility bills, Base Year consumption and how it was established, and end use reconciliation with respect to the Base Year including a discussion of any unusual characteristics and findings. 4. Detailed descriptions for each ECM including analysis method, supporting calculations (may be submitted in appendices), results, proposed equipment and implementation issues. 5. Conclusions, observations and caveats regarding cost and savings estimates. 6. Thorough appendices which document the data relied upon to prepare the analysis and how that data was collected. The appendices will include schedules A, B, E and F to the potential Energy Performance Contract. as they occur over the term of the contract. The base rate value for each fuel and water unit shall not devalue in the event of any rate decrease. RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 7 of 18 Acceptance of the Report bathe City if ECMs are Feasible. The City shall conduct and complete a technical review within sixty (60) days of its receipt of the Report, unless otherwise stated in Attachment A. The City shall accept the Report if the recommended ECMs are feasible and the projected energy cost savings are equal to or greater than the total projected costs of the design and installation of the recommended ECMs. If the City determines that one or more of the recommended ECMs is not feasible, the City shall give Honeywell written notice of any and all said objections, in detail, within fourteen (14) days after completing its technical review of the Report. Honeywell shall correct the Report and submit a revised draft within twenty-one (2 1) days of said notification. The City shall have fourteen (14) days from receipt of the revised Report to notify Honeywell if any objections have not been corrected. This re -submission process shall continue until (1) the date all material concerns are resolved and the Report is accepted, or (2) the dispute is otherwise resolved. Article 2: Energy Performance Contract The Parties may negotiate an Energy Performance Contract under which Honeywell shall design, install and implement ECMs and provide certain maintenance and monitoring services. However, nothing in this Agreement should be construed as an obligation on any of the Parties to execute such an Energy Performance Contract. The terms and provisions of such an Energy Performance Contract shall be set forth in a separate agreement. This Agreement shall automatically terminate upon the Parties' execution of an Energy Performance Contract relating to the Facility(s). The parties understand and agree that if the City chooses to move forward with an Energy Performance Contract, the City may choose to include less than all of its facilities in such Energy Performance Contract. Article 3: Payment The Parties understand that the City may enter into an Energy Performance Contract with Honeywell. If the City decides to move ahead with an Energy Performance Contract with Honeywell based on the Report, the costs of the Energy Audit and Report will be incorporated into the Energy Performance Contract. If Honeywell is unable to identify cost savings equal to or greater than the total cost of the design and installation of Honeywell's recommended ECMs, the City will not be liable for the Energy Audit or Report costs incurred by Honeywell. If the Report identifies cost savings greater than the total cost of the design and installation of Honeywell's recommended ECMs, and the Parties do not enter into an Energy Performance Contract within ninety (90) days of the delivery of the Report, the City shall reimburse Honeywell for Energy Audit and Report costs in the amount of $60,000. Honeywell further understands that the City may implement all or part of a recommended EMC's without liability to Honeywell (or its subcontractors or suppliers) if there are extenuating circumstances (e.g., a sudden or imminent equipment failure) and the City would have taken similar measures regardless of Honeywell's recommendation. Article 4: Termination A. By Honeywell: RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 8 of 18 Honeywell may terminate this Agreement prior to the completion of the Energy Audit and Report or subsequent to the completion of the Energy Audit and Report if. (i) It determines that it cannot guarantee a minimum amount of energy and cost savings through the implementation of an energy performance contracting project at the Facility(s); or (ii) It determines that even though it can guarantee a minimum amount of energy and cost savings in energy costs, that amount would be insufficient to cover the costs associated with performing this analysis, installing ECMs and related maintenance and monitoring services. Termination under this section shall be effective upon the City's receipt of written notification from Honeywell stating the reason for the termination and all supporting documents. Honeywell shall provide the City with any preliminary notes, reports or analysis which have been produced or prepared prior to the effective date of the termination. If termination occurs pursuant to this Subsection 4 A, the City shall not be required to pay any amounts to Honeywell in connection with the Energy Audit. WIMMUMM The City may terminate this Agreement: (i) If Honeywell fails to complete the Energy Audit and deliver the Report to the City within the time established in Article 1, above; or fails to obtain a written extension of that time from the City. Termination under this subsection B (i) shall be effective upon Honeywell's receipt of written notification from the City that the deadline for submission of the Report has passed. Honeywell shall provide the City with any preliminary notes, reports or analysis, which have been produced or prepared prior to the effective date of the termination. (ii) If, prior or subsequent to the completion of the Energy Audit, Honeywell notifies the City in writing that it is unable to guarantee a sufficient level of savings pursuant to subsection 4 A (i) or (ii) above. Termination under this subsection B (ii) shall be effective upon Honeywell's receipt of written notification from the City. Honeywell shall provide the City with any preliminary notes, reports or analysis which have been produced or prepared prior to the effective date of the termination. (iii) If termination occurs pursuant to this Subsection 4 B, the City shall not be required to pay any amounts to Honeywell in connection with the Energy Audit. C. By Either Party: Either Party may terminate this Agreement, when the Party deems it to be in its best interest to do so, by providing the other Party thirty (30) days written notice of its intent to do so. RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 9 of 18 Termination shall be effective thirty (30) days after receipt of the written notice. If the City terminates this Agreement pursuant to this subsection 4 C, City shall be responsible for paying Honeywell for the cost it incurs prior to the effective termination date but in no event shall such cost exceed the amount of $60,000, the amount set forth in Article 3 above. Article 5: Standard Terms and Conditions Section 1. Agreement Term This Agreement term shall commence on the effective date of the Agreement and end on [date], unless earlier terminated pursuant to the provisions of Article 4 hereof. The term can be extended by mutual agreement of the Parties. Section 2. Appropriations Obligations of the City shall cease immediately without penalty if in any fiscal year covered by the Agreement term, the Legislature or the City Commission fails to appropriate, reappropriate or otherwise make available funds for this Agreement. The City shall provide written notification to Honeywell of any impending change in the status of appropriations, which may affect this Agreement of which it has notice. Section 3. Materials, Equipment and Supplies Honeywell shall provide or cause to be provided all facilities, materials, equipment and supplies necessary to perform the Energy Audit and prepare the Report. Section 4. Subcontractor Disclosure As of the execution date of this Agreement, the following subcontractors are expected to perform material work (i.e., greater than 5% of the total work) pursuant to this Agreement: W0.3-107i If, during the term of this Agreement, Honeywell retains subcontractors to perform material work pursuant to this Agreement who were not disclosed, Honeywell shall so notify the City in writing. Honeywell reserves the right to replace subcontractors or retain additional subcontractors as required. Honeywell shall notify the City of any such changes in subcontractors prior to entering into the Energy Performance Contract. Section 5. Patent and Cop3Tjght Responsibility RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 10 of 18 Honeywell agrees that any material or design specified by Honeywell or supplied by Honeywell pursuant to this Agreement shall not knowingly infringe any patent or copyright, and Honeywell shall be solely responsible for securing any necessary licenses required for patented or copyrighted material utilized by Honeywell in the performance of the Energy Audit and preparation of the Report. Section 6. Release and Indemnity Honeywell agrees to indemnify and hold the City and its officers, agents and employees harmless from and against any and all liabilities, demands, claims, suits, losses, damages, causes of action, fines or judgments, including costs, attorneys' and witnesses' fees, and expenses incident thereto, for injuries to persons (including death) and for loss of, damage to or destruction of property (including property of the City) to the extent caused by Honeywell's negligent acts or omissions or willful misconduct. In the event that any demand or claim is made or suit is commenced against the City, the City shall give prompt written notice thereof to Honeywell and Honeywell shall have the right to compromise or defend the same to the extent of its own interest. Honeywell further agrees to maintain adequate insurance to protect the City against such risks. Honeywell also agrees to indemnify and hold the City harmless should any goods or services manufactured and provided by Honeywell infringe upon the United States patent, copyright or trade secret of another, provided that (a) such alleged infringement consists only in the use of such hardware by itself and not as a part of, or in combination with, any other devices, parts or software installed by the City after the fact, (b) the City gives Honeywell immediate notice in writing of any such suit and pen -nits Honeywell, through counsel of its choice, to answer the charge of infringement and defend such suit, and (c) the City gives Honeywell all needed information, assistance and authority, at Honeywell's expense, to enable Honeywell to defend such suit. Honeywell may, at its election and expense, obtain for the City the right to continue using such equipment or replace, correct or modify it so that it is not infringing. THIS ARTICLE STATES HONEYWELL'S TOTAL LIABILITY AND THE CITY'S SOLE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT BY THE HARDWARE MANUFACTURED AND PROVIDED BY HONEYWELL UNDER THIS AGREEMENT OR ANY RELATED AGREEMENT. Nothing herein shall be deemed to affect the rights, privileges, and immunities of City as set forth in Section 768.28, Florida Statutes. Section 7. Lobbying, Integrity, and Retention of Records Pursuant to section 216.347 of the Florida Statutes, Honeywell may not expend any City funds for the purpose of lobbying the Legislature, the judicial branch, or a state agency. In addition, Honeywell shall not, in connection with this or any other agreement with the City, directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any State or City officer or employee's decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of, any State officer or employee. For purposes of clause (2), "gratuity" means any payment of more than nominal monetary value in the RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 11 of 18 form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or agreements of any kind. Upon request of the City's City Manager or Finance Director, or other authorized City official, Honeywell shall provide any type of information the City Manager or Finance Director deems relevant to Honeywell's integrity or responsibility. Such information may include, but shall not be limited to, Honeywell's business or financial records, documents, or files of any type or form that refer to or relate to the Agreement. Honeywell shall retain such records for the longer of (1) three years after the expiration of the Agreement or (2) the period required by the General Records Schedules maintained by the Florida Department of State (available at: http://dIis.dos.state.fl.us/barn/aenschedules/gensched.htm). Section 8. Dispute Resolution The City and Honeywell recognize and acknowledge that efforts should always be made to avoid or prevent disputes through effective partnering, good communications, and joint decision making; and that timely requests for clarification and for information will help ensure a better understanding of issues and problems and lead to the elimination of doubts, uncertainties, and ambiguities. Nevertheless, the City and Honeywell also recognize that disputes may develop between them and, in such event, wish to establish procedures to be followed to resolve such disputes in the shortest possible time and at the least possible expense to the City and Honeywell. Any conflict or dispute between the City and Honeywell shall be resolved in accordance with the procedures specified in this Agreement, which shall be the sole and exclusive procedures for the resolution of any such disputes. This Agreement establishes successive steps of conflict prevention and alternative dispute resolution prior to litigation, completion of which shall be conditions precedent to the right to commence litigation over any dispute arising out of or relating to the Agreement. The successive steps are: (1) informal negotiations between project -level management personnel; (2) formal negotiations between executive -level management, initiated by written notice and completed within thirty days, or longer as mutually agreed; and (3) mediation, initiated by written notice. Except as otherwise agreed by the Parties in a mediation contract, all mediation proceedings shall be conducted in accordance with this Agreement and, where applicable, the then -current Model Procedure for Mediation of Business Disputes published by the Center for Public Resources (CPR), 366 Madison Avenue New York, NY 10017, (212) 949-6490 (http://www.cpradr.org). If the City and Honeywell have not agreed within ten (10) business days of the request for mediation on the selection of a neutral mediator willing to serve, then the Parties agree that a mediator shall be selected by the Florida Conflict Resolution Consortium (FCRC), Florida State University, Tallahassee, (850) 644-6320 (http://consensus.fsu.edu). The appointment by FCRC of a qualified mediator shall be binding on both Parties, and both Parties shall promptly cooperate with the appointed mediator to effectuate mediation. Any action legal or equitable action arising out of or relating to this Agreement shall be brought in the appropriate state court in Seminole County, Florida, and not elsewhere, and shall be governed by Florida law. The threshold issue for determination shall be whether the Party bringing the action has complied with the alternative dispute resolution processes specified above. Section 9. Personnel RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 12 of 18 All Honeywell employees, subcontractors, or agents performing work under this Agreement shall be properly trained technicians who meet or exceed any specified training qualifications. Upon request, Honeywell shall furnish a copy of technical certification or other proof of qualification. All employees, subcontractors, or agents performing work under the Agreement must comply with all security and administrative requirements of the City. The City may conduct, and Honeywell shall cooperate in, a security background check or otherwise assess any employee, subcontractor, or agent furnished by Honeywell. The City may refuse access to, or require replacement of, any personnel for cause, including, but not limited to, technical or training qualifications, quality of work, change in security status, or non-compliance with the City's security or other requirements. Such approval shall not relieve Honeywell of its obligation to perform all work in compliance with the Agreement. The City may reject and bar from any facility for cause any of Honeywell's employees, subcontractors, or agents. Honeywell will comply with the provisions of the Jessica Lunsford Act as applicable. Honeywell, together with its agents, subcontractors, officers and employees, shall have and always retain under the Agreement the legal status of an independent contractor, and in no manner shall they be deemed employees of the City or deemed to be entitled to any benefits associated with such employment. During the term of the Agreement, Honeywell shall maintain at its sole expense those benefits to which its employees would otherwise be entitled to by law, including health benefits, and all necessary insurance for its employees, including workers' compensation, disability, and unemployment insurance, and provide the City with certification of such insurance upon request. Honeywell remains responsible for all applicable federal, state, and local taxes, and all FICA contributions. Section 10. Comt)liance with Armlicable Law In performing this Agreement, Honeywell shall comply with all laws, rules, codes, ordinances, and licensing requirements that are applicable to the conduct of its business, including those of federal, State, and local agencies having jurisdiction and authority. By way of non -exhaustive example, Chapter 287 of the Florida Statutes and Chapter 60A-1 of the Florida Administrative Code govern the Agreement. By way of further non -exhaustive example, Honeywell shall comply with section 247A(e) of the Immigration and Nationalization Act, the Americans with Disabilities Act, and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, or veteran's status. Violation of such laws shall be grounds for Agreement termination. The City may cancel the Agreement if Honeywell refuses to allow public access to all records made or received by Honeywell in conjunction with the Agreement, unless the records are exempt from section 24(a) of Article I of the State Constitution and section 119.07(1) of the Florida Statutes. Section 11. Waivers No right of either party hereto shall be deemed to have been waived by non -exercise thereof, or otherwise, unless such waiver is reduced to writing and executed by the party entitled to exercise such right. Section 12. Assignment RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 13 of 18 Neither Party may assign this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld. Section 13. Capacity to Contract Each person signing this Agreement warrants that he or she is duly authorized to do so and to bind the respective Party to the Agreement. Honeywell warrants that it is in good standing and legally authorized to transact business in Florida. Honeywell warrants that, to the best of its knowledge, there is no pending or threatened action, proceeding, or investigation, or any other legal or financial condition, that would in any way prohibit, restrain, or diminish Honeywell's ability to satisfy its Agreement obligations. Honeywell warrants that it is not currently on the convicted vendor list maintained pursuant to section 287.133 of the Florida Statutes, or on any similar list maintained by any other state or the federal government. Honeywell shall immediately notify the City in writing if its ability to perform is compromised in any manner during the term of the Agreement. Section 14. Confidential Information Each Party may have access to confidential information made available by the other Party (see particularly, but not exclusively, subsection 119.07(ee) and section 119.071 of the Florida Statutes). Each Party shall protect such confidential information in the same manner as it protects its own confidential information of like kind. Disclosure of any confidential information received by the City will be governed by the Public Records Act, chapter 119 of the Florida Statutes. Section 15. Convicted or Discriminatory Vendors A person or affiliate placed on the convicted vendor list following a conviction for a public entity crime is prohibited from doing any of the following for a period of 36 months from the date of being placed on the convicted vendor list: submitting a bid on a contract to provide any goods or services to a public entity; submitting a bid on a contract with a public entity for the construction or repair of a public building or public work; submitting bids on leases of real property to a public entity; being awarded or performing work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity; and transacting business with any public entity in excess of the Category Two threshold amount ($25,000) provided in section 287.017 of the Florida Statutes. An entity or affiliate placed on the discriminatory vendor list pursuant to section 287.134 of the Florida Statutes may not submit a bid on a contract to provide any goods or services to a public entity; may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids on leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, sub -contractor, or consultant under a contract with any public entity; and may not transact business with any public entity. Section 16. Project Management RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 14 of 18 All necessary and ordinary communications, submittals, approvals, requests and notices related to Project work shall be issued or received by: Craig Radzak Assistant City Manager City of Sanford, FL P.O. Box 1788 Sanford, FL 32772-1788 Phone (407) 688-5000 Either Party may change its point of contact by written notice to other Party's then -current designated contact, which shall not constitute a formal amendment to this Agreement. Section 17. Modification of Terms The Agreement contains all the terms and conditions agreed upon by the Parties. The Agreement may only be modified or amended upon mutual written agreement of the Parties. No oral agreements or representations shall be valid or binding upon the City or Honeywell. Section 18. Execution in Counterparts The Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 19. Severability If a court deems any provision of the Agreement void or unenforceable, that provision shall be enforced only to the extent that it is not in violation of law or is not otherwise unenforceable, and all other provisions shall remain in full force and effect. Section 20. Limitation of Liability NOTWITHSTANDING ANYTHING TO THE CONTRARY ELSEWHERE IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES ARISING FROM, RELATING TO, OR CONNECTED WITH THE WORK, SERVICES, EQUIPMENT, MATERIALS, OR ANY GOODS PROVIDED HEREUNDER. Honeywell shall have no responsibility to City or others for any use of the Energy Audit and Report or any other information provided by Honeywell unless the use is through a subsequently -executed Energy Performance Contract between Honeywell and City. Section 21. Municipal Advisor Disclaimer HONEYWELL INTERNATIONAL INC. ("HONEYWELL") IS NOT A MUNICIPAL ADVISOR AND CANNOT GIVE ADVICE WITH RESPECT TO MUNICIPAL SECURITIES OR MUNICIPAL FINANCIAL PRODUCTS TO YOU ABSENT YOUR BEING RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 15 of 18 REPRESENTED BY, AND RELYING UPON THE ADVICE OF, AN INDEPENDENT REGISTERED MUNICIPAL ADVISOR. HONEYWELL IS NOT SUBJECT TO A FIDUCIARY DUTY WITH REGARD TO YOU OR THE PROVISION OF INFORMATION TO YOU. INFORMATION ABOUT MUNICIPAL SECURITIES AND/OR MUNICIPAL FINANCIAL PRODUCTS, IF ANY, IS PROVIDED FOR EDUCATIONAL PURPOSES ABOUT POSSIBLE FINANCING OPTIONS AND IS NOT THE PROVISION OF ADVICE OR A RECOMMENDATION TO PURSUE ANY PARTICULAR FINANCING OPTION. CONSULT WITH YOUR INDEPENDENT REGISTERED MUNICIPAL ADVISOR ABOUT THE FINANCING OPTION APPROPRIATE FOR YOUR SITUATION. Section 22. Standard Contractual Terms and Conditions. All "Standard Contractual Terms and Conditions", as provided on the City's website, apply to this Agreement. Such Terms and Conditions may be found at the City's website; which can be reached at: Contract-Terms-And-Conditions-For-Web-Based-System-Revised-11.8.2021.0 (sanfordfl.gov) or www.SanfordFL.Sov). The parties shall also be bound by the purchasing policies and procedures of the City as well as the controlling provisions of Florida law. Work orders may be used, in accordance therewith, in the implementation of this Agreement to the extent deemed necessary by the City in its sole and absolute discretion. IN WITNESS WHEREOF, the City and Honeywell have executed this instrument for the purpose herein expressed and Honeywell represents and affirms that the signatories below have full and lawful authority to bind Honeywell in every respect. ATTEST. By: Signatu Printed Name Title: Secretary Q -61 Energy Audit Agreement " UILI.XAM. DELAWARE CORPORATION THROUGHACTING BUILDINGS TECHNOr BUSINESS UNIT By: Signature Printed Name Title: b WKS� Date: D 4 f 7-+/ 2=2 June 6, 2022 Page 16 of 18 ATTEST: BY: 'KPW Ll -ML)W!, W Traci Houchin, CMC, FCRM City Clerk Approved as to form and legal William L. Colbert City Attorney CITY OF SA;NF7RD-1 By: Art Woodruff iy ,�ayor Date: RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 17 of 18 Attachment A to Enerjzv Audit Agreement 1) Sanford City Hall, 300 North Park Avenue 2) Bettye Smith Cultural Art Center, 119 West 51h Street 3) Community Resource Center, 1211 West 13`h Street 4) Public Safety Complex, 815 West 130' Street 5) Fire Station 32, 300 East Airport Boulevard 6) Fire Station 38, 1300 Central Park Drive 7) Park & Grounds Maintenance Building, 906 & 908 West 6`h Street 8) Historic Stadium, 1201 Mellonville Avenue 9) Public Works Complex, 800 West Fulton Avenue 10) Larry Dale Aquatic Center, 2702 Ridgewood Avenue 11) Sanford Museum, 520 East I" Street 12) Velma Williams Community Center (aka Westside Community Center, 919 Persimmons Avenue 13) Sanford Information Center, 230 East I" Street 14) Monroe Hall, 400 East I" Street 15) Civic Center, 401 East Seminole Boulevard 16) Senior Center, 403 East Seminole Boulevard 17) Park 2 Building, 480 East I" Street 18) Fort Mellon Park Ranger's Office, 910 East Seminole Boulevard RFQ 21/22-61 Energy Audit Agreement June 6, 2022 Page 18 of 18 CITY OF Kru u 2 WS RM X FLORIDA Item No.(D C, CITY COMMISSION MEMORANDUM 22-177.0 JULY 11, 2022 AGENDA To: Honorable Mayor and Members of the City Commission PREPARED BY: Craig M. Radzak, Assistant City Manager. L SUBMITTED BY: Norton N. Bonaparte, Jr., ICMA-CM, 9 City Iaiiager � SUBJECT: Energy Audit Agreement with Honeywell nternatio ,n Inc. STRATEGIC PRIORITIES: F-1 Unify Downtown & the Waterfront F-1 Promote the City's Distinct Culture n Update Regulatory Framework F1 Redevelop and Revitalize Disadvantaged Communities SYNOPSIS: An agreement for the performance of an energy savings audit for eighteen (18) City -owned t' facilities has been negotiated with Honeywell International Inc. and is submitted for City Commission's approval. FISCAL/STAFFING STATEMENT: Honeywell will perform an Energy Savings Audit of certain named City -Owned Facilities and prepare a report that specifically identifies the energy improvements and operational changes that are recommended to be installed or implemented at the City -Owned Facilities (Report). The Report will contain detailed projections of energy and cost savings to be obtained at the Facilities as a result of the installation of the recommended energy conservation measures (ECM's). Honeywell will provide detailed estimates of all costs and fees associated with the installation and implementation of the ECM's. If after receipt of the Energy Savings Audit and Report, the City elects to implement the ECM's set out in the Honeywell Report and enters into an Energy Performance Contract with Honeywell, based on the Energy Savings Audit and Report, the costs of the Energy Savings Audit and Report will be incorporated into the Energy Performance Contract. If Honeywell is unable to identify cost savings equal to or greater than the total cost of the design and installation of Honeywell's recommended ECMs, the City will not be liable for the Energy Savings Audit or Report costs incurred by Honeywell. If the Report identifies cost savings greater than the total cost of the design and installation of Honeywell's recommended ECMs, but the City elects not to enter into an Energy Performance Contract with Honeywell, then the City will be required to reimburse Honeywell for the Energy Savings Audit and Report costs in the amount of $60,000. BACKGROUND: At the May 8, 2022 City Commission meeting, the Commission approved an award of a contract as a result of Request for Qualifications (RFQ 20/21-61) to Honeywell International Inc. to perform an Energy Savings Audit and to produce a Report regarding EOM's in the eighteen (18) City Owned -Facilities identified below: 1) Sanford City Hall, 300 North Park Avenue 2) Bettye Smith Cultural Art Center, 119 West 51h Street 3) Community Resource Center, 1211 West 13"' Street 4) Public Safety Complex, 815 West 13t" Street 5) Fire Station 32, 300 East Airport Boulevard 6) Fire Station 38, 1300 Central Park Drive 1h 7) Park & Grounds Maintenance Building, 906 & 908 West 6 Street 8) Historic Stadium, 1201 Mellonville Avenue 9) Public Works Complex, 800 West Fulton Avenue 10) Larry Dale Aquatic Center, 2702 Ridgewood Avenue 11) Sanford Museum, 520 East I't Street 12) Velma Williams Community Center (aka Westside Community Center, 919 Persimmons Avenue 13) Sanford Information Center, 230 East I" Street 14) Monroe Hall, 400 East I" Street 15) Civic Center, 401 East Seminole Boulevard 16) Senior Center, 403 East Seminole Boulevard 17) Park 2 Building, 480 East I't Street 18) Fort Mellon Park Ranger's Office, 910 East Seminole Boulevard The City may also elect to enter into an Energy Performance Contract with Honeywell to design and implement the recommended ECMs; however, nothing in this Energy Audit Agreement will obligate the City to enter into an Energy Performance Contract with Honeywell. If the City decides to move forward with the Energy Performance Contract with Honeywell, the City may choose to include less than all of the Facilities listed above. LEGAL REVIEW: The Assistant City Attorney has prepared and reviewed the Energy Audit Agreement and has no legal objection. RECOMMENDATION: City staff recommends that the City Commission approve RFQ 20/21-61 Energy Audit Agreement between Honeywell International Inc. and the City. SUGGESTED MOTION: " I move to approve RFQ 20/21-61 Energy Audit Agreement to be entered into by and between the City and Honeywell International Inc." Attachment: RFQ 20/21-61 Energy Audit Agreement between Honeywell International, Inc. and the City.