GSA_FASPP_SOL_PART_1_SECTION_A B D-H__AMENDMENT_13.pdf

FASPP

Sections A,B,D-H

FEDERAL AGGREGATED SOLAR PROCUREMENT PROJECT (FASPP)

CONTENTS

SF 1449, Solicitation/Contract/Order for Commercial Items

Part I – The Schedule 2

Section A – Background and Scope Section B – Supplies or services and prices Section C – Description/specifications/statement of work – SEPARATE DOCUMENT Section D – Packaging and Marking Section E – Inspection and acceptance Section F – Deliveries or performance………………………………………………………………..13 Section G – Contract administration data Section H – Special contract requirements

Part II – Contract Clauses – SEPARATE DOCUMENT Section I – Contract Clauses

Part III – SEPARATE DOCUMENT Section J – List of attachments

Part IV – Representations and Instructions – SEPARATE DOCUMENT Section K – Representations, certifications, and other statements of Contractors or respondents Section L – Instructions, conditions, and notices to Contractors or respondents Section M - Evaluation factors for award

PART I ─ THE SCHEDULE

SECTION A — BACKGROUND AND SCOPE

A.1 Standard Form 1449

A.2 Background

The intent of this acquisition is to enter into a firm fixed-price (FFP) Power Purchase Agreement (PPA) contract with a single Contractor for the purchase of electricity from a mix of rooftop, parking lot and ground-mount photovoltaic (PV) systems at 9 facilities in Northern California and Northern Nevada, at rates that are less than the rates currently paid by the facilities. The Contractor will be responsible for the design, construction, maintenance and operation of the project at its own expense, without any up-front capital cost to the government. The Contractor will keep title to the systems, and will be granted licenses or temporary easements to maintain the systems on Government property. The Government does not intend to purchase any generation assets, although it may at its discretion negotiate a fair market value purchase of any of the systems. The Government will purchase electricity produced by the systems as described herein.The contract term shall be up to twenty (20) years, including a base period of ten (10) years, with one (1) option for an additional 10-year term. The contract term begins when the contract is executed.

A.3 Order of Precedence

In the event of inconsistencies between solicitation documents, the following order of precedence applies.

This supplements, but does not change or replace, FAR 52.215-8.

1. Sections A through I

2. Site Statements of Work

3. Standards incorporated by reference

4. Other documents, exhibits and attachments

A.4 Special Considerations

A.4.1. Federal Building, 2800 Cottage Way, Sacramento, CA

As described elsewhere herein this building has an existing rooftop photovoltaic system which is under an existing power purchase agreement. As described the Contractor must pay off this system on GSA’s behalf prior to constructing the new system.

In addition the parking lot at this building has potential for roughly one megawatt of power generation from parking lot canopies. This has not been included in the pricing of this contract because of a pending but unfunded parking lot restructuring and repaving. In the event that the parking lot repaving project is funded in fiscal year 2016 the Government may at its discretion negotiate with the Contractor to add a parking lot canopy PV system to be coordinated to follow immediately after the repaving work. Any such addition to the Contract will be subject to agreement by the Contractor and the Government. The

Government understands that the solar investment tax credit may or may not be extended beyond December 2016.

A.4.2 Peckham Federal Building and US Courthouse, San Jose, CA; Ryan FB, San Bruno

There are roof replacements pending by separate contracts for these building. Therefore as described elsewhere herein physical installation work on roofs cannot begin until September 1, 2016 for both buildings. Work on the ground-mount system for the Ryan FB may begin earlier, but is not required to begin earlier.

SECTION B — SUPPLIES OR SERVICES AND PRICES

B.1 Description of Services and Background

The Contractor shall provide all management, supervision, labor, materials, supplies, and equipment (except as otherwise provided), and shall plan, schedule, coordinate and assure effective performance of the requirements stated in Section C and elsewhere herein. This is a power purchase agreement. The Government will only pay for kilowatt-hours of electricity delivered, aside from contingencies for removing systems for roof replacements or payoff of unamortized costs if the option for an additional 10 years of service is not exercised by the Government.

Additional PV installation(s) may be added by bilateral negotiation and agreement at any of the sites, to include potential installations at adjoining or neighboring parcels, should changes in utility rules or other circumstances make such additions viable. Negotiations will consider changes in tax benefits, remaining duration of the contract, and any other factors impacting costs or revenues.

B.2 PERIOD OF PERFORMANCE

B.2.1 The term of the contract is 10 years with one optional period of 10 years for a total maximum duration of 20 years.

B.2.2 The base period of 10 years commences the date of contract execution. The performance period for each site will begin the date the Government and the local electric utility grant permission for system startup to the 10 year anniversary date of contract execution. The contract contains an option exercisable at the sole discretion of the Government for an additional 10 year period.

B.2.3 The Contractor’s schedule must also meet any deadlines associated with tax incentives if the Contractor wants to take advantage of such incentives. GSA does not assume financial liability if the Contractor does not meet such deadlines.

B.3 Pricing Structure

B.3.1 The Price Schedule is provided as a spreadsheet. The Government shall pay for each kilowatt-hour produced by the system installed at each site, to include power exported to the local electric utility under net energy metering rules, at an amount equal to the contract price up to the stated annual maximums. Minimum and maximum production requirements are set forth in the table “Summary of Minimum and Maximum Values”. Contractor performance will not be considered unsatisfactory if annual production does not achieve the minimum for a given site where the reduced production can be reasonably explained by weather during the course of the year. Minimum and maximum production are measured from the anniversary date of system startup.

B.3.2

At the completion of the base period of the contract, the Government may for each system:

1. Exercise the option for an additional 10 years; or,

2. Purchase the system for the greater of negotiated fair market value or unamortized system cost; or,

3. Pay the unamortized system cost, in which case the Contractor must remove the system and restore the grounds, parking lot or roof area to original condition with allowance for normal wear and tear.

At any time during the term of the contract the Government may purchase the system for a negotiated fair market value.

At the end of the option period, if the option is exercised, the Government may:

1. Purchase the system for a negotiated fair market value (to include consideration of avoided demolition and site restoration costs); or,

2. Require the Contractor to remove the system and restore the grounds, parking lot or roof area to original condition with allowance for normal wear and tear.

B.3.3 The Contractor shall convey renewable energy credits for energy production at each site to the agency owning the site.

B.3.4 The Contractor shall apply for and take title to any incentives, which may be available from programs such as the California Solar Initiative, or those offered by participating municipal utilities. The Contractor shall be responsible for preparing and submitting all of the required incentive documentation, including all follow-on reporting in support of potential incentives.

Where a site owner is required by a utility to sign applications or agreements each agency will cooperate in a reasonable manner, subject to terms and conditions of such applications or agreements being satisfactory to agency legal counsel.

An exception is NVEnergy (Carson City and C.Clifton Young sites). NVEnergy excludes the federal Government from eligibility to participate in its PV incentive program. To alleviate uncertainty in pricing, in the event the Government is able to collect an incentive it will retain incentives from NVEnergy.

In the case of GSA, incentives must be paid to GSA. GSA will pay the incentives to the Contractor within 60 calendar days of receipt.

In the case of the Forest Service incentives will be assigned for direct payment to the Contractor.

B.4 Price Schedule

Each CLIN in the Price Schedule (separate spreadsheet) shall include all labor, materials, equipment, tools, supervision, and management support to design, construct, own and operate the required systems in accordance with the requirements herein. All proposed prices should be in the unit indicated.

The Price Schedule is provided as a separate spreadsheet.

The Summary of Minimum and Maximum Values table summarizes:

1. Minimum kWh to be produced per year per a valid PVWatts calculation using accurate inputs.

2. Maximum kWh to be delivered per year per a valid PVWatts calculation using accurate inputs. Offerors may propose to exceed the maximum, but will not be given evaluation credit for proposed production exceeding the maximum. In addition the Government will not pay for production exceeding the maximum kWh specified unless such power is actually needed and consumed by the facility.

3. Maximum Year 1 Offered Price (“price to beat”) is the maximum price that may be offered for the Mare Island site; for the GSA sites (all except Mare Island) it may be exceeded in individual cases so long as the weighted average cost is equal to or less than the weighted average price to beat.

4. Maximum escalation rate is the maximum escalation rate which is acceptable. Lower rates may be used and will result in price evaluation credit in the net present value calculation.

Summary of Maximum and Minimum Values

Site

(1) Warranted

Minimum PV energy delivered (unit: kWh)***

(2) Annual

Degradation Factor (%)

From module linear warranty***

(3) Maximum PV energy delivered (unit:

kWh)**

(4) Maximum year 1 offered price (price to beat) (unit: $/kWh)*

(5) Maximum escalation rate (unit: %/year)

U.S Forest Service - Mare Island – Main Building 1,080,000 0.7%

1,260,000 $0.178 3.00%

US Forest Service – Mare Island - Annex 0 0.7% 38,000 $0.178 3.00%

GSA - Peckham FB in San Jose 150,000 0.7% 1,639,000 $0.133 2.56% GSA - Shea FB in Santa Rosa 75,000 0.7% 319,000 $0.129 2.56% GSA - Cottage Way in Sacramento 1,538,000 0.7% 2,371,000 $0.116 2.50%

GSA - National Archives in San Bruno 870,000 0.7% 960,300 $0.100 2.56%

GSA - USGS Campuses in Menlo Park 1,085,000 0.7% 7,526,000 $0.158 2.56%

GSA - Court of Appeals in San Francisco 108,000 0.7% 2,366,000 $0.131 2.56%

GSA - Clifton Young FB in Reno 580,000 0.7% 640,000 $0.075 2.30% GSA - Carson City FB in Carson City 370,000 0.7% 410,000 $0.074 2.30%

*GSA sites need to be priced so that the weighted average first year cost is estimated to be at or below the weighted average price to beat for the GSA sites. Each individual site does not have to be priced below the price to beat.

** Maximum commitment of the Government to buy power from each given site. See C.5.2 table for mandatory minimum values. For some sites the maximum PV energy is considerably more than can probably be generated on site. For other sites, where the Government is trying to achieve “net zero” status, the maximum and minimum values are fairly close.

*** Offerors may commit a greater first year production in the Price Schedules. Such a commitment will take precedence.

**** Offerors may commit a lower gradation factor in the Price Schedules. Such a commitment will take precedence.

Warranted Minimum

Determining actual system performance in any contract year is described in Section C.14.17.

If actual system performance, as determined using the methodology shown in C.14.17 falls below the warranted minimum, contractor will have 45 days to perform the needed repairs and commissioning in order to bring system performance within normal limits as set by the warranted minimum.

If system remains operating below the minimum warranted for longer than 45 days, agency shall be credited the lost savings. Lost savings shall be the difference of the PPA rate and current utility rate as expressed as the current “price to beat” multiplied by the utility maximum escalation rates listed in column 5.

B.5. Federal Building 2800 Cottage Way – Payoff of Existing Power Purchase Agreement

The existing photovoltaic system for the Federal Building, 2800 Cottage Way, Sacramento CA, is owned by Constellation Energy Projects & Services Group, Inc.; the contract with Constellation has a current expiration date in 2018. The Contractor will have to pay off this system directly to Constellation, then demolish unused components of the existing system without damage to the roof. Alternatively the Contractor may make a higher payment to Constellation and Constellation will remove the system and restore the roof condition early, otherwise in accordance with Constellation’s current contract with GSA (which requires equipment removal and restoration of the roof to pre-existing condition allowing for normal wear and tear). Payoff of the system must be coordinated with GSA as GSA will have to terminate the contract with Constellation at the time payoff is made. Usable components may be retained by the Contractor and used with the new system. The payoff amounts (obtained from Constellation) are:

Month of Payoff No Removal Removal by Constellation

September 2015: $260,392 $290,392

October 2015: $256,111 $286,111

November 2015: $253,554 $283,554

December 2015: $251,568 $281,568

January 2016: $249,724 $279,724

February 2016: $246,943 $276,943

March 2016: $243,149 $273,149

April 2016: $237,092 $267,092

May 2016: $229,863 $259,863

June 2016: $221,493 $251,493

July 2016: $212,016 $242,016

August 2016: $203,699 $233,699

September 2016: $197,727 $227,727

October 2016: $193,346 $223,346

November 2016: $190,729 $220,729

SECTION C — STATEMENT OF WORK

SEPARATE DOCUMENT

SECTION D — PACKAGING AND MARKING

D.1 Payment of Postage and Fees

All postage and fees related to submitting information including forms, report, etc., to the Contracting Officer or the Contracting Officer's Representative shall be paid by the Contractor.

D.2 Packing, Packaging, Marking and Storage of Equipment

All packing, packaging, marking and storage expenses which are incidental to Contractor’s shipping of the materials under this Contract shall be within firm fixed price amount set on this contract. The cost of all packaging must be included in the solicitation price. All packaging must be new and suitable for shipment and short term storage.

Sites vary in ability to accommodate storage of parts and materials prior to installation. The Contractor should assume off-site storage unless the Government has indicated storage areas are available at a given site. The Contractor shall take security and weather-proofing precautions in storing materials on site; the Government is not responsible for theft or damage.

SECTION E — INSPECTION AND ACCEPTANCE

E.1 Responsibility for the Inspection and Acceptance

The Government will review construction submittals for code and contract compliance, and will withhold notice to proceed with construction until it has received stamped construction drawings which are in code and contract compliance. The Government recognizes that time is of the essence and will make reasonable efforts to expedite reviews.

The Government will inspect all systems for code and contract compliance before the Government permits system startup. The Government will not unreasonably delay inspection so long as the Contractor schedules the date of inspection reasonably in advance.

Each agency will review and approve invoices for its site in accordance with the agency’s own procedures.

E.2 Scope of Inspection

The Government will submit deliverables for engineering review for code and contract compliance.

The Government will perform construction inspections, to include a final inspection, to assure that systems are installed per contract and in accordance with applicable codes.

Local electrical utilities may inspect for compliance with interconnection requirements. The Contractor is responsible for coordinating such inspections as they are required by the respective utility.

Each agency may inspect invoices for power produced to assure that invoices have required information and are accurate.

E.3 Written Notification Of Rejection By The Government

The Government will provide the Contractor written notification of the rejection of any deliverable or need to repeat a given service. All notifications of rejection will be accompanied by specific reasons for rejection.

E.4 Submitted Deliverable

The Government will review and verify that the original problem has been resolved with the Contract deliverable(s) as re-submitted. If this is a re-submission of a final deliverable, the Government will provide the Contractor written notice of acceptance/rejection or request for extension within fifteen (15) business days after receipt of each re-submitted final deliverable.

E.5 Quality Assurance

Inspection and Quality Assurance (QA) activities will be conducted by the Government on all deliverables provided by the Contractor under this contract.

E.6 Nonconforming Products or Services

Nonconforming products or services may be rejected.

E.7 Quality Control Program

The Contractor shall provide and maintain a quality control program for construction and maintenance of the system.

E.8 Partial Project Acceptance

There will be no partial acceptance of any one system – each system will be granted permission for startup to begin producing power, and will be accepted, separately. Permission to interconnect by the local electrical utility will be required for startup and acceptance along with passing Government inspections and correcting punchlist items to the Government’s satisfaction.

For purposes of this Section E, a “system” means one photovoltaic system feeding an electrical circuit and capable of functioning independently, to include all components such as meters, panels, inverters, racks, etc. There may be multiple systems on a site.

E.9 Project Acceptance — Each Site

After installation of sites, the site managers will notify the Contractor in writing of full project acceptance which will constitute the start of the post-acceptance performance period and commencement of contractor payments. Agency acceptance, for purpose of payment, in accordance with Section G, occurs when the following are completed:

1. Physical inspections have occurred (which may include commissioning activities, such as trending electrical data);

2. All deficiencies noted by inspection or commissioning have been corrected;

3. The local electric utility has granted permission to interconnect;

4. All record documents (as-built drawings, manuals, product literature, points lists, etc.) have been received and accepted;

5. All other contract requirements, required before the end of construction, have been completed.

The Government may permit system start-up before record documents have been received and approved, but invoices will not be accepted or paid before record documents have been approved.

Two weeks should be allowed for review and approval of deliverables. The Government may, at its discretion, approve subject to revision submittals with minor deficiencies in lieu of rejection.

Each system may have a different startup date if systems are completed, accepted, and started up at different times. However, the end date of the base period of performance will be 10 years following execution of the contract for all sites, and the option if exercised will run for 10 years concurrently for all sites.

Where there are multiple systems on a site, production from all working systems must be aggregated by the Contractor and billed to the agency in the aggregate, with an itemization of production of each system where there are separate meters.

SECTION F — DELIVERIES OR PERFORMANCE

F.1 The term of this Contract is as described in Section B.

F.2 Deadlines and system completion dates for construction submittals are as follows. All time periods for the Construction Phase below are calendar days unless working days are indicated. This list provides required dates to reach selected milestones only and is not a comprehensive list of requirements.

Submittal deadlines apply to each site separately.

• Submit 50% design drawings with specifications: 60 days after contract award.

• Submit 90% design drawings with specifications, equipment submittals, measurement and verification plan, and safety plan: 30 days after approval of 50% submittal

• Submit 100% draft design drawings with specifications, equipment submittals, measurement and verification plan, construction schedule, safety plan, and a quality control inspection program: 15 days after approval of 90% submittal

• Submit final stamped design drawings: 10 working days after approval of 100% draft.

• Submit payment and performance bonds and proof of insurance not later than date of submission of final stamped design drawings (and before any construction work can proceed).

• Final completion of all work, correction of all deficiencies and completion of all utility interconnection requirements is required within 9 months of issuance of notice to proceed (see below). The Government may permit system startup at this time if the local electric utility has granted permission to interconnect. The Peckham USCH and the Ryan FB are exceptions due to separate roof replacements which must be accomplished by others first.

Final completion of work and system startup at all sites, including Peckham and Ryan, is required by December 31, 2016.

• Record documents must be submitted within 30 calendar days of system startup. Acceptance will be granted when requirements for system startup have been met, and record documents are approved.

• Initial payment will be 30 days after receipt of a correct and complete invoice. Submission of invoices may begin at the end of the first calendar month after system startup.

Notice to proceed (NTP) for construction will be granted when all required submittals are approved, proof of insurance received, and bonds received. Limited NTP for purposes of ordering equipment may be granted for long lead-time items on request in advance of final NTP, when the Government is convinced the equipment meets all contract requirements. Separate NTPs may be granted for each site separately in order to expedite work.

F.3 Places of Performance

• US Forest Service – Pacific Southwest Region - Mare Island Address: 1323 Club Drive, Vallejo CA 94592

• GSA - Robert F. Peckham Federal Building Address: 280 South 1st Street, San Jose CA 95113

• GSA – John F. Shea Federal Building Address: 777 Sonoma Avenue Santa Rosa, CA 95404

• GSA – Sacramento Federal Building Address: 2800 Cottage Way, Sacramento CA 95825

• GSA – USGS Campus in Menlo Park Address: 345 Middlefield Road, Menlo Park CA 94025

• GSA – C. Clifton Young Federal Building Address: 300 Booth Street Reno, NV 89509

• GSA – Leo J. Ryan Federal Records Center Address: 1000 Commodore Drive, San Bruno CA 94066

• GSA – Phillip Burton Federal Building and US Courthouse Address: 450 Golden Gate Avenue San Francisco CA 94102

• GSA – Carson City Federal Building

Address: 705 North Plaza, Carson City NV 89701

F.4 Post Award Conference

A post-award conference will be held covering contract issues in general, and pre-work conferences will be held at each site (at the Government’s discretion nearby sites may be grouped into a single meeting) to coordinate site-specific issues.

F.5 Peckham FB & USCH, San Jose, CA

A roof replacement for this building through a separate contract is pending. Roof replacement is anticipated for early 2016. Unless notified otherwise the Contractor may not begin physical system installation until September 1, 2016, and must complete work and start up the system by December 31, 2016. Field investigation, design, procurement of components, and other preparatory work not involving work on the roof may be done prior to this date.

SECTION G — CONTRACT ADMINISTRATION DATA

G.1 The contract is firm fixed price per kilowatt-hour of power produced and delivered to each site.

G.2 No order, statement, or conduct of Government personnel who visit the Provider's facilities or in any other manner communicates with Provider personnel during the performance of this contract shall constitute a change under this contract. Changes must be pursuant to the Changes clause incorporated herein.

G.3 The Contracting Officer is the only person authorized to approve changes in any of the requirements of this contract and notwithstanding provisions contained elsewhere in this contract, the said authority remains solely the Contracting Officer's. In the event the Provider effects any change at the direction of any person other than the Contracting Officer, the change will be considered to have been made without authority and no adjustment will be made in the contract price to cover any increase in charges incurred as a result thereof. The address and telephone number of the Contracting Officer is:

Name: Michele Long Address: 50 United Nations Plaza, 4th Floor, Room 4664, San Francisco, CA 94102 Telephone: 415-522-3050 Email: Jomichele.agee-long@gsa.gov

G.4 Contracting Officer’s Representative (COR)

G.4.1 The Government COR/Program Manager for this contract is:

Name: Mark Levi Address: PO Box 578, Charles Town, WV 25414 Telephone: 304-728-2324 Email: Mark.Levi@gsa.gov

G.4.2 The assigned Alternate Government COR/Project Manager for this contract is:

Name: Susana Mercado Address: 50 United Nations Plaza, San Francisco, CA 94102 Telephone: 304-728-2324 Email: Susana.Mercado@gsa.gov

G.4.3 The Government COR will act as the Contracting Officer's on-site representative for technical matters, providing technical clarification, as necessary, with respect to the specification or statement of work, and monitoring the progress and quality of the Provider's performance. The Government COR does not have authority to direct the accomplishment of effort which is beyond the scope of the Statement of Work in the contract.

G.4.4 When, in the opinion of the Provider, the Government COR requests effort outside the existing scope of the contract, the Provider shall promptly notify the Contracting Officer in writing. No action shall be taken by the Provider under such direction until the Contracting Officer has issued a modification to the contract or until the issue has been otherwise resolved.

G.4.5 In the event that the Government COR named above is absent due to leave, illness, or official business, all responsibilities and functions assigned of the Government COR will be the responsibility of the Alternate Government COR.

G.5 Invoicing

The two agencies have separate invoicing requirements and procedures. Each agency will provide supplemental information, which may include additional data requirements.

Payment will be made only on receipt of an invoice meeting the requirements described herein, plus any agency-specific requirements. Payment is subject to the Prompt Payment Act.

In addition to other instructions found in contract clauses and agency-specific supplemental instructions, all invoices must contain the following additional information:

1. Account number

2. Building name, address, or other descriptive information to identify the location

3. Contractor’s name and remittance address

4. The billing cycle, which should usually coincide with a calendar month

5. Accurate kilowatt-hours produced and consumed by the site, as measured by a utility-grade meter.

SECTION H — SPECIAL CONTRACT REQUIREMENTS

H.1 Title to System

Until such time as the Government purchases the equipment, the Contractor shall be the legal and beneficial owner of the systems, and the systems shall remain the personal property of provider and shall not attach to or be deemed a part of, or fixture to, the premises. During this time, the systems shall retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code, and the Government covenants that it will use reasonable commercial efforts to place all parties having an interest in or lien upon the real property comprising the premises on notice of the ownership of the system and the legal status or classification of the system as personal property. The U.S. General Services Administration or U.S. Forest Service, as applicable to a given site, is the owner of the premises and consents to the filing of a disclaimer of the system(s) as a fixture of the premises in the office where real estate records are customarily filed in the jurisdiction of the premises until such time that they purchase the equipment.

H.2 Revocable License or Temporary Easement

The US Forest Service will grant a revocable license permitting the Contractor to construct, operate and maintain the PV system at the Mare Island site. The license will grant the Contractor non-exclusive reasonable access to the system. If the Government revokes the license for any given site such revocation will be treated as a partial termination for the convenience of the government for that site, and allow for cost recovery in accordance with the termination clause.

GSA will grant a temporary easement to the Contractor permitting the Contractor to construct, operate, and maintain the PV systems at each of the GSA sites. The easement will grant the Contractor non-exclusive use of the system locations. The easement will be terminated upon termination or expiration of the contract.

H.3 Warranties. In addition to any other representations and warranties contained in this contract, each Party represents and warrants to the other as of the Effective Date that:

H.3.1 It is duly organized and validly existing and in good standing in the jurisdiction of its organization;

H.3.2 It has the full right and authority to enter into, execute, deliver, and perform its obligations under this Contract;

H.3.3 It has taken all requisite Government action to approve the execution, delivery, and performance of this contract;

H.3.4 This contract constitutes its legal, valid and binding obligation enforceable against such Party in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws now or hereafter in effect relating to creditors’ rights generally;

H.3.5 There is no litigation, action, proceeding or investigation pending or, to the best of its knowledge, threatened before any court or other Governmental Authority by, against, affecting or involving any of its business or assets that would affect its ability to carry out the transactions contemplated herein; and

H.3.6 The execution and performance of this contract and the transactions contemplated hereby do not constitute a breach of any term or provision of, or a default under, (i) any contract or agreement to which it or any of its Affiliates is a Party or by which it or any of its Affiliates or its or their property is bound,

(ii) its organizational documents, or (iii) any Applicable Laws.

H.3.7 Public Utility Holding Company Act of 2005. Provider represents and warrants on the Effective Date that (a) it has taken all required actions, if any, necessary to comply with the Public Utility Holding Company Act of 2005 (PUHCA), as amended and (b) it is not an electric utility subject to rate regulation by any Governmental Authority.

H.4 Force Majeure

Except as otherwise specifically provided in this contract, neither Party shall be considered in breach of this contract or liable for any delay or failure to comply with the contract, if and to the extent that such delay or failure is attributable to the occurrence of a Force Majeure Event; provided that the Party claiming relief under Section H.5 shall immediately (a) notify the other Party in writing of the existence of the Force Majeure Event, (b) exercise all reasonable efforts necessary to minimize delay caused by such Force Majeure Event, (c) notify the other Party in writing of the cessation or termination of said Force Majeure Event and (d) resume performance of its obligations hereunder as soon as practicable thereafter. If Provider claims relief pursuant to a “Force Majeure Event,” the obligation of the Government to make a payments to Provider on any Monthly Payment Date shall be suspended until Provider resumes performance of its obligations under this contract at which time such payments shall become immediately due and payable; provided, however, that the Government shall not be excused from making any payments due in respect of electric generation delivered to the Government prior to the Force Majeure Event performance interruption.

H.5 REQUIRED INSURANCE

The Contractor shall procure at its expense and maintain during the entire period of performance the following minimum insurance coverage:

1. Comprehensive general liability: $1,000,000 per occurrence.

2. Automobile liability: $200,000 per person, $500,000 per occurrence, $20,000 per occurrence for property damage.

3. Workman’s compensation: As required by Federal and state workers’ compensation and occupational disease statutes.

4. Employer’s liability coverage: $100,000 except in states where workers’ compensation may not be written by private carriers.

5. Other insurance as required by State law.

H.6 ASSIGNMENT OF PAYMENTS

Requests for assignments of monies due or to become due, provided the assignment complies with the Assignment of Claims Act, will not be denied without good reason.

H.7 BUY AMERICAN EXCEPTIONS

For the purpose of determining Buy American requirements set forth in the Buy American Provision of this Solicitation, the following construction materials and components are excepted: NONE

H.8 TAX EXEMPTION

Purchases by the Federal Government are exempt from State and Local Taxation. The Contractor is responsible for payment of all taxes the legal incidence of which fall upon the Contractor.

H.9 NOTICES AND CORRESPONDENCE

Correspondence, notices and documents required by this contract shall be submitted by the Contractor to the COR or the CO.

The Contractor shall furnish to the COR contact information, to include mailing address, telephone number, fax number and email address, of an account representative who can receive official notices and correspondence from GSA, and who can formally represent the Contractor.

H.10 CONTINUITY OF FACILITIES OPERATION

The Contractor shall schedule work to minimize interference with the facilities normal operations. Notify the Contracting Officer and the site contact 3 business days in advance of any shutdowns. Perform all on-site work between the hours of 7:00 AM and 5:00 PM, Monday through Friday (Federal Holidays excluded), unless otherwise approved by the Contracting Officer or Contracting Officer’s representative, or unless different hours are identified in the Site Statement of Work.