Authorizing the Procurement Commissioner, on behalf of the City of Philadelphia, to enter into a lease and related agreements with the Philadelphia Municipal Authority, for use by the City of certain cogeneration facilities to be located at the Northeast Water Pollution Control Plant, 3899 Richmond Street, Philadelphia, Pennsylvania, all under certain terms and conditions.

WHEREAS, The Philadelphia Municipal Authority (the “Authority”) is authorized by Ordinance approved August 3, 1989 (Bill No. 447, 1989 Ordinances 1199) to develop and operate facilities for cogeneration systems related to sewage treatment plants using digester gas as the primary fuel and located at the Northeast Water Pollution Control Plant on behalf of the Water Department or other designated City department; and

WHEREAS, The Water Department and the Procurement Department have requested that the Authority undertake a project to provide a cogeneration system utilizing digester gas with a proposed term of sixteen years (the “Project”); and

WHEREAS, AMERESCO, Inc., has been selected through a competitive process, to develop the Project in accordance with a Request for Proposals issued on September 17, 2010; and

WHEREAS, The Project will require the Authority to enter into agreements with AMERESCO, Inc. and Banc of America Public Capital Corp or its affiliate for the Project, and the City will undertake certain obligations of the Authority to AMERESCO, Inc. and Banc of America Public Capital Corp or its affiliate through the City's agreements with the Authority; now, therefore

THE COUNCIL OF THE CITY OF PHILADELPHIA HEREBY ORDAINS:

SECTION 1. Subject to the conditions set forth in Section 2, the Procurement Commissioner, on behalf of the City of Philadelphia, is hereby authorized to enter into agreements with the Philadelphia Municipal Authority, for the provision and maintenance of cogeneration equipment utilizing biogas produced at the Northeast Water Pollution Control Plant to be located at 3899 Richmond Street, Philadelphia, Pennsylvania, pursuant to terms substantially set forth in the document attached hereto as Exhibit "A".

SECTION 2. The following conditions shall apply to the authority granted pursuant to Section 1.

(a) The Construction Agreement must be a firm, fixed price agreement. Such agreement may provide that price increases are permitted for the following reasons: (1) a change in law or permit requirements after the date hereof affecting the design or construction; (2) pre-existing hazardous materials, archeological artifacts, fossils, or endangered species discovered in the course of design or construction; (3) other unknown subsurface conditions discovered in the course of construction; (4) force majeure events occurring in the course of design or construction that are beyond the reasonable control of the affected party; (5) Authority-ordered changes to the scope of work or schedule; (6) Authority failure to provide the site, biogas fuel, and other consumables and services required to be provided by the Authority for the design and construction of the Project; or (7) Authority-ordered suspension of the work other than for Ameresco's default. Any price increase must be supported by a demonstration of additional costs to the Contractor resulting from one of the reasons enumerated above, and must be offset by any reduction in the construction costs resulting from such change.

(b) The Construction Agreement must provide that the Facility Cost of $47,500,000 shall not be increased by more than ten percent without approval by an ordinance of City Council.

(c) The Construction Agreement must provide that Ameresco shall be required to utilize its best efforts as developer to establish the project's eligibility for payments for specified energy property in lieu of federal tax credits, as provided in Section 1603 of The American Recovery and Reinvestment Act of 2009, and shall support and assist Banc of America Public Capital Corp in its application for such energy payments.

SECTION 3. The City Solicitor is hereby authorized to review and to approve the agreements necessary to effectuate this Ordinance, and to impose such terms and conditions on them as the City Solicitor may deem necessary and proper to protect the interests of the City of Philadelphia and to carry out the purpose of this Ordinance.

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