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Res 013-2016 2/2/2016Resolution No. _13-2016__ Resolution authorizing the City Manager to enter into a contract with Ameresco Incorporated in the amount of $15,884,487 to perform services related to the installation of water meters and advanced metering infrastructure with a performance guarantee that annual savings will be sufficient to pay the annual cost of the system over a 20-year period WHEREAS, the City selected Ameresco Incorporated through the Interlocal Purchasing System to perform an Investment Grade Audit to evaluate the cost/benefits of replacing the City’s water meters with more accurate meters and installing an Advanced Metering Infrastructure System; and, WHEREAS, the results of that audit demonstrated that such project could be installed and then paid for ove r a period of twenty years with annual savings derived from the system; and, WHEREAS, Ameresco will guarantee such a cost neutral project through a performance contract; and, W HEREAS, the City Council desires to move forward with installation of such a system. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The City Manager is authorized to enter into a contract with Ameresco Incorporated in the amount of $15,884,487 to perform services related t o the installation of water meters and advanced metering infrastructure with a performance guarantee that annual savings will be sufficient to pay the annual cost of the system over a 20-year period. PASSED AND APPROVED this the 2nd day of February, 2016. ______________________________ M A Y O R ATTEST: ____________________ City Clerk Executive Summary Ameresco, Inc. is pleased to present a summary of our findings with regard to potential improvements for the City of Wichita Fall’s water distribution utility. We would like to recognize and thank the City Council, Mr. Jim Dockery, Mr. Russell Schreiber, Mr. Daniel Nix, Mr. Blake Jurecek, Mr. Jack Scott, Mr. Gerry Wilkinson, Mr. Jason Weber, and all other Ci ty personnel who assisted the Ameresco team during this investment grade audit. Based on the data collected from site surveys, laboratory tests, field tests and other means, Ameresco recommends that the City upgrade its system with modern technology including new water meters and an Advanced Metering Infrastructure (AMI) system. This upgrade will provide the City with many benefits which include the ability to provide enhanced customer service to its citizens; reduce Non- revenue Water even further; accurately capture metered consumption and potential increases in water and sewer billing revenues; reduce overall operational costs; address long-term operational needs; and provide the IT infrastructure necessary to manage water consumption and distribution at a more advanced level; as well as provide citizens with a real time window into their water usage via a web portal. A summary of the project scope is listed in Table ES.1. Table ES.1. Summary of Retrofits Included in Project Retrofits Scope Summary Water Meter and AMI Upgrade ‒ Install a fixed-based Sensus FlexNet AMI system ‒ Replace or rebuild a total of 33,438 water meters ‒ Replace 31,807 small water meters with Sensus iPerl meters ‒ Replace 1,228 medium-size water meters with Sensus OMNI T2 meters ‒ Replace 214 large water meters with Master Meter Octave meters ‒ Rebuild 189 existing Sensus OMNI T2 water meters ‒ Install a radio end point for all replaced and rebuilt meters, and integrate them to the new AMI network The total cost to implement the project is $16,561,360. The total projected revenue increase and operational cost savings from implementing the project is $1,043,386 annually. The total project cost includes materials, turnkey meter installation, AMI deployment, financing costs, and the AMI service fee during the construction period. The total annual savings is a combination of the projected revenue increase for water and sewer, cost savings from meter reading, and meter O&M maintenance savings. The project proforma is provided and has been generated based on a 20-year Tax Free Municipal Lease program. This program does not require capital outlay from the existing budget, and it actually generates positive cash flow every year of the term and over the complete lifecycle of the equipment. It should also be noted that this project does not require a utility rate increase or a tax increase. The investment grade audit was completed by Ameresco’s Texas team of licensed professional engineers. As required by Local Government Code 302, the engineering figures and financial calculations have been reviewed and approved by a third party professional engineer, licensed in the State of Texas and completely unaffiliated with Ameresco. Based on Ameresco’s comprehensive analysis, implementing this project will provide the following benefits to the City of Wichita Falls: Increase water revenue by $398,962 per year from meter accuracy correction. Increase sewer revenue by $115,640 per year from meter accuracy correction. Increase water and sewer revenue by $133,261 per year from additional low flow registration. Reduce meter reading operational and maintenance cost by $220,524 per year. Reduce existing meter replacement and repair cost by $175,000 per year. In addition to the above monetary benefits, the project will also help the City provide enhanced customer service and address operational issues: The state of the art AMI system will provide a customer web portal that retail customers can visit to see and manage their water consumption data. The AMI system will also allow City staff to access the billing data through a web portal and provide citizens with real time answers to questions. Replacing the water meters will reduce failure risks and result in fewer service calls from the City’s customers. Installing the wireless AMI system will provide automation to the City’s billing system and will greatly reduce the burden on City staff. Automated meter reading by an AMI system will eliminate estimated meter reading, meter accessibility issues, and reduce billing errors. The City’s existing handheld devices for collecting meter read data are growing obsolete and these components of the system will be eliminated as part of this project. A significant percentage of meters are not accurately recording consumption, and new meters will record more accurately. The majority of the utility meters in service are past their typical point of replacement in the City change-out cycle due to budget constraints during the drought, and will have to be replaced anyway, so this enables it to happen in a budget neutral manner. PERFORMANCE CONTRACT BY AND BETWEEN CITY OF WICHITA FALLS, TX AND AMERESCO, INC. TABLE OF CONTENTS SECTIONS 1 Scope of Services 2 Ownership of Meters 3 Financing and Ability to Pay 4 Contract Cost; Progress Payments 5 Term 6 Performance Guarantee 7 Right of Entry/Space 8 Changes in Services 9 Warranties 10 Customer Responsibilities 11 Defaults by Customer and Ameresco 12 Remedies for Default 13 Dispute Resolution 14 Insurance and Bonds 15 Indemnification and Limitation of Liability 16 Agreement Interpretation and Performance 17 Privileged and Proprietary Information 18 Severability 19 Assignment and Subcontracting 20 Waiver 21 Force Majeure 22 Contract Documents 23 Notices 24 Records 25 Representations and Warranties 26 Independent Contractor 27 Additional Representation and Warranties of Customer 28 Negligent/Wrongful Acts 29 Further Documents and Events 30 Third Party Beneficiaries 31 Notifications of Governmental Action - Occupational Safety and Health 32 References ATTACHMENTS ATTACHMENT A PROPERTY DESCRIPTION ATTACHMENT B SCOPE OF SERVICES ATTACHMENT C PERFORMANCEGUARANTEE ATTACHMENT D(1) DELIVERY AND ACCEPTANCE CERTIFICATE ATTACHMENT D(2) PERCENT COMPLETE ACKNOWLEDGEMENT CERTIFICATE ATTACHMENT D(3) SUBSTANTIAL COMPLETION CERTIFICATE ATTACHMENT E NOTICE TO PROCEED ATTACHMENT F CHANGE ORDER ATTACHMENT G MEASUREMENT AND VERIFICATION PLAN; METHODOLOGY OF CALCULATING PROJECT BENEFITS ATTACHMENT H TRAINING ATTACHMENT I MEASUREMENT AND VERIFICATION FEE SCHEDULE ATTACHMENT J STANDARDS OF SERVICE AND COMFORT ATTACHMENT K PROJECT CASH FLOW ATTACHMENT L FINAL COMPLETION CERTIFICATION PERFORMANCE CONTRACT BY AND BETWEEN CITY OF WICHITA FALLS, TX AND AMERESCO, INC. THIS PERFORMANCE CONTRACT (the "Agreement") is entered into on ________, 2016, by and between the City of Wichita Falls, Texas having its principal place of business located at 1300 7th Street, Wichita Falls, TX 76301 (hereinafter referred to as "Customer") and Ameresco, Inc., having its principal place of business at 111 Speen Street, Suite 410, Framingham, MA 01701 (hereinafter referred to as “Ameresco”). The parties to this Agreement shall be collectively referred to as the "Parties" and individually as a "Party." WHEREAS, Customer wishes Ameresco to perform a project (“Project”) consisting of certain meter purchases and installations as set forth on Attachment B (as amended and/or otherwise modified from time to time as provided herein, the "Scope of Services") at Customer's facilities described in Attachment A (the "Property"), and Ameresco wishes to perform such services; and WHEREAS, Customer has selected Ameresco to provide the Scope of Services through The Interlocal Purchasing System (TIPS). WHEREAS, Customer owns and controls the Property. NOW, THEREFORE, in consideration of the covenants, representations, warranties, and mutual promises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: SECTION 1 SCOPE OF SERVICES (a) Work: Upon Ameresco’s receipt of a “Notice To Proceed,” substantially in the form attached to this Agreement as Attachment E, Ameresco shall furnish all labor, materials and equipment and perform all work (the “Work”) required for the completion of the Scope of Services shown in Attachment B, including installation of the new meters ("Meters"), included in the Scope of Services, as such Scope of Services may be modified i n accordance with the terms of this Agreement. Customer and Ameresco shall mutually plan the scheduling of the installation of the Meters, so as to minimize disruption of the daily routine of Customer's personnel. (b) Disposal: Existing Meters and meter boxes that are removed as part of the Scope of Services shall be returned to the Customer for recycling or disposal. Ameresco shall be responsible for the disposal of all other non-hazardous equipment and materials which are rendered useless and removed as a result of the installation of the Meters. All other existing hazardous materials, however, shall remain the sole responsibility of Customer and Ameresco shall assume no liability whatsoever in connection with their removal, transportation and disposal. (c) Asbestos and Lead Paint: (i) Asbestos: Ameresco’s Scope of Services is predicated on the viability of the Project without Ameresco encountering or disturbing asbestos or being required to perform any asbestos abatement or taking any other action with respect to asbestos. Customer hereby represents and warrants to Ameresco that there is no asbestos or other hazardous material in any area wherein Ameresco shall be performing the Scope of Services. If: (a) Ameresco encounters any friable asbestos which is in the vicinity of the Project that is not identified in the Scope of Services, (b) Ameresco determines that its work will result in the disturbance of asbestos containing material, or (c) Ameresco determines that the presence of asbestos containing material may impede Ameresco's work, Ameresco shall notify Customer of the same and Customer shall: (x) at its cost, cause the asbestos to be lawfully removed, enclosed, encapsulated or otherwise abated in accordance with applicable laws, rules and regulations; (y) at its cost, provide written test reports showing that asbestos in that area has been properly removed, enclosed encapsulated or otherwise abated in accordance with applicable laws rules and regulations; or (z) abandon the Project and terminate this Agreement. If Ameresco cannot determine whether any particular material contains asbestos, Customer, upon Ameresco's written request, shall either: (i) at Customer’s cost, lawfully perform tests or cause tests to be performed in order to determine whether such material contains asbestos and/or whether there are unacceptable levels of airborne particulate material containing asbestos and provide such test report to Ameresco; or (b) abandon the Project and terminate this Agreement. Under no circumstances shall Ameresco be required to handle asbestos. If Ameresco encounters asbestos that materially affects the Scope of Services or the Project schedule, Ameresco, at its option, may demobilize and cease construction in the area affected by the presence of asbestos until such time as Customer elects and performs one of the options afforded Customer as described in this Subsection. If Customer does not promptly take action, as provided herein, or notifies Ameresco that it shall not take such action, Ameresco may, at its option, either remove the affected area from its Scope of Services (and make commensurate adjustments to its rights and obligations) or terminate this Agreement in its entirety. Customer shall be responsible for payment of the portion of Scope of Services implemented prior to termination. Customer shall be responsible for any and all costs (including termination) incurred by Ameresco that relate to the presence of asbestos. (ii) Lead Paint: Ameresco’s Scope of Services is predicated upon Ameresco not encountering or disturbing lead paint or being required to perform abatement or providing any notice or taking any other action with respect to lead paint. Customer hereby represents that there is no exposed lead paint in any area in which Ameresco shall be performing the Scope of Services. If Ameresco encounters lead paint in any area where it is to perform the Scope of services, which services shall require disturbing lead paint, and Ameresco reasonably believes that such paint may be lead paint, Customer, upon Ameresco's written request, shall either (a) at Customer’s cost, lawfully perform tests or cause tests to be performed in order to determine whether such paint contains lead and shall provide a test report to Ameresco; or (b) abandon the Project and terminate this Agreement. If such test report demonstrates the presence of lead paint or Ameresco reasonably believes that performing its services under this Agreement is likely to cause the disturbance of lead paint in such a manner as to require Ameresco to provide any notification or take any actions pursuant to any federal, state or local laws, rules, or regulations and Ameresco notifies Customer of the same, Customer shall: (x) at its cost, cause the lead paint to be lawfully removed, or otherwise abated in accordance with applicable laws, rules and regulations; or (y) abandon the Project and terminate this Agreement. Under no circumstances, shall Ameresco be required to perform services, which cause the disturbance of lead paint. If lead paint materially affects the Project Schedule, Ameresco, at its sole option, may demobilize and cease construction in the area affected by the presence of lead paint until such time as Customer has elected and performs one of the options afforded Customer as described in this Subsection. If Customer does not promptly take action as provided herein or notifies Ameresco that it shall not take such action, Ameresco may, at its sole option, either remove the affected area from its Scope of Services (and make commensurate adjustments to its rights and obligations) or terminate this Agreement in its entirety. Customer shall be responsible for payment of the portion of Scope of Services implemented prior to such termination. Customer shall be responsible for any and all costs (including termination) incurred by Ameresco that relate to the presence of lead paint. (d) Compliance With Law: Ameresco shall, at its expense, comply with and obtain all applicable licenses and permits required by federal, sta te and local laws in connection with (i) the installation of the Meters and (ii) the operation and/or maintenance of the Meters (to the extent that Ameresco agrees to perform such operations and/or maintenance services). In the event that Ameresco cannot procure any such license or permit in light of a requirement that Customer is required to do so, the Parties shall work jointly to obtain such permit or license. (e) Taxes: Customer represents that it is a tax exempt entity and that it shall cooperate wi th Ameresco and provide Ameresco with appropriate resale exemption documentation so that Ameresco may attempt to establish that it is not obligated to pay taxes, fees and assessments or other charges of any character which may be imposed or incurred by any governmental or public authority as an incident to title to, or operation of the Meters which would otherwise be levied upon or in respect to said interest component or of the Meters. Notwithstanding the foregoing, Customer shall pay (or, if applicable, reimburse Ameresco for the payment of) all property, sales taxes, use taxes or other fees and assessments associated with Scope of Services. Customer shall have no liability for taxes measured by the net income of Ameresco. (f) Monitoring, Measurement and Verification: To the extent provided for in Attachment G, Ameresco will supply such ongoing monitoring, measurement and verification services (the “M&V Services”) during the Term at a cost to Customer as set forth in Section 4 and Attachment I. (g) Duties, Obligations and Responsibilities of Ameresco: (i) All labor furnished under this Agreement shall be competent to perform the tasks undertaken, all materials and equipment provided shall be new and of appropriate quality and the completed work shall comply in all material respects with the requirements of this Agreement. (ii) Ameresco shall maintain the Project site in a reasonably clean condition during the performance of the Scope of Services. (iii) Ameresco shall regularly clean the Project site of all debris, trash and excess material or equipment generated by Ameresco’s construction work hereunder. (iv) Ameresco shall permit Customer or any of its representatives to enter upon the Project site to review or inspect construction work, provided, in each case, the Customer and/or its representatives coordinate such review or inspection with Ameresco and agree to comply with all applicable federal, state and local safety laws, rules and regulations, including, without limitation, those promulgated by the U.S. Department of Labor Occupational Safety & Health Administration. (v) Ameresco shall provide equipment manuals, as-built drawings and other appropriate information regarding equipment installed hereunder to Customer at or about the time of delivery of the Delivery and Acceptance Certificate (as provided in Section 4). (vi) Ameresco shall provide the training described in Attachment H. Such training is included in the Contract Cost unless included as a separate cost in Attachment I. SECTION 2 Ownership of Meters Ownership and title to each Meter or portion thereof, as applicable, shall automatically pass to Customer upon Ameresco’s receipt of both (i) the executed Substantial Completion Certificate (Attachment D(3)), and (ii) the indefeasible payment in full of all of Customer’s payment obligations to Ameresco pursuant to such Substantial Completion Certificate. Prior to satisfaction of the conditions set forth in (i) and (ii) in the previous sentence with respect to a Meter or portion thereof, title to each Meter or portion thereof shall remain in the name of Ameresco. If, notwithstanding the intent of the Parties, Customer is deemed to hold title to any or all of the Meters or portion thereof prior to the satisfaction of the conditions set forth in (i) and (ii) above, as security for the payment in full of the Customer’s obligations with respect to each such Meter or portion thereof, Customer hereby assigns, transfers and grants to Ameresco a security interest in such Meters. Customer hereby authorizes Ameresco to file, from time to time, Uniform Commercial Code financing statements in such jurisdictions as may be necessary to perfect and maintain its security interest in such Meters. If requested by Ameresco, Customer agrees to execute and deliver a ll further instruments and documents and take all further action that may be necessary in order to create, perfect and protect Ameresco’s security interest in the Meters and hereby irrevocably appoints Ameresco as Customer’s attorney-in-fact with full power to sign such instruments and documents. Upon delivery of the Substantial Completion Certificate and satisfaction of clause (ii) above for each Meter, Ameresco’s interest in the related Meters shall be released and terminated, in each case without further action on any Party’s part. SECTION 3 Financing and Ability to Pay (a) By its execution of this Agreement, Customer hereby represents and warrants to Ameresco that Customer has adequate funds for payment of the Contract Cost, and for any portions which Customer may need to borrow, Customer intends to enter into a separate financing through a bond issuance, lease purchase, or similar structure (“Financing”) with a third party finance company or other third party entity. (b) Customer agrees and acknowledges that its obligation to make the payments to Ameresco set forth in this Agreement are in no way contingent on the effectiveness of the Financing. SECTION 4 Contract Cost; Monthly Progress Payments (a) Subject to the terms of this Agreement, Ameresco shall perform the Scope of Services at a contract cost of Fifteen Million Eight Hundred Eighty Four Thousand and Four Hundred Eighty Seven and 00/100 Dollars ($15,884,487.00) (subject to adjustment as provided in Section 8, the “Contract Cost”). (b) Upon execution of this Agreement and delivery by Customer to Ameresco of the Notice to Proceed, substantially in the form attached to this Agreement as Attachment E, Customer shall pay Ameresco ten percent (10%) of the Contract Cost for mobilization. Thereafter, Ameresco shall submit invoices to Customer for monthly progress payments to Ameresco based upon the percentage of the Project construction and equipment procurement completed at the end of each month, so that Ameresco is paid the percentage of the Contract Cost that is commensurate with the percentage of completion of the Scope of Services. A Percent Complete Acknowledgement Certificate in the form attached hereto as Attachment D (2) will be executed by Customer during each month of the construction period showing the percent complete and monthly payment due. Customer shall make payment to Ameresco, within thirty (30) days after the submission of each such invoice. Customer shall not unreasonably withhold, condition or delay the execution and delivery of any Percent Complete Acknowledgement Certificate. (c) 5% of each invoice will be withheld as retainage by the Customer until Final Completion of the construction of the Meters. All funds retained will be due to Ameresco upon Final Completion. No retainage will be wi thheld from invoices for measurement and verification services. (d) Upon Substantial Completion of the installation of the Meters, Ameresco will deliver to Customer a Substantial Completion Certificate in the form of Attachment D (3). Within five (5) calendar days after receipt of each Substantial Completion Certificate, Customer shall complete, execute and deliver to Ameresco each such Substantial Completion Certificate. As used in this Agreement the term "Substantial Completion" shall mean that the subject Meters have been installed by Ameresco, and such Meters are then operating in a manner such that Customer is deriving beneficial use thereof. A Delivery and Acceptance Certificate, in the form of Attachment D(1), shall be executed by Customer upon Substantial Completion of the installation of the final Meter. Customer shall not unreasonably withhold, condition or delay the execution and delivery of any Substantial Completion Certificate or the Delivery and Acceptance Certificate. (e) Within thirty (30) calendar days following the first day of each Guarantee Year, as such term is defined in Section 6, Customer shall pay Ameresco the additional amounts set forth on Attachment I, Measurement and Verification Fee Schedule, as an annual fee for measurement and verification services. (f) All payments made by Customer under this Agreement shall be made in accordance with the provisions of any Prompt Payment Act applicable to Customer. All amounts not paid to Ameresco on or before the due dates specified in Subsections 4(b) and (d), shall accrue interest at the Prime rate of interest as published in the Wall Street Journal for major banks, or such lower rate as is prescribed by applicable law. SECTION 5 Term This term of this Agreement (the “Term”), shall begin on the date first above written and shall remain in effect through the “Guarantee Period” as such term is defined in Attachment C, unless terminated prior to such date, as provided for in this Agreement. At any time after the date of the Delivery and Acceptance Certificate, Customer may terminate this Agreement upon sixty (60) days prior written notice to Ameresco, provided that Customer has paid to Ameresco all amounts due as set forth in Section 4 (including, without limitation, pro-rata portions thereof accrued under Sections 4(b), (d) and (e), in Attachment I and pursuant to any Change Order). Termination of this Agreement shall also terminate the Guarantee Period. Anything in this Agreement to the contrary notwithstanding, Customer shall not be relieved of its obligation to pay Ameresco when due all amounts which accrued prior to such termination SECTION 6 Performance Guarantee To the extent set forth in Attachment C, and solely in accordance with Attachment C, Ameresco guarantees that the “Annual Project Benefits Realized” (as defined below) to be achieved as a result of installation and operation of the Meters shall equal or exceed the Guaranteed Annual Project Benefits (as defined in Attachment C) over the “Guarantee Period” (as defined in Attachment C). . . For purposes of this Performance Guarantee, the following assumptions and provisions shall apply: (a) Ameresco guarantees that the Guaranteed Annual Project Benefits will be achieved by operation and beneficial use of all Meters taken in the aggregate, but does not guarantee the benefits achieved by each Meter individually. (b) The total benefits achieved by the combined Meters, determined as provided in the M&V Plan, including any “Non-Measured Project Benefits” as such term is defined in the M&V Plan, shall be deemed the total “Annual Project Benefits”. Non-Measured Project Benefits amounts shall be deemed achieved upon Final Completion of the installation of the Meters. Calculation of the Annual Project Benefits Realized, inclusive of Non-Measured Project Benefits, shall be performed under, and governed by, the methods, formulas, and procedures described in the Measurement and Verification Plan set forth in Attachment G (the “M&V Plan”). (c) As it relates to the Annual Project Benefits Realized and this Performance Guarantee, the term “Guarantee Year” shall mean the consecutive twelve (12) month period beginning with the first day of the month following the date of Final Completion of the installation of the Meters, and each similar tw elve (12) month period thereafter. (d) Ameresco’s obligations in respect of this Performance Guarantee are subject to Customer performing all of its maintenance, repair, service and other obligations under this Agreement, including, without limitation, maintenance of the Standards of Service and Comfort set forth in Attachment J, if any, which may affect achievement of the Project Benefits. If Customer fails to perform its obligations under this Agreement or interferes with, or permits any third party to take any action which, in the reasonable opinion of Ameresco, may prevent the achievement of the Project Benefits under this Agreement, Ameresco may, after providing Customer thirty (30) days advance notice, adjust the Annual Project Benefits amount during the period in which such benefits were affected to reflect the impact such actions had on same. Ameresco’s rights set forth herein shall not be in limitation of any other rights it is entitled to by law or under this Agreement. Any disputes regarding achievement of Project Benefits or any M&V Report delivered pursuant to Attachment G shall be resolved in accordance with the dispute resolution provisions of Section 13. SECTION 7 Right of Entry/Space During the Term of this Agreement, Customer shall provide Ameresco and its employees, agents and subcontractors access to the Property for the purpose of fulfilling Ameresco's obligations under this Agreement. Customer shall provide rent free space for the installation and operation of the Meters and shall protect such items and equipment in the same careful manner that Customer protects the Property. SECTION 8 Changes in Services (a) The Scope of Services may be changed only by agreement of the Parties evidenced by execution of a “Change Order” substantially in the form attached to this Agreement as Attachment F, including the quantity, quality, dimensions, type or other characteristics of the Meters. During the Term hereof, either Customer or Ameresco may suggest that sites be added to the Property hereunder, in which case the parties shall endeavor to agree upon any new Meters to be installed and may either amend this Agreement or execute a Change Order for the installation, financing and commissioning of any such new Meters. Nothing in this paragraph shall obligate either party to proceed with installation of any Meters which are not part of the original Scope of Services or evidenced by execution of a Change Order. (b) Should Ameresco encounter subsurface or latent physical conditions at the site which diff er materially from those indicated in the Scope of Services or from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, Ameresco shall give written notice to the Customer before any such condition is disturbed or further disturbed. The Customer will promptly investigate and, if it is determined that the conditions materially differ from those which Ameresco should reasonably have been expected to discover or anticipate, the Customer shal l either (a) approve such changes in the Scope of Services as are necessary, with a corresponding adjustment in the Annual Project Benefits Realized; or (b) abandon the Project and terminate this Agreement, , provided that Customer has paid to Ameresco all amounts due as set forth in Section 4 (including, without limitation, pro-rata portions thereof accrued under Sections 4(b), (d), (e) and Attachment I and pursuant to any Change Order).. If such differing conditions cause an increase or decrease in Ameres co’s cost or time of performance, and the parties agree upon a change in the Scope of Services, the parties shall negotiate an equitable adjustment to Ameresco’s cost and/or time for performance, as the case may be and a Change Order shall be issued and executed by the Customer to reflect such adjustment(s). (c) If at any time prior to Substantial Completion of a Meter, Ameresco and the Customer mutually determine that a Meter is not commercially viable, Ameresco and the Customer may remove such Meter from the Scope of Services and from the Property. In such event, Ameresco shall refund to Customer the portion of the Contract Cost attributable to such Meter and the Annual Project Benefits will be reduced by an amount equal to the portion of the Annual Project Benefits attributable to such Meter. (d) If Ameresco and the Customer agree to an adjustment of the Contract Cost and the contract schedule established for the Scope of Services, such an agreement shall be effective immediately upon execution of a Change Order. SECTION 9 Warranties Ameresco hereby agrees as follows: (a) Ameresco warrants that the Work and all materials and equipment to be installed in the Project shall be free from defects in materials and workmanship arising from normal usage on a Meter by Meter basis for a period of one (1) year from the date of Substantial Completion of such Meter. Any manufacturers' warranties which exceed this one (1) year period shall be assigned to Customer to the extent allowed by the manufacturer. This section does not apply in any way to the Performance Guarantee. (b) EXCEPT AS PROVIDED IN THIS SECTION 9, AMERESCO MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO THE VALUE, DESIGN, AND CONDITION OR FITNESS FOR USE OR PARTICULAR PURPOSE AND MERCHANTABILITY, REGARDING THE WORK, THE METERS OR THE ANCILLARY EQUIPMENT INSTALLED IN CONNECTION WITH THE INSTALLATION OF THE METERS. SECTION 10 Customer’s Responsibilities (a) Operations: Customer shall operate all equipment installed hereunder in accordance with the manufacturer’s recommendations and the manuals supplied to Customer by Ameresco. (b) Standards of Service and Comfort: Customer shall operate the Meters and the Property in a manner that shall provide the Standards of Service and Comfort provided for in Attachment J. (c) Maintenance: Customer shall, at its expense, repair, operate and maintain the Property in good working condition during the Term of this Agreement. Customer shall maintain, repair and operate, at Customer’s expense: (i) all equipment and other components included as part of the Meters, and (ii) all other equipment which is attached thereto and/or is integral to the proper functioning of the Meters. (d) Malfunctions: Customer shall notify Ameresco immediately in the event of any malfunction in the operation of the Meters or any other equipment installed hereunder. (e) Protection of Meters: Except in the case of emergency, Customer shall not remove, move, alter, turn off or otherwise significantly alter the operation of the Meters, or any individual part thereof, without the prior approval of Ameresco, which approval shall not be unreasonably withheld. After receiving Ameresco's written approval, Customer shall proceed as instructed. The Customer does not need the approval of Ameresco to turn off water service to a property. Customer shall act reasonably to protect the Meters from damage or loss, if, due to an emergency; it is not reasonable to notify Ameresco before acting. Customer agrees to protect and preserve the facility envelope and the operating condition of all Meters and related equipment located on the Property. (f) Monitoring System: Customer shall not move, modify or otherwise alter the energy management system/building automation system (EMS/BAS), temporary data loggers, automatic meter reading, advanced metering infrastructure, or any other data collection or measurement and verification system (collectively, the “Monitoring System”) installed as part of the Meters or any component thereof without the written consent of Ameresco unless such action is in accordance with operating manuals and procedures provided by Ameresco. (g) Adjustment to Baseline: If, in the reasonable opinion of Ameresco, Customer does not reasonably operate, maintain, repair or otherwise protect the Meters and/or maintain the Property in good repair and good working condition, then Ameresco may equitably adjust the baseline, as referenced in Attachment G, for any increased water costs, energy costs, or consumption at the Property. (h) Changes to Property or Addition of Equipment: Customer shall notify Ameresco in writing at least thirty (30) days prior to making any changes to the Property that could reasonably be expected to affect the water costs or consumption on the Property, such as changes in the hours or days or time of year that the Property is occupied or operated, the number of occupants, the activity conducted, the equipment, the facilities, the size of the Property, etc. If Ameresco receives such notification or otherwise determines that such a change has occurred, it may make appropriate revisions to the Attachments to reflect any adjustment to the baseline or the Annual Project Benefits. Ameresco may also make retroactive adjustments to the baseline or calculation of Annual Project Benefits if Customer has not provided timely notice and any payments shall be retroactively reconciled to reflect the changed baseline. (i) Water Usage Data: Customer shall make available to Ameresco, on an ongoing basis for the Term of this Agreement, copies of all water bills, water usage data, water production data and any and all other such data maintained by Customer, including remote access to the Monitoring System or Customer’s network server for purposes of collecting such data, as may be requested by Ameresco, which are required for it to perform all of its obligations under this Agreement. (j) Insurance and Risk of Loss or Damage: Without limiting any of its obligations or liabilities under this Agreement, Customer shall, at its expense, provide and maintain at all times during the Term of this Agreement, sufficient insurance against the loss, theft of or damage to the Meters and all related equipment installed hereunder, for the full replacement value thereof, whether through a self-insurance program or a commercial insurance provider. Customer’s Commercial General Liability insurance or self -insurance program shall be primary for any property damage or bodily injury during the performance of the Work. Upon Substantial Completion of a Meter, Customer assumes all risk of loss of or damage to such Meter from any cause whatsoever. In the event of loss or damage to any Meter or other equipment installed hereunder, Customer shall promptly notify Ameresco and promptly return the same to good repair with the proceeds of any insurance received or self -insurance to the cost of such repair or demand that Ameresco perform such repair, in which case Ameresco shall promptly do so for such compensation to which the parties agree. If Customer determines that any of the Meters are lost, stolen, confiscated, destroyed or damaged beyond repair, Customer shall replace the same with like equipment in good repair in a timely fashion under the circumstances. If at any time after the date of the Delivery and Acceptance Certificate and after Customer’s complete payment to Ameresco in accordance with Section 4(a), as such amount may be modified from time to time in accordance with this Agreement, any fire, flood, other casualty, or condemnation renders a majority of the Property incapable of being occupied and renders the Meters or the equipment installed hereunder inoperable and, in the case of a casualty, the affected portion of such Meters or equipment is not reconstructed or restored within one hundred twenty (120) days from the date of such casualty, Ameresco and/or Owner may terminate this Agreement by delivery of a written notice to the other Party. Upon such termination, Owner shall pay Ameresco any amounts, or pro-rata portions thereof, under Sections 4(b), (c), (d) and (e), Attachment I and any Change Order, which accrued prior to such termination. Ameresco may also make appropriate adjustments to the baseline or the Annual Project Benefits to reflect the impact of such casualty or condemnation, including corresponding revisions to the Attachments. (k) Telephone and Internet: Customer shall install and maintain telephone lines and pay all associated costs for the Meters telephone lines or applicable communication systems. Ameresco may use Customer’s LAN for the purposes of any system that may be included in the Scope of Work. (l) Protection. Customer shall at all times act reasonably to protect the Meters from loss or damage to the same extent and in the same manner in which it protects the Property. (m) Alteration: Except in cases of emergency, Customer shall not move, alter or change the Meters in any way that may cause a reduction in the level of accurac y of the Meter or the equipment installed hereunder without obtaining Ameresco’s written approval, which shall not be unreasonably withheld. (n) Storage: Customer shall provide rent free space approximately 20’ X 30’ in size for Ameresco, or any of its subcontractors, to mobilize and store supplies, tools and equipment during installation of the Meters as available pursuant to this Agreement for which such storage space may be required, with locking capacity acceptable to Ameresco. Only Ameresco or any of Ameresco’s subcontractors, and Customer’s assigned personnel shall have access to storage. Customer shall procure and pay for all energy and other utilities required to operate the storage facility. (p) Cooperation during Construction: Customer shall reasonably cooperate in relocating occupants, staff, personnel, furniture and equipment and taking such other actions as may be necessary by Customer in order to prepare space for work by Ameresco to enable Ameresco to timely perform its obligations hereunder. (q) Customer responsibilities in connection with meter replacements: a. Isolating the utility system to allow for the meter change out including the identification of shut off valves and disconnect switches b. Assisting in scheduling shutdown of commercial customers c. The Customer is responsible for complying with any government mandates regarding water source regulations and permits. d. The customer is responsible for investigating and repairing any leaks identified by the leak detection system (if installed). SECTION 11 Defaults (a) By Customer. Customer shall be in default under this Agreement upon the occurrence of any of the following: (i) Customer fails to pay when due any amount to be paid under this Agreement and such failure continues for a period of five (5) business days after notice of overdue payment is delivered by Ameresco to Customer; (ii) any representation or warranty made by Customer in this Agreement or in any writing delivered by Customer pursuant hereto proves at any time to have been false, misleading or erroneous in any material respect as of the time when made; or (iii) Customer fails to perform any of its required duties or obligations under this Agreement and fails to cure such failure and the effects of such failure within thirty (30) days of receipt of written notice of default, unless such failures and effects cannot be completely cured within thirty (30) days after said written notice, in which case a default shall exist only if Customer does not commence and diligently pursue to cure such failures and effects as soon as practicable; (iv) Customer enters receivership, or makes an assignment for the benefit of creditors, whether voluntary or involuntary, or a petition is filed by or against Customer under any bankruptcy, insolvency or similar law and such petition is not dismissed within sixty (60) days. (v) Customer fails to cooperate in relocating occupants, staff, personnel, furniture and equipment or to take such other actions as may be necessary by Customer in order to prepare space for work by Ameresco as is reasonably requested by Ameresco in a timely manner in order to allow the Scope of Services to be accomplished hereunder. (b) By Ameresco. Ameresco shall be in default under this Agreement if Ameresco fails to perform any of its material duties or obligations under this Agreement and fails to cure such failure or effects of such failure within thirty (30) days of receipt of written notice of default, unless such failure or effects of such failure cannot be completely cured within thirty (30) days after said written notice, in which case a default shall exist only if Ameresco does not promptly commence and diligently pursue to cure such failure as soon as practicable. SECTION 12 Remedies for Default If either Party defaults under this Agreement, the other Party may, subject to the dispute resolution procedures in Section 13 below: (i) bring actions for any remedies available at law or in equity or other appropriate proceedings for the recovery of damages, including amounts past due; and (ii) with or without recourse to legal process, terminate this Agreement by delivering written notice of termination at least ten (10) days prior to the requested termination date. SECTION 13 Dispute Resolution Claims, disputes, or other matters in controversy ( a “Dispute”) arising out of or related to the Agreement or the Project shall be subject to informal dispute resolution and mediation as a condition precedent to any and all remedies at law or in equity. If during the term of this Agreement a Dispute arises concerning the Project or this Agreement, the Dispute shall initially be submitted to Customer’s project representative and Ameresco’s project manager for resolution by mutual agreement between said parties. Any mutual determination by the Customer Representative and Ameresco’s project manager will be final and binding upon the Parties. However, should the Customer representative and Ameresco’s project manager fail to arrive at a mutual decision as to the Dispute within ten (10) business days after notice to both individuals of such Dispute, such Dispute will be submitted to a representative from management of both Parties who shall meet in person or by phone within ten (10) business days after either Party gives the other Party written notice of the Dispute (the “Dispute Notice”). The Dispute Notice shall set forth in reasonable detail the aggrieved party’s position and its proposal for resolution of the Dispute. If the Dispute is not resolved within thirty (30) calendar days after the first meeting of the P arties, then the Parties shall endeavor to resolve the Dispute by mediation. A request for mediation shall be made in writing and delivered to the other Party. The request may be made concurrently with the filing of any and all remedies at law or in equity but, in such event, mediation shall proceed in advance of any proceedings filed in a judicial forum, which shall be stayed pending mediation for a period of sixty (60) days from the date of filing, unless stayed for a longer period of time by agreement o f the parties or court order. The Parties shall share the fees of the mediation equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. If the parties do not resolve the Dispute through informal dispute resolution or mediation, either Party is free to pursue any other available remedy in law or at equity. SECTION 14 Insurance and Bonds (a) By Ameresco: Ameresco shall provide and maintain at its expense the following insurance coverage: (i) Workers' Compensation and Employer’s Liability Insurance as required by applicable State law. (ii) Commercial General Liability Insurance, including contractual liability, Bodily Injury per person, $1 million; Bodily Injury per occurrence, $1 million; Property Damage per occurrence, $1 million; Personal Injury per occurrence, $1 million. (iii) Comprehensive Automobile Liability Insurance, including owned, non-owned and hired automotive equipment of, Bodily Injury per person, $1 million; Bodily Injury per occurrence, $1 million; Property Damage per occurrence, $1 million. Ameresco shall deliver to Customer a Certificate of Insurance naming Customer as an additional insured party under paragraphs (ii) and (iii), above. (b) Ameresco shall deliver to Customer Payment and Performance Bonds in a sum equal to the Contract Cost conditioned upon faithful performance of the Agreement by Ameresco, for the implementation of the installation of the Meters as it may be from time to time modified by Change Orders within ten (10) days of issuance of a Notice to Proceed. Notwithstanding any provision to the contrary herein, any payment and performance bonds associated with this Agreement guarantee only the performance of the installation portion of this Agreement, and shall not be construed to guarantee the performance of: (1) any performance guarantees, (2) any support or maintenance service ag reement, or (3) any other guarantees or warranties with terms beyond one (1) year in duration from the completion of the installation portion of this Agreement. (c) By Customer: Without limiting any of its obligations or liabilities under this Agreement, Customer shall provide and maintain at its expense, insurance coverage consistent with the requirements of Section 10(j) above, and its obligations under this Agreement. SECTION 15 Indemnification and Limitation of Liability (a) Anything in this Agreement to the contrary notwithstanding, neither Party nor its respective officers, directors, agents, employees, parent, subsidiaries or affiliates or their affiliates’ officers, directors, agents or employees shall be liable, irrespective of whether such claim of liability is based upon breach of warranty, tort, (including negligence, whether of any of the Parties to this Agreement or others), strict liability, contract, operation of law or otherwise, to any other Party, or its affiliates, officers, directors, agents, employees, successors or assigns, or their respective insureds, for incidental, delay, punitive or consequential damages connected with, related to or arising from performance or non-performance of this Agreement, or any action or inaction in connection therewith including claims in the nature of lost revenues, income or profits (other than payments expressly required and due under this Agreement), and increased expense of, curtailment, reduction in or loss of power generation production or equipment used therefor. (b) Ameresco’s total aggregate liability for any and all injuries, damages, claims, losses, expenses or claim expenses (including attorney’s fees) arising out of this Agreement from all causes or any causes, regardless of the legal theory under whi ch liability is imposed, shall in all cases be limited to the sum of the payments received by Ameresco under Section 4. Such causes shall include, but not be limited to, Ameresco’s negligence, errors, omissions, strict liability, breach of contract, warranty, breach of warranty or any indemnified claims. (c) Ameresco agrees to indemnify and hold Customer harmless from and against any and all third party claims for damages but only to the extent such damages arise by reason of bodily injury, death or damage to property caused by Ameresco's negligence or willful misconduct. To the extent that any such damages are covered by or under Ameresco’s Commercial General Liability Insurance policy, Ameresco shall not be required to indemnify Customer in excess of the proceeds of such policy. In no event, however, shall Ameresco be obligated to indemnify Customer to the extent that any such injury or damage is caused by the negligence of Customer or any entity for which Customer is legally responsible. SECTION 16 Agreement Interpretation and Venue Each Party hereto has had ample opportunity to review and comment on this Agreement. This Agreement shall be read and interpreted according to its plain meaning and an ambiguity shall not be construed against either Party. The judicial rule of construction that a document should be more strictly construed against the draftsperson thereof shall not apply to any provision of this Agreement. This Agreement shall be governed as to all matters, whether of validity, interpretati ons, obligations, performance or otherwise exclusively by the laws of the State in which the Project is located (the “State”). Regardless of where actually delivered and accepted, this Agreement shall be deemed to have been delivered and accepted by all parties in the State. Any mediation and legal proceedings involving the negotiation, formation, interpretation or enforcement of this Agreement may be brought in any state or federal district court having jurisdiction over the Parties. SECTION 17 Privileged and Proprietary Information Ameresco’s systems, means, cost, and methodologies of evaluating, implementing, accomplishing and determining project benefits and the terms of the Agreement for this Project shall be considered privileged and proprietary information. Customer shall use the same level of effort to protect and safeguard such information as it employs to safeguard its own confidential information, provided, however, that Customer is a public entity which has very little information that is not open to the public. Customer shall not disclose such proprietary information without the express written consent of an officer of Ameresco unless required to do so by statute or regulation. When any request for disclosure of such information is made under any applicable freedom of information law (the “FOIL”), Customer shall provide prompt written notice to Ameresco such that Ameresco will have the opportunity to timely object under the FOIL should it desire to object to such disclosure of that information in whole or in part. In the event that Customer is required to make a filing with any agency or other governmental body, which includes such information, Customer shall notify Ameresco and cooperate with Ameresco in order to seek confidential treatment of such information included within any such filing or, if all such information cannot be protected from disclosure, to request that Customer be permitted to redact portions of such information, as Ameresco may designate, from that portion of said filing which is to be made available to the public. SECTION 18 Severability If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisi ons of this Agreement, and all other provisions of this Agreement shall remain in full force and effect. SECTION 19 Assignments and Subcontracting (a) Ameresco may elect to use subcontractors in meeting its obligations hereunder. Nothing contained in this Agreement shall create any contractual relation between any subcontractor and Customer. (b) Customer shall not assign, transfer, or otherwise dispose of this Agreement, the Meters, or any interest therein, or sublet or lend the Meters or permit the Meters to be used by anyone other than Customer and Customer’s employees without the prior express written consent of Ameresco; provided that Customer may, without obtaining the consent of Ameresco, assign its rights in the Meters to any financial instituti on, lender or investor in connection with a leasing or financing arrangement for funding of the Contract Cost. If Customer transfers ownership or its interest in the Property without the prior written consent of Ameresco, this Agreement shall terminate automatically. (c) Ameresco shall not assign this Agreement in whole or in part to any other party without first obtaining the consent of Customer, which consent shall not be unreasonably withheld; provided that, Ameresco may assign, without obtaining the consent of Customer, its rights and obligations under this Agreement in whole or in part to any affiliated or associated company of Ameresco and its rights for payments only under this Agreement to any financial institution, lender or investor in connection with a credit facility to which Ameresco is a party. SECTION 20 Waiver Any waiver of any provision of this Agreement shall be in writing and shall be signed by a duly authorized agent of Ameresco and Customer. The waiver by either Party of any term or condition of this Agreement shall not be deemed to constitute a continuing waiver thereof nor of any further or future waiver of any additional right that such Party may be entitled to under this Agreement. SECTION 21 Force Majeure If either Party shall be unable to carry out any part of its obligations under this Agreement (except Customer’s obligations to make payments when due), due to causes beyond its control ("Force Majeure"), including, but not limited to, an act of God, strikes, lockouts or othe r industrial disturbances acts of public enemies, orders or restraints of any kind of the government of the United States or any state or any of their departments agencies or officials or any other civil governmental, military or judicial authority, war, blockage, insurrection, riot, sudden action of the elements, fire, explosion, flood, earthquake, storms, utility power outage, drought, landslide, or explosion or nuclear emergency, this Agreement shall remain in effect but the affected Party's obligations shall be suspended for a period equal to the disabling circumstances, provided that: (a) the non-performing Party gives the other Party prompt written notice, unless such other Party would not be prejudiced by a delay in notification, describing the particula rs of the event of Force Majeure, including the nature of the occurrence and its expected duration, and continues to furnish timely regular reports with respect thereto during the period of Force Majeure; (b) the suspension of performance is of no greater scope and of no longer duration than is required by the event of Force Majeure; (c) no obligations of either Party that arose before the event of Force Majeure causing the suspension of performance are excused as a result of the event Force Majeure; (d) the non-performing Party uses reasonable efforts to remedy its inability to perform; and (e) the Term of this Agreement shall be extended for a period equal to the number of days that the event of Force Majeure prevented the non-performing Party from performing. Any decision by Customer to close or change the use of the facilities or Meters at the Property, except to the extent such closure or change is itself caused by Force Majeure, shall not constitute a Force Majeure excusing Customer's performance under this Agreement. SECTION 22 Contract Documents (a) Upon execution of this Agreement by both Parties, this Agreement and its Attachments, which are hereby incorporated herein by reference, shall constitute the entire Agreement between the Parties relating to the subject matter hereof, and shall supersede all requests for proposals, proposals, previous agreements, discussions, negotiations, correspondences, and all other communications, whether oral or written, between the Parties relating to the subject matter of this Agreement. (b) This Agreement may not be modified or amended except in writing signed by the Parties. (c) Headings are for the convenience of reference only and are not to be construed as a part of the Agreement. SECTION 23 Notices All notices, requests, demands, elections and other communications under this Agreement, other than operational communications, shall be in writing and shall be deemed to have been duly given on the date when hand-delivered, or on the date of the confirmed facsimile transmission, or on the date received when delivered by courier that has a reliable system for tracking delivery, or six (6) business days after the date of mailing when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid. All notices shall be addressed to the following individuals: (a) If to Customer: Physical Address: 1300 7th Street Wichita Falls, TX 76301 Attention: Jim Dockery, Deputy City Manager Mailing Address: PO Box 1431 Wichita Falls, TX 76301 Attention: Jim Dockery, Deputy City Manager (b) If to Ameresco: Ameresco, Inc. 60 East Rio Salado Parkway, Suite 1001 Tempe, AZ 85281 Attention: Allen Sehrt, Director, Development Engineering With a copy to: Ameresco, Inc. 111 Speen Street, Suite 410 Framingham, MA 01701, Attention: General Counsel Either Party may from time to time change the individual(s) to receive notices and/or its address for notification purposes by giving the other Party written notice as provided above. SECTION 24 Records To assist Ameresco in its performance of this Agreement, Customer shall (to the extent it has not already done so) furnish (or cause its energy suppliers and transporters to furnish) to Ameresco, upon its request, accurate and complete data (kept by Customer or Customer’s water suppliers and transporters in the regular course of their respective businesses) concerning water usage for the existing facilities at the Property, including the following data for the most current thirty -six (36) month period. If requested by Ameresco, Customer shall also provide any prior energy analyses of the Property, to the extent available. SECTION 25 Representations and Warranties Each Party warrants and represents to the other Party that: (a) it has all requisite power, authority, licenses, permits, and franchises, corporate or otherwise, to execute and deliver this Agreement and perform its obligations hereunder; (b) its execution, delivery, and performance of this Agreement have been duly authorized by, or are in accordance with, as to Ameresco, its organizing instruments and as to Customer, by all requisite action and are not in breach of any applicable law, code or regulation; (c) this Agreement has been duly executed and delivered by the signatories so authorized, and constitutes each Party's legal, valid and binding obligation; (d) its execution, delivery, and performance of this Agreement shall not result in a breach or violation of, or constitute a material default under, any agreement, lease or instrumen t to which it is a party or by which it or its properties may be bound or affected; and (e) it has not received any notice, nor to the best of its knowledge is there pending or threatened any notice of any violation of any applicable laws, ordinances, reg ulations, rules, decrees, awards, permits or orders which would materially adversely affect its ability to perform hereunder; and (f) the persons executing this Agreement are fully authorized by law to do so. SECTION 26 Additional Representations and Warranties of Customer Customer hereby warrants and represents to Ameresco that: (a) Customer intends to continue to use the Property in a manner reasonably similar to its present use; (b) Customer does not contemplate any changes to the water consumption characteristics of the Property except as may have been disclosed to Ameresco by Customer in writing prior to the execution of this Agreement; (c) Customer has provided Ameresco with all records heretofore requested by Ameresco; (d) Customer has not entered into any other agreements or understandings for the Property with persons or entities other than Ameresco regarding the provision of the Scope of Services; (e) Since the date of the Audit, there has been no change, event, circumstance or development that has or could reasonably be expected to have a material adverse effect on (i) the operation or condition of the Property, (ii) the energy usage at the Property, or (iii) the ability of Customer to perform its obligations hereunder; and (f) Customer has obtained all necessary governmental, legal, administrative and any other approval necessary for it to enter into and perform this Agreement. SECTION 27 Independent Contractor Nothing in this Agreement shall be construed as reserving to Customer any right to exercise any control over or to direct in any respect the conduct or management of business or operations of Ameresco. The entire control or direction of such business and operations shall be in and shall remain in Ameresco, subject only to Ameresco's performance of its obligations under this Agreement. Neither Ameresco nor any person performing any duties or engaged in any work on the Property on behalf of Ameresco shall be deemed an employee or agent of Customer. Nothing in this Section shall be deemed to be a waiver of Customer’s right to use the Property. Customer and Ameresco are independent of one another and shall have no other relationship relating to or arising out of this Agreement. Neither Party shall have or hold itself out as having the right or authority to bind or create liability for the other by its intentional or negligent act or omission, or to make any contract or otherwise assume any obligation or responsibility in the name of or on behalf of the other Party. SECTION 28 Negligent/Wrongful Acts Neither Party to this Agreement shall be liable for any negligent or wrongful acts, either of commission or omission, chargeable to the other. This Agreement shall not be construed as seeking to either enlarge or diminish any obligation or duty owed by one Party against the other or against third parties. SECTION 29 Further Documents and Events The Parties shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the provisions of this Agreement. Customer shall execute all documents which may be reasonably required for Ameresco to obtain all licenses, permits and governmental approvals required by Ameresco for installation and operation of the Meters. Ameresco's obligations hereunder are also subject to obtaining all such licenses, permits and governmental approvals as are required to perform its obligations under this Agreement. Customer agrees that Ameresco shall have the right to all environmental, energy, tax, financial, and water related attributes, rights, credits, deductions, benefits and characteristics associated with or arising out of the transactions contemplated by this Agreement or associated with the Meters or with the project benefits created under this Agreement, howsoever created or recognized. Customer shall provide Ameresco all reasonable assistance in perfecting its rights to such attributes, rights, credits, benefits and characteristics. SECTION 30 Third Party Beneficiaries The Parties hereto do not intend to create any rights for, or grant any remedies to, any third party beneficiary of this Agreement. SECTION 31 Notifications of Governmental Action - Occupational Safety and Health The Parties shall notify each other as promptly as is reasonably possible upon becoming aware of an inspection under, or any alleged violation of, the Occupational Safety and Health Act or any other provision of federal, state or local law, relating in any way to the undertakings of either Party under this Agreement. SECTION 32 Termination for Convenience (a) Customer shall take all necessary and timely action during the Term to obtain funds and maintain appropriations sufficient to satisfy its obligations under this Agreement. (b) The foregoing notwithstanding, subsequent to the date of the Delivery and Acceptance Certificate, this Agreement may be terminated by Customer in accordance with the provisions of this Section 32. Customer shall provide notice to Ameresco of its election to terminate no later than thirty (30) days in advance of the end of the then current Guarantee Year. The termination shall become effective on the last day of said Guarantee Year. The termination of this Agreement by Customer shall release Ameresco from its obligation to provide maintenance, monitoring and training services after the effective date of termination, as well as its obligation to provide the Performance Guarantee after the termination date; provided, however, that Customer is responsible for payment for maintenance, monitoring and training services performed in accordance with the terms of this Agreement prior to the termination date and Ameresco shall remain responsible for any Annual Project Benefits Shortfall (as defined in Attachment C) payments due Customer prior to the date of termination. (c) If this Agreement is terminated pursuant to this Section 32, Customer and Ameresco agree that during the Term (as would otherwise have been in effect): (i) Customer shall not purchase, lease, rent, engage the services of an agent or independent contractor or otherwise pay for the use of a system or equipment performing functions or services similar to those performed by the Meters installed pursuant to this Agreement and (ii) if Customer receives an appropriation of funds which permits Customer to purchase, lea se, rent, engage the services of an agency or independent contractor, or otherwise pay for the use of a system or equipment performing functions or services similar to those performed by the Meters installed pursuant to this Agreement, upon receipt of such funds such other obligations shall immediately be rescinded and Customer shall satisfy the Obligations then owed to Ameresco prior to Customer’s appropriation of such funds for the purpose of paying any other payee(s). SECTION 32 References Unless otherwise stated, all references to a particular Attachment or to Attachments herein are to the referenced Attachment or Attachments which are attached to this Agreement and all such referenced Attachments are incorporated by reference within this Agreement. All references herein to a Section shall refer to a Section of this Agreement unless this Agreement specifically provides otherwise. IN WITNESS WHEREOF, the duly authorized officers or representatives of the Parties have set their hand on the date first written above with the intent to be legally bound. [CUSTOMER] AMERESCO, INC. By:_________________________________ Authorized Signature Name:______________________________ Title: ______________________________ By:_______________________________ Authorized and Required Signature Name: Robert Georgeoff Title: Vice President ATTACHMENTS TO PERFORMANCE CONTRACTBETWEEN AMERESCO, INC. AND CITY OF WICHITA FALLS, TX ATTACHMENT A PROPERTY DESCRIPTION The following buildings, facilities, and areas, which are owned and operated by CITY OF WICHITA FALLS, TX, are included in the Scope of Services set forth in Attachment B: Building Name Building Address Building City, State, Zip City-owned water meters City-wide Wichita Falls, TX Zip Codes: 76301, 76302, 76305, 76306, 76307, 76308, 76309, 76310, 76311, 76354, 76367 ATTACHMENT B SCOPE OF SERVICES This Attachment sets forth a description of existing equipment, the Retrofits and related equipment to be installed by Ameresco at the buildings, facilities, and areas set forth in Attachment A within the Property. Installation of the Retrofits and the included equipment is subject to change if Ameresco discovers unforeseen conditions at the Property that render its preliminary analysis of the Property inaccurate, or significantly affect achievement of the Guaranteed Project Benefits. Any changes to the installation of the Retrofits and the included equipment are subject to approval of Customer and issuance of a Change Order, which approval shall not be unreasonably withheld, conditioned or delayed. 4.1.2 Scope of Work The scope of work for this project includes a replacement of 33,249 water meters, rebuilding of 189 existing Sensus Omni T2 water meters, and the installation of a fi xed-based Sensus FlexNet AMI system. AMI System Installation: Ameresco will install and deploy a turnkey fixed-based AMI system for the City. The new AMI system shall be the Sensus FlexNet system that uses its own licensed radio frequency for wireless communication. The replacement water meters will be compatible with the new AMI network. Installation of the network infrastructure shall consist of the following: ─ Four Sensus M400 Base Transceiver Stations to be installed at the City’s existing water towers. ─ Sensus performed an RF propagation study for this project and determined that four Base Stations will provide 99.99% radio coverage for all the water meters in the City, including the inactive accounts. Reference Appendix G for the Sensus RF Propagation Study. ─ One Base Station each will be installed at the Denver, Puckett, Kell West and East 287 water towers. The Base Station’s antennae will be installed at the top of the tower, while the electronic cabinet will be installed on the ground on a concrete pad. ─ The Base Station antennae will be omni directional, except for the one at the East 287 water tower. The antennae at this location will be directed at 115 degrees towards the City. ─ Ameresco assumes that the City will allow installation of the collectors at the water towers at no charge. The collectors require 110-240 VAC power. Ameresco will tap power from existing electricity services at the installation locations. ─ The City informed Ameresco that the East 287 water tower may be moved to another location in the future, but there are City-owned communication towers nearby that can serve as alternates. Ameresco will work with the City prior to installation of the system to finalize design of the AMI network, and if need be, identify alternate location for the East 287 water tower. The City instructed Ameresco to include remote hosting for the AMI system. For the communication backhaul to the remote host, Ameresco plans to use the cellular backhaul via either AT&T or Verizon. ─ Ameresco will install four Sierra Wireless GX450 cellular modems, one for each Base Station, for the backhaul. ─ The City will be responsible to sign up with either AT&T or Verizon separately for a data plan for each modem, and supply the SIM cards for them. A monthly 5 GB data plan per modem should be sufficient to handle the data from the meters. In addition to the Base Stations, Ameresco will provide the following devices to the City after installation is completed. ─ Four Trimble Juno T41 handhelds ─ Four CommandLink wireless interface ─ One 3096+ Mini reader ─ One UniPro Communication tool Ameresco will perform a full commissioning of the entire AMI system after installation. ─ Scope of work for the AMI system also includes network software, integration to the City’s billing system, and training. AMI System Annual Services: Ameresco included in the project cash flow an annual service fee for the AMI system. The annual fee includes the following services: ─ AMI remote hosting ─ Sensus Analytics regional network interface software (utility portal) ─ CustomerConnect customer portal for up to 4,500 accounts Per the City’s direction, the project’s annual fee includes access to the customer portal for only up to 4,500 accounts. Any additional services over 4,500 will incur an additional fee of $2.25 per user per year. The City will be responsible for this additional fee if there are more than 4,500 customers using the portal. The remote hosting and software portal services will be provided by Sensus. The City of Wichita Falls will contract directly with Sensus for these services. The project’s cash flow also includes annual maintenance fee and support for the four Base Stations. This annual support will be provided by AquaMetric, Sensus’ authorized distributor for the North Texas region. The City will contract directly with AquaMetric for these services. As described previously, Ameresco plans to use a cellular network to serve as the backhaul to transmit data from the local Base Stations to the remote host, and vice versa. The City must contract directly with AT&T or Verizon for this cellular service. However, the annual cost for this service is included in the project’s cash flow. Reference Appendix O and Appendix P of the Investment Grade Audit for a draft copy of the annual service agreements with Sensus and AquaMetric. Water Meter Replacement: Ameresco will replace a total of 33,249 existing water meters at the City. In addition, we will rebuild 189 existing Sensus Omni T2 meters. The replacement water meters shall be the Sensus iPerl, Sensus Omni T2 or Master Meter Octave water meters, depending on the meter size. Breakdown of the meter size and types is shown in the table below. Cut sheets for the replacement meters are provided in Appendices I through J. Table 4.1. List of Water Meters for Replacement Meter Size Replacement Water Meter Quantity 5/8”x3/4” Sensus iPerl 27,310 1-inch Sensus iPerl 4,497 1.5-inch Sensus Omni T2 571 2-inch Sensus Omni T2 657 3-inch Master Meter Octave 107 4-inch Master Meter Octave 65 6-inch Master Meter Octave 28 8-inch Master Meter Octave 13 10-inch Master Meter Octave 1 Total: 33,249 Ameresco will rebuild a total of 189 existing Sensus Omni T2 meters listed in Table 4.3 below. For the rebuild, we will replace the Unit Measuring Element (UME) assembly for these meters with new UME that has a digital register compatible with the Sensus MXU 520M radio end point. Description of the UME for the Sensus Omni T2 meter can be found in the meter’s O&M manual. Table 4.2. List of Water Meters for Rebuild Meter Size Existing Water Meter Quantity 1.5-inch Sensus Omni T2 3 2-inch Sensus Omni T2 157 3-inch Sensus Omni T2 16 4-inch Sensus Omni T2 7 6-inch Sensus Omni T2 4 8-inch Sensus Omni T2 1 10-inch Sensus Omni T2 1 Total: 189 All new and rebuilt water meters will be equipped with Sensus MXU 520M single port radio end point for integration to the FlexNet AMI network. General scope for the meter replacement is as follows: ─ Clean debris and dirt from the meter and piping inside the pit as necessary. ─ Pump water out of the pit as needed and dump to a storm sewer or street. ─ Replace the old water meter with the new meter. For rebuilds, replace the existing UME with new UME. ─ Miscellaneous material and labor required to install the new meter such as adapters, couplings, bushings, etc. so long as the work can be performed in the existing pit. ─ Ameresco will be responsible for line breaks 2-feet upstream and 2-feet downstream of the replaced meter. ─ Ameresco will turn over the old water meters to the City for salvage. The following items are excluded from the scope of work: ─ Installation of meter re-setters or risers with the new meters. ─ Repair of existing water service leaks that are located outside of the meter pits. ─ Repair of line breaks beyond 2-feet upstream and 2-feet downstream of the replaced meter. ─ Installation of check valves or other backflow prevention devices with the new meters. ─ Repair, replacement, or any modification to existing meter pit or vault. ─ Abatement of any hazardous materials or hazardous material testing The scope includes replacing up to 1,675 non-functioning service shut-off valves on the residential meters. This estimate quantity is based on observations during the sample survey. This work will be done as field conditions require. The scope includes additional labor work to access the water meters for up to 600 residential meters. This additional labor is intended for those meter pits where the meter is inaccessible (buried, behind meter box, etc.). This work will be done as field conditions require. General Notes and Clarifications Retrofit Scope Clarifications: The following items are excluded from the water meter replacement scope of work:  Installation of meter re-setters or risers with the new meters.  Repair of existing water service leaks that are located outside of the meter pits.  Repair of line breaks beyond 2-feet upstream and 2-feet downstream of the replaced meter.  Installation of check valves or other backflow prevention devices with the new meters.  Repair, replacement, or any modification to existing meter pit or vault.  Abatement of any hazardous materials or hazardous material testing. General Scope of Services Comments:  Unless specifically noted in the Scope of Services – abatement of ACM and other hazardous materials is excluded.  As final engineering is not started and equipment is not ordered until Ameresco has a signed contract / notice to proceed - Ameresco cannot guarantee delivery dates / system start-up and is not responsible for costs associated with additional mobilizations, temporary equipment, etc. if long lead times affect construction schedule.  Material ordering and final scheduling will not occur until a signed agreement is receive d.  Ameresco pricing assumes 100% availability of rooms to do the work. Unless noted otherwise, pricing based on 1st shift only (Monday through Friday).  Unless specifically noted in the Scope of Services – paint / patch is excluded. If noted in the Scope of Services – only the affected areas will be addressed (not the entire area / wall). Paint will match existing adjacent as close as possible but an exact match cannot be guaranteed.  Some existing equipment may be left abandoned in place.  Unless specifically noted in the Scope of Services – no piping covers have been included. ATTACHMENT C GUARANTEED ANNUAL PROJECT BENEFITS The guaranteed annual project benefits are based on the average accuracy of the new meters is at least 98.5 percent. The increased meter accuracy could allow the City to bill for water use that currently does not register on the existing meters. The Meter Measurement and Verification Plan shown in Attachment G describes the methodology that will be used to calculate the projected benefit from the new meters. Projected water and sewer revenue increase from additional low flow registration from using new metering technology is stipulated. Annual cost savings from meter reading O&M and from meter replacement are not guaranteed. These cost savings are stipulated. ATTACHMENT D (1) DELIVERY AND ACCEPTANCE CERTIFICATE PROJECT COMPLETION LOG Sub-Project Tasks/Punch List items Completion Date Items furnished to CUSTOMER with this Delivery and Acceptance Certificate:  Receipt of owner’s manuals; sets.  Receipt of instruction and training; ______________  Completion of inspection and walk-through.  Receipt of warranty information. The punch list items are hereby completed in accordance with the Agreement. Customer agrees that the Non-Measured Project Benefits have been satisfied for the term of the Guarantee Period. CUSTOMER By: Title: Date: Notes (special instructions etc.): ATTACHMENT D (2) PERCENT COMPLETE ACKNOWLEDGEMENT CERTIFICATE Customer hereby acknowledges receipt and acceptance of the __________ portion of the Retrofit installation project described in Attachment B to the Performance Contract (the "Agreement") dated _________________, 201_ between Customer and Ameresco. Customer certifies that the work described in the related application for payment submitted by Ameresco has been completed in accordance with the Agreement and that the installation of the Retrofits is) _____ percent complete, as substantiated by sufficient detail provided by Ameresco. Customer agrees to make payment to Ameresco as set forth in Section 4 of the Agreement. Date Accepted by Customer:________________________ Accepted for: Accepted by: Name: _______________________________ Title: ______________________________ ACKNOWLEDGMENT OF AMERESCO Ameresco hereby acknowledges that the total amount due based upon percent complete for the Retrofits described in Attachment B, and the Notice to Proceed, hereto is $__________________. Date Accepted by Ameresco: Accepted for: AMERESCO, INC. Accepted by: Name: Title: ATTACHMENT D (3) SUBSTANTIAL COMPLETION CERTIFICATE PROJECT NAME & ADDRESS: PROJECT NO.: CONTRACT DATE: DESCRIPTION: The installation of [list each Retrofit being accepted with this certificate] under the Agreement has/have been reviewed and found to be substantially complete. The date of Substantial Completion of the forgoing Retrofits is hereby established as: SUBSTANTIAL COMPLETION DATE: ________________________________________ The date of Substantial Completion of a Retrofit is the date when such Retrofit is sufficiently complete in accordance with the Agreement so that Customer derives beneficial use thereof. Customer agrees that the Non-Measured Project Benefits associated with the ECMs listed have been satisfied for the term of the Guarantee Period. The Substantial Completion date set forth above is the date of commencement of applicable war ranties for such Retrofits, as required by the Agreement. A list of items to be completed or corrected is identified below as punch list items. CONTRACTOR: Ameresco, Inc., 111 Speen Street, Suite 410, Framingham, Massachusetts 01701 AUTHORIZED SIGNATURE: DATE: NAME: (type or print) CUSTOMER: AUTHORIZED SIGNATURE: DATE: NAME: (type or print) PUNCHLIST ITEMS Attach additional page(s) as necessary. Number of pages attached . [Please Print On Customer Letter Head] ATTACHMENT E NOTICE TO PROCEED MONTH DAY YEAR Ameresco, Inc. 60 East Rio Salado Parkway, Suite 1001 Tempe, AZ 85281 Attention:______________ SUBJECT: NOTICE TO PROCEED Mr. ____________: In accordance with the terms of the Performance Contract dated [month day year] , Customer hereby issues this Notice to Proceed to Ameresco in relation to the Scope of Services set forth in [Change Order #__ to] such Agreement. Sincerely, CUSTOMER _______________________ Name: Title: ATTACHMENT F CHANGE ORDER Change Request No. CUSTOMER: Department: Project No. Contract No. Site: Title: I. REQUEST Date: (a) Requested by Of (b) Description of change II. AMERESCO’s AGREEMENT For all costs involved in this change including extensions of time herein requested , Ameresco proposes to perform the work described in accordance with the provisions of the Agreement for the price as follows. Payment shall be made on the basis of: (a) Predetermined lump sum total of $ Place an "X" beside selected proposal method and strike out either (add) or (deduct) whichever does not apply. If necessary, attach detailed estimates and breakdown for above in accordance with change order instruction. A claim for work performed under protest may be submitted per (c) above. ATTACHMENTS [Tailor to Change Order and Scope] All references in the Agreement to Attachments shall also mean and refer to Attachments A-_, B-_ etc., as a separate scope of Work. Attachments A-1 through J-1 shall be read and construed separately from Attachments A-_ through J-_ All other provisions of the Agreement not expressly modified by this Change Order #__ shall remain in full force and effect including, but not limited to, Section 25 of the Agreement, Representations and Warranties, which representations and warranties are incorporated herein by reference with respect to this Change Order #__. IN WITNESS WHEREOF, the Parties hereto have caused this Change Order #__ to be duly executed and delivered by their proper and duly authorized officers. AMERESCO, INC. ______________________ ______________________ By: By: Title: Title: Date: Date: (Signature Required) CUSTOMER APPROVAL: CUSTOMER Contract Award $ ______________________ Previous Additions $ Previous Deductions $ By: ___________________________ Net Total $ Title: ________________________ This Change $ Date: ______________________ Total $ ATTACHMENT G METER MEASUREMENT AND VERIFICATION PLAN; METHODOLOGY OF CALCULATING PROJECTED PROJECT BENEFITS Water Meter and AMI Upgrade Ameresco does not guarantee revenue increase from replacing the water meters. Rather, we guarantee that the new water meter average accuracy is at least 98.5 percent. Per Texas statute Local Government Code 302, the water meter accuracy verification must be done within the first five years of the performance period. Ameresco plans to perform the water meter M&V in year three after construction is complete. Revenue increases will be calculated using the measured increase in meter accuracy, the consumption baseline and the water and sewer rates for each year in the performance period. Measured Variables: Average accuracy of existing water meters Average accuracy of new water meters Stipulated Variables: Water and sewer revenue increase from accuracy correction Low flow revenue increase from new meter technology Meter reading O&M savings Meter replacement and repair cost savings Testing Plan Average accuracies of the existing water meters have been determined during the a udit. In year three after construction, Ameresco will perform another statistical accuracy test on the new water meters. The tests will be divided into two groups: (1) lab bench test for the small 5/8”x3/4” and the 1 -inch meters, and (2) in- ground field test for the 2-inch meters and larger. Table 2 shows a summary of the M&V testing plan. For M&V purposes, Ameresco will not separate the 5/8”x3/4” meters into residential and commercial subgroups. As in the IGA, Ameresco will not perform accuracy verification test on the 1.5-inch meters because its revenue contribution is small. Table 2. Summary of M&V Testing Plan Meter Size Sample Quantity Test Type 5/8”x3/4” 68 Bench Test 1-inch 68 Bench Test 2-inch 68 Field Test 3-inch and larger 35 (same meters tested in IGA) Field Test For the small water meters, Ameresco will pull a sample of 68 meters for each size group and install the same replacement meters in their place. The collected meter samples will then be sent to a test f acility to measure their average accuracy following the AWWA guidelines. Average accuracy for the low flow, mid flow and high flow will be aggregated assuming a 15 percent / 70 percent / 15 percent usage in each range. The verification will be deemed satisfied if the aggregate average accuracy of the sample meters is at least 98.5 percent. For the 2-inch meters, Ameresco will also select 68 random samples from the size group for testing. However, unlike the small meters, we will not pull out the meters for lab test. Instead, Ameresco will perform the test in ground using the meter’s test ports. All new 2-inch Sensus Omni T2 meters that will be used in this project have test ports. The field tests will be performed according to AWWA guidelines. For the Omni T2 meters, the low flow and high flow accuracies will be aggregated assuming a 10 percent / 90 percent usage pattern. The verification will be deemed satisfied if the aggregate average accuracy of the sample meters is at least 98.5 percent. For meters that are 3-inch and larger, Ameresco will perform in-ground field tests only on the 35 meters that we tested in this IGA. The list of these 35 meters is shown in Table 3 below. These meters will be replaced with the Octave meters in this project, and the replacement meters will all have test ports for field test. As in the 2 -inch meter test, the low flow and high flow accuracies for these large meters will be aggregated using AWWA’s recommended 10 percent / 90 percent usage pattern. The verification will be d eemed satisfied if each meter in this list has an aggregate accuracy of at least 98.5 percent. Table 3. List of Select 3 inch and Larger Water Meters for Testing Account Name Building Name Street Name Street No. Meter Size NORTHPARK ASSOCIATES-II LP N CENTRAL FWY WICHITA FALLS TX 76305-6609 5601 6"x2" CITY VIEW I S D City View Junior / Senior High School CITY VIEW DR WICHITA FALLS TX 76306-4624 1600 4" NORTH AMERICAN PIPE CORPORATION North American Pipe Corporation INDUSTRIAL DR WICHITA FALLS TX 76306-3735 3348 4"x1.5" UNITED REGIONAL HEALTH CARE SYSTEM United Regional 10TH ST WICHITA FALLS TX 76301-4306 1601 6"x2" UNITED REGIONAL HEALTH CARE SYSTEM United Regional 11TH ST WICHITA FALLS TX 76301 1617 4" UNITED REGIONAL HEALTH CARE SYSTEM United Regional 11TH ST WICHITA FALLS TX 76301 1617 4" BLANKENSHIP DBA WOODVIEW APTS Woodview 32ND ST WICHITA FALLS TX 76302-1511 1601 6"x2" CRESCENT PLAZA APARTMENTS OLD JACKSBORO HWY WICHITA FALLS TX 76302- 2922 4600 3" WICHITA COUNTY COURTHOUSE Wichita County Courthouse Jail 7TH ST WICHITA FALLS TX 76301-2402 900 4" ECONO LODGE Econo Lodge 5TH ST WICHITA FALLS TX 76301-2118 1700 3" COYOTE RANCH RESORT Coyote Ranch Resort / Yogi Bear STEPHENS RANCH RD WICHITA FALLS TX 76310- 8116 200 4"x1.5" WICHITA C COURT H Wichita County Court House 7TH ST WICHITA FALLS TX 76301-2402 900 4" WINDSOR-NEW GRAND LLC BROAD ST WICHITA FALLS TX 76301-2234 401 6" FLYING J INC. #5153 Flying J OLD JACKSBORO HWY WICHITA FALLS TX 76302- 1148 2311 4"x2" HOUSING AUTHORITY HUMPHREYS ST WICHITA FALLS TX 76301-6923 949 4" WASHINGTON VILLAGE APTS Washington Village Apartments REDWOOD AVE WICHITA FALLS TX 76301-2840 1001 6"x2" NORTHPARK ASSOCIATES-I LP CENTRAL FWY WICHITA FALLS TX 76305 5601 6"x2" 1520 TROUT-66 LLC THOMPSON RD WICHITA FALLS TX 76301-7334 1200 4" ADMIRAL LINEN & UNIFORM SVC Admiral Linen & Uniform Svc CENTRAL FWY WICHITA FALLS TX 76301-8054 2816 4" GREEN BRIAR APARTMENTS PHASE 1 Green Briar Apts. AIRPORT DR WICHITA FALLS TX 76305 901 4"x1.5" HOUSING AUTHORITY 207A CORWIN ST WICHITA FALLS TX 76306-7636 513 3" MSU Coliseum TAFT BLVD WICHITA FALLS TX 76308-2095 3410 6" INTERCAPITAL FOUNTAINGATE LLC DBA Fountaingate Apts. Homes BARNETT RD [A] WICHITA FALLS TX 76310-2903 4835 6"x2" For meters that are 3-inch and larger, Ameresco will perform in-ground field tests only on the 35 meters that we tested in this IGA. The list of these 35 meters is shown in Table 3 below. These meters will be replaced with the Octave meters in this project, and the replacement meters will all have test ports for field test. As in the 2 -inch meter test, the low flow and high flow accuracies for these large meters will be aggregated using AWWA’s recommended 10 percent / 90 percent usage pattern. The verification will be d eemed satisfied if each meter in this list has an aggregate accuracy of at least 98.5 percent. Table 3. List of Select 3 inch and Larger Water Meters for Testing Account Name Building Name Street Name Street No. Meter Size SWAN DBA Z BEST STORAGE LTD Bellagio Terrace Apartments OLD JACKSBORO HWY WICHITA FALLS TX 76302- 3531 5038 4"x1.5" WELLINGTON LAKE PARTNERS LP Wellington Lake Partners Lp BARNETT RD WICHITA FALLS TX 76310-1725 3919 6"x2" MIDWESTERN STATE UNIV. SUNWATCHER VILLAGE LOUIS J RODRIGUEZ DR WICHITA FALLS TX 76308- 2215 3704 6"x2" MSU-SUNWATCHER VILLAGE Dorm LOUIS J RODRIGUEZ DR WICHITA FALLS TX 76308- 2215 3704 6"x2" UNITED SUPERMARKETS L.L.C. United Supermarket KELL BLVD WICHITA FALLS TX 76309-4744 4590 3" C R OPERATING CO DBA COLONY PARK APTS Colony Park TAFT BLVD WICHITA FALLS TX 76308-4802 4700 4" ASHP WICHITA FALLS LLC LAKE PARK DR WICHITA FALLS TX 76302-4601 5005 4" WF CRESCENT VILLAGE LP Crescent Village TAFT BLVD WICHITA FALLS TX 76308 5020 3" ROBERT SEABURY Stone Creek Ranch TAFT BLVD WICHITA FALLS TX 76308-5340 5021 4" HOUSE OF HOPE House of Hope STONE LAKE DR WICHITA FALLS TX 76310-8017 5100 3" VERNON COLLEGE Vernon College 8" LAKE RIDGE PLACE Brookdale Senior Living PLAZA PKWY WICHITA FALLS TX 76308-2913 2649 4" Baseline Utility Rates Table 4 and 5 show the baseline water and sewer rates that will be used to calculate the water and sewer revenues during the M&V period. Table 4. Water Rates for Meter Accuracy Revenue Calculations ($/CCF) Period 5/8”x3/4” RESW 1” RESW 1.5” RESW 2” RESW All COMW Construction $3.69 $3.74 $3.74 $3.78 $3.90 Year 1 $3.80 $3.85 $3.85 $3.89 $4.02 Year 2 $3.91 $3.97 $3.97 $4.01 $4.14 Year 3 $4.03 $4.09 $4.09 $4.13 $4.26 Year 4 $4.15 $4.21 $4.21 $4.25 $4.39 Year 5 $4.28 $4.34 $4.34 $4.38 $4.52 Year 6 $4.41 $4.47 $4.47 $4.51 $4.66 Year 7 $4.54 $4.60 $4.60 $4.65 $4.80 Year 8 $4.67 $4.74 $4.74 $4.79 $4.94 Year 9 $4.81 $4.88 $4.88 $4.93 $5.09 Year 10 $4.96 $5.03 $5.03 $5.08 $5.24 Year 11 $5.11 $5.18 $5.18 $5.23 $5.40 Year 12 $5.26 $5.33 $5.33 $5.39 $5.56 Year 13 $5.42 $5.49 $5.49 $5.55 $5.73 Year 14 $5.58 $5.66 $5.66 $5.72 $5.90 Year 15 $5.75 $5.83 $5.83 $5.89 $6.08 Year 16 $5.92 $6.00 $6.00 $6.07 $6.26 Year 17 $6.10 $6.18 $6.18 $6.25 $6.45 Year 18 $6.28 $6.37 $6.37 $6.44 $6.64 Year 19 $6.47 $6.56 $6.56 $6.63 $6.84 Year 20 $6.66 $6.75 $6.75 $6.83 $7.04 Table 5. Sewer Rates for Meter Accuracy Revenue Calculations ($/CCF) Period All RESS All COMS Construction $1.75 $1.75 Year 1 $1.80 $1.80 Year 2 $1.86 $1.86 Year 3 $1.91 $1.91 Year 4 $1.97 $1.97 Year 5 $2.03 $2.03 Year 6 $2.09 $2.09 Year 7 $2.15 $2.15 Year 8 $2.22 $2.22 Year 9 $2.28 $2.28 Year 10 $2.35 $2.35 Year 11 $2.42 $2.42 Year 12 $2.50 $2.50 Year 13 $2.57 $2.57 Year 14 $2.65 $2.65 Year 15 $2.73 $2.73 Year 16 $2.81 $2.81 Year 17 $2.89 $2.89 Year 18 $2.98 $2.98 Year 19 $3.07 $3.07 Year 20 $3.16 $3.16 Table 6 shows the stipulated low flow revenue, meter reader O&M savings, and meter replacement and re pair cost savings values throughout the performance period. Table 6. Stipulated Revenues and Savings Period Low Flow Revenue Meter Reading O&M Savings Replacement and Repair Cost Savings Construction $133,261 $220,524 $175,000 Year 1 $137,258 $227,140 $180,250 Year 2 $141,376 $233,954 $185,658 Year 3 $145,617 $240,973 $191,228 Year 4 $149,986 $248,202 $196,965 Year 5 $154,486 $255,648 $202,874 Year 6 $159,121 $263,317 $208,960 Year 7 $163,895 $271,217 $215,229 Year 8 $168,812 $279,354 $221,686 Year 9 $173,876 $287,735 $228,337 Year 10 $179,092 $296,367 $235,187 Year 11 $184,465 $305,258 $242,243 Year 12 $189,999 $314,416 $249,510 Year 13 $195,699 $323,848 $256,995 Year 14 $201,570 $333,563 $264,705 Year 15 $207,617 $343,570 $272,646 Year 16 $213,846 $353,877 $280,825 Year 17 $220,261 $364,493 $289,250 Year 18 $226,869 $375,428 $297,928 Year 19 $233,675 $386,691 $306,866 Year 20 $240,685 $398,292 $316,072 ATTACHMENT H TRAINING The types of training planned for this project is listed in Table 7. Training will be provided during construction, commissioning, and acceptance phases as dictated by the complexity of the retrofits. Table 7. Training Plan Retrofits Training Level Training (Hours) Classroom Field Water Meter and AMI Upgrade 3 3 x 2 hr 3 x 2 hr The following is a description of each training level:  Level 1: For systems and/or equipment that are essentially direct replacements of existing equipment, and where no additional specific skills will be required to perform operations and maintenance functions, training will be limited to a general overview of the equipment installed and a review of the O&M manuals. Training will be directed to the City’s operation and maintenance personnel. The review of the O&M manuals will provide staff with familiarity with the equipment that is installed, manufacturer’s recommended maintenance procedures, and warranty information. Training should be provided at the completion of construction of each of the retrofit.  Level 2: For systems/equipment new to the site and requiring some general understanding as to their function and operation, training will include a minimal amount of classroom time that will provide an overview of the technology and any specific maintenance or operation requirements. Following the classroom training, a site tour will be conducted to view the installation and operation of the equipment. Training should occur at both the onset and completion of construction. Equipment cutsheets will be provided at the beginning of construction and will provide a general description of the equipment, function, and operation. At the conclusion of construc tion, the O&M manuals will provide parts lists and warranty information.  Level 3: For systems and/or equipment new to the site and more complex in nature, training will be directed to both the facilities engineering and the O&M personnel. In general, tra ining will consist of classroom training followed by hands-on instruction in the field. Training will be provided through a complement of Ameresco personnel, design engineers, installation contractors, and manufacturer’s representatives, as necessary, and will be dictated by the complexity of the installation, participant’s prior experience with the equipment installed, and contractual obligations. ATTACHMENT I MEASUREMENT AND VERIFICATION FEE SCHEDULE The following is the annual M&V fee throughout the 20-year performance period. In year 3, the M&V cost is significantly higher because it is the year when Ameresco will perform the accuracy tests for the water meters. Table 8. Annual M&V Fee Period Annual M&V Cost Construction N/A Year 1 $9,231 Year 2 $9,508 Year 3 $96,884 Year 4 $0 Year 5 $0 Year 6 $0 Year 7 $0 Year 8 $0 Year 9 $0 Year 10 $0 Year 11 $0 Year 12 $0 Year 13 $0 Year 14 $0 Year 15 $0 Year 16 $0 Year 17 $0 Year 18 $0 Year 19 $0 Year 20 $0 ATTACHMENT J CUSTOMER’S MAINTENANCE RESPONSIBILITIES; STANDARDS OF SERVICE AND COMFORT SECTION 1. CUSTOMER’S MAINTENANCE RESPONSIBILITIES Customer, at its own expense, will keep and maintain, or cause to be kept and maintained, the Meters and all associated equipment in as good operating condition as when delivered to the Customer hereunder, ordinary wear and tear resulting from proper use thereof alone excepted, and will provide maintenance and service and make all repairs necessary for such purpose. Responsibility for the proper maintenance, service, repair and adjustments to the Meters and related ancillary systems and equipment, including related expenses, shall transfer to the Customer on the date of “Substantial Completion” as such date is determined in accordance with the definition of Substantial Completion set forth in Section 1 of the Agreement. The Customer will be responsible for such maintenance, service, repair and adjustments for the remainder of the Term. Operation and Maintenance Manuals (O&M Manuals) will be provided to the Customer, by Ameresco. Included with the O&M manuals will be a list of maintenance responsibilities and tasks for the Customer. Operations: The Customer shall operate the equipment installed hereunder in accordance with parameters noted in the manufacturers’ recommendations, and any supplemental procedures supplied to the Customer by Ameresco, including those set forth in the O&M manuals. The Customer shall also operate the equipment and systems (including ancillary related systems) in accordance with Section 2 below, Standards of Comfort. Maintenance: The Customer’s maintenance responsibilities include the proper operation and prompt repair and maintenance of the Meters and related ancillary systems and equipment such that they are maintained in good working order during the Term. The Customer shall repair and maintain (i) the Meters and all related equipment and other components which comprise the work installed hereunder and (ii) all other equipmen t which is attached thereto and/or is integral to the proper functioning of the Meters, including performance of the maintenance tasks, manufacturer’s recommendations and supplemental procedures included in the O&M Manuals. Maintenance also refers to performing required maintenance of ancillary systems. In addition to any of its other obligations under this Agreement, Customer agrees to operate and maintain the Meters and associated equipment to the standards set forth in this Attachment J. Deviation from these standards may result in adjustments to the Baseline, Guaranteed Project Benefits, or the determination of Annual Project Benefits. ATTACHMENT K PROJECT CASH FLOW See attached sheet for project cash flow. Project Proforma (Sensus AMI Analytics - Sensus and Octave Meters) 12/04/2015 City of Wichita Falls, TX Financial Assumptions Investment Grade Audit Fee: 62,500$ Water Meter AMI Costs: 15,686,112$ Project Term: 20 Water Revenue Escalation Rate: 3.00% Performance and Payment Bond: 135,875$ Financing Term: 20 Sewer Revenue Escalation Rate: 3.00% Financing Rate: 3.00% Financing Origination Cost: 35,000$ Payments Per Year: 12 O&M Savings Escalation Rate: 3.00% 3rd Party Engineering Review: 3,000$ Discount Rate: 3.00%Labor Savings Escalation Rate: 3.00% Construction Period AMI Fee: 69,950$ Construction Period Interest: 568,923$ M&V Cost Escalation Rate: 3.00% Total Amount Financed: 16,561,360$ Year Water Revenue Sewer Revenue Low Flow Revenue O&M and Meter Reading Benefit Replacement & Repair Cost Reallocation Total Revenues and Savings Payments for Financing Equipment Measurement and Verification Large Meter Replacement Cost AMI Annual Maintenance Fee Net Annual Benefit Cumulative Cash Flow 0 398,962$ 115,640$ 133,261$ 220,524$ 175,000$ 1,043,386$ C 218,682$ 61,394$ 49,084$ 91,885$ 175,000$ 596,045$ 596,045$ 596,045$ 1 410,931$ 119,109$ 137,258$ 227,140$ 180,250$ 1,074,688$ 887,756$ 9,231$ -$ 77,734$ 99,967$ 696,012$ 2 423,259$ 122,682$ 141,376$ 233,954$ 185,658$ 1,106,929$ 917,388$ 9,508$ -$ 80,066$ 99,967$ 795,979$ 3 435,957$ 126,362$ 145,617$ 240,973$ 191,228$ 1,140,137$ 860,817$ 96,884$ -$ 82,468$ 99,967$ 895,947$ 4 449,036$ 130,153$ 149,986$ 248,202$ 196,965$ 1,174,342$ 989,433$ -$ -$ 84,942$ 99,967$ 995,914$ 5 462,507$ 134,058$ 154,486$ 255,648$ 202,874$ 1,209,573$ 1,022,115$ -$ -$ 87,490$ 99,967$ 1,095,881$ 6 476,382$ 138,080$ 159,121$ 263,317$ 208,960$ 1,245,860$ 1,054,028$ -$ -$ 91,865$ 99,967$ 1,195,849$ 7 490,673$ 142,222$ 163,895$ 271,217$ 215,229$ 1,283,236$ 1,086,811$ -$ -$ 96,458$ 99,967$ 1,295,816$ 8 505,393$ 146,489$ 168,812$ 279,354$ 221,686$ 1,321,734$ 1,120,486$ -$ -$ 101,281$ 99,967$ 1,395,783$ 9 520,555$ 150,884$ 173,876$ 287,735$ 228,337$ 1,361,387$ 1,155,075$ -$ -$ 106,345$ 99,967$ 1,495,751$ 10 536,172$ 155,411$ 179,092$ 296,367$ 235,187$ 1,402,229$ 1,190,600$ -$ -$ 111,662$ 99,967$ 1,595,718$ 11 552,257$ 160,073$ 184,465$ 305,258$ 242,243$ 1,444,296$ 884,308$ -$ 342,776$ 117,245$ 99,967$ 1,695,686$ 12 568,825$ 164,875$ 189,999$ 314,416$ 249,510$ 1,487,625$ 921,775$ -$ 342,776$ 123,107$ 99,967$ 1,795,653$ 13 585,890$ 169,821$ 195,699$ 323,848$ 256,995$ 1,532,253$ 960,247$ -$ 342,776$ 129,263$ 99,967$ 1,895,620$ 14 603,467$ 174,916$ 201,570$ 333,563$ 264,705$ 1,578,221$ 999,752$ -$ 342,776$ 135,726$ 99,967$ 1,995,588$ 15 621,571$ 180,163$ 207,617$ 343,570$ 272,646$ 1,625,567$ 1,040,312$ -$ 342,776$ 142,512$ 99,967$ 2,095,555$ 16 640,218$ 185,568$ 213,846$ 353,877$ 280,825$ 1,674,334$ 1,424,729$ -$ -$ 149,638$ 99,967$ 2,195,522$ 17 659,425$ 191,135$ 220,261$ 364,493$ 289,250$ 1,724,564$ 1,467,477$ -$ -$ 157,120$ 99,967$ 2,295,490$ 18 679,208$ 196,869$ 226,869$ 375,428$ 297,928$ 1,776,302$ 1,511,359$ -$ -$ 164,976$ 99,967$ 2,395,457$ 19 699,584$ 202,775$ 233,675$ 386,691$ 306,866$ 1,829,591$ 1,556,399$ -$ -$ 173,225$ 99,967$ 2,495,424$ 20 720,572$ 208,858$ 240,685$ 398,292$ 316,072$ 1,884,479$ 1,602,626$ -$ -$ 181,886$ 99,967$ 2,595,392$ 11,260,564$ 3,261,897$ 3,737,289$ 6,195,228$ 5,018,414$ 29,473,392$ 22,653,491$ 115,623$ 1,713,878$ 2,395,008$ 2,595,392$ Notes: 1 This cash flow reflects an estimated tax exempt lease rate of 3%. The actual rate will increase or decrease based on market conditions and customer credit rating at the time of lease funding. 2 Revenues are based on current utility rate structures and usage information provided for purposes of this project. 3 The performance and payment bonds apply only to the installation portion of the contract and do not apply in any way to energy savings guarantees, payments or maintenance provisions, except that the performance bond shall guarantee that the installation will be free of defective materials and workmanship for a period of 12 months following completion and acceptance of the work 4 AMI annual maintenance fee is between the City and the AMI vendor. 5 Customer Connect annual fee is for less than 4,500 accounts. Any accounts over 4,500 is an additional $2.25 per user (account), and is not included in this cash flow. 6 Construction Period Savings are not guaranteed. City of Wichita Falls Project Benefits ATTACHMENT L FINAL COMPLETION CERTIFICATE [PLACE ON CUSTOMER LETTERHEAD] Mr. Robert Georgeoff, Vice President Ameresco, Inc. 60 East Rio Salado Parkway, Suite 1001 Tempe, AZ 85281 Re: Performance Contract (the “Agreement”; capitalized terms used and not defined herein shall have the meanings given to such terms in the Performance Contract) dated as of ________ __, 20__ by and between [CUSTOMER] (“Customer”) and Ameresco, Inc. (“Ameresco”) Dear Mr. Georgeoff: Customer hereby acknowledges its receipt and acceptance of all ECMs described in Attachment B of the Performance Contract which are installed and in good working condition. Sincerely, [CUSTOMER] By:_______________________________ Duly Authorized Signatory Name:___________________________ Title:____________________________ Date accepted:___________________