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THE BOARD OF SUPERVISORS OF
CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on January 7, 2003, by the following vote:
AYES: Supervisors Uilkema, Gerber, DeSaulnier, Glover&Gioia
NOES: None
ABSENT: None
ABSTAIN: None
SUBJECT: ENERGY PERFORMANCE CONTRACT
RELISTED to undetermined date.
I hereby certify that this is a true and correct
copy of an action taken and entered on the
minutes of the Board of Supervisors on the
date shown.
Attested: January 7, 2003
John Sweeten, Clerk of the Board
Of Supe isors and County Administrator
$y: X
Deputy Clerk ._
M- 3
HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA
TO: BOARD OF COMMISSIONERS
FROM: Robert McEwan, Executive Director
DATE: January 7, 2003
SUBJECT: ENERGY PERFORMANCE CONTRACT
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
I. RECOMMENDED ACTION:
ADOPT Resolution No. 5034 authorizing the Executive Director or his designee to execute an
Energy Services Agreement and a Municipal Lease and Options Agreement, upon approval by the
U.S. Department of Housing and Urban Development (HUD), with Citizens Conservation Services.
I1. FINANCIAL IMPACT:
The annual energy savings realized over the next 12 years will generate funds to pay for the
financing of the recommended improvements. Those funds normally appropriated from HUD for
energy consumption will be appropriated for the debt service payments for the Municipal Lease
and Options Agreement. There will be no financial impact to the Housing Authority and there will
be no cost to the County General Fund.
111. REASONS FOR RECOMMENDATION/BACKGROUND
The Housing Authority is contracting for a full range of energy services and energy related capital
improvements financed through a performance-based contract, guaranteed savings or similar
agreements at no cost to the Housing Authority. Attached is a sample Energy Services
Agreement Appendices for proposed energy conservation measures.
On February 15, 2002 Energy Services Companies (ESCos) submitted proposals to conduct a
complete energy audit and the design acquisition, installation, modification, maintenance and
training in the operation of existing and new equipment which will reduce energy consumption
associated with the heating, ventilation and air conditioning systems, the lighting systems, building
envelope, the domestic water systems and other energy using devices. The services requested
include the training of facility maintenance staff with respect to the routine maintenance and
operation of all improvements. The award for such comprehensive services went to Citizens
Conservations Services (CCS), an Ameresco Company.
570
CONTINUED ON ATTACHMENT: X YES SIGNATURE =----�--
RECOMMENDATION OF EXECUTIVE DIRECTOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER
VOTE OF COMMISSIONERS
I HEREBY CERTIFY THAT THIS IS A
UNANIMOUS (ABSENT ) TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
COMMISSIONERS ON THE DATE SHOWN.
ATTESTED
JOHN SWEETEN,CLERK OF
THE BOARD OF COMMISSIONERS
AND COUNTY ADMINISTRATOR
BY DEPUTY
C:\WINDOWS\Tempor$ry Intemet Files\OLK6004\130-ESCO.doc
The proposal provides that capital improvements result in a guaranteed minimum energy savings
with the CCS payments linked to actual measured reduction in energy cost or consumption. The
contract shall not exceed (12) years in duration and is subject to annual appropriations. The CCS
has guaranteed that the minimum annual energy cost savings derived from such improvements
shall meet the monthly debt service payment for the bank financing of these modernization
improvements. Excess energy cost savings above the debt service payment will be divided, as
negotiated, between the HACCC and CCS. Any shortfall in the annual cost savings used for
payment of the capital improvements costs shall by paid by CCS as guaranteed in the Energy
Services Agreement.
CCS has completed energy audit as required by HUD. This energy audit and the CCS proposal
for recommended capital improvements detailed an anticipated energy consumption savings of
gas, electric and water/sewage of approximately $1.57 million dollars over the next twelve years.
This represents an annual energy savings consumption cost of approximately $130,500.
IV. CONSEQUENCES OF NEGATIVE ACTION.
Should the Board of Commissioners elect not to authorize the Executive Director to enter into an
agreement with Citizen's Conservation Services the Housing Authority would be forced to continue
its inefficient and expensive energy consumption practices until funding became available to
improvements the public housing energy delivery and consumption systems. In addition, the
Housing Authority directed Energy Conservation Services to conduct an energy audit as required
by HUD. The cost of this six-month audit is $30,000 that the Housing Authority would be payable
on demand rather than have this cost roll into the recommended Municipal Lease and Options
Agreement.
THE BOARD OF COMMISSIONERS
HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA
RESOLUTION NO. 5034
AUTHORIZING THE EXECUTIVE DIRECTOR OR HIS DESIGNEE TO
EXECUTE AN ENERGY SERVICES AGREEMENT AND A
MUNICIPAL LEASE AND OPTIONS AGREEMENT, UPON
APPROVAL BY THE U.S. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT (HUD), WITH CITIZENS CONSERVATION
SERVICES
WHEREAS, the Housing Authority of the County of Contra Costa, hereinafter
referred to as"Authority" has determined that a true need exists for
the acquisition of the Equipment described in the Energy Services
Agreement, sample attached, by and between the Authority and EUA
Citizens Conservation Services, Inc., hereby presented; and
WHEREAS, the Authority desires to finance the acquisition of such
Equipment on the terms and conditions set forth in the Municipal
Lease and Option Agreement to be dated the date of execution
thereof by and between the Authority and the Citizens Conservation
Services, and;
WHEREAS, the Authority has taken the necessary steps, including any
applicable request for proposal requirements, under applicable law to
arrange for the acquisition of such Equipment.
NOW, THEREFORE BE IT RESOLVED the Executive Director of the
Authority, or his designee, is hereby authorized to execute the
Agreements and any related documents necessary to the Lessee of
the Municipal Lease and Option Agreement and any related
documents necessary to the consummation of the transactions
contemplated by the Agreements.
a. That the proposed expenditures are necessary in the efficient
and economic operation of housing for the purpose of serving
low-income families.
b. That the financial spending plan is reasonable.
C. That all proposed revenues and expenditures are consistent
with the provisions of law.
PASSED AND ADOPTED ON by the following
vote of the Commissioners.
AYES:
NOES:
ABSENT:
ABSTAIN:
I HEREBY CERTIFY THAT THIS IS A
TRUE AND CORRECT COPY OF AN
ACTION TAKEN AND ENTERED ON THE
MINUTES OF THE BOARD OF
COMMISSIONERS ON THE DATE SHOWN.
ATTESTED
JOHNSWEETEN, CLERK OF
THE BOARD OF COMMISSIONERS
AND COUNTY ADMINISTRATOR
BY
H:1RobertMcEwan\MSOFFICE%WINWORD\Board Orders\BO-esco Resolution Energy Equip 5434.doe
ENERGY SERVICES AGREEMENT
between
EUA CITIZENS CONSERVATION SERVICES,INC.,an AMERESCO Company
and
HOUSING AUTHORITY
DATE:
Sample Citizens.Energy Services Agreement
PROPRIETARY
G. UTILITY/ENERGY SUPPLIER SAVINGS CALCULATIONS
H. STANDARDS OF COMFORT AND SERVICE
I. GUARANTEE
J. NOTICE TO PROCEED
K. SAMPLE INSTALLATION APPROVAL CERTIFICATE
L. HUD APPROVAL LETTER
M. PROJECT MILESTONES
ATTACHMENTS:
I. ENERGY AUDIT REPORT
Sample Citizens Energy Services Agreement
PROPRIETARY
ENERGY SERVICES AGREEMENT
This Agreement("Agreement")made as of ("Execution Date"),by and between EUA Citizens
Conservation Services,Inc.,a corporation organized under the laws of the Commonwealth of Massachusetts and
authorized to do business in the State of ,with its principal place of business at Ameresco, Inc., Suite
410, 111 Speen St.,Framingham,MA 01701 ("Citizens");and the Housing Authority, a
corporation organized under the laws of the State of with its principal place of business
at ("PHA"or the"Authority";collectively,Citizens
and PHA are termed the"Parties"or individually,a"Party").
RECITALS
WHEREAS,PHA issued a Request for Proposals("RFP") dated seeking energy services
companies("ESCOs")to perform certain services relating to energy conservation;and
WHEREAS,Citizens responded to the RFP and represented in its proposal dated
,that it possesses the necessary knowledge and experience to perform the work and
services described in this Agreement;and
WHEREAS,pursuant to that certain Energy Audit Agreement dated between the Parties,
Citizens completed the Energy Audit Report as of ;and
WHEREAS,Citizens has determined the potential for utility/energy supplier consumption and cost
savings(as further defined herein, "Energy Savings")by installation of Energy Conservation Measures(as further
defined herein, "ECMs")within certain PHA properties(consisting of apartment sites and complexes),described in
this Agreement and the Appendices and Attachments hereto as"Developments",and the approximate cost of the
ECMs necessary to achieve these savings;and
WHEREAS,PHA wishes to implement the Energy Services Project in the manner set forth in this
Agreement and desires that Citizens perform a project(as further defined herein,the"Conservation Project")by
using its services as more fully provided for within this Agreement,which services may include,but not be limited
to,design,engineering,assistance in arranging financing,construction,construction management,system
maintenance,inspection and certification,energy use monitoring services, PHA staff training and resident education
services for a period coterminous with the term of the Municipal Lease with Option Agreement(as defined herein);
and
WHEREAS,the U.S.Department of Housing and Urban Development("HUD")conducts a
program to assist and enable parties such as AHA to implement projects such as the Conservation Project and the
Energy Services Plan was developed and prepared in compliance with this HUD program and in contemplation of
PHA receiving HUD assistance.
NOW THEREFORE,the Parties,for good and valuable consideration,the sufficiency and
adequacy of which the Parties hereby acknowledge,agree as follows:
Sample Citizens Energy Services Agreement Page 1
PROPRIETARY
PART A
DEFINITIONS
Words and phrases shall be defined according to their ordinary usage and meaning except as otherwise specifically
defined in this Agreement. The definitions of the words and phrases in this PART A(indicated by capitalization of
the first letter(s)of those words and phrases)shall apply throughout this Agreement unless specifically provided
otherwise. Words and phrases which are not defined in this PART A may be defined in other provisions of this
Agreement and,as so defined and capitalized,shall be given their defined meanings throughout this Agreement.
"Acceptance Date"shall mean the date upon which written acceptance by PHA is obtained for the ECMs installed
by Citizens with respect to each individual Development listed in Appendix A. Without limiting the foregoing, in
the event the Conservation Project with respect to each Development is completed in parts or sub-parts,the date on
which the ECMs included in the last such part or sub-part of that Development receive all such necessary approvals
and acceptances shall be the Acceptance Date of the Conservation Project with respect to that Development.
"Agreement"shall mean this Energy Services Agreement for the implementation of the Conservation Program,
including all exhibits,attachments,appendices,amendments,modifications,or revisions made in accordance with
its terms.
"Baseline"shall mean the existing utility usage,or allowance for utility usage, for utility/energy supplier services
including,but not limited to,natural gas,fuel oil,electricity,water/sewer, identified by Citizens and included within
Appendix D-1.
"Conservation Program"shall mean the products and services rendered under this Agreement,the scope of which
will be defined by the Conservation Project affecting subsets of the utility/energy supplier costs within the PHA's
portfolio of properties.
"Conservation Project"shall mean the specific group of ECMs to be installed by Citizens or others,as may be
provided under this Agreement and within Appendix B,at all or any of the Developments listed in Appendix A and
the services related thereto to be provided by Citizens pursuant to this Agreement.
"Construction Account"shalt mean the total funds to be utilized to develop and construct the Conservation
Project, including the funds available from the Municipal Lease and any supplemental funding. The funds available
from the Municipal Lease and held in an Escrow Account shall be released only by joint signature of PHA and
Citizens with approval by the escrow agent. Supplemental funding shall also be released only by joint signature of
PHA and Citizens,but is subject to any additional authorization required by the party holding the funds(such as the
). Such releases of funding from the Construction Account will be effectuated by a
written"Requisition"authorized by the Parties. In accordance with the provisions of Section(5)C. vi.,Citizens
shall maintain an accounting of all available funding for the Conservation Project and report on the status of such
funding monthly throughout Phases I and 11.
"Construction Documents"or"Contract Documents"shall mean the contract documents for the construction or
the supply of the ECMs,as the case may be,which may include,but not be limited to,this Agreement,the
Construction Subcontracts for the Construction Subcontractors(for those ECMs to be installed by Citizens as
described in Section(5), Phase 11—Construction) and such working drawings and specifications as may be prepared
by or on behalf of Citizens which detail the materials and procedures required to install the ECMs,and all
amendments and modifications to the foregoing documents.
Sample Citizens Energy Services Agreement Page 2
PROPRIETARY
"Construction Financing"shall mean third-party financing, in the form of a Municipal Lease,for the purchase and
installation of the ECMs.Funds available through the construction financing shall be held in an"Escrow Account„
as defined more fully below and shall be released to support the purchase and installation of the ECMs under this
Agreement only by joint signature of PHA and Citizens via the requisition process detailed in Section 4 C.
"Construction Funding"shall mean the total funding available from all sources to support the design,purchase,
and installation of the ECMs provided under this Agreement.
"Construction Phase" shall mean the second phase of the Conservation Project,during which Citizens shall
perform the services described more fully in Section(5),Phase Il—Construction, and during which Citizens shall
install and construct the various ECMs.
"Debt Service"shall mean the PHA's liability for repayment of the Construction Financing undertaken through the
Municipal Lease and Option Agreement. The Debt Service payments are made by PHA during the Project
Operation Phase.
"Design and Construction Funding Phase"shall mean the first phase of the Conservation Project,during which
Citizens shall perform the services described more fully below in Section(4),Phase I—"Design and Construction
Funding". By way of summary,and not as a full definition,the Design and Construction Funding Phase shall be the
phase in which Citizens shall design,or cause to be designed,the ECMs to be installed by Citizens,as listed in
Appendix B"Summary of Recommended ECMs",and assist in arranging the Construction Financing for PHA in the
amount identified in Appendix D-I "Cash Flow Projection."
"Developments"shall mean the list of apartment sites and complexes identified in Appendix A which are
designated to receive ECMs and services under the Conservation Project carried out under this Agreement.
"Development"shall mean an individual apartment site and complex.
"ECMs"shall mean the energy conservation measures recommended for the Developments identified by Citizens
and listed in Appendix B under"Summary of Recommended ECMs",which may be installed by Citizens in
accordance with the terms of this Agreement. ECMs promoting Energy Savings are not limited to equipment and
may include services,such as Resident Energy Education as described in Section(5),"Phase lI—Construction".
"Energy Savings"shall mean the revenue stream resulting from the reduction below the Baseline utility/energy
supplier consumption at the Developments listed in Appendix A.Such Energy Savings shall be calculated using the
energy costs and values assigned in this Agreement and Appendices D and G hereto,resulting from the installation
of ECMs and performance of services under this Agreement,as these are identified and reconciled annually by
Citizens during the Project Operation Phase according to the provisions of Section(6), Phase ill -Project Operation,
and employing the calculation contained in Appendix G"Utility Energy/Supplier Savings Calculations".
"EnergyAudit Report"shall mean that certain study,dated ,attached hereto as Attachment 1,
performed for PHA by Citizens under the Energy Audit Agreement,outlining for PHA various areas in which PITA
may potentially save money on PHA's energy usage,as compared with PHA's Baseline usage of energy, further
outlining ECMs recommended for implementation by Citizens under this Agreement,and describing the costs and
services associated therewith.
"Escrow Account" shall mean the account into which the proceeds from the Construction Financing made available
through the Municipal Lease and Option Agreement are deposited. Funds from the escrow account shall be
available to support the services provided and ECMs purchased and installed pursuant to this Agreement. Release
of funds from the account shall be effected by joint signature of PHA and Citizens through a written requisition
process.
"Execution Date" shall mean the date first written in the introductory paragraph,above.
Sample Citizens Energy Services Agreement Page 3
PROPRIETARY
"Guarantee"shall mean the contractual obligation by Citizens,as referenced in Section(9),to provide a
Conditional Energy Savings Guarantee. The Guarantee provided by Citizens shall be a separate written document
executed between PHA and Citizens in substantially the form attached hereto as Appendix I upon the Execution
Date_
"HUD"shall mean the United States Department of Housing and Urban Development.
"HUD Regulations"shall mean the applicable provisions set forth in Title 24, Section 9913 of the Code of Federal
Regulations,as amended or as waived from time to time,and any other regulations applicable to AHA and its
subcontractors issued by HUD.
"HUD Subsidy"shall mean the amounts paid by HUD to PHA in the form of utility/energy supplier subsidies,as
calculated according to the HUD Regulations.
"Lessee" is PHA in the relationship with the third-party investor("Lessor")whereby the Construction Financing is
provided by a tax-exempt Municipal Lease and Option Agreement,a form of which is attached hereto as Appendix
C. As the beneficiary of the installation of ECMs within the Developments, Lessee is obliged to pay for their use in
installments over the term of the Municipal Lease.
"Lessor"is the third-party investor providing the Construction Financing by way of a tax-exempt Municipal Lease.
"Material Changes Threshold"are alterations,or changes in use,at one or more Developments undertaken by the
PHA in the post construction operations phase of this Agreement,which can be reasonably expected--or
measured—to increase or decrease steam,gas,electricity or oil consumption by a minimum of five percent(5%)at a
single Development without a corresponding decrease of consumption in another fuel.
"Municipal Lease and Option Agreement"(also referenced herein as a"Municipal Lease")is a financing
instrument which conveys tax exempt financing;to a qualified public entity for capital improvements whose costs
are paid down in periodic installments over several years. In this lease transaction,the only collateral consists of the
equipment so financed.The Municipal Lease for the EOMs herein shall amortize the cost of the ECMs over a term
not to exceed twelve(12)years. (The term"Construction Financing" is synonymous and is used interchangeably
with the term"Municipal Lease Financing".)
"Project Operation Phase"shall mean the third phase of the Conservation Project,during which Citizens shall
perform the services described more fully in Section(6)below,including monitoring the ECMs previously installed
under this Agreement,and during which PHA will pay installments of the Municipal ,Lease.
"Reconciliation"shall mean the annual analysis conducted by Citizens in accordance with Section(6), Phase III-
Project Operation,and the calculations set forth in Appendix G"Utility/Energy Supplier Savings Calculations",of
the actual utility costs and Energy Savings resulting from the installation of ECMs under this Agreement.
"Reimbursable Expenses"shall mean the cost of photocopied construction drawings,travel expenses and other
reasonable job-related expenses incurred by Citizens and/or its subcontractors when performing work authorized by
P14A beyond Citizen's Scope of Work hereunder,or when performing changes to its Scope of Work pursuant to a
Change Order.Citizens' fees include Reimbursable Expenses unless additional work beyond the Scope of Work
hereunder is authorized by PHA pursuant to a Change Order.
"Requisition"shall mean a periodic request for payment for the ECMs from the Construction Account or the
Escrow Account. A signed Requisition,authorized jointly by PHA and Citizens,will be the formal authorization for
the release of funds from the Construction or Escrow Account,and will be based upon the percentage of completion
of the Schedule of Values and jointly authorized and approved for payment.
Sample Citizens,Energy Services Agreement Page 4
PROPRIETARY
"Resident/Tenant""Resident"or"Tenant"shall mean any individual who resides in any apartment in any of the
Developments and whose name appears on the lease for that unit as either the Lessee or a person residing in the unit
covered by the lease.
"Services"shall mean the services provided by Citizens required to implement the Conservation Project and all the
work,services,duties, and responsibilities undertaken by Citizens,as provided for within this Agreement,as well as
attached Appendices and Attachments.
"Supplemental Construction Funding"shall mean the PHA Cost Contribution,grants, interest subsidies,utility
company rebates or funding,and other forms of funding or payments available to the Conservation Project in
addition to the Construction Financing that may be used to fund the capital and/or operating costs of the ECMs and
that are available for the Conservation Program through sources other than the Construction Financing.
Supplemental Construction Funding is described in Section(4), Phase I—Design and Construction Funding.
"Term"shall have the meaning given in Section(2),Term of Agreement.
"Total Contract Cast"shall mean the total dollar cost for the ECMs and services provided under this Agreement as
contained in Section(11)and Appendix E-Ia to this Agreement.
PART B
TERMS AND CONDITIONS OF AGREEMENT
(1) SUMMARY OF SCOPE OF SERVICES
Citizens and PHA have reviewed the Energy Audit Report,which is described more fully in Section(3)below,
and have used it as the basis for developing the Conservation Project and the Program.
In connection with the Conservation Project,Citizens has performed or,subject to the terms and conditions
of this Agreement,will perform,services as indicated in the following Sections(1)A through(1)C over the term of
this Agreement.
A. Phase I—Desian and Construction Funding:
The first phase of services shall be referred to herein as the"Design and Construction funding Phase".
During this phase,Citizens shall perform the services described in Section(4), Phase I—Design and Construction
Funding.
B. Phase II-Construction:
The second phase of services shall be referred to herein as the"Construction Phase." During this phase,
Citizens shall perform the services described in Section(5), Phase If-Construction.
C. Phase CII-Proiect Operation:
The third phase of services shall be referred to herein as the"Project Operation Phase". During this phase,
Citizens shall perform the services described in Section(6), Phase III -Project Operation.
D. Duration of Phases of Agreement:
The first phase,as defined in Section(4), Phase I—Design and Construction Funding,shalt commence as
of the Execution Date and continue,subject to the terms of this Agreement,until the design and the Construction
Sampie Citizens Energy Services Agreement Page 5
PROPRIETARY
Financing are complete,and all conditions to the closing of the Construction Financing,as described in Section(4)
are satisfied. The second phase shall commence upon the expiration of the first phase and continue,subject to the
terms of this Agreement,until the later of(i)the closing of the Municipal Lease or(ii)the Acceptance Date of the
ECMs last installed in connection with the Conservation Project.The third phase shall commence upon the
expiration of the second phase and continue,subject to the terms of this Agreement,for a period that is co-terminus
with the term of the Municipal Lease. The Parties agree that the tentative project schedule attached as Appendix M
represents the estimate,as of the time of Agreement execution,of the milestones for completion of design and
construction of the measures for Phases I and II hereunder.
(2) TERM OF AGREEMENT
The Term of this Agreement shall commence as of the Execution Date and,unless sooner terminated in
accordance with the terms hereof,shall continue for a period co-extensive with the term of the Municipal Cease,or
until such time as PHA prepays its installment payment obligations under the Municipal Lease in full whichever is
earlier("Termination Date"). Should there be additional project fmancings under this Agreement to accommodate
increased scope of work,the term shall be amended in accordance with the HUD approval for the term of each
subsequent financing.
(3) ENERGY AUDIT REPORT
The Energy Audit Report,Attachment 1,sets forth the planned Scope of Services for the Conservation
Project;design,engineering,construction and installation of the ECMs;the anticipated Construction Financing and
any and all necessary Supplemental Construction Funding available;the current utility/energy supplier use or
Baseline;the currently projected Energy Savings from the EOMs;describes the recommended ECMs; and provides
a Cash Flow Projection. The Cash Flow Projection shall form the basis for the Construction Financing and is based
upon the expected Total Contract Cost and Energy Savings. Appendix D-1,Cash flow, includes the ECMs and
services that will be provided for the first development,designated in Appendix A,to be financed under this
Agreement.
(4) PHASE I--DESIGN AND CONSTRUCTION FUNDING
A. Design Services: Specifications And Drawings:
During the Design and Construction Funding Phase,Citizens,in coordination with a professional engineer
licensed by the State of New York("Design Engineer"),shalt, in consultation with PHA,produce designs,
specifications,and drawings needed to secure qualified subcontractors in order to complete the agreed-upon Scope
of Work(Appendix B)during the Construction and Permanent Financing Phase(the"Specifications and Drawings
Work").
The Specifications and Drawings Work shall be divided into three overlapping stages described more fully
below: schematic design,design development,and construction documentation.
i. Schematic Design: Schematic Design shall mean illustration of strategies by which the
recommendations presented in the Energy Services Plan can be executed within the constraints of budget and
applicable building codes.
During this stage,Citizens will detail the Summary of Recommendations set forth in the Scope of Work
(Appendix B). Areas of work will be broadly defined in light of existing conditions(e.g.boiler choice,required
long-term maintenance,access.), and all required trades will be identified.
Sample Citizens Energy Services Agreement Page 6
PROPRIETARY
Citizens and/or its design sub-consultants)and the Design Engineer will make surveys of existing
conditions with reference to existing"as-built"building plans and physical inspection of the Premises. Citizens and
the PHA acknowledge that frequent formal and informal communications will be required between Citizens and
PHA in order to ensure that both budgetary constraints and efficiency requirements are met, and that the schematic
design,as completed,will be acceptable to both Parties over the term of this Agreement.
ii. Desien Development: Design Development shall mean development of the construction details,
materials and equipment choices,and cost estimates associated with the design strategy chosen by the PHA.
During Design Development,Citizens will identify and review with PHA specific strategies for effectively
installing the ECMs,short and long-term cost considerations associated with material and equipment selection,and
impacts on the Developments of modification to the existing conditions(e.g.,boiler choice,required long-term
maintenance;access;pre-programmed thermostat high-limits;etc.). Citizens will project and communicate to PHA,
during this stage,whether the consumption savings projections and budgetary assumptions included in the Summary
of Recommendations within Appendix B"Scope of Work,"can be met after incorporation of PHA's comments on
specific design details. In the event Citizens communicates to PHA that some or all of PHA's comments can not be
incorporated without reducing the consumption savings projections and/or exceeding the budgetary assumptions,
PHA and Citizens will attempt to agree to a modification of the proposed designs and/or the installation of
Alternates shown in the Energy Conservation Plan so as either to preserve or modify the Conservation Project in
order to change the consumption savings projections.
iii. Construction Documentation: Construction Documentation shall mean preparation of working
drawings and specifications that detail the materials and procedures required to install the ECMs listed in Appendix
B based upon the results of the Design Development process(i.e.,the "Construction Documents").
During Construction Documentation,Citizens will prepare,or cause to be prepared,detailed drawings and
specifications for the installation of the ECMs. In addition to the technical detail,Citizens will provide in the
Construction Documents general procedures for the preparation of bids or quotations(pursuant to Section(5)B
herein),as may be required by HUD or state regulations, or PHA competitive pricing policy,and the general
conditions and requirements of the Construction Sub-contracts)to be executed by Citizens pursuant to Section
(5)B. Such general conditions and requirements shall be consistent with instructions which may be provided by
PHA and any applicable requirements of HUD. At the end of Construction Documentation,Citizens must
reasonably project that the consumption savings projections and other budgetary assumptions for the EOMs
contained within Appendix B,Summary of Recommendations,may be met given the design details. If such
projection does not establish savings consistent with the savings shown in the Energy Savings Plan, Citizens must
specify,with PHA's reasonable approval,certain items as"Alternates"to the ECMs,to the extent necessary in order
to achieve such savings.
PHA will review and approve all designs,specifications and drawings produced by Citizens as well as the
ECMs to be leased as"Equipment"pursuant to the Municipal Lease,prior to the commencement of Construction,
which approval shall not be unreasonably delayed or withheld. Such review and approval shall not be deemed to
relieve Citizens of its responsibilities as Design Engineer and Construction Manager under this Agreement.
iv. Commissioning Plan: Prior to the completion of Phase I of the services hereunder,Citizens shall
prepare a Commissioning Plan for the equipment installed under this Agreement. Such Plan shall describe the
design parameters of the equipment to be installed,as well as provide a plan for start-up and maintenance of the
ECMs installed hereunder.
B. Changes To The Estimated Total Contract Cost&Scheduled Values During Phase 1:
At the completion of Phase 1,Design and Construction Funding,and upon receipt of estimates for the cost
of the ECMs to be installed hereunder,then PHA and Citizens shall review the project budget and any other factors
which might affect the Total Project Cost and identify whether or not the proposed energy savings,combined with
Sample Citizens Energy Services Agreement Page 7
PROPRIETARY
any supplemental funding,are sufficient to pay for all contract costs,including annual service fees. To the extent
the budget is not sufficient for this purpose,the PHA and Citizens may either alter the ECM list to exclude items
that will not be included in the project,or identify additional funds(from PHA,utility contribution,or other)to
support the project. To the extent the PHA and Citizens cannot reach reasonable agreement on the revised scope of
work,the provisions of Section(15)A,Termination,will be invoked and PHA shall pay Citizens the actual costs of
all work completed and approved for payment as of the point of termination.Such actual costs and expenses
incurred by Citizens to provide such pre-construction services shall be established by documents such as personnel
time logs,receipts, invoices,and such records and verification as the PHA may reasonably require.
In the event that the Parties agree upon a Revised Scope of Work for the Premises(e.g.,a revision to the
scope of work provisions of Appendix B)and,as the case may be,a Revised Schedule of Values, a"Revised
Utility/Supplier Energy Savings"(a revision to Appendix G),debt service for the Performance Contract Financing,
as defined in Section 4,a Revised Summary of Recommended ECMs(a revision to Appendix B)or a"Revised Cash
FIow Projection"(a revision to Appendix D-1), the Parties shalt attach such revised Appendices hereto. From that
time forward,unless further revised,each of those revised and updated schedules shall be deemed to be the relevant
Appendix,without regard to whether they are subsequently referred to herein as"Revised Appendix_"or
"Appendix_,as revised",or in some other way which indicates their revisions. The quantity,quality, dimensions,
type or other characteristics of the ECMs may be changed only by mutual written consent of the PHA and Citizens
(and,where required by the Municipal Lease,the Lessor). In addition,the Scope of Services may be reduced or
expanded to include other energy ECMs not included within the ECMs listed in Appendix B,as mutually agreed
upon in writing.
In the event of any failure of the Parties to agree on revisions to the Conservation Project at any such time
either Party may terminate this Agreement in accordance with Section(I 5)A.
C. Construction Financing:
i. During the Design and Construction Funding Phase, PHA shall,with the assistance of Citizens,apply for
and enter into the Municipal Lease. The Construction Financing shall be in an amount consistent with the Cash
Flow Projection,attached hereto as Appendix D-I "Cash Flow Projection",as may be amended from time to time.
The Parties intend that the amounts of the Construction Financing and Supplemental Construction Funding,
including, if applicable,any PHA Cost Contribution and Utility Company or other Funding and Rebates,as these
terms are defined in this Section(4),shall collectively be sufficient to pay the Total Contract Costs. Any
expenditures made as part of the Agreement shall be expressly justified by reference to proceeds available from the
Construction Financing or any Supplemental Construction Funding.
Citizens and PHA shall agree to all reasonable amendments to this Agreement,as may be required by the
Lessor;provided,however,no such amendment shall cause a material adverse impact on the rights or obligations of
Citizens or PHA hereunder without the consent of the Party so affected,which consent may be withheld for any
reason.
ii. HUD Incentive for Conservation Savings: PHA shall,with the assistance of Citizens,apply for all
necessary approvals and authorizations and enter into all necessary agreements to receive from HUD,pursuant to
applicable federal laws and regulations,all applicable utility savings incentives, including,without limitation,
written approval of the exception to conventional calculation of the utility subsidies pertinent to this Agreement
("HUD Subsidy") in accordance with the applicable HUD regulations,which allow said subsidy to be fixed between
PHA and HUD at levels determined with reference to the Energy Savings and Total Contract costs.All such
agreements,approvals and other authorizations,pursuant to which the HUD Subsidy shall be paid in accordance
with the contents of Appendices D-I and G,shalt be attached hereto upon receipt and made a part hereof as
Appendix L, HUD Approval Letter.
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D. Supplemental Construction Funding:
i. Utility or Other Company Funding and Rebates: In addition to providing assistance to PHA in
obtaining the Performance Contract Financing,Citizens shall assist PHA in applying for grants,interest subsidies,
Utility or other company rebates,and other forms of funding or payments available from third parties to fund the
capital and/or operating costs of the EOMs as may be reflected in the Cash Flow Projection which is included as
Appendix D-1,"Cash Flow Projection".Citizens mattes no guarantee that Utility or other Company Funding and
rebates will be obtained through or on account of its efforts. The Parties anticipate that funding will be available
from the ,in approximately the amounts specified in Appendix D-1, as
incentives available to support the measures under this Agreement.
Any amounts paid by electric or gas utilities or any other entity to the PHA or Citizens as demand
side management or system benefit rebates or incentives in connection with this Project will be applied for the
purposes of this Project. PHA acknowledges that Citizens is a contractor independent of any utility, is not an agent
or affiliate of any utility,and does not represent any utility in any capacity.
To the extent that the final amount of the Construction Financing is dependent upon the receipt of
Utility or other Company Funding and Rebates,the attached"Cash Flow Projection" contained in Appendix D-I
shall be revised accordingly by the Parties to reflect the final amount of all such forms of"Revised Utility or other
Company Funding and Rebates".
Should Citizens pursue additional Utility or other Company Funding and Rebates expressly
authorized in writing by PHA,and on behalf of PHA,during the Design and Construction Funding Phase that are
not expressly incorporated as of the Execution Date of this Agreement in Appendix D-I Cash Flow Projection,
Citizens and the PHA shall negotiate an amount due to Citizens, if any,for securing such assistance. Subject to the
requirements, if any,pertinent to the receipt of such assistance,PHA and Citizens shall apply the funds received to
offset the construction costs hereunder,as well as any applicable monitoring and verification requirements that may
be required by the providers of such assistance.
E. Final Agreement to Project Scope and Level of Guaranteed Savings:
The Parties intend and anticipate that the Energy Savings guaranteed hereunder shall be not less than one
hundred percent(100%)of the amount required to recover the Construction Financing on a debt service requirement
basis over the term of this Agreement. Prior to entering into the Municipal Lease,should the effect of changes in
Total Contract Cost,supplemental funding,interest rates or other cause result in the Guaranteed Savings hereunder
to be less than one hundred percent(100%)of the amount anticipated to be required to recover the investment cost
of this Project on a debt service requirement basis over the term of this Agreement,Citizens and PHA agree to
mutually and reasonably attempt to negotiate a reduction or modification of the Total Contract costs by removing
components of the ECMs to be installed pursuant to this Agreement or substituting alternative ECMs in order that
the guaranteed Savings hereunder shall be an amount equal to or not less than one hundred percent(100%)of the
amount required to recover the investment cost of this Conservation Project on a debt service requirement basis over
the term of this Agreement.
Prior to entering into the Municipal Lease, in the event that the Parties cannot agree to so reduce or modify
the costs of construction in circumstances wherein the Savings guaranteed herein are less than cine hundred percent
(100%)of the amount required to be paid under the Municipal Lease, PHA and Citizens shall each have the option,
exercisable upon written notice to the other Party,of neither proceeding with the installation of the ECMs nor,on
the part of PHA,entering into the Municipal Lease. In that regard,PHA acknowledges and recognizes that Citizens
has incurred and will incur further costs and expenses relating to the pre-construction services described in Section
(4)herein. In the event that PHA exercises that option, PHA shall pay Citizens the actual costs and expenses
incurred by Citizens to provide such pre-construction services,as documented by personnel time logs,receipts,
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invoices,and such records and verification as the PHA may reasonably require. Any amounts paid to Citizens shall
be net of any amounts paid to Citizens pursuant to this Section(4)for the same costs and expenses.
F. Construction Financing Instrument:
The Parties agree that the instrument by which the Construction Financing shall be secured shall be a
Municipal Lease and Option Agreement.
i. PHA hereby represents and warrants to Citizens that,subject to the terms and conditions hereof,
including but not limited to the ability of the PHA to secure approval of governing authorities, PHA will enter into a
Municipal Lease with a third party lessor("Lessor")in a form substantially similar to that attached hereto and made
a part hereof as Appendix C.
ii. FHA's obligation to make payments pursuant to the Municipal Lease and payments from the
Construction Account and applications for payments with respect to the Escrow Fund will commence on the date
that funds are deposited in the Escrow Fund("Municipal Lease Commencement Date").
iii. The Construction Financing will commence upon the deposit into an Escrow Account by the
lessor of funds available from the Municipal Lease. PHA acknowledges and understands that the amount of the
Municipal Lease payments will be subject to current market conditions at the time of final credit approval on the
Municipal Lease and that the effectiveness of the Municipal Lease will be subject to final credit approval. PHA
further acknowledges that its responsibility for the payments to be made to Citizens for any the services described in
this Agreement are in no way contingent on the effectiveness of the Municipal Lease. PHA shall execute an
incumbency certificate(included within Appendix C)as evidence of the authority of signatories to this Agreement.
iv. PHA represents that it is a governmental entity and that it shall cooperate with Citizens and provide
Citizens with appropriate documentation so that Citizens may establish that neither it nor any Lessor under the
Municipal Lease(as defined herein)shall have to pay taxes,fees and assessments or other charges of any character
which may be imposed or incurred by any governmental or public authority including, but not limited to,a State of
sales tax exemption certificate,or its equivalent,as an incident to title to,ownership of,or operation of
the ECMs or with respect to the interest component of the Municipal Lease payments which would otherwise be
levied upon or in respect to said interest component or of the ECMs or its operation. To the extent that PHA may be
found not to be exempt from certain taxes by a court of law,the rates for the Services hereunder will be subject to
such applicable taxes and surcharges,at FHA's additional cost. PHA will arrange for Citizens to be provided with a
State sales tax exemption certificates or its equivalent for Citizens' use in performance of the Services
under this Agreement.
V. Liens and Attachments: In the event a mechanic's lien is filed with respect to work performed
pursuant to this Agreement or against any payment due or to become due under this Agreement,or by reason of any
other claims or demands against Citizens,Citizens shall promptly cause such lien to be discharged in accordance
with applicable state or federal law. PHA will withhold sums on account of such liens in accordance with the
applicable requirements. Notwithstanding the foregoing,Citizens reserves all of its rights under such law and does
not waive any rights which it may have under same.
G. Conditions to the Commencement of Construction:
The following events(in accordance with the applicable provisions of this Agreement)during the Design
and Construction Funding Phase are conditions precedent to the commencement of the Construction Phase and the
closing of the Construction Financing:
i. PHA entering into the Municipal Lease:
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ii. execution by PHA of any agreements required for receipt of Supplemental Construction Funding as
defined in Section(4);
iii. receipt of all necessary approvals from HUD, execution by HUD and PHA of all necessary
agreements in connection with both the Conservation Project and the receipt by PHA of approval of future subsidy
payments related to the"HUD Incentive for Conservation Savings"(as described in this Section(4);and
iv. receipt by or on account of Citizens and/or PHA of all necessary permits,licenses,approvals and
other governmental or non-governmental authorizations needed for the installation of the ECMs.
Each of the foregoing approvals and authorizations entered into or received by Citizens shall be subject to
the review and approval of PHA,which shall not be unreasonably delayed or withheld. Any such approval shall be
deemed reasonably withheld if the rights or obligations under this Agreement of the Party withholding its approval
are materially adversely affected by the agreement,permit,license,approval or authorization in question.
H. Sample Installations:
Prior to beginning the work hereunder,Citizens will provide product cut-sheets and PHA, at its option,
may reasonably request to have Citizens provide a sample installation of any of the following EOMs to be installed:
lighting,,toilets,and other appliances. PHA shall furnish its written approval or disapproval of each installed
sample ECM or each such product cut-sheet within twenty(20)calendar days following its receipt of written notice
by Citizens of completion of each such sample installation or the provision of such product information to PHA.
FHA's approval of such sample ECMs or product information shall be in substantially the form of Attachment K
hereto. If PHA disapproves any such ECM,Citizens shall have the right to provide a substitute ECM which
conforms to the applicable specifications or is equivalent to any applicable sample provided to and approved in
writing by PHA hereunder. Citizens shall revise the Attachments to reflect each such substitution,subject to FHA's
written approval of each revised Attachment. In the event PHA does not approve of any such substituted EOM's or
specifications and Citizens has no specific right hereunder to provide a substitute ECM,the Parties hereby agree to
negotiate a mutually acceptable solution. FHA shall not unreasonably withhold or delay any approval provided for
herein.
(S) PHASE 11—CONSTRUCTION
A. Construction:
i. During the Construction Phase,Citizens shall furnish all labor,materials and equipment and perform all
work required for the completion of the Scope of Work set forth in Appendix B, including the installation of the
ECMs listed therein,as Appendix B may be revised from time to time in accordance with the terms of this
Agreement.
ii. At all times relevant to this Agreement,Citizens shall permit PHA or any of its representatives to enter
upon the Project site to inspect, test and approve both the work conducted in the facility, during construction and
operations, and to access the books, records,and other compilations of data which pertain to the performance of the
provisions and requirements of this Agreement, including attendance of the Agency's representative at relevant on-
or-off-site meetings of Citizens and/or its subcontractors.
iii. Citizens shall provide 100%Performance and Payment Bonds to the PHA upon the execution of this
Agreement and commensurate with Citizens' receipt from PHA of an irrevocable Notice to Proceed.
Sample Citizens Energy Services Agreement Page I I
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B. Labor And Material For Construction:
i. Citizens shall ensure that all laborers shall be competent to perform the tasks undertaken,that all
materials and equipment provided shall be new and of appropriate quality,and that the completed work shall comply
with the requirements of this Agreement. Citizens and its Subcontractors shall comply with applicable Section 3
and MWBE goals as specified by the PHA.
ii. Citizens shall solicit pricing from qualified Subcontractors,and major equipment vendors
("Construction Subcontractors")for the purpose of reasonably minimizing the cost of the construction and
installation of the EOMs contained in Appendix B. With respect to the selection of Construction Subcontractors,
Citizens shall comply with all applicable requirements and in furtherance,and not in limitation thereof,shall
encourage the involvement of Resident-owned Businesses and local minority and women-owned businesses by
making so called"outreach"efforts through newspaper advertising,mailing lists and direct telephone calls. In all
cases where competitive bids or quotations have been solicited,Citizens, in consultation with PHA,will evaluate
and negotiate the quotations received. Citizens and its subcontractors will comply with the HUD General
Conditions for Construction,applicable provisions of Section 3 and MWBE policies of PHA,and state labor law.
PHA hereby warrants that any applicable governmental procedures and authorizations for securing such
bids or quotations from Construction Subcontractors and/or materials suppliers have been fully disclosed to Citizens
prior to the execution of this Agreement. if costs or charges are incurred by either Party to solicit bids or to cancel
contracts when the original determination regarding bidding was made in error,such costs and charges shall be for
PHA's account.
All Construction Subcontractors,consultants,and subconsultants("Subcontractors")that Citizens uses to
perform the work hereunder,are subject to the prior written approval of PHA,which approval shall not be
unreasonably withheld,but such approval may be withheld for contractors that are determined to be non-responsible
based on: (a)information contained in the List of Parties Excluded from Federal Procurement or Nonprocurement
Programs,published by the United States General Services Administration Office of Acquisition Policy for any
successor list),or(b)prior defaults or non-responsibility determinations of the contractor by PHA. Upon selection
of Subcontractors and approval by PHA,Citizens shall provide PHA with copies of its subcontracts for construction.
Citizens agrees to reasonably assist PHA in making a claim under any insurance policy of a Subcontractor of
Citizens including,but not limited to,completing and submitting any required forms or providing any required
information to enable PHA to recover on its claim.
Citizens' Subcontractor agreements shall include a provision that the Subcontractors shall indemnify,
defend and hold harmless PHA from and against all claims,suits,damages,costs or any other liability whatsoever
resulting from or arising out of the Subcontractor's performance of,or failure to perform,the work for which the
Subcontractor has been retained,in the form shown below:
"The Contractor shall protect, indemnify and hold harmless PHA from and against all liabilities,
losses,claims,damages,judgments,fines,penalties,causes of action,costs and expenses(including
without limitation,attorneys' fees,court costs and expenses)imposed upon or incurred by or assessed
against PHA resulting from,arising out of or relating to the performance of this Agreement. The
obligations of the Contractor under this provision shall survive any expiration or termination of this
Agreement and shall not be limited by any enumeration herein of required insurance coverage."
Citizens agrees to reasonably assist PHA in enforcing the indemnity provision above including,but not
limited to,providing documentation requested by PHA.
Not Deemed PHA Enjoloyegs: No person assigned to perform work under this Agreement by Citizens
shall be deemed to be an employee of PHA for any purpose.
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Qualified Personnel: Citizens shall employ only qualified and competent persons and Subcontractors in the
provision of Services to be performed hereunder. If, in the opinion of PHA,Citizens violates such obligation,after
providing Citizens notice and ten(10)business days to cure,PHA, in the reasonable exercise of its discretion,may
demand that the unqualified and/or incompetent person be replaced and not again be employed in the performance
of this Agreement,which demand shall be complied with by Citizens as soon as practicable,considering Citizens'
need to obtain a suitable replacement employee or Subcontractor.
Independent Contractor: In performing the Services hereunder,Citizens has the status of an independent
contractor. Neither Citizens nor its employees nor its Subcontractors are to represent themselves to be,or be
deemed to be,employees or agents of,and shall have no power to bind,PHA. Citizens is solely responsible for
payment of all compensation owed to its own personnel and its Subcontractors,as well as for payment of all
employment-related and other similar taxes(subject to other provisions of this Agreement relating to taxes)and
liabilities incurred by Citizens or its Subcontractors.
Prevailing Wades: Citizens shall pay the required wage rates for work in connection with this Project
pursuant to the federal Davis-Bacon wage requirements as specified by the PHA.
iii. Revised Scope of Work:
Based on the final measure pricing and the funds available from sources of Construction Funding,
Citizens and PHA shall agree upon the"Revised Scope of Work"for construction which shall not exceed in cost
such available funds consistent with the"Revised Cash Flow Projection" included in Appendix D-I Cash Flow
Projection. Without limiting the foregoing,Citizens and PHA acknowledge that changes during the design and the
bidding processes may result in"Revised Energy Savings"which cannot support,after consideration of the"Revised
Utility or Other Company Funding and Rebates"available for such purposes,the "Revised Construction Budget",
notwithstanding the best efforts of the Parties to revise and reconfigure the Conservation Project. Upon the
agreement of the Parties as set forth above,Citizens shall submit to PHA in writing the "Revised Scope of Work"
and a"Revised Construction Budget". The"Revised Scope of Work"and"Revised Construction Budget"shall then
become a part of this Agreement by inclusion in Appendix B,Summary of Recommended ECMs. Any failure of the
Parties to agree on revisions to the Conservation Project at this time may result in an early termination of this
Agreement in accordance with Section(15)A,'Germination for Failure to Agree on Revisions.
iv, Adiustment to Cash Flow Proiection: Citizens shall,as required,and in consultation with PHA,
prepare the "Revised Cash Flow Projection"to reflect the"Revised Scope of Work"and the"Revised Construction
Budget",on the basis of the bids,including any negotiated bids.
C. Construction Project Management:
During the Construction Phase,Citizens shall undertake in a timely fashion the activities required of
Citizens as described in this Section 5(C), including,without limitation,the oversight of ECM-related activity
conducted at the Developments as provided for within the"Summary of Recommended ECMs"(Appendix B).
i. Project Manager: During the Construction and Permanent Financing Phase,Citizens shall serve as
"Project Manager"on behalf of PHA,and shall,in consultation with PHA,schedule and oversee as described in this
Section 5(C), installation of the ECMs included in the"Summary of Recommended ECMs"(Appendix B).
ii. Prime Contractor: During the Construction and Permanent Financing Phase,Citizens shall serve as
"Prime Contractor"on behalf of PHA for,and directly contract for the installation of,such ECMs included in the
"Revised Summary of Recommended ECMs"(Appendix B).
iii. Project_Scheduling: PHA and Citizens shall mutually plan the scheduling and coordination of the
construction work. The construction work will be planned to reasonably minimize the interruption of the daily
Sampie Citizens Energy Services Agreement Page 13
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routine of and services provided to PHA's staff and residents except as permitted in writing by PHA. Citizens shall
prepare milestone schedules and shall outline and track the schedule of work for all significant phases of
construction,and shall produce written progress meeting minutes or monthly progress reports for PHA on a percent
completion summary with each requisition submitted for payment. In no case shall Citizens be responsible for
delays in the Conservation Project caused by the failure of PHA,or others under contract with PHA,to schedule
and/or coordinate work with the work to be performed for Citizens under the Construction Subcontracts or caused
by the failure of PHA to provide access or perform any other obligation related to the construction work.
iv. Access PHA shall provide such reasonable access to the Developments for Citizens and approved
Subcontractors at all times during the course of the work hereunder. Citizens may access occupied apartments upon
forty-eight(48)hours written notice to the residents. PHA will cooperate with Citizens by authorizing and
facilitating issuance of notice to residents in a timely manner and otherwise,by encouraging and promoting a
cooperative relationship between Citizens and residents of the Developments and to accomplish its work during
normal business hours. Citizens shall use its best efforts to avoid disruption of services or inconveniences to the
residents of the Developments. If Citizens or its approved Subcontractors require access to the Developments
outside of PHA's normal business hours,Citizens will notify PHA of this need during normal business hours,and
Citizens and its Subcontractors will comply with any PHA security requirements regarding after-hours access.
V. Requisitions and Direct Payments: Prior to submission of Requisitions for payment,Citizens shall
provide a Schedule of Values for PHA itemizing the budgets for each ECM,contingency,fee categories,and
overhead and profit categories. Citizens shall produce,or cause its subcontractors to produce, using applicable HUD
payment forms and the AIA G701 and 702 forms,requisitions for payment by PHA for completed work and
including a sworn statement by Citizens that: (1)work covered by the requisition for payment being submitted has
been completed,and(2)Citizens has paid Construction Subcontractors and Materials Suppliers for work for which
(a)previous Requisitions for payment were submitted by Citizens and(b)payment was received from PHA;subject
to any retainage provisions included in the Construction Contract Documents. Once approved, PHA shall pay
Citizens the amount of all Requisitions submitted by Citizens in accordance with this Section 5. PHA's
unreasonable failure to approve or to pay requisitions within thirty(30)days after approval will make PHA(not the
Conservation Project Budget)liable for late payment fees pursuant to Section(I 1)(E)Late Payment Charges.
Where PHA is responsible under this Agreement to make a direct payment to Citizens for work
performed hereunder,PHA shall pay Citizens such amount within thirty(30)days of approving Citizen's written
request for the same. Such request shall include Citizen's written statement of the basis for the payment and set
forth such other information as PHA shall reasonably require.
vi. Construction Accounting: Citizens shall track all Requisitions of the Conservation Project and shall
provide PHA with reports illustrating all activity in the Construction and Escrow Accounts at appropriate intervals,
but not less frequently than monthly. The reports will summarize the"Revised Scheduled Value",payments under
properly approved Requisitions to date,remaining amounts due under change orders and addenda,and the balances
available in the Construction and Escrow Accounts for contingencies and reserves. Citizens shall require its
Subcontractors to maintain applicable weekly payroll and MBE utilization forms for submission with requisitions
and for approval by the PHA.
vii. Final Inspection of Construction Contract Work: Citizens and PHA shall make a final inspection
jointly upon completion of work performed directly by Citizens under this Agreement. Before final payment is
made,PHA shall approve the work in writing. PHA shall not withhold such approval or final payment
unreasonably.
viii. Waiver and Release of Lien: Before any progress or final payments are released,Citizens shall
secure from each supplier to Citizens and each Construction subcontractor or supplier,a lien release,certificate
and/or affidavit, as may be appropriate under the circumstances,that each such supplier,or subcontractor has been
paid to the extent required. The form of any applicable waiver or release documentation required by HUD shall be
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included in each Construction Contract or other Construction Document and shall be executed and delivered by each
Construction Contractor,supplier or other contractor from time to time,as required by HUD. Conditional lien
releases and waivers may be provided by Citizens or Construction Contractors where required prior to receiving
payment for work covered by any waiver and release of lien.
ix. Eguipment Ownership:Ownership and title to the ECMs referenced in Appendix H and each
Delivery and Acceptance Certificate(Appendix F)will automatically transfer to the PHA upon both:(a)the delivery
of each such Delivery and Acceptance Certificate by APA to Citizens,the execution and delivery of which shall not
be unreasonably withheld or delayed,and(b)completion of all PHA's payment obligations to Citizens or payment
authorizations with respect to Citizens,excluding payment obligations related to maintenance or other annual
services hereunder.
x. Treatment of Hazardous and Non-Hazardous Materials:Citizens,at its cost,shall be responsible for
disposal of all non-hazardous equipment and materials which are rendered useless and removed as a result of the
installation of the ECMs pursuant to this Agreement.
In addition,Citizens shall,at its cost,cause all lamps which are classified as hazardous wastes by the rules
and regulations of the U.S. Environmental Protection Agency(40 CFR Parts 260 through 279)and/or the applicable
State regulations and PCB-contaminated ballasts,if any,which have been rendered useless and removed as a result
of the installations of the ECMs to be transported and disposed of.All other existing PCB-contaminated ballasts
lamps and any other hazardous materials not part of Citizens'scope of work,however,remain the responsibility of
PHA and Citizens shall assume no liability in connection with their removal,transportation and disposal.
Citizens' Scope of Services is predicated on the viability of this Conservation Project without any asbestos
abatement being required of Citizens. To the extent possible,Citizens will determine during the design process the
areas where asbestos abatement will be required prior to construction and will provide written notice to the PHA of
such areas. During construction, in the event that:(i)Citizens encounters any friable asbestos which is in tite
immediate vicinity of Citizens' work,or(ii)Citizens determines that its work will result in the disturbance of
asbestos material,or(iii)Citizens determines that the presence of asbestos material will impede Citizens' work,
Citizens will notify PHA of the same and PHA will,at its cost,cause the asbestos to be promptly and properly
removed,enclosed,encapsulated or otherwise abated in accordance with applicable laws and regulations,or
alternatively, PHA,at its cost,may provide written test reports showing that asbestos in that area has been properly
removed, enclosed encapsulated or otherwise abated in accordance with applicable laws. In the event Citizens
cannot determine whether any particular material does or does not contain asbestos, PHA,upon Citizens' written
request,will, at its cost,promptly perform tests or cause tests to be performed in order to determine whether or not
such material contains asbestos and/or whether there are unacceptable levels of airborne particulate material
containing asbestos or provide such a test report. Under no circumstances,shall Citizens be required to handle
asbestos. In the event it encounters asbestos which materially affects its progressing of the work of this Project,
Citizens,at its option,may demobilize and cease construction in the area affected by the presence of asbestos until
such time as PHA performs the actions required to be performed by PHA which are described in this Subsection. In
the event that PHA does not promptly take action as provided herein,Citizens may,at its option,either remove the
affected area from its Scope of Services hereunder(and make commensurate adjustments to the rights and
obligations of the Parties)or terminate this Agreement in its entirety. PHA shall be responsible for costs incurred by
Citizens that pertain to delays caused during construction due to the presence of asbestos,or shall extend the
timeframe for completion of construction without penalty hereunder. To the extent such delay affects the beginning
of the permanent financing repayment under the Municipal Lease,the PHA shall not penalize Citizens for such
delays which affect the energy savings hereunder.
xi. Resident Education and Training: Citizens shall,during construction,schedule and hold a minimum
of two(2)on-site educational seminar(providing a total of eight(8)hours of training)at no cost to PHA for the
residents of each of the Developments and shall supply a newsletter to inform residents about the ECMs installed
under the Conservation Program.Citizens,in conducting such seminars and distributing such newsletters,shall
follow all manufacturer-recommended procedures without thereby endorsing or guaranteeing such procedures.
Sample Citizens Energy Services Agreement Page 15
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Citizens shall be available on a time and expenses basis to provide additional seminars,training workshops and/or
newsletters as requested by PHA for additional services as provided for in Section 1 I(D)"Fees"for Additional
Services, at the rates set forth in Appendix E-lc"Energy Service Fees and Expenses."
xii. Manacement and/or Maintenance Staff Training: Upon completion of construction of the
Conservation Project,Citizens shall schedule and hold,at no cost to PHA,up to (#)educational sessions or
training workshops,as needed,for the management and/or maintenance staff at appropriate locations,each session
to be approximately four(4)hours,and Citizens shall distribute manuals and other educational materials as may be
available from manufacturers of ECMs and Construction Subcontractors. Citizens, in conducting such seminars and
workshops,shall follow all manufacturer-recommended procedures without thereby endorsing or guaranteeing such
procedures.Citizens shall be available on a time and expenses basis to provide additional seminars,training
workshops and/or newsletters as requested by the PHA for additional services as provided for in Section(1 I)D
"Fees" for Additional Services,at the rates set forth in Appendix E-Ic,"Energy Service Fees and Expenses",to
provide additional seminars and/or training workshops as requested by the PHA.
D. Systems and Equipment Manual:
Upon completion of construction of the Conservation Project,Citizens shall compile manufacturer-
provided literature on the operation and maintenance of the ECMs, including such preventive maintenance
requirements as may be required by the respective equipment or systems manufacturers,for reference by the PHA.
Citizens, in compiling such literature and information,shall include all manufacturer-recommended procedures
without thereby endorsing or guaranteeing such procedures,and shall provide three(3)copies of such manuals to
PHA for distribution to applicable maintenance staff. Upon completion of the final Scope of Work for Phases I and
I1,Citizens will provide to PHA a single comprehensive schedule of necessary preventive maintenance for all
installations for the five(5)years following the contract close-out.
E. "As-Built" Documentation
Citizens will prepare and furnish to PHA,within thirty(30)days of completion of Construction,four(4)
copies of"As-Built" Drawings in native Autocad release 14 Format(min.).
F. Warranty:
Citizens covenants and agrees that all equipment installed under Construction Subcontracts as part of this
Agreement is new, in good and proper working condition and protected by appropriate written warranties as
described in this subsection 5(F).
Citizens shall require all Construction Subcontractors to provide to PHA and Citizens materials and labor
guarantees and warranties for a period of not less than one(1)year on all improvements installed under Construction
Subcontracts as a part of the Conservation Project. For ECMs installed under Construction Subcontracts,Citizens
shall require equipment manufacturers to provide a warranty period consistent with the standard in the industry but
in no event less than one(1)year,and Citizens agrees to cooperate and assist in the enforcement of any such
warranty during the warranty period. All such warranties shall specify that only new,not used or reconditioned
parts,may be used and installed when repair is necessitated by malfunction. CITIZENS PROVIDES NO
OTHER PERFORMANCE AND SERVICE WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO,WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE
OR MERCHANTABILITY OR SUITABILITY FOR ANY REPORT,DESIGN, ITEM,SERVICE OR
OTHER RESULTS TO BE DELIVERED UNDER THIS AGREEMENT,UNLESS SPECIFICALLY SET
FORTH IN THIS AGREEMENT.
G. Citizens' and PHA's Representatives:
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PROPRIETARY
Citizens' senior representative for this Agreement is Janice DeBarros,Vice President,or his/her designee
or successor("Citizens' Senior Representative"). Citizens' Senior Representative is the primary contact regarding
Citizens' and its Subcontractors'coordination and interface with FHA's personnel. Citizens' Senior Representative
shall work with PHA in resolving any problems that may occur with respect to the Services when those problems
cannot be satisfactorily resolved at a lower level.
Citizens' coordinator for this Agreement is or his/her designee or successor
("Citizens' Coordinator"),who shall coordinate Citizens'provision of the Services. Wherever this Agreement refers
to Citizens performing any obligation,exercising any right or otherwise acting under this Agreement with regard to
the Services,Citizens' Coordinator will be the primary Citizens contact with PHA. When necessary,Citizens'
Coordinator shall refer problems to Citizens' Senior Representative.
The PHA sensor representative for the Service is or his/her successor
or designee("PHA's Senior Representative"). PHA's Senior Representative shall work with Citizens in resolving
any problems that may arise with respect to the Services when those problems cannot be satisfactorily received at a
lower level.
Citizens and its Subcontractors shall coordinate their work effort in performing the Conservation Project
and shall follow the directions that PHA may give from time to time. In the event Citizens encounters significant
difficulty in performing the Services under this Agreement,or anticipates any significant delay in performing the
Services,Citizens shall notify PHA's Senior Representative promptly,both orally and in writing. The PHA and
Citizens Representatives shall hold quarterly conference calls during the installation period to review the status of
the Services. Additional conference calls will be held at the request of either party. PHA and Citizens will confer at
a mutually agreed upon date and time within five(5)business days after PHA's or Citizens' request for any such
conference. AIthough it is anticipated that conference calls will be the normal mode of meeting between the parties,
if either party feels that a face-to-face meeting is required,the other party will agree to a face-to-face meeting at a
mutually agreeable location,date and time.
H, Clean-up:
Citizens shall maintain the Conservation Project sites in a reasonably clean condition during the
performance of the construction work. In that regard,Citizens shall thoroughly and regularly clean the
Conservation Project sites of all debris,trash and excess material or equipment.
(6) Phase ill—Project Operation
During the Project Operation Phase of this Agreement,Citizens shall perform the following"Energy
Management Services"as described in this Section(6)-Phase III Project Operation.
A. Utility Use Monitoring:
The PHA shall supply Citizens with monthly utility billing data for PHA-paid utility accounts affected
under this Agreement in order for Citizens to compile monitoring reports. Such data shall be furnished
electronically in the Excel spread-sheet or equivalent format.Citizens shall monitor the monthly weather-and rate-
adjusted Energy Base Year and Energy Savings for the Developments using its energy monitoring software,and
shall issue quarterly reports to PHA that evaluate such monthly post-construction Use and Savings in accordance
with the Utility/Energy Supplier Savings Calculation contained in Appendix G, Utility/Energy Supplier Savings
Calculations.
B. Annual Reconciliation:
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PROPRIETARY
Citizens shall produce for PHA within ninety(90)days of receipt of the 12th set of monthly utility bills
(with respect to each successive twelve(12)month period following Citizen's receipt of the final Delivery and
Acceptance certificate provided by PHA to Citizens hereunder),an annual year-end reconciliation of savings
achieved for the project.Any major deviation from budgeted annual savings shall be thoroughly investigated and
reconciled by Citizens and PHA pursuant to the Conditional Energy Savings Guarantee.
C. HUD Utilitv Subsidy Forms:
Citizens shall assist PHA in preparation of pertinent annual HUD forms 52722 and/or 52723 on request.
D. Newsletters:
Citizens shall produce a semi-annual Energy Newsletter for each Development listed in Appendix A. The
Newsletter will inform residents about the EOMs installed under the Conservation Program,describe current energy
use and savings,and offer ideas on how residents can reduce energy waste.PHA and Citizens will mutually
determine the distribution method for such newsletters.
E. Site Visits:
Each year throughout the Project Operation Phase of this Agreement,Citizens shall visit each
Development and a sample of the ECMs installed under this Agreement.This visit is intended to determine whether
or not the EOMs are operating properly and are being maintained and operated by PHA in accordance with the
Citizens Systems and Equipment Manual described in Section 5(C).Construction Project Management. Citizens
shall provide PHA a written Site Visit Report. Citizens will be available on a time and expenses basis,at the rates
set forth in Appendix E-Ic"Contract Costs and Annual Services", for additional visits and for on-going maintenance
assistance. Citizens shall provide on-going assistance in the form of brief consultation by phone to PHA or its
assigns at no additional charge.
F. Annual Service Contracts:
Citizens shall assist PHA in obtaining such annual service contracts for the operation and maintenance of
the ECMs as PHA may request. The cost associated with such contracts shall be paid from savings under this
Agreement only if they are expressly included in Appendix D-1,attached. Any such contract shall be executed and
paid directly by PHA unless Appendix D-I is amended for such purpose during the Contract Term.
G. Resident Education and Training:
Citizens shall,on a semiannual basis,schedule one on-site educational seminar for the residents to inform
residents about the ECMs installed under the Conservation Program,describe current energy use and savings,and
offer ideas on how residents can reduce energy waste. Citizens,in conducting such seminars and workshops,shall
follow all manufacturer-recommended procedures without thereby endorsing or guaranteeing such procedures.
Citizens shall be available on a time and expenses basis,at the rates set forth in Appendix E-lc"Contract Cost and
Annual Services"to provide additional seminars and training workshops.
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H. Maintenance Staff Training:
Citizens shall schedule and hold an educational session or training workshop on an annual basis,as needed,
for the management and/or maintenance staff at the Developments,and distribute updated manuals and other
materials as may be available from manufacturers. Citizens,in conducting such seminars and workshops, shall
follow all manufacturer-recommended procedures without thereby endorsing or guaranteeing such procedures.
Citizens shall be available on a time and expenses basis for additional services at the rates set forth in Appendix E-
lc. Energy Service Fees and Expenses to provide additional seminars and/or training workshops as requested by the
PHA.
(7) ENERGY SAVINGS DURING PHASE III
A. Calculation of Savings:
For the purposes of this Agreement,Energy Savings during the Project Operation Phase shall be calculated
using the formulae and assumptions contained in the UtilityfEnergy Supplier Savings Calculations included in
Appendix G.
B. PHA-Supplied Documents:
PHA shall furnish Citizens each month with copies in electronic Excel spread-sheet or equivalent format of
utility bills for Developments and utilities included the Utility Baselines contained in Appendix D-1 and
Utility/Energy Supplier Savings Calculations contained in Appendix G,within ten(14)days of receipt from utility
companies.Any utility bills that require further data manipulation by PHA must be sent to Citizens within thirty(30)
days of receipt by PHA. PHA shall supply completed copies of HUD forms 52722 and 52723 related to the
Conservation Program to Citizens. PHA agrees to provide Citizens with any portions of the income and expense
statements concerning the operations of the Developments that are necessary for Citizens to perform the services
specified in this Agreement. PHA also agrees to provide information regarding modernization plans or changes that
will impact energy use pursuant to Section(8)F"Disclaimer Regarding Material Changes" and Section(8)G.
Adjustments on Account of Material Changes.
(8) CASH FLOW
As illustrated in the"Cash Flow Projection"and"Revised Cash Flow Projection" included in Appendix
D-1,the cash flow for the Conservation Project shall be defined as follows:
A. Proiect Operating Budget:
Citizens shall, in consultation with,and approval by the PHA,define the projected annual project budget
for the payment of the Performance Contract Financing and related Program expenses. Citizens shall review and
adjust the budget annually for the term of the Performance Contract Financing in conjunction with the Annual
Reconciliation described in Section(5)B Annual Reconciliation,above.
B. PHA Debt Service and PHA Utility Payments:
PHA shall be responsible for,and shall pay directly:(i)all Municipal Lease installments and/or Debt
Service costs under the Performance Contract Financing to the third party lender and(ii)all applicable utility bills to
utility companies for each Development.
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PROPRIETARY
C. Fixed Annual Services Fee Pavtnents to Citizens:
in consideration of the annual services provided by Citizens during Phase III for which no specific
compensation is provided by Construction Financing and Supplemental Construction Funding,PHA shall pay to
Citizens a Fixed Annual Service Fee in the amounts contained in Appendix E-lb.
D. Performance Contract Financing Municipal Lease Payments and/or Debt Service and Fixed Annual Service Fee
Coveray,e:
As set forth in the"Cash Flow Projection"and"Revised Cash Flow Projection" included in Appendix D-1,
the Parties project that the `Revised Energy Savings",will be sufficient to pay the Performance Contract Financing
debt service during each year of loan repayment. In the event that the actual cash flow from actual Energy Savings
is insufficient to repay the Performance Contract Financing,PHA shall apply to Citizens for any funds as may then
be payable from Citizens to PHA in accordance with the Conditional Energy Savings Guarantee agreement entered
into by Citizens and PHA pursuant to Section(9)Conditional Energy Saving Guarantee,below.The funding for the
Municipal Lease and the Fixed Annual Services Fee Payments to Citizens will be provided to PHA by HUD as
provided for in Appendix L,the"HUD Approval Letter."
E. Disclaimer Regarding Material Changes:
Citizens has made,and will make,its final projections of"Energy Savings",and "Revised Energy
Savings",in good faith based upon the condition of the Developments at the time of the final Energy Services Plan,
and based upon information supplied to Citizens by PHA. A reduction in actual Energy Savings from the levels
projected may be caused by factors outside the control of Citizens. Those factors include,without limit,(i)
materially inaccurate information(the inaccuracy of which Citizens is not responsible for);(ii)Material Chanes in
the condition or use of the Developments or utility-using equipment at the Developments;(iii)any failure of PHA,
tenants,or other third parties to follow recommended operational or maintenance practices or otherwise to meet
obligations with respect to the operation or maintenance of the Developments;(iv)any Material Changes to,or
removal of, ECMs which have not been approved by Citizens and any Material Changes resulting from damage to,
or destruction of,ECMs which is not promptly remedied by Citizens. If reduction in actual Energy Savings occurs
due to any such factors,and if the size of such reduction is at least equal in value to the"Material Change
Threshold"described in"DEFINITIONS,then a"Material Change"shall be deemed to have occurred. Citizens
shall have no liability or obligation to PHA for such reduction or otherwise on account of such Material Change.
Any guaranty executed by Citizens under Section(9),Conditional Energy Savings Guarantee,or other provision of
this Agreement,which is or may be to the contrary shall be deemed to be subject to the disclaimer in this Section.
Notwithstanding the foregoing,a reduction in actual Energy Savings which is a direct result of a material failure by
Citizens to perform its obligations under this Agreement shall not be deemed to have resulted from a Material
Change.
F. Adiustments on Account of Material Changes:
If a Material Change within the meaning of Section(8)F"Disclaimer Regarding Material Changes"shall
occur and PHA shall be aware of such Material Change, PHA shall provide sufficient notice to Citizens,pursuant to
Section(10)Maintenance,Material Alterations and Security,to allow,in consultation with Citizens,appropriate
adjustments to the Utility/Energy Supplies Savings Calculation contained within Appendix G and, if appropriate,to
the Baseline contained in Appendix D-1,to be made. Such adjustments shall recalculate Energy Savings as if such
Material Change had not occurred. In the absence of such notice,Citizens and PHA shall consult and make the
appropriate adjustments to the Energy Savings Calculation upon learning of any unreported Material Change.
Without limiting Section(8)F, Disclaimer Regarding Material Changes. Citizens shall not be responsible for any
such Material Change.
Sample Citizens Energy Services Agreement Page 20
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(9) CONDITIONAL ENERGY SAVINGS GUARANTEE
At the time of the closing of the Municipal Lease,as described in Section(4)Phase I—Design and
Construction Funding,Citizens shall provide a Conditional Energy Savings Guarantee with and for the sole benefit
of, PHA in substantially the form of Appendix I hereto.This guarantee may be incorporated as an exhibit to the
Municipal Lease.
(IO) MAINTENANCE,MATERIAL ALTERATION,AND SECURITY
A. Maintenance and Maintenance Costs:
Notwithstanding any provisions of this Agreement which pertain to Citizens' Services related to the
operation of installed ECMs,PHA shall,during the Project Operation Phase,maintain the energy-related building
structures,fixtures,and equipment in accordance with the Citizens'design specifications and manufacturer's
maintenance recommendations specified in the"Citizens System and Equipment Manual". Inspections performed
by Citizens,insurance providers,or assigns,pursuant to Section(6)E,Annual Site Visit,and Section(9),
Conditional Energy Savings Guarantee,and such other inspections as may be conducted,will be utilized to inform
the PHA and Citizens on any required maintenance action unperformed. Citizens is not responsible or liable for any
existing or latent condition of the Developments,whether visible or enclosed, including,but not limited to,existing
or latent wiring,metering devices,structural,mechanical,distribution systems of all kinds,machinery,structural
elements,piping,switches,valves or any other system components that are not installed under this Agreement.
PHA shall be responsible for all on-going costs associated with properly maintaining and servicing the
existing equipment and systems at the Developments. PHA shall be responsible for performing preventive
maintenance as may be recommended or required by the respective manufacturers of new equipment or systems,as
summarized in the"Citizens System and Equipment Manual." PHA's maintenance responsibilities shall continue to
be the PHA's existing standards of maintenance to keep equipment in good working order,modified by the new
equipment training and manuals provided by Citizens. The PHA shall provide a level of effort and sufficient
resources to properly meet these responsibilities. Notwithstanding these PHA responsibilities,Citizens shall notify
the PHA of any unanticipated increases in electricity or fuel consumption greater than ten percent(10%)within
thirty(30)days of receipt of monthly utility consumption data from PHA. Upon notification of said unanticipated
increase, PHA shall be responsible for investigating and remedying any routine maintenance problem with respect to
any ECMs. PHA shall be responsible to remedy all maintenance or other identified problems with equipment that
is not specified by Citizens but which impacts the ECM operation or energy usage. In the event that PHA cannot
remedy a reported problem to its reasonable satisfaction within ten(10)business days, PHA is obliged to report its
efforts to Citizens and the Parties will determine a reasonable timeframe to correct the problem and/or request
Citizens to take action at the hourly rates identified in Appendix E-I(c)to ensure that the equipment is performing
sufficiently to produce the required savings hereunder
B. Alterations& Equipment Replacements:
PHA shall notify Citizens prior to commencing any Material alteration to the structure, fixtures,equipment,
or use of any facility at the Developments. To the extent possible,any replacement equipment or fixtures installed
will be at least as energy-efficient as the equipment or fixtures present on the Acceptance Date. Should such
alterations increase or decrease the actual energy savings achieved at the Development,Citizens shall determine,in
consultation with PHA,an appropriate adjustment to the Utility/Energy Supplier Savings Calculations included in
Appendix G and, if justified,to the Baseline included within Appendix D-1.
Sample Citizens Energy Services Agreement Page 21
PROPRIETARY
C. Securi :
Citizens shall secure,and/or cause its Construction Subcontractors to secure,all materials and equipment to
be installed on the Developments daring construction. Citizens and/or its Construction Subcontractors shall carry
appropriate amounts of liability and property insurance as may be required to protect the materials and equipment
prior to installation and acceptance by the PHA,consistent with the HUD General Conditions pertaining to
Construction Subcontracts(HUD Form 5370)or FHA's insurance requirements,whichever is more stringent. Into
such materials and equipment will be stored on-site unless prior approval from PHA is obtained(which approval
shall not be unreasonably withheld or delayed),and Citizens and/or its Subcontractors are able to secure the
locations designated for such storage. PHA will provide reasonably convenient areas within the Developments for
Citizens and Construction Subcontractors to mobilize.
D. Effect on Energy Savings:
Should Citizens document,in its annual or other site inspection, FHA's failure to operate,maintain or
secure the equipment properly,or failure to inform Citizens of Material Change to the Developments,as defined in
Section(8)F,and should such failure or Material Change reduce the level of actual Energy Savings by the Material
Change amount set forth in Appendix G Utility/Energy Supplier Savings Calculations or more,Citizens shall
determine,in consultation with PHA,an appropriate adjustment to the Utility/Energy Supplier Savings Calculations
included in Appendix G,and the Baseline contained within Appendix D-1,if appropriate,and shall work with PHA
to cause any such failure to be corrected and to improve actual Energy Savings to the extent possible. The terms of
Section(8)F.Adjustments on Account of Material Changes shall apply to any such Material Change. Adjustments
based upon Material Changes may be made retroactively where appropriate.
(l 1) SUMMARY OF COMPENSATION
A. The Total Contract Costs during Phases 1 and If:
Citizens shall produce for PHA in advance of the onset of services under this Agreement a Schedule of
Values itemizing all costs included in the Total Contract Cost. PHA shall make progress payments to Citizens
against percent of work complete using proceeds from Construction Financing or Supplemental Construction
Funding. Phases I and 11 will be billed monthly by Citizens on a percent complete basis. PHA will hold ten percent
(10%)Retainage and,consistent with the HUD General Conditions,may reduce the amount withheld as measures
are installed and accepted. Upon submission by PHA of Delivery and Acceptance Certificate in substantially the
form of Appendix F hereto with respect to each Development and commissioning of the ECMs installed hereunder.
PHA shall make a Final Payment, inclusive of any remaining Retainage held with respect to that Development(or
submit a Requisition or otherwise arrange for payment to be made to Citizens from the Construction and/or Escrow
Funds)with respect to that Development. Payments shall be due within thirty(30)days of PHA approval of each
invoice submitted by Citizens. If payment is not made within that period,payments shall be subject to the late
charge provided for below.
B. The Fixed Annual Service Fee during Phase Ill:
The Fixed Annual Service Fee due Citizens will be payable against those Services provided in Phase Ill
and will represent a fixed annual service fee outlined in Appendix E-lb.The total payment to Citizens over the
course of this Agreement,subject to written amendment by mutual agreement,shall not exceed the annual amounts
identified in Appendix E-lb unless agreed by the Parties. Such payments will be invoiced periodically throughout
the annual service period as Services are rendered, up to the total annual service fee set forth in Appendix E-Ib,and
are expected to be paid from the additional operating subsidy received from HUD in accordance with Appendix 1..
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C. Pavments in the Event-of Certain Early Terminations:
Should the Conservation Project be terminated for any reason during Phases I or II, including,without
limitation,any failure to agree on revisions to the Conservation Project as described in Section(I 5)A,"termination
for Failure to Agree on Revisions(but not including Citizens' Material Default in its obligation to perform in a
timely and satisfactory manner,as defined in Section 15.Termination for Material Default), PHA shall be liable to
Citizens for all expenses incurred to the point of termination in accordance with this Section). PHA's payment of
the Fees to Citizens shall be limited to the hours Citizens has worked(including hours worked by Citizens,its
subcontractors and all those working on the Conservation Project on behalf of Citizens),as of the date Citizens
receives or issues written notice of termination,valued at Citizens'billing rates per employee set forth in Appendix
E-1 c or at percentage of work completed as of the point of termination for applicable subcontracts,exclusive of
claims for"lost"overhead and profit In addition,PHA shall compensate Citizens for all Reimbursable Expenses
reasonably incurred by Citizens(including hours worked by Citizens,its subcontractors and all those working on the
Conservation Project on behalf of Citizens)on the Conservation Project as of that date. In the event of termination,
PHA's total payment to Citizens shall not exceed the amounts indicated in Appendix E-1,as may be revised by
agreement of both parties. In addition,PHA shall hold Citizens,as prime contractor,harmless from and against all
costs and liabilities incurred by Citizens as a result of the termination of all Construction Subcontracts under this
Early Termination provision.
D. Fees for Additional Services:
At any time during the term of this Agreement,PHA may request that Citizens perform services in addition
to those described herein. Any such additional services which Citizens agrees to perform, including any costs to
redesign or re-bid portions of the Conservation Project at PHA's option or as may be required by applicable law,
shall be evidenced by a written change order or addendum mutually agreed-upon by PHA and Citizens, and shall be
paid for by PHA at Citizens'and/or its subcontractor's billing rates for each employee set forth in Appendix E-i c.
PHA shall also pay Citizens for any reimbursable expenses incurred by Citizens in conjunction with such additional
services.
E. Late Payment Charges:
Citizens' Fees,reimbursements,and fees for additional services are due and payable within thirty(30)days
of the date on which PHA approves an invoice from Citizens with regard to such payments. PHA shall not withhold
payment unreasonably. Payments past 30 days shall be subject to a late charge of 1.5 percent(1.5%)of the amount
due per month.
(12) PHA PROPERTY AND ACCESS TO PROJECT RECORDS
PHA shall not,by virtue of this Agreement or material or equipment installed under this Agreement,
acquire any interest in any formulas,patterns,devices,copyrights,patents,or other intellectual or proprietary rights,
or similar items of property which are or may be used in connection with the ECMs installed under this Agreement.
Citizens shall maintain records under this Agreement on a generally-recognized accounting basis,
and calculations shall be kept on file in legible form and retained for at least three years after close-out.
(13) INDEMNIFICATION AND LIMITATION OF LIABILITY
Except as provided in this Section,each Party to this Agreement agrees,subject to limitations on liability
set forth in this Agreement,to defend,indemnify and hold harmless the other Party from and against any and all
claims,actions,demands or lawsuits for damages arising by reason of bodily injury,death or damage to property
sustained by any person or entity to the extent caused by or sustained as a result of the negligence,willful
misconduct or other wrongful act of the other Party,its officers,agents,subcontractors or employees indemnifying
Sample Citizens Energy Services Agreement Page.23
PROPRIETARY
Party or any agent,employee or subcontractor thereof relating to its respective performance of this Agreement and
the Conservation Project.
Notwithstanding the foregoing,the Parties,their directors,officers,agents and employees shall not be
liable for any claims for incidental,indirect,consequential,or special damages, including,but not limited to,
damages for loss of anticipated profits,except as those profits are derived from payment or other compensation due
to performance hereunder,loss of use of revenue,and losses by reason of cost of capital,connected with,resulting
from,or arising out of this Agreement or any performance or lack of performance under this Agreement. Moreover,
Citizens shall not be liable for damages arising from any latent or existing condition in the Developments.
(I4) COMPLIANCE WITH APPLICABLE LAW AND REGULATIONS,INCLUDING PHA POLICY
COMPLIANCE
Citizens shall comply with and obtain,at its expense,all licenses and permits required by Federal,state and
local laws in connection with the installation of the EOMs. To the extent that Citizens agrees to perform operations
and/or maintenance of specified EOMs or other equipment, it shall comply with and obtain, at its expense, all
licenses and permits which may be required by Federal,state and local laws in connection with the operation and/or
maintenance of such specified EOMs. PHA will cooperate with Citizens' efforts to obtain the foregoing. In the
event that Citizens cannot procure any such license or permit in light of a requirement that PHA is required to do so,
PHA will procure the same.
Citizens shall comply, and shall require that all of its Construction Subcontractors comply, with the
applicable provisions of HUD Form 51915-A, "Contract Provisions Required by Federal Law or Owner Contract
with the U.S.Department of Housing and Urban Development", including,but not limited to,the following:
A. Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by
Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR
Chapter 60);
B. Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29
CFR part 3);
C. Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR
part 5);
D. Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as
supplemented by Department of Labor regulations(29 CFR part 5);and
E. All applicable standards,orders, or requirements of the Clean Air Act(42 U.S.C. Section 7602)(formerly 42
U.S.C. 1857(h)), the Clean Water Act, as amended (33 U.S.C. 1368), Executive Order 11738 and all
implementing regulations promulgated by the Environmental Protection Agency (40 CFR part 15); and all
mandatory standards and policies relating to energy efficiency that are contained in applicable state
conservation codes (if any) issued in accordance with the Energy Policy and Conservation Act (Pub. L. 94-
163),and any other applicable laws or amendments thereto.
F. The Drug-Free Workplace Act.
G. Value Engineering clauses in HUD Form 51915-A.
H. Citizens and all of its subcontractors and Construction Subcontractors shall be properly licensed to do business
in the State of and shall maintain compliance with requirements under the state ,
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including the provision of signed Non-Collusive Affidavits. Citizens and its Construction Subcontractors shall be
responsible for pa-v ment of all required taxes and fees required by State and local law with respect to this
Agreement.
1. Citizens and its Construction Subcontractors shall retain all required records for six(6)years following the date
of expiration and all other pending matters are closed and shall provide access to PHA at no charge during that
period. (All applicable requirements for record keeping, record retention and access to records set forth in 24
CFR part 85.36(i)(10)and(11).)
J. Citizens and its Design and Construction Subcontractors shall maintain,throughout the terra of the Agreement,
insurance for this project as itemized in this paragraph, and shall name the PHA as an additional insured for
Commercial General Liability insurance coverage: 1) Commercial General Liability in the amount of two
million dollars ($2,000,000) in compliance with the statutes of the State of and with an A-rated
company. Such coverage will indemnify PHA against all claims and demands for injury or death of persons or
damage to property which may be claimed to have occurred upon,or as a result of,the negligence of the ESCO
and/or its subcontractors' employees, agents, licensees, or invitees, in the performance of this contract; 2) for
engineering, Errors and Omissions Insurance in the amount of two million dollars($2,404,1100)with an A-rated
company recognized in the State of ; c) applicable state levels of Worker's Compensation
Insurance; and d) Automobile Insurance on all owned,non-owned, and hired vehicles used in connection with
the project with a combined single limit for bodily injury and property damage of not less than five hundred
thousand dollars($500,004)per occurrence.
K. Citizens will provide to PHA as assurance of completion of the project separate performance and payment
bonds for labor and materials to be supplied for the project,each in the sum of 100 percent of all subcontracts.
(15) TERMINATION AND MATERIAL DEFAULT
A. Termination for Failure to Agree on Revisions:
From time to time during Phases I and 11 of the Conservation Project, including,without limitation,as
provided for in Section(4)Construction Financing and Supplemental Construction Funding and Section(5)Revised
Scope of Work,above,Citizens and PHA are required by this Agreement to attempt to agree on revisions to the
Conservation Project. If the Parties concur at any such time in writing that they are unable to agree,this Agreement
shall then terminate without fault on either Party in accordance with Section(I I)C. Payments in the Event of Certain
Early Terminations,above,and Citizens shall then stop work and proceed to minimize costs as if a notice of
termination for convenience had been received by it pursuant to Section(I 5)C,below.
Should the parties fail to agree on revisions to the scope of the Conservation Project in instances other than
those described in the proceeding paragraph,the Parties shall mutually select a third party mediator who shall,upon
selection by the Parties,review the revisions in controversy and make a non-binding recommendation within thirty
(30)days on the configuration of an appropriate cost-effective Conservation Project. Cost-effective shall mean that
the cost to acquire and maintain the ECMs installed shall be supported by expected Energy Savings and anticipated
forms of Supplemental Construction Funding,but not from other funds required of,or from,the Parties.
Upon receipt of a recommendation made by such a mediator,or in the event of a failure to agree upon
mediation,the Parties may decide to complete the Conservation Project as recommended or without the revisions
that cannot be agreed to,as the case may be. If the Parties can not so agree,the Parties may then agree to terminate
this Agreement without fault on either Party pursuant to Section(I I)C, Payments in the Event of Certain Early
Terminations,above,or in the event that the inability to agree is not deemed to be reasonable,one or both of the
Parties may exercise its rights under Section(I 5)B.Termination for Material Default,below. In such latter event,
Sample Citizens Enemy.Services Agreement Page 25
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either Party shall provide notice of Material Default to the other,and the requirement of a period to cure shall be
deemed to have been waived with respect to each Party.
13. Termination for Material Default:
During the Term,except as specifically set forth herein,this Agreement may be terminated only in the
event of a Material Default by either Party. A Material Default shall be defined as a material breach of this
Agreement by either Party which remains uncured for more than thirty(30)days after notice from the non-
defaulting Parry to the defaulting Parry;provided,however,if such breach cannot be cured within thirty (30)days, a
Material Default shall not exist until the passage without cure of such longer period required to effect such cure as
long as the defaulting Party commences a cure within the thirty (30)day period and thereafter proceeds diligently to
complete such cure. In the event of such breach,any amounts owed prior to such breach shall then be paid and the
terminating Party may,at its option,submit any issues not so disposed of to binding arbitration in accordance with
the Construction Industry Arbitration Pules of the American Arbitration Association or may,without a waiver of
other remedies which exist in law or equity,exercise any and all remedies available at law or in equity and other
appropriate proceedings including bringing an action or actions from time to time for recovery of amounts due and
unpaid by defaulting Party,and/or for damages which shall include all costs and expenses incurred in exercise of its
remedy;provided.however,no such rights,remedies,actions or damages shall be available to the terminating Party
to the extent such would be inconsistent with the terms of this Agreement.
Should PHA terminate the Conservation Project for Citizens'Material Default in its obligation to perform
in a timely and satisfactory manner,as defined in this Section(I 5)B.Termination for Material Default, Citizens"
liability to PHA shall not exceed the amount of the total fees payable to Citizens if Citizens had properly performed
its obligations hereunder.
C. Termination for Convenience:
Notwithstanding the foregoing,this Agreement may be terminated by PHA for"convenience" in
accordance with applicable HUD requirements and the requirements of this Agreement. Any such termination shall
be effected by the delivery to Citizens of a written notice of termination specifying the extent to which the
performance of'the work under this Agreement is terminated,and the date upon which such termination becomes
effective. Citizens shall comply with such notice and take action to terminate work as and to the extent set forth in
such notice,including exercising its rights or otherwise taking action to terminate any Construction Subcontracts
which may then be in effect and to minimize,to the extent possible,the costs incurred on account of such latter
terminations.
In the event of such notice by PHA,PHA shall be liable to Citizens for reasonable and proper costs
resulting from such termination upon receipt by the PHA of a properly presented claim setting out in detail the
following elements(which shall be such"reasonable and proper costs"): (1)the total cost of the work performed to
date(which shall be inclusive of compensation for all hours actually worked to date calculated at the billing rates set
for in Appendix E-I Energy Service Fees and Expenses)less the total amount of Agreement payments made to
Citizens;(2)the cost of settling and paying claims,exclusive of "lost"overhead and profit, under Construction
Subcontracts and material orders for work performed and materials and supplies delivered to the Conservation
Project sites,payment for which has not been made by the PHA to Citizens or by Citizens to the contractor or
supplier;(3)the cost of preserving and protecting the work already performed until the PHA or assignee takes
possession thereof or assumes responsibility therefore;and(4)the actual or estimated cost of legal and accounting
services necessary to prepare and present the termination claim to the PHA. Any disputed amounts later found to be
due to Citizens through binding decision of a mutually agreed-upon mediator or arbitrator shall be paid within thirty
(30)days of such determination,with accrued interest from the original due date,
Sample Citizens Energy Services Agreement Page 26
PROPRIETARY
In accordance with HUD requirements,PHA may prepay the Performance Contract Financing without
penalty.
D. Partial"Termination:
During the Operational Phase,to the extent that any Event of Default by PHA(including but not limited to
failure by PHA to perform maintenance required to be performed by PHA hereunder),a fire,flood,explosion,or
other casualties,or destructive act or condemnation affecting only part of the Developments or EOMs renders any
significant part of the Developments or ECMs substantially unusable and,in the case of a casualty,the affected
portion of the Developments or ECMs is not reconstructed or restored by PHA within one hundred and fifty(150)
days from the date of such casualty,either Party may terminate this Agreement with respect to such affected ECMs
by written notice to the other,in which case all obligations of Citizens with respect to the affected portion of the
Developments shall cease and PHA shall pay to Citizens an amount equal to all amounts then due and owing,
exclusive of"lost"overhead and profit,with respect to this Agreement.Upon the payment of all amounts provided
for in this Section(I S)D, all obligations of PHA under this Agreement with respect to such portions of the affected
Developments or EOMs shall cease with respect to the period following such payment.
E. 'Termination for Causes Beyond the Control of the Parties:
In addition to the foregoing provisions of this Section(15),to the extent that any fire,flood,explosion,other
casualties,or destructive act or condemnation affecting the Developments or ECMs renders the Developments or
ECMs substantially unusable and, in the case of a casualty,the Developments or ECMs are not reconstructed or
restored by PHA within one hundred and fifty(150)days from the date of such casualty,either Party may terminate
this Agreement and the Guarantee by a written notice to the other,in which case PHA, in addition to the other
amounts provided for in Section(I 5)C,will pay to Citizens the reasonable percentage of completion payment,
exclusive of"lost"overhead and profit,applicable through the point of such termination, as approved by the PHA.
Upon such payment,pursuant to this Section(15)E and such other payments which may be required by this Section
(15)E,all payment obligations of PHA(and Citizens, if any)with respect to the period following such payment shall
cease.
(16) SUCCESSORS ANIS ASSIGNS
Wherever the words PHA or Citizens are used herein,they shall include their several successors,grantees
and assigns subject to the limitations of law and of this instrument. Nothing in this Agreement is intended,nor shall
anything in this Agreement be deemed to create,any rights on behalf of any person or persons not a party hereto,
including,without limitation,any tenant,or energy supplier,or Construction Subcontractor,with the exception that
Citizens' rights to receive payment for its services hereunder may be assigned to a lender or financial institution
without further consent of the PHA. Notwithstanding the foregoing,this Agreement may be assigned to or
assumed by any affiliated company of Citizens, including,but not limited to,its parent Ameresco, Inc.,by issuance
of a ten(10)day written notice and PHA's written acknowledgment of receipt of such notice within a five(5)day
period thereafter.
(17) LAW
This Agreement shall be governed by and construed in accordance with the laws and venue of the State of
(excluding the choice of law rules thereof).
Sample Citizens Energy Services Agreement Page 27
PROPRIETARY
(18) ENTIRE AGREEMENT; AMENDMENTS
This Agreement, including its appendices,sets forth the entire agreement,and supersedes any and all prior
agreements of the Parties with respect to the subject matters hereof. No change,amendment or modification of any
provision of this Agreement shall be valid unless set forth in a written amendment to this Agreement signed by both
Parties. In the event of any ambiguity or conflict in meaning,the terms of this Agreement shall not be construed
against the drafting Party based upon that Party's having drafted this Agreement.
(19) NON-WAIVER
The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of
this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to
any extent of such Party's right to assert or rely upon any such provision or right in that or any other instance;rather,
the same shall be and remain in full force and effect.
(20) NO PARTNERSHIP OR THIRD PARTY OBLIGATIONS
This Agreement shall not be interpreted or construed to create an association,joint venture or partnership
between the Parties or to impose any partnership obligations or liability upon either Party or to create any rights or
obligations in or with respect to any party or entity which is not a Party to this Agreement. Neither Party shall have
any right,power or authority to enter into any agreement or undertaking for or on behalf of,to act as or be an agent
or representative of,or to otherwise bind the other Party.
There are no third party beneficiaries of this Agreement.
(21) INVALIDITY
The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions
hereof,and this Agreement shall be construed in all respects as if such invalid or enforceable provisions were
omitted.
(22) NOTICES
All notices required pursuant to the terms of this Agreement shall be in writing and shall be delivered
personalty,by overnight courier or by such other means(including facsimile transmission or email with
confirmation)evidencing delivery,or by certified or registered mail.
Each party shall deliver all notices to the other party to the following addresses:
Citizens:
EUA Citizens Conservation Services, Inc.
c/o Ameresco, Inc.
Suite 410, 111 Speen St.
Framingham,MA 41701
Sample Citizens Energy Services Agreement Page 28
PROPRIETARY
With a copy forwarded to the attention of:
PHA:
Housing Authority
(Address)
(City,State,Zip Code)
Attn:
Phone:
Fax:
Notices will be deemed given and received:
(a) when delivered, if delivered personally;
(b) the next business day after delivery to the courier, if given by overnight courier;
or
(c) five calendar days from the date of mailing, if given by registered or certified
mail;or
(d) when receipt is confirmed by the sending party if by facsimile or e-mail,
provided that the sending party follows up with an original by mail.
(23) FORCE MAJEURE:
If Citizens is unable to perform due to causes beyond the control and without the fault or
negligence of Citizens including,but not limited to,acts of God or the public enemy, acts of the Government in
either its sovereign or contractual capacity,fires, floods,epidemics,quarantine restrictions,strikes,freight
embargoes and usually server weather,upon request of Citizens, PHA will ascertain the facts and extent of the
failure to perform. if PHA reasonably determines that any failure to perforin results from one or more of the causes
above,the time for Citizens' performance shall be revised,subject to the rights of PHA to terminate this Agreement
for convenience and provided Citizens used its best efforts,consistent with prudent business practices,to perform its
obligations under this Agreement and to mitigate the losses to PHA arising from the event of Farce Majeure.
If PHA is unable to perform(except for FHA's failure to fund its obligations under this Agreement)due to
causes beyond the control and without the fault or negligence of PHA including,but not limited to,acts of God or
the public enemy, acts of the Government in either its sovereign or contractual capacity,fires,floods,epidemic,
quarantine restrictions,strikes freight embargoes and unusually severe weather, upon request of PHA,Citizens will
ascertain the facts and extent of the failure to perform. If Citizens reasonably determines that any failure to perform
results from one or more of the causes above,the time for FHA's performance shall be extended,provided PHA
used its best efforts,consistent with prudent business practices,to perform its obligations under this Agreement and
to mitigate the losses to Citizens arising from the event of Force Majeure.
(24) PROMOTIONAL LITERATURE,PRESS AND MEDIA:
All contacts and arrangements with the press and the media,including but not limited to,newspapers,
magazines,radio and television stations, in reporting about or covering the Services provided hereunder shall be
made through FHA's Executive Offices. Citizens shall have the right to review and approve in advance any of the
above in which Citizens' name is used:
Sample Citizens Energy Services Agreement Page 29
PROPRIETARY
Citizens agrees that the terms" Housing Authority","PHA","The City of Housing
Authority„or any derivation thereof may not be utilized in any promotional literature,advertisements or PHA lists
without the express prior written consent of PIMA. Citizens further agrees that it will not describe the Services to
PHA in any proposals to potential customers of Citizens or promotional literature or advertisements without the
express consent of PHA.
Neither Citizens nor PHA endorses products or services. Therefore,each Party agrees that it will not use or
imply the other's name,or use the other's reports, for advertising,promotional purposes,raising of capital,
recommending investments,or any way that implies endorsement by the other.
Citizens does not undertake projects for the purpose of litigation or to assign fault or blame and does not
provide expert witness services. Therefore,PHA agrees not to use any project results in any dispute, litigation,or
other legal action,except defensively in disputes,litigation,or other legal action to pending or contemplated at the
time of execution of this Agreement. The foregoing sentence shall not apply to disputes between PHA and Citizens
or between PHA and any Subcontractors under the terms and conditions of the Agreement.
(25) INCORPORATION:
This Agreement incorporates all the Exhibits and Attachments referenced or recited in this Agreement.
(26) HEADINGS:
The descriptive headings used in this Agreement are for purposes of convenience only
and do not constitute a part of this Agreement.
(27) REPRESENTATIONS AND WARRANTIES:
Each Party warrants and represents to the other 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 Citizens,its organic instruments and,as to PHA,by all requisite municipal, agency
or other action and are not in breach of any applicable law,code or regulation;this Agreement has been duly
executed and delivered by the signatories so authorized,and constitutes each Party's legal,valid and binding
obligation;
(C) Its execution,delivery,and performance of this Agreement shall not result in a breach or
violation of,or constitute a default under,any agreement, lease or instrument to which it is a party or by which it or
its properties may be bound or affected;and
(D) 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,regulations,rules,decrees, awards,
permits or orders which would materially adversely affect its ability to perform hereunder.
(E) The persons executing this Agreement are fully authorized by law to do so.
Sample Citizens Energy Services Agreement Page 34
PROPRIETARY
(F) In addition,PHA warrants and represents to Citizens that PHA has obtained or shall
obtain all necessary governmental, legal,administrative and any other approvals necessary for it to enter into this
Agreement.
(28) ADDITIONAL REPRESENTATIONS AND WARRANTIES OF PHA
PHA hereby warrants and represents to Citizens that:
(A) PHA presently intends to continue to use the Developments in a manner
reasonably similar to its present use;
(B) PHA does not presently contemplate any changes to the electrical and thermal
consumption characteristics of the Developments as these existed during the base period except as may have been
disclosed to Citizens by PHA in writing prior to the execution of this Agreement;
(C) PHA has provided Citizens with all records heretofore requested by
Citizens and, in that regard,Citizens acknowledges that it has received Base Period data from PHA which appears to
be complete as of the date of this Agreement,and that the information set forth therein is,and all information in
other records to be subsequently provided pursuant to this Agreement shall be,true and accurate in all material
respects except as may be disclosed by PHA in writing;
(D) PHA has not entered into any contracts or agreements for the Developments with persons
or entities other than Citizens regarding the provision of the energy services referenced herein.
(29) ADDITIONAL DEVELOPMENTS
Citizens and PHA may agree that Citizens shall install additional EOMs at a Development in addition to
those listed on Appendix A(each"Additional Development"),through amendments to this Agreement mutually
acceptable to both parties,or by entering into separate agreement between the Parties,which agreements shall
include mutually agreeable terms and conditions.
Semple Citizens Energy Services agreement Page 33
PROPRIETARY
(30) HIERARCHY OF PROVISIONS
Except as otherwise provided in this Section 30, in the event of any inconsistency or conflict between any
term,condition or provision of this written Agreement(inclusive of Sections I through 30 thereof)and any
Appendix or Attachment hereto shall be resolved by giving precedence in the following order: (i) this Agreement,
(ii)the Appendices and(iii)the Attachments. In that regard,the document having the higher preference shall be
controlling and the inconsistent or conflicting term,condition or provision in the document having the subordinate
preference shalt be deemed modified,superseded or replaced,as appropriate,by the provisions of the document
having the higher preference.
Executed as of the day and year first written above. The individuals executing this Performance Agreement
represent that they have full authority to do so.
EUA CITIZENS CONSERVATION SERVICES,INC.
By
Date
HOUSING AUTHORITY
By
Date
The following Appendices and Attachments are attached hereto and incorporated in the Agreement to the extent
provided therein.
Appendices
A. DEVELOPMENTS
B. SCOPE OF WORK/RECOMMENDED ECM LIST
(SUMMARY OF RECOMMENDATIONS)
C. MUNICIPAL LEASE AND OPTION AGREEMENT
D-I CASH FLOW PROJECTION(INCLUDING BASELINE)
E-1 a,b,and c CONTRACT COST,ANNUAL SERVICES,and HOURLY RATES
E-2 CHANGE ORDER FORM
F. DELIVERY AND ACCEPTANCE CERTIFICATE
Sample Chizens Energy Services Agreement Page 32
PROPRIETARY
G. UTILITY/ENERGY SUPPLIER SAVINGS CALCULATIONS
H. STANDARDS OF COMFORT AND SERVICE
I. GUARANTEE
J. NOTICE TO PROCEED
K. SAMPLE.INSTALLATION APPROVAL CERTIFICATE
L. HUD APPROVAL LETTER
M. PROJECT MILESTONES
ATTACHMENTS.
I. ENERGY SERVICES PLAN
SanVie Citizens Energy Services Agreement Page 33
PROPRIETARY
Dated. HACCC
EUA Citizens
APPENDIX A
DEVELOPMENTS
i
The fol.lowing buildings,facilities, and areas(the"Developments"), which are owned and
operatejd by HACCC, are included in the Scope of Work/Summary of Recommended
ECMs etailed in Appendix B:
DEVE (JPMENT ID# STREET ADDRESS #APTS.
Alham ra Terrace CA 11-01 3133 Estudillo Street, Martinez 52
Bridge ont CA 11-3 801 J Street,Antioch 36
Los No ales CA 11-4 Orchard.Drive, Brentwood 44
BI Pue to CA 11-5 875 El Pueblo Avenue, Pittsburg 176
Las D Itas CA 11-6 1601 Forth Jade Street, Richmond 76
Las Ar oles CA 11-8 990A Rosemary Lane, Oakley 30
Las Dallas CA 11-9A 1601 North Jade Street, Richmond 90
Las DOtas CA 11-9B 1601 North Jade Street, Richmond 60
Bayo Vista CA 11-10 2 California Street, Rodeo 250
Hacienda CA 11-11 1111 Ferry Street, Martinez 50
Casa be Manana CA 11-12 Rosemary Lane, Oakley 40
Casa a Serena CA 11-13 1015 Clearland Drive, W. Pittsburg 50
Elder inds CA 11-15 2100 Buchanan Road, Antioch 100
Carni del Vista CA 11-16 2329 College Lane, San Pablo 100
Kidd anor CA 11-17 100 Austin Court, San Pablo 41
I
APPENDIX B-Scope of Work 6-Dec 02
HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA
HOUSING AUTHORITY OF THE COUNTY OF CONTRA COS'T'A
Summary of Energy C:onservadon Measures
Savings
Sum Ree {therms} (kWh) {oafs) Sam Ree
DRVELOPMZNT Site 0 MEASURES UT.DOLLAR COST Gas Eleetrie WSW SAYINGS Payback
TOTAL I 1 1SI 63 963 i 362 7 1 24,582 $287,266 7.9
W I INCENTIVES I 1wat.,00" L fv4so-wil7.2
Aibambra Tacrece CA 11-01 Install Low Volume Water C10" $24,105 1,480 $3,226 7.3
Install Energy Bifidmrt RA igaraoxs $20,793 18,237 £2,097 9.9
Install Common Arc&Eoorgy Eifldant Ughtma £11,139 27,018 S2,880 3.9
b.smll Energ Efficlsnt 142hting in Aparunows $16,032 25,750 $2,363 6.8
Convert Ownership of Electrical Distribution w PG&E 358,751 13,707 S1,576 37.3
Occupancy Smrsors in Admla Building Offices $1,520 3,415 $376 4.0
SUBTOTAL 9132,3411 - $4,129 1,490 512,518 - 1016
Bridgearoat CA I I-3 Intent!Eneray Effido€Raftigersm» 516,334 14,330 $1,648 9.9
install Borg Edisiant Lighting in Apartment; S12,793 14,203 $1,562 8.2
0.0
4.0
(W
a.0
0.0
0.0
00
0.0
SUBTOTAL $29,149 28,533 53,210 9.1
,w Nogales CA 114 InsWll.awVolume Wow Claaett £27,195 - 2,496 £7,237 3.8.
improve Irrigation Effideaey/tAsk Defection $17,932 - 4,091 $5,539 3.2
Install Energy Molest Ae ifororn $18,345 14,476 • $1,665 tl,a
fintell Common Ate&Energy Ef6dent Uaheag £889 - 1,096 - $121 7.4
Install FoefsEffidentLighting inApsotnams $13,492 13,198 $1,612 e.i
a,a
v.a
Off
4.e
0.4
S BTOTAL $77.872 30,771 6,586 $16,233 4.6
EI Pueblo CA i I-$ bumlt Energy E18dtmt RafcEBarxo» $59,207 35,034 S6,331 9.4
Install Common Area,Easegy Etlleiant Uslulpg $4,403 8,145 5896 4.9
Intal Emig Mcbmt Liglsdng In Apammants $53,665 53,283 $5,590 Mo
Convert OwnerAlp of 9hratriai Distribution to PG&E 94,325 48,855 S5,618 76.8
0.0
a.0
00
0.0
0.0
0.0
SUBTOTAL $21300 168,338 - - -S28,436 M6 -
Las Man CAI" lnstail=Volume wader Closets £12,980 580 $1,033 12.6
!Hank Energy Efficient Rewsersteea 513,263 10,584 $1,217 12.3
Insu it Common Ams Energy Efficient lighting $4,327 10,939 51,203 3.6
install Emig E113aient Lighting in Apartments 537,742 33,283 $5,861 6.4
tr 0
0,0
0.0
0.0
0.0
0.0
SUBTOTAL 570,311 - 74,846 980 59,314 7.5
Las Arbolos CA 11.8 t all)energy 0-100tF.-M9018100814,034 7,283 5838 12.0
improve Irtigasion g3f dancy/Lesk Detection. $12,240 $,480 S13,590 0.9
brawl Common Ares Energy 13fS9cieot LiBhNng 52,365 3.324 $366 6.5
brsndi Saetg Mkient Lighting In Apasmusb 514,822 18,816 $2,070 7.2
a.a
na
0.0
0.0
0.0
0.0
SUBTOTAL £39,443 29,424 5,480 $16,863 3.3
131072002 1 Appendix EMeasfrra Summary 3A
HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA
Summary of Energy Conseritadon Measures
Savings
Sum Ree (therms) (kWh) (ctfs) Stem[tee
DEVELOPMENT site li MEASURES EST,DOLLAR COST Gra riectrit Witter SAVINGS Payback
Las Deltas CA l l.9A icstsli Law Volume Water Ctasata $16,070 1,215 $2,162 74
Install Energy Efltrlow;Rafifgetators $32,471 18,611 $2,140 15.2
Install E wM Mclent Lighting in Apartments 544,296 58,364 $6,420 6.9
0.0
0.0
0.0
0.ta
0.0
0.0
0.0
SUBTOTAL 592,838 76,975 2314 518,722 8.7
Lis Delisa CA 11-9E Install Law Volume W;t r Cie" $10,816 833 $1,481 7.3
install Energy Mm*Itef5rlstraters $20,417 10,936 51,258 16.2
instill Eftis Etl3eiant Lishft in Apn:antnts $33,744 46,489 55,114 6.6
0.0
0.0
0.0
0.0
0.0
0.0
0.0
SUBTOTAL $64,978 - 57,425 832 57,852 8.3
Bnyo Vista CA 11.10 Install Low Vaiuma Wmcr Closets $96,419 5,627 $10,016 9.6
Htsteil Energy E1Slcient.Keffisorsamrs $105,313 88,948 $10,229 10.3
instill Common Area Ent%y EBlclont Lighting $11,740 19,914 $2,193 5.4
lashes Energ Efficient Lighting in Apartments $125,718 339,821 515,380 8.2
Convert 0"enticip of Electrical bistrlbutltm to PG&E $97,228 76,460 58,793 11.1
0.0
0.0
0.0
0.0
0.0
SUBTOTAL 8436,419 325,143 5,627 546,609 9,4
Hacienda CA 11.11 Install Low VOltmu tV=E= $22,154 844 S3,799 - 5.8
lostal3 Energy Efficient Reffigr ons 523,415 20,100 52,332 10.1
mind!Common Area E y Et33daot Lighting 55,984 7,495 5624 9.6
lestail Emrg fifYiaimst LISMlwc In AparmmMa $13,873 13,978 51,164 339
0.0
0.0
0.0
0.0
0.0
11.0
SUBTOTAL 565,416 41,572 $44 $7,899 8.3
Ceaa De Manta CA 11.12 MUM Energy Ef.-I-ot Refrfgesators $16,811 15,074 51,733 9.7
Instill Common Am Emecgy Meteor Lighting $859 3,941 $434 2P
Insall Energ Efficient LiShHng in Apagmants 536,526 8,861 5975 17.0
0.0
0.0
0.0
0.0
0,11
0.e
0.0
SUBTOTAL 534,195 - 27,876 - 53,142 10.9
Casa De Serena CA 11-13 Install Energy Sfh@Zt Raffivro mrs $21,814 t6,935 51,948 11.7
Install Common Area Energy EtEclem Uslaing $5,984 1,798 $198 30.3
Ingtaii Ewrg Efficient LiShft In Aparonents 522,959 23,886 S2,627 8.7
0.0
00
0,0
(I'D
0.0
0.0
0.0
SUBTOTAL $51,757 42,620 - 54,773 101
Eider Winds CA Ii-15 1=19nwxiy Ef19c3ant Rafrigemoh 558,236 76,470 $8,794 6.6
Introit!Common Area Energy EfftcitatLighting 53,718 28,464 53,131 3.2
Instill Energ Effleims Lighting in Apamocets 548,395 31,914 53,511 13.8
install Efficient Apartment Air Coad-itiomars 572,500 133,022 $15,298 4.7
0.0
11.0
(10
0.0
0.0
0.0
SUBTOTAL $182,849 269,870 - $30,733 4.9
12/072002 2 Appendix Skiensure Summary 3A
HOUSING AUTHORITY OF TIME COUNTY OF COMMA COSTA
Summary of Energy Conservation Measures
Savings
Sum Rec (therms) (kWh) (eefs) Sum Rec
LEVELOPMZNT Site# 1V1fEASURES EST.DOLLAR.COST Gas Electric Water SAVLNGS Payback
Camhw dal Vista CA 11-16 k»to11 Law Vahan.WAW Cl ata $49,446 3,939 $7,010 7.1
Install Energy Efficient 12eflivnaon $59,236 76,470 sx:nw 6.6
install COmmen Aran FrAW Efficient L4tWng $7,517 5,$40 $620 12.1
Install Engrg EE31a1ent Lighting in Apamna ds $'6,296 1,599 S176 35.6
0_t!
O.r!
0.0
0.0
0.0
00
SUBTOTAL 5121,495 33,709 3,939 $16,601 7.7
Kidd Manny CA 11.17 Instill Enetgy M iciaw ll ooMan $16,911 15,074 $1,733 9.7
Install Cammar Ama Eawn EtEdw Lighting 53,003 5,494 $603 5.0
Ins"Eaerg Efficient Lighting in Apratraams $439 213 $23 19.6
0.0
0.0
0.0
tt.i)
E1.ti
0.0
0.0
SUBTOTAL $20,272 - 20,771 $2,360 9.6
12/872002 3 Appendix @Measure Summary 3A
APPENDIX C
MUNICIPAL LEASE AND,OPTION AGREEMENT
DATE:
LESSOR:
LESSEE: Housing Authority of the County of Contra Costa
This Municipal Lease and option Agreement(the"Agreement")entered into between("Lessor"),and Housing Authority of the County of Contra
Costa("Lessee"),a public body corporate and politic duly organized and existing under the laws of the California("State");
WITNESSETH:
WHEREAS, Lessor desires to lease the Equipment, as hereinafter defined,to Lessee, and Lessee desires to lease the Equipment frorn Lessor,
subject to the terms and conditions of and for the purposes set forth in this Agreement;and
WHEREAS,Lessee is authorized under the Constitution and laws of the State to enter into this Agreement for the purposes set forth herein:
NOW,THEREFORE,for and in consideration of the promises and covenants hereinafter contained,the parties hereby agree as follows:
ARTICLE I
COVENANTS OF LESSEE
Section 1.01.Covenantsof Lessee Lessee represents,covenants and warrants,for the benefit of Lessor and its assignees,as follows:
(a) Lessee is a:public body corporate and politic,duly organized and existing under the Constitution and the laws of the State.
(b) To the extent permitted by law,Lessee will do or cause to be done all things necessary to preserve and keep in frull force and effect its
existence as a public body corporate and politic.
(c) Lessee is authorized under the Constitution and laws of the State to enter into this Agreement and the transaction contemplated hereby
and to perform all of its obligations hereunder.
(d) Lessee has been duly authorized to execute and deliver this Agreement under the terms and provisions of the resolution of its members,
attached hereto as ENhibit„A,or by other appropriate official approval,and further represents,covenants,and warrants that all requirements have been met
and procedures have occurred, in order to ensure the enforceability of this Agreement,and Lessee has complied with such public bidding requirements as
may be applicable to this Agreement and the acquisition by Lessee of the Equipment thereunder and under the Energy Services Agreement.Lessee shall
cause to be executed an opinion of its counsel substantially in the form attached hereto as Exhibit B.
(e) During the term of this Agreement,the Equipment,as outlined in Ex
hijbit C attached hereto,will be used by Lessee only for the purpose
of performing one or more governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee's authority and will not be used
in a trade or business of any person or entity other than Lessee.
(f) During the period this Agreement is in force,Lessee will annually provide Lessor with the most recently available financial staternents,
budgets,and such other financial information relating to the ability of Lessee to perform under this Agreement as may be reasonably requested by Lessor or
its assignee.
(g) The Equipment will have a useful life in the hands of Lessee that is substantially in excess of the Lease Term.
ARTICLE II
DEFINITIONS
Section 2.01. Defin€tions, unless the context clearly otherwise requires or unless otherwise defined herein, the capitalized terms in this
Agreement shall have the respective meanings specified below.
"Acceptance Certificate” means a certificate in substantially the form attached hereto as Exhibit E and which shall be delivered by Lessee to
Lessor upon receipt and acceptance of the Equipment.
„Agreement" means this Municipal Lease and Option Agreement with its Exhibits,which Exhibits are attached hereto and incorporated herein
by this reference.
"Code"means the Internal Revenue Code of 1986,as amended,and to the extent applicable,the regulations and rulings issued thereunder.
"Commencement bate" is the date when the term of this Agreement begins and Lessee's obligation to pay rent accrues,which date shall be the
date first above written.
"Energy Services Agreement"means the Energy Services Agreement made and entered into as of January 2,2001 by and between Lessee and
Citizens Conservation Services,Inc.
"Equipment"means the property described in Exhibit C and which is the subject of this Agreement.
"Lease Terra"means the period beginning with the Commencement Date and continuing until terminated as outlined in Section 4.01.
"Purchase Price" means the amount set forth and so titled in EAhibiLt hereto which Lessee may pay to Lessor to purchase the Equipment as
provided under Section 11.01.
"Rental Payments"means the basic rental payments payable by Lessee pursuant to ExWbit D of this Agreement.
"Vendor" means the manufacturer of the Equipment as well as the agents or dealers of each manufacturer and Citizens Conservations Services
pursuant to the Energy Services Agreement.
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ARTICLE III
LEASE OF EQUIPMENT
Section 3.41. Lease of Equipment. Lessor hereby demises, leases and lets to Lessee, and Lessee rents, leases and hires from Lessor, the
Equipment,in accordance with the provisions of this Agreement,to have and to hold for the Lease Term.
AR'T'ICLE IV
LEASE TERM
Section 4,01. Lease Term. This Agreement shall be in effect and shall continence as of the Commencement Date and will remain in effect
throughout the Lease Term. The Lease Term will terminate upon the first to occur of. (a)the exercise by Lessee of the option to purchase the Equipment
under Article XI;(b)Lessor's election to terminate this Agreement upon a default under Article XIII;or(c)the payment by Lessee of all sums required to be
paid by Lessee hereunder.
ARTICLE V
ENJOYMENT OF EQUIPMENT
Section 5.01. Quiet Endoyment. Lessor hereby agrees not to interfere with Lessees quiet use and enjoyment of the Equipment so long as Lessee
is not in default hereunder.
Section 5.02. Up,of the Eguh nent. Lessee will not install,use,operate,or maintain the Equipment improperly,carelessly,in violation of any
applicable law,or in a manner contrary to that contemplated by this Agreement.
Section 5.03. Ri#ht of: ane„ctiqn. During the Luse Term,Lessor and its offteers,employees,and agents shall have the right at all reasonable
times during business hours to enter into and upon the property of the Lessee for the purpose of inspecting the Equipment.
Section 5.04. Disclaimer of Warranties. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR
IMPLIED, AS TO TETE VALUE,DESIGN,CONDITION,MERCHANTABILITY,OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR
USE OF THE EQUIPMENT, OR ANY OTHER WARRANTY WITH RESPECT THERETO AND, AS TO LESSOR, LESSEE LEASES THE
EQUIPMENT"AS IS". In no event shall Lessor be liable for any loss or damage, including incidental, indirect, special, or consequential damage, in
connection with or arising out of this Agreement or the existence,furnishing,functioning,or Lessee's use of any items or products or services provided for
in this Agreement.
Section 5.05. Vendors Warranties. Lessee may assert claims and rights that the Lessor may have against any Vendor of any portion of the
Equipment
AR'T'ICLE VI
RENTAL PAYMENTS
Section 6.01. Rental Pa even _ to a i to seral li at on a Le see. The obligation of Lessee to pay Rental Payments hereunder is a
general obligation of Lessee payable from any available funds of Lessee.Nothing contained herein shall constitute a pledge of any funds or monies or other
property of Lessee other than as set forth in section 7.02 hereof.
Section 6.02. Interest and Principal C2mg9nents. A portion of each Rental Payment is paid as interest, and the balance of each Rental
Payment is paid as principal. Exhibit D hereto sets forth the interest component and the principal component of each Rental Payment during the Lease
Term.
Section 6.03. Rental d?av ents be Uncondltlonal. The obligations of Lessee to make Rental Payments,and to perform and observe the
covenants and agreements contained herein, shall be absolute and unconditional in all events, except as expressly provided under this Agreement,
notwithstanding any dispute between Lessee and Lessor,any Vendor or any other person. Lessee shall not assert any right of set-off or counterclaim against
its obligation to make payments under this Agreement. However,nothing herein shall be construed to release Lessor from the performance of its obligations
hereunder;and if Lessor shall fail to perform any such obligation,Lessee may institute such legal action against Lessor as Lessee may deem necessary to
complete the performance of such obligation or to recover damages therefor.
AR'T'ICLE VII
TITLE TO EQUIPMENT;SECURITY IN'T'EREST
Section 7.01. Title to the Ea irtenentt During the term of this Agreement,title to the Equipment shall vest in Lessee,subject to Lessor's rights
upon an Event of Default.
Section 7.02. .r,Security Lutgrest. As security for its obligations hereunder Lessee grants to Lessor a security interest constituting a first hen on the
Equipment and on all additions,attachments,accessions,and substitutions thereto,and on any proceeds therefrom.
Section 7,03. Liens and Encumbrances to Title. Lessee shall promptly discharge any liens placed on the Equipment other than those created by
Lessor.
ARTICLE VIII
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3/29/01 Page 2
MAINTENANCE;MODIFICATION;TAXES;INSURANCE AND OTHER CHARGES
Section 8.01. Maintenance of Etruiotnent by Lessee. Lessee will, at Lessee's own cost and expense, maintain, preserve, and keep the
Equipment in good repair,working order,and condition. If requested by Lessor,Lessee will enter into a maintenance contract for the Equipment reasonably
satisfactory to both Lessee and Lessor.
Section 8.02. Logo,Oth-sr_ overamenta ha es 11 I ar es. In the event that the use,possession,or acquisition of the Equipment
is found to be subject to taxation in any form(except for income taxes of Lessor),government charges or utility charges,and expenses,Lessee will pay all
such taxes and charges as they come due.
Section 8.03. Provisions B=rditrn Insurance. At its own expense Lessee shall cause casualty,public liability,and property damage insurance
to be carried and maintained(and evidenced by certificates delivered to Lessor throughout the Lease Term)in the amounts and for the coverages set forth on
Exhibit F, provided that the amount of casualty and property damage insurance shall not be less than the then applicable Purchase Price. All insurance
proceeds from casualty losses shall be payable as hereinafter provided in this Agreement.
Section 8.04. Advances. In the event Lessee shall fail to maintain the fail insurance coverage required by this Agreement or shall fail to keep the
Equipment in good repair and operating condition,Lessor may(but shall be under no obligation)purchase the required policies of insurance and pay the
premiums on the same or may make such repairs or replacements as are necessary and provide for payment thereof;and all amounts so advanced therefor by
Lessor shall be repaid to Lessor,together with interest thereon at the rate specified in Section 13.05 hereof.
Section 8.05. M difications. Without the prior written consent of Lessor, Lessee shall not make any material alterations, modifications or
attachments to the Equipment.
ARTICLE IX
DAMAGE,DESTRUCTION,ANIS CONDEMNATION;USE OF NET PROCEEDS
Section 9.01. Damage.Destructions and ondemnation. If(a)the Equipment or any portion thereof is destroyed(in whole or in part)or is
damaged by fire or other casualty or(b)title to, or the temporary use of, the Equipment or any part thereof is taken under the exercise of the power of
eminent domain,lessee and Lessor will cruse the Net Proceeds of any insurance claim or condemnation award to be applied either to the prompt repair,
restoration,modification, or replacement of the Equipment or, at Lessee's option, to the payment in full of the Purchase Price. Any balance of the Net
Proceeds remaining after such work or purchase has been completed shall be paid to lessee.
For purposes of this Article IX,the term"Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim or
condemnation award after deducting all expenses(including attorney's fees)incurred in the collection of such claims or awards.
Section 9.02. Insulliclencv oI Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair,restoration,modification or
replacement,Lessee shall either(a)complete the work and pay any cost in excess of the amount of Net Proceeds,or(b)pay to Lessor the unpaid balance of
the Purchase Price. The amount of the Net Proceeds in excess of the then applicable Purchase Price,if any,may be retained by Lessee.
ARTICLE X
TAX COVENANTS
Section 10.01. Tax Covenants. It is the intention of the lessee and the Lessor that the interest portion of the Rental Payments received by the
Lessor be and remain excluded from gross income for federal income tax purposes. Lessee covenants that it will take any and all reasonable and Iawful
action necessary to maintain the exclusion from gross income for federal income tax purposes of the interest portion of the Rental Payments,and that it will
not intentionally perform any act or enter into any agreement or use or permit the use of the Equipment or any portion thereof in a manner that shall
adversely affect the exclusion from gross income for federal income tax purposes of the interest portion of the Rental Payments, including (without
limitation)leasing all or any portion of the Equipment or contracting to a third party for the use of operation of all or any portion of the Equipment if
entering into such lease or contract would have such effect.
Without in any way limiting the foregoing,Lessee shall not.
(a)take any action that would cause this Agreement to be an"arbitrage bond"without the meaning of Section 148(x)of the Code or a"hedge
bond"within the meaning of Section 149(8)of the Code;
(b) fail to pay any rebate due to the United States at the times and in the manner required by Section 148(f)of the Code;
(c) permit the Equipment to be used for any private business use or permit the Equipment or any facility at which the Equipment is located to be
subject to a management or services contract that does not meet the requirements of Revenue Procedure 93-19;or
(d) enter into any arrangement that would cause the Rental Payments under this Agreement to be federally guaranteed within the meaning of
Section 149(b)of the Code.
ARTICLE XI
OPTION TO PURCHASE
Section 11.01. Purchasg R1ghiss. Lessee shall be entitled to purchase Lessor's interest in the Equipment:(a) upon payment in full of all Rental
Payments in accordance with Exhibit,I3 hereof and all other amounts due hereunder, or(b) provided there is no Event of Default hereunder and upon
written notice delivered at least 30 days in advance, Lessee may purchase the Equipment on any Rental Payment date by paying to Lessor the Rental
Payment then due,together with Purchase Price set forth in bit together with all other arnounts then due hereunder.
SAMPLE LEASE AGREEMENT-HACCC
3129/01 Page 3
ARTICLE XII
ASSIGNMENT,SUBLEASING,INDEMNIFICATION,MORTGAGING,AND SELLING
Section 12.0L Ansi&n errt or Sale by t&ssnr.
(a) This Agreement,and the obligations of Lessee to make payments hereunder,nay be sold,assigned,or otherwise disposed of in whole or in
part to one or more successors,grantors, holders,assignees,or subassignees by Lessor. Upon any sale, disposition,assignment,or reassignment,Lessee
shall be provided with a notice of such assignment During the term of this Agreement,Lessee shall each keep a complete and accurate register of all such
assignments in form necessary to comply with Section 149(a)of the Code.
(b) Lessee agrees to make all payments to the assignee designated in the assignment,notwithstanding any claim,defense,setoff or counterclaim
whatsoever(except arising from Lessor's breach of this Agreement)that Lessee may from time to time have against Lessor or'Vendor. Lessee agrees to
execute all documents,including notices of assignment and chattel mortgages or financing statements,which may be reasonably requested by Lessor or its
assignee to protect its interests in the Equipment and in this Agreement.
(c) Lessee hereby agrees that Lessor may sell or offer to sell this Agreement(i)through a certificate of participation program,whereby two or
more interests are created in the Agreement, the Equipment, or the Rental Payments;or(ii)with other similar instruments, agreements, and obligations
through a pool, trust,limited partnership,or other entity;provided that in connection with any such sale or offer,Lessee shall not be required to enter into
any other agreements or incur any liabilities or obligations other than those expressly set forth in this Agreement.
Section 12.02. Nn 49 bY L see. This Agreement and the interest of Lessee in the Equipment may not be sold,
assigned,or encumbered by Lessee without the prior written consent of Lessor.
Section 12.43. Reye acrd I demair
"fign_.Covenaots. To the extent permitted by the laws and Constitution of the State,Lessee shall protect,
hold harmless,and indemnify Lessor from and against any and all liability,obligations,losses,claims,and damages whatsoever,regardless of cause thereof
except those resulting from Lessor's intentional or negligent acts and expenses in connection therewith, including, without limitation, counsel fees and
expenses,penalties,and interest arising out of or as the result of the entering into this Agreement,the ownership of any item of the Equipment,the ordering,
acquisition, use,operation,condition,purchase,delivery,rejection,storage,or return of any item of the Equipment or any accident in connection with the
operation, use,condition,possession,storage,or return of any item of the Equipment resulting in damage to property or injury to or death to any person.
The indemnification arising under this paragraph shall survive the termination of this Agreement
ARTICLE XIII
EVENTS OF DEFAULT AND REMEDIES
Section 13.01. Events of Default. The following constitute"Events of Default"under this Agreement:(a) fai=by Lessee to pay any Rental
Payment or other payment required to be paid hereunder when due; or(b) failure by Lessee to maintain insurance on the Equipment in accordance with
Section 8.03 hereof;or(e) failure by Lessee to observe and perform any other covenant,condition or agreement on its part to be observed or performed for
it period of 30 days after written notice is given to Lessee by Lessor,specifying such failure and requesting that it be remedied;provided,however,that if the
failure stated in such notice cannot be corrected within such 34-day period,Lessor will not unreasonably withhold its consent to an extension of such time if
corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected: or(d) initiation by Lessee of a
proceeding under any federal or state bankruptcy or insolvency law seeking relief under such laws concerning its indebtedness.
Section 13.02. Retn dles On DAult. Whenever any Event of Default shall have occurred and be continuing,Lessor shall have the right,at its
sole option without any further demand or notice,to take any one or any combination of the following remedial steps:
(a) Terminate this Agreement and retake possession of the Equipment wherever situated,and sell or lease,sublease or make other disposition of
the Equipment for use over a term in a commercially reasonable manner,all for the account of Lessor,provided that Lessor shall apply the proceeds of any
such sale or other disposition in the following manner:
FIRSTLY,to pay all proper and reasonable costs and expenses associated with the recovery,repair,storage,and sale of the Equipment,
including reasonable attorneys'fees and expenses;
SECONDLY,to pay Lessor(i)the amount of all unpaid Rental Payments,if any,which are then due and owing,together with interest
and late charges thereon,(ii)the then applicable purchase Price(taking into account the payment of past due Rental Payments as aforesaid), plus a pro rata
allocation of interest at the rate utilized to establish the interest component for the Rental Payment next due,from the next preceding due date of a Rental
Payment until the date of payment by the buyer,and(iii)any other amounts due hereunder.
THIRDLY, to pay the remainder of the sale proceeds, purchase moneys, or other amounts paid by a buyer of the Equipment, to the
Lessee;or
(b) Proceed by appropriate court action at law or equity to enforce performance by the Lessee of the applicable covenants of this Agreement or to
recover for the breach thereof:
All of Lessee's right,title,and interest in any Equipment the possession of which is retaken by Lessor upon the occurrence of an Event of Default
shall terminate immediately upon such repossession.
Section 13.03. Return of Eauipnient. Upon an .Event of Default, Lessee agrees to allow Lessor to recover the Equipment by peaceably
delivering the Equipment and title thereto to Lessor at a reasonable location specified by Lessor,at Lessee's sole cost and expense.
Section 13.04. No Rerrtedy &xcl ive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such
remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity.
Section 13.05. Late Charge.Interest on lata Payment Any Rental Payment not paid on the due date thereof shall,to the extent permitted by
law, bear a late charge equal to two percent(20%)of the amount past due,but in no event less than$100.00. Any unpaid Rental Payment or other amount
payable by Lessee to Lessor hereunder shall, to the extent permitted by law,bear interest at the lesser of(a)the rate payable on the principal portion ofthe
Purchase Price,plus five full percentage points per annunt,or(b)the maximum rate allowed by law.
Section 13.46. Force Maieure. If by reason of force_maieure,Lessee is unable in whole or in part to carry out its agreement on its part herein
contained,other than the obligations on the part of Lessee contained in Article VI and Section 8.03 hereof,Lessee shall not be deemed in default during the
SAMPLE LEASE AGREEMENT-HACCC
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Page 4
continuance of such inability. The term"force majeure"as used herein shall mean,without limitation,the following: acts of God,strikes,lockouts or other
industrial disturbances,act of public enemies,orders or restraints of any land of the government of the United States of America or the State or any of their
departments, agencies or officials, or any civil or military authority, insurrections, riots, landslides, earthquakes, fires, storms, droughts, floods, or
explosions.
ARTICLE XIV
MISCELLANEOUS
Section 14.01. ntico. All notices,certificate,or other communications hereunder shall be sufficiently given and shall be deemed given when
delivered or mailed by registered mail,postage prepaid,to the parties at the addresses set forth on the first page hereof.
Section 14.02, Binding Effect This Agreement shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective
successors and assigns.
Section 14.03. Sevability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent
Jurisdiction,such holding shall not invalidate or render unenforceable any other provision hereof.
Section 14.04. Amendments. All amendments hereto must be in writing.
Section 14.05. Exe0don in gMnteMrts.This Agreement may be executed in several counterparts.
Section 14.06. Appieable Law. This Agreement shall be governed by and construed in accordance with the laws of the State.
Section 14.07. Captions; The captions or headings in this Agreement are for convenience only and no why define,limit,or describe the scope or
intent of any provisions or sections of this Agreement,
Section 14,08. XnArt MPment~ This Agreement constitutes the entire agreement between Lessor and Lessee. No waiver, consent
modification, or change of terms in this Agreement shall bind either party unless in writing signed by both parties, and then such waiver, consent,
modification, or change shall be effective only in the specific instance and for the specific purpose given. There are no understandings, agreements,
representations, or warranties, express or implied, between Lessor and lessee not specified herein regarding this Agreement or the Equipment leased
hereunder. Any terms and conditions of any purchase order or other document submitted by Lessee in connection with this Agreement which are in
addition to or inconsistent with the terms and conditions of this Agreement will not be binding on Lessor and will not apply to this Agreement. Lessee by
the signature below of its authorized representative acknowledges that it has read this Agreement,understands it,and agrees to be bound by its terms and
conditions.
ARTICLE XV
DEFEASANCE
Section 15.01, Mfeasan_ce. The Lessee's obligation to pay the Purchase Price will be deemed to be paid and the Lessee's obligations under
this Agreement will be discharged and satisfied upon the deposit by the Lessee with the Lessor of(a)moneys sufficient to pay the Purchase Price or(b)
direct obligations of the United States or obligations which are directly insured or guaranteed by the United States or,with the prior written consent of
the Lessor, any other obligations in which any sinking fund for bonds issued by the Lessee may legally be invested in the principal of and interest on
which when due will provide sufficient moneys for such payment.
IN WITNESS WHEREOF, Lessor has executed this Agreement in its corporate name,attested by its duly authorized officers,and Lessee has
caused this Agreement to be executed in its corporate name,attested by its duly authorized officers, All of the above occurred as of the date first written on
the heading hereof.
Attest: LESSOR:
BY: By-
Title: Title:
Attest: LESSEE: Mousing Authority of the County of Contra Costa
By: _ By:
Title: Title:
SAMPLE LEASE AGREEMENT-MACCC
3129101 Page 5
EXHIBIT B
OPINION OF LESSEE'S COUNSEL
(To be famished on Attorney's Letterhead)
Lessee:
Date of Agreement:
Gentlemen:
As counsel for ("Lessee"),I have examined duly executed originals of the Municipal Lease and Option Agreement and
Escrow Agreement dated ,2062,between the Housing Authority of the County of Contra Costa("Lessee'), and("Lessor")(collectively
the"Agreements")and based upon the examination and upon such other examination as I have deemed necessary or appropriate,I am of the opinion that:
b. Lessee is a public body corporate and politic,legally existing under the laws of the State of California.
c. The Agreements have been duly authorized,executed,and delivered by Lessee,pursuant to constitutional,statutory,or home rule provision
which authorize this transaction and the Resolution,attached as Exhibit A to the Municipal Lease and Option Agreement.
d. The Agreements are legal,valid and binding obligations of Lessee,enforceable in accordance with their respective terms. In the event the Lessor
obtains a judgment against Lessee in money damages as a result of an event of default under the Municipal Lease and Option Agreement,Lessee
will be obligated to pay such judgment.
e. To the best of my knowledge,no litigation is pending or threatened in any court or other tribunal, state or federal, in any way questioning or
affecting the validity of the Resolution or the Agreements or that,if adversely determined,would adversely affect the transaction contemplated by
the Agreements or the security interest of the Lessor in the Equipment.
f The signatures of the officers of Lessee which appear on the Agreements are true and genuine•,I know such officers and know them to hold the
offices set forth below their names.\
g. The authorization,approval and execution of the Agreements and all other proceedings of the Lessee relating to the transactions contemplated
thereby have been performed in accordance with all open meeting laws,public bidding laws and all other applicable state and federal laws.
Respectfully Submitted,
By:
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3/29/01 Page 7
E RIBIT C
DESCRIPTION OF THE EQUIPMENT
EQUIPMENT AND EQUIPMENT LOCA'T'ION:
Energy savings equipment as described in the Energy Services Agreement dated
(See attached)
The Equipment installed pursuant to the Municipal Lease and Option Agreement,dated? ,2002 between Housing Authority of the County
of Contra Costa as Lessee,and as Lessor.
►3y:
"Title:
Date:
SAMPLE.LEASE AGREEMENT-HACCC
3/29/01 Page 8
EXHIBIT E
ACCEPTANCE CERTIFICATE
To Lessor:
In accordance with the terms of the Municipal Lease and Option Agreement (the "Agreement"), dated between ("Lessor"), and the
undersigned('Lessee") Lessee hereby certifies and represents to,and agrees with,Lessor as follows:
1. The Equipment,as such term is defined in the Agreement,has been delivered and installed at the Equipment Location specified in Exhibit C-
"Description of the Equipment"to the Agreement and accepted on the date indicated below.
2. Lessee has conducted such inspection or testing of the Equipment as it deems necessary and appropriate and hereby acknowledges that it
accepts the Equipment for all purposes.
3. No Event of Default,as such term is defined in the Agreement,and no event which with notice or lapse of time,or both,would become an
Event of Default,has occurred and is continuing as of the date hereof:
Lessee:
By:
Title:
Date:
SAMPLE LEASE AGREEMENT-HACCC
3/29/01 Page
EXIIIBIT F+'
INSURANCE COVERAGE REQUIREMENTS
TO:
FROM: blousing Authority of the County of Contra Costa
SUBJECT: INSURANCE COVERAGE REQUIREMENTS
1. In accordance with Article VIII,Section 8.03 of the Municipal Lease and option Agreement,we have instructed the insurance agent named below
(please fill in name,address and telephone number)
(Name)
(Street Address)
(City,State,and Zip)
(Telephone Number)
to issue:
a. All Risk Physical Damage Insurance on the leased equipment evidenced by a Certificate of Insurance and Long Form Loss Payable
Clause naming a as loss payee.
Coverage Required: Full Replacement Value
AND
b. Public Liability Insurance evidence by a Certificate of Insurance naming _or its assigns as an Additional Insured.
Minimum Coverage Required:
$500,000.00 per person
$500,000.00 aggregate bodily Injury liability
$100,000.00 property damage liability
OR
2. Pursuant to Section 8.03 of the Municipal Lease and Option Agreement~we are self-insured for all risk,physical damage,and public liability and
will provide proof of such self-insurance in letter form together with a copy of the statute authorizing this form of insurance.
3. Proof of insurance coverage will be provided prior to the time that the equipment is delivered to us.
Housing Authority of the County of Contra Costa
By:
Title:
Dated:
SAMPLE LEASE AGREEMENT-I-IACCC
3129101Page IO
EXHIBIT G
Certificate of Lessee
1, a duly authorized representative and acting Executive Director and Secretary/Cleric, respectively, of the named Lessee under that
certain Municipal Lease and Option Agreement dated with as Lessor(the"Agreement")hereby certify as follows and in accordance with the requirements of
the Agreement. Capitalized terms used herein have the same meaning as in the Agreement.
A. IPdCLJMBY C3I+5) IIIiS AND SINAI I S;
The Secretary/Clerk of the Lessee has custody of the records of Lessee and the following officers of the Lessee are duly elected or appointed,and hold
the office or title set forth opposite each individual's name,and the signatures opposite their names are true and correct,and where required,have been fled
with the appropriate officials of the State,and each such individual has the authority to enter into the Agreement on behalf of the Lessee:
Name Title/Office Signature
B. ESSEN'T'IAL USE;
1. The Equipment will be used by the Lessee for the following governmental purpose:
Reducing energy and water consumption and costs at various facilities owned by Lessee.
2. The Equipment is essential for the functioning of the Lessee and is immediately needed by the Lessee. Such need is neither temporary
nor expected to diminish during the Lease Tenn. The Equipment is expected to be used by the Lessee for a period in excess of the Lease Term.
C. SEC'T`ION 265(B)(3)MATTERS:
I. The Agreement is hereby designated as a"qualified tax-exempt obligation"for the purposes of Section 265(b)(3)of the Code. I certify,
that the reasonably anticipated amount of tax-exempt obligations that will be issued by or on behalf of the Lessee and all of its subordinate entities,if any,
during the current calendar year(excluding any obligations issued to refund within 90 days thereafter the same principal amount of any prior obligations)
does not exceed$10,000,000,as shown on the attached Schedule A. No entity has been formed by the Lessee or for the benefit of the Lessee in order to
avoid the$10,000,000 limitations in IRC 265(bX3)(C)and(D).
This Certificate is based upon facts,circumstances,estimates and expectations of the Lessee as of the date on which the Agreement was executed,
and to the best of my knowledge and belief as of this date,such facts,circumstances and estimates are true and correct and such expectations are reasonable.
IN WITNESS WHEREOF,I have executed and delivered this certificate as of the day of 2001.
Executive Director and Secretary/Clerk
SAMPLE LEASE AGREEMENT-ITACCC
3129/01Page 11
12106102
Housing Authority of the County of Contra Costa
CASHFLOW PROJECTION -- APPENDIX D
Base Use and Rates
Number of Affected Apartments: 1,198 Rohs Bssad an Fiteatl Year.
F64C GPs! HACCGPai HArdCGPa47 Raaidsnt-Paid Rsaidsnf-Pai
Gas 9e,34,387 EeaMo kWh WatarlSewar Gas therms
921asEletdrta kWR
TOTAL PROJECT COST: $1, ,141 Be Us*' 946,384 104,2 401,882 2,814,784
Ratan' $0.9695 $0.1150 $1.8019 $015860 $0.1180
Escalation 0,0% 0.0% 0,0% 0.096 0.0%
COST Cis
Owner Cost shore: $128,000 Consumption Savings and Savings Rates
Potential Utility Subsidies: $149,060 Rates based on Fiscal!YMr. 2002
Cost to Transfer Ownership! $228,879 AssetHACCC-Pr IfA -Pe HACCC-Pa Residsnt-Pskt Rsstd it P
Gas 9lamat Etetttla Wh WlttariSewar Gas(theyrosi Elocht
ENERGY FINANMO Ssvinosi 0 141,869 ZT5,602 0 1,218,53
Amount: $1,570,465 Ratan' $0.9695 $0.1150 $2.0725 $0.8860 $0.1150
Tams: 12 Yrs. Escsle0on 0.0% 0.0% 4.0% 0.0% 0.0%
Interest Rath: 4.10%
PaUm gw I KAMUTiq PACCC-P014 NACCGPaid RES-PADS RES-PAM
Total Audit Cost: $30,000 GAS ELECTRIC WATER/SEWER GAS ELMTRIC TOTAL
BASE BILL BASE BILI, BASE BILL` BASE SILL BASE BILL BASE BILL
A.
B c D FSA+B+t+D
CQd31 TION Cf2STS 2003 $33,337 $109,835 $187,907 $356,076 $300,7130 $986,858
Subconaactors: $0 2004 $33,337 $108,835 4187,907 $366,078 $300,700 $8861886
Contingency: $0 2006 $33,337 $108,836 $187.907 $358,076 $300,700 $888,856
SUBTOTAL $0 2006 $33,337 $108,836 $187.907 41358,078 $3001700 $984,638
2007 $33,337 $106,835 $187,907 $358,076 $300,700 $986,856
Cq 1 1o8,1„gan10terest S32,S00 2008 $33.337 $108,835 $187,907 $356,076 $300,700 $988,886
2009 $93,337 $1081835 $187,907 $356,078 $300,700. $9881856
C# t Cotidtti�t#,t= s $0 2010 $33,337 $108,835 $187,907 $366,076 $300,700 $488,Si8
2011 $33,337 $108,835 $187,907 $356,078 $300,700 $986,856
2012 $33,337 $108,835 $167,907 $358,076 $300,700 $986,856
2013 $33,337 $708,835 $187,907 $356,076 $300,700 $986,856
ANN A,l, EEB 2014 $331337 $1061835 $187,807 3356.076 $300,700 $986,856
Bass Monitoring&Inspection Fess_ $31,300 2015 $0 $0 $0 $o $0 5o
2016 s0 $0 $0 $0 Eo $o
2017 so $0 $0 _ $o $0 So
$400,044 31, ,024 $2,254.884 $4,272,815 53,008,402 $11842270
ANA t;ON8UMPM SAYINGS
t3as_ 0.0% 1 MACCGPat ACCO<Pa' tfACCC-Paid RES-PAiE? RES-PAID
Elecldc: 15.0% GAS ELECTRIC WATEWSEWER GAS ELECTRIC TOTAL
Water 25.5% SAVINGS SAVINGS SAVINGS SAVINGS SAVING SAVING
$ 3 i YN4GS 1 G It 1 J 1 K L-G+li+l+J+K
Gas; 0.0% 2003 $0 $16,325 55.093 5o 51401131 $211,850
Electric; 48.8% 2004 $0 $16,335 $57.298 $0 $140,131 '$213,763
2005 $0 $18,325 $59,588 $o $140,131 $216,045
Consumption savings is a percent of basaftno not total use. 2006 $0 $16,325 $81,972 $o $140.131 $216,429
2007 $0 $16,325 $84,461 so $140,131 $220,908
2008 $o $16,325 $87.029 $0 $140.131 $223,486
2009 $0 $18,325 $69.710 $0 $140,131 $228,187
2010 $0 $16,325 $72,498 $0 $140,131 $228,955
2011 $0 $18,326 $76.398 $o $140,131 $231,855
2012 $o $16.325 $78.414 5o $140,131 $234,611
2013 $0 $18,325 $81,551 $0 $140,131 $238,005
2014 $0 $16,325 $84,813 $0 $140,131 $241,270
2016 So $0 $0 3o $0 $0
2018 $0 $o $0 $o $0 $o
2017 $o $0 $0 50 $o s0
$0 $19,904 0237,M11 SO $1,081,5701 $2,705,285
ADD-ON
SUBSIDY DEBTUEE R.
DEBT CCS ANNUAL FRO2.EN e$ALLOWANCE OF EXCESS
PAYMENT EEE WATZRBAS ADSUST84ENT SAVING SAVINGS
M N Offii N- 0 M+N 7L
2003 $199.612. 531,300 S55#03 5159,417 95.0% $10433
2004 $169,812 $32,234 557,246 $109,467 94.4% $11,903
2005 $169,612 $13,206 559,588 $156,467 93.9% 513,227
2066 $189,812 $34,202 56!,372 $13$;487 93.3% 314,673
2007 $169,612 533,226 864,451 $ifi8,d67 92.7% $16,067
2008 $169,612 S36,285 567.024 $188,457 92.1% 317,589
2009 $1681612 $37,314 $64,718 $186,467 91.5% 814,181
2010 $161,612 539,445 572,496 $186,457 90.9% 520,848
2011 11189,612 539,650 575,39E $158,467 90.3% 522,$93
2012 $1139,812 $40,839 $79,414 5186,467 89.6% 524,428
2013 $169,612 $42,085 MIMI $188,487 88,9% S26J31
2014 $189,812 $43,327 564,813 $156,457 88.3% 528,331
2015 $0 S0 58 $0 0.0% So
2016 so 50 8o 50 0.0%1 5o
2017 1 $01 S0 So $0 0.090 50
21
$2,038,341 $444. 1 $827613 1,877,491 91.7% 8225,743
111 Water savings cost pot CCF based on weighted average coat of water for normal uses and inloadon use at 91s alias whore water-saving messures ore to be irnpiamented.
f21 Water besa big Includes only mato which Mrs sulllad to chongo it water is oansorved. Fixed**war charges are not ine-iudad.
131 NACCC-gold gas and electric Basis uses Include only those accounts for which we have received dant to dote.Many accounts are
missing from the data provided to CCS.
Resident-paid got Is based on NACCC LeJ*y allowances In e6ed st time of Nuck CCS hog not mAs"d any actual resident gas accounts
141 Elscbie urin Cott is the marginal kV01 cost. The sveraga cast per kWh is higher tar mast accounts.
Resident-Paid gat rate Is based on NACCC unit cast per!heart in affact at time,of audit
APPENDIX E-1
CONTRACT COST,ANNUAL SERVICES,AND HOURLY RATES
(a) The Housing Authority of the County of Contra Costa agrees to pay to Citizens,
the amount equal to the Contract Cost, as indicated below, in accordance with the terms
described in Section I I of the Agreement. The Contract Cost is subject to change in
accordance with the provisions of Section 1.I of the Agreement.
CONTRACT COST: $1,695,465
This cost is net of the estimated $225,679 Cost of Ownership Transfer fee to be paid by
HACCC directly to PG&E to assume ownership of electric power; distribution at
applicable developments and may be adjusted in the event that the Housing Authority of
the County of Contra Costa elects to add ECMs during the contract negotiation period.
(b) Fixed Annual Services Fee for Phase Ili Operations Services: In the event that the
Housing Authority of the County of Contra Costa elects to receive services during Phase
III from Citizens,such services shall be provided in consideration of respective fees to be
mutually determined by CITIZENS and the Authority. Such fees for the first contract
year are as follows, increased annually by 3%per year:
ANNUAL SERVICES FEE: $31,300
(c) Hourly-Rates,of Citizens' and Subcontractor-Employees. for additional services):
President $140
Vitae President $130
Director of Program Development $120
Director of Technical Services $120
Sr. Construction Manager $110
Sr. Energy Engineering $110
Construction Engineer $100
Financial Analyst $80
Energy Engineer $80
Resident Education Specialist $70
Energy Analyst $00
Project Development Assistant $50
Energy Services Agreement
12/9/2002
E-2 CHANGE ORDER FORM
(Request&Agreement for change in Flans and/or Specifications and/or Contract)
Change Request No.
By HACCC: .Date:
Department: Title:
Project No. Contract No. Site:
I. REQUEST
Description of change:
II. CITIZENS' AGREEMENT
For all casts involved in this change including extensions of time herein requested, CITIZENS proposes to
perforin the work described in accordance with the provisions of the subject Agreement and certifies that
the attached cost data is accurate,complete and current,and mathematically correct.
Payment shall be made on the basis of.
( ) (a) Predetermined lump sum total of (add) (deduct) $.
( ) (b) Lump sum "not-to-exceed" (add) (deduct) $
(Max. price based on contract or negotiated unit prices)
{ ) (c) Time&Material Basis "not-to-exceed" (add) (deduct) b
(Computed in accordance with provisions of the Contract)
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 claire for work performed under
protest shall be submitted per(c) above.
An extension of contract time of calendar days to _ - is requested.
By:
.Date:
Title: Contract Award $
Energy Services Agreement
12/9/2002
HACCC APPROVAL.
Previous Additions $
Previous Deductions ',$— - -
By:
Net Total $
]Date:
This Change $
Title:
Total $
Energy Services Agreement
12/9/2002
APPENDIX F
DELIVERY AND ACCEPTANCE CERTIFICATE
HACCC hereby acknowledges receipt of that portion of the Energy Conservation
Measures (the "ECMs") described in Attachment B to the Energy Services Agreement
(the "Agreement") between 11ACCC and Citizens, as substantially complete and in good
working condition, which are listed on Schedule F (1) hereto. HACCC hereby accepts
the ECMs listed on Schedule F (1) hereto after full inspection thereof as satisfactory for
all purposes of the Agreement to which this Attachment F is attached and the Lease
executed by HACCC and Lessor, Citizens. HACCC agrees to .make the related
payment(s)to Citizens as set forth in Section(11) of the Agreement.
Date Accepted by HACCC:
Accepted for: HOUSING AUTHORITY OF THE COUNTY OF
CONTRA COSTA
Accepted by: Name:
Title:
Note: Schedule F (1) setting forth the ECMs to which this Delivery and Acceptance
Certificate relates is attached hereto.
ACKNOWLEDGMENT OF CITIZENS
Citizens hereby acknowledges that the total amount due for the ECMs described in
Schedule A(1)hereto is $
Date Accepted by Citizens:
Accepted for: EUA Citizens Conservation Services,Inc.
Accepted by: Name:
Title:
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APPENDIX H
STANDARDS OF COMFORT AND SERVICE
NOT APPLICABLE-NO HVAC IMPROVEMENTS IN SCOPE OF WORK
APPENDIX I
CONDITIONAL ENERGY SAVINGS GUARANTEE
ENERGY PERFORMANCE CONTRACT GUARANTEE BY CITIZENS
TO THE DOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA
Subsequent to the Municipal Lease Commencement Date and throughout the Term of the Project
Operational Phase, as each of these terms are defined in the Energy Services Agreement ("ESA'')
between Citizens Conservation Services ("CITIZENS") and the Housing Authority of the County of
Contra Costa (the "HACCC") dated , Citizens warrants that the HACCC
shall realize sufficient electricity, natural gas, and water consumption savings, valued at the
Baselines, delivered rates and stipulated savings calculations contained within Appendices D-I and
G to the ESA, as approved by the U.S. Department of Housing and Urban Development("HUD") in
the written approval dated and contained within Appendix L to the ESA, to
fulfill the HACCC's obligations to make installment payments as specified in Exhibit to the
Municipal Lease and Option to Purchase Agreement executed by the HACCC on
If, in a given year (every twelve consecutive months from the Municipal Lease Commencement
Date), the total energy savings as specified above, are less than the Debt Service Payment as
delineated in Appendix D-1, or any mutually agreed-upon revisions thereto, Citizens will pay the
HACCC the value of the difference. Payment shall be made within thirty(30)days of each Annual
Reconciliation,as that term is defined in the ESA.
Calculations of delivered costs per unit of energy shall be consistent with the methodology contained
within Appendix G of the ESA, as approved by HUD in the written approval attached to the ESA as
Appendix L. Interest rates and financing terms shall be consistent with those within Appendix D-I
of the ESA and Exhibit _ to the Municipal Lease Agreement. In the event Appendix D-1, the
Cash flow Projection (Including Baseline), and Appendix G, the Utility/Energy Supplier Savings
Calculations, are amended by mutual agreement, the Guaranteed Savings shall be as provided in
such amendment.
Measurement, verification and computation of Energy Savings shall be consistent with such
methodology as may be required by the ESA and Appendices to the ESA, and HACCC agrees that
such methodology is acceptable.
Citizens shall conduct Annual Reconciliations of energy savings as provided for in the ESA.
This Guarantee is subject to the satisfactory performance by the HACCC of its obligations under the
ESA including, but not limited to, continued operation of the Developments and proper preventive
and routine Maintenance of the ECMs in accordance with the provisions of the ESA. This
Guarantee and all of Citizens' obligations hereunder shall terminate upon termination or expiration
of the ESA and/or Event of Default by the HACCC.
HACCC:
By: Date:
Title:
Attest:
Title:
Energy Services Agreement Appendices Page 1
December 9, 2002
EUA Citizens Conservation Services, Inc.
By: Date:
Title:
Enemy Services Agreement Appendices Page 2
December 9,2002
APPENDIX J
NOTICE TO PROCEED
[ON HACCC LETTERHEAD]
Ms. Janice S. DeBarros
Vice President
EUA Citizens Conservation Services, Inc.
111 Speen Street, Suite 410
Framingham, MA 41701
SUBJECT. NOTICE TO PROCEED
Dear Ms. DeBarros:
In accordance with Section(5)A. of the Energy Services Agreement dated
The Housing Authority of the County of Contra Costa hereby submits to EUA Citizens
Conservation Services, Inc. (,Citizens") this Notice to Proceed in relation to the Scope
of Services defined in the aforementioned Agreement.
Sincerely,
HOUSING AUTHORITY OF THE COUNTY OF CONTRA.COSTA
Name: Date: -
Title:
APPENDIX K
SAMPLE INSTALLATION APPROVAL CERTIFICATE
TEST INSTALLATION ACCEPTANCE LETTER
[ON HACCC LETTERHEAD]
Date
Ms. Janice S. DeBarros
Vice President
EUA Citizens Conservation Services, Inc.
111 Speen Street, Framingham, MA 01701
Re: Energy services Agreement ECM# Test Installation Acceptance Certificate
Dear Ms. DeBarros:
The HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA has reviewed
samples of certain Energy Conservation Measures ("ECMs"),to be installed pursuant to
the above referenced Agreement, as set forth in the list attached hereto.
HACCC hereby approves such sample installation ECMs and, if applicable, their
respective aesthetics and performance [lighting] levels, for installation in the following
DEVELOPMENTS EUA Citizens Conservation Services, Inc.
("Citizens" ).
Very truly yours,
HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA
By:
Name:
Title:
APPENDIX L
HUD APPROVAL LETTER
(To be Attached)
[ON HACCC LETTERHEAD]
This letter would include request for Utility Allowance adjustments and, if
necessary, an extension of Contract Term beyond 12 years.
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