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HomeMy WebLinkAboutMINUTES - 01142003 - HA2 H A.6 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY,CALIFORNIA Adopted this Order on January 14, 2003,by the following vote: AYES: Supervisors Gioia,Uilkema, Gerber, Clover and DeSaulnier NOES: None ABSENT: None ABSTAIN: None SUBJECT: ENERGY PERFORMANCE CONTRACT RELIST"ED 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 14, 2003 John Sweeten, Clerk of the Board Of Supervisors and County Administrator f r By: �4__":�' Deputy Clerk oft LiA HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA .OARD OF COMMISSIONERS Robert McEwan, Executive Director .rE: January 7, 2003 SUBJECT: ENERGY PERFORMANCE CONTRACT SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION 1. 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. 11. 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, Ill. 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 Bighting 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. CONTINUED ON ATTACHMENT: X YES SIGNATURE RECOMMENDATION OF EXECUTIVE DIRECTOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTI4ER 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:\WIND4WS\Temporary Intemet Fi1es\0LK6004\B0-ESC0.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 $130,800. 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 MunicipalLease 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 JOHN SWEETEN, CLERK OF THE BOARD OF COMMISSIONERS AND COUNTY ADMINISTRATOR BY H:\RobertMeEwan\M5OFFICE\WINWORD\Board Ordcrs\80-esco Resolution Energy Equip 5034.doe ENERGY SERVICES AGREEMENT between EUA CITIZENS CONSERVATION SERVICES,INC.,an AMERESCO Company and H©USING 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 PROPRIETAR r 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 0170I ("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"Parry"). 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 EOMs 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 I 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 FHA'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"shall 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 Il—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 II—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 EOMs",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 11 -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 Ili 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 PHA 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 Enemy 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 990 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 ECMs 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 ill - 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 PHA 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 EOMs 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 Cost"shall mean the total dollar cost for the ECMs and services provided under this Agreement as contained in Section(11)and Appendix E•1a to this Agreement. PART B TERMS AND CONDITIONS OF AGREEMENT (1) SUMMARY OF SCOPE OF SERVICES Citizens and PIMA 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—Design 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 perforin the services described in Section(4),Phase I—Design and Construction Funding. B. Phase It-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 11-Construction. C. Phase Ill ProjectQ-Ur 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 Ill-Project Operation. D. Duration of Phases of Agreement. The first phase,as defined in Section(4),Phase I—Design and Construction Funding,shall commence as of the Execution Date and continue,subject to the terms of this Agreement,until the design and the Construction SaanWle Citizens Enemy services Agreement Page 5 PROPRIETARY I 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 1 and ll hereunder. (2) TERM OF AGREEMENT The Term of this Agreement shall commence as of the Execution Hate and,unless sooner terminated in accordance with the terms hereof,shall continue for a period co-extensive with the term of the Municipal Lease,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 financings 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 ECMs;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,Cashflow, 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"),shall, 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. Sanwle Citizens Energy Services Agreement Page 6 PROPRIETARY Y Citizens and/or its design suit-consultants)and the Design Engineer will snake 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. Design Develottrnent: 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 Docgmentation: 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(S)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 ECMs 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 Platz,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 Pian 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 l: 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 Flow Projection"(a revision to Appendix D-1), the Parties shall 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 Casts. 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 casts.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,shall be attached hereto upon receipt and made a part hereof as Appendix L,HUD Approval Letter. Sample Citizens Enemy Services Agreement Page 8 PROPRIETARY 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 makes 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-1 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 hate of this Agreement in Appendix D-1 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 Proiect ScODe and Level of Guaranteed Savings; The Parties intend and anticipate that the Energy Savings guaranteed hereunder shall be not less than one hundred percent(1000/*)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 one 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, Sample Citizens Energy Services Agreement Page 9 PROPRIETARY 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, PIA 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 PHA'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: .Sample Citizens Energy Services agreement Page 10 PROPRIETARY 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. 5Mgle Installatigns: 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 ECMs 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. PHA'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 PHA's written approval of each revised Attachment. In the event PHA does not approve of any such substituted ECM'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. PHA shall not unreasonably withhold or delay any approval provided for herein. (5) 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 11 PROPRIETARY 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 ECMs 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 Darty to solicit bids or to cancel contracts when the original determination regarding bidding was made in error,such costs and charges shall be for FHA'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 of 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 PHP.. 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 forth 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 PLiA Employees: No person assigned to perform work under this Agreement by Citizens shall be deemed to be an employee of PHA for any purpose. Sample Citizens Energy Services Agreement Page 12 PROPRIETARY 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. Prevaili Wag es: 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&ope 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-1 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,Termination for Failure to Agree on Revisions. iv. Adjustment to Cash Flow Projection: 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 Manaaement: 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_Mana„gen 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 EOMs included in the "Revised Summary of Recommended ECMs"(Appendix B). iii. Proiect 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 Sample Citizens Enemy Services Agreement Page 13 PROPRIETARY 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. Ace ss: 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 Inwection of Construction Contract Work: Citizens and PHA shall make a final inspection jointly upon completion of work perforated 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 sten: 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 Sample Citizens Energy.Services Agreennernt Page 14 PROPRIETARY 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. uc�ipment Ownership:Ownership and title to the ECMs referenced in Appendix B 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 the 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 world 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 PIMA for the residents of each of the Developments and shall supply a newsletter to inform residents about the EOMs installed under the Conservation Program.Citizens, in conducting such seminars and distributing such newsletters,shall fallow all manufacturer-recommended procedures without thereby endorsing or guaranteeing such procedures. Sample Citizens Energy Services Agreement Page 15 PROPRIETARY 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 I I(D)"Fees"for Additional Services,at the rates set forth in Appendix E-Ic"Energy Service Fees and Expenses." Mi. Management 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(I 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 II,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: Sample Citizens Energy Services Agreement Page 16 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 PHA'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 senior 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. Although 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-uta: 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 III—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. Utilitv 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: Sample Citizens Energy Services Agreement Page 17 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 Utility 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 ECMs installed under the Conservation Program,describe current energy use and savings,and offer ideas on how residents can reduce energy waste.PIMA 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 ECMs 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 semi-annual basis,schedule one on-site educational seminar for the residents to 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. Citizens, in conducting such seminars and workshops,shalt 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-Ic"Contract Cost and Annual Services"to provide additional seminars and training workshops. Sample Citizens Energy Services Agreement Page 18 PROPRIETARY H. Maintenance Staff Trainin 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- I c.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 Utility/Energy 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(10)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 perforin 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. Project Omratina 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(6)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. Sample Citizens Enery Services Agreement Page 19 PROPRIETARY C. Fixed Annual Serv'ces Fee Payments to Citizens: In consideration of the annual services provided by Citizens during Phase til 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-Ib. D. Perfo ance Contract Financing uric' ai Lease Pxymcnts andlor Debt Service and Fixed Annual Service Fee Coverage: 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 trade,and will snake,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 Changes 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 a 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 material failure by Citizens to perform its obligations under this Agreement shall not be deemed to have resulted from a Material Change. F. Adiustrnents 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 EnerV Services Agreement Page 20 PROPRIETARY (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. (10) MAIN'T'ENANCE,MA'T`ERIAL 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 EOMs,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." FHA's maintenance responsibilities shall continue to be the FHA'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(14%)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 andlor request Citizens to take action at the hourly rates identified in Appendix E-1(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 during 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. No 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. i,ffect 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 a Material Change to the Developments,as defined in Section(8)F,and should such failure or Material Change reduce the Ievel 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. (11) SUMMARY OF COMPENSATION A. The Total Contract Costs dur€ng_Phases I 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. FHA 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 a 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. E. The Fixed Annual Service Fee during Phase II€: The Fixed Annual Service Fee due Citizens will be payable against those Services provided in Phase III and will represent a fixed annual service fee outlined in Appendix E-Ib.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 L. Sample Citizens Energy Services Agreement Page 22 PROPRIETARY C. Payments 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-I c or at percentage of work completed as of the paint 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 perforin 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 FHA'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-Ic. PHA shall also pay Citizens for any reimbursable expenses incurred by Citizens in conjunction with such additional services. E. Late Payment Chartres: 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 LIMI'T`ATION 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 lass 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. (14) 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 ECMs. To the extent that Citizens agrees to perform operations and/or maintenance of specified ECMs 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 ECMs. 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); E. 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. ,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 , Sample Citizens Energy Services Agreement Page 24 PROPRIETARY including the provision of signed Non-Collusive Affidavits. Citizens and its Construction Subcontractors shall be responsible for payment of all required taxes and fees required by State and local law with respect to this Agreement. I. 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(I 1).) 1. Citizens and its Design and Construction Subcontractors shall maintain,throughout the term 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 PIMA 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($2,000,000)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($500,000)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 II 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(I5)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 recommendation made by such a mediator,or in the event of 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 thein agree to terminate this Agreement without fault on either Party pursuant to Section(I 1)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(15)B.Termination for Material Default,below. In such latter event, Sample Citizens Energy Services Agreement Page 25 PROPRIETARY either Party shalt 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. B. 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 Parry. 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 Party to the defaulting Party;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 Rules 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(I5)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 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-1 Energy Service Pees 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 ECMs 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 shalt 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(15)D, all obligations of PITA under this Agreement with respect to such portions of the affected Developments or ECMs 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 (I 5)E,all payment obligations of PHA(and Citizens,if any)with respect to the period following such payment shall cease. (16) SUCCESSORS AND 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 ten(10)day written notice and FHA'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). Samnple Citizens Enery Services Agreement Page 17 PROPRIETARY (1$} 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. (Ig) 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. (2I} 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 personally,by overnight courier or by such other means(including facsimile transmission or email with confirmation)evidencing delivery,or by certified or registered snail. 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 01 701 Sample Citizens Energy Services Agreement Page 28 PROPRIETARY t With a copy forwarded to the attention of: PHA: Mousing 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 perform 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 PROPRIETAR Y 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,advertisetrtents or PHA lists without the express prior written consent of PHA. 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) BEADINGS: 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 30 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 1CMs 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. Sample Citizens Energy Services Agreement Page 31 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 he 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 shall 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-1 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 Citizens 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: 1. ENERGY SERVICES PLAN Sample Citizens Energy Services Agreement page 33 PROPRIETARY Dated. HACCC EUA Citizens APPENDIX A DEVELOPMENTS The fol owing buildings, facilities, and areas (the "Developments"'), which are awned and operat by HACCC, are included in the Scope of Work/Summary of Recommended ECMs etailed in Appendix B: I DEVE OPM NT 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 Bl Pue to CA 11-5 8'75 El Puebla Avenue, Pittsburg 176 Las D tas CA 11-6 1601 North Jade Street, Richmond 76 Los Arboles CA 11-8 990A Rosemary Lane, Oakley 30 Las ©�ltas CA 11-9A 1601 North Jade Street, Richmond 90 Las l ltas CA 11-9B 1601 North Jade Street, Richmond 60 Bayo ista CA 11-10 2 California Street, Rodeo 250 Haicle da CA 11-11 1111 Ferry Street, Martinez 50 Casa a Manana CA 11-12 Rosemary Lane, Oakley 40 Casa a Serena CA 11-13 1015 Clearland Drive, W. 'Pittsburg 50 Elder nds CA 11-15 2100 Buchanan Road,Antioch 100 Carnidel Vista CA 11-16 2329 College Lane, San Pablo 100 Kidd anon CA 11-17 100 Austin Court, San Pablo 41 a f APPENDIX B-Scope ofWork 6-D=42 HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA HOUSING AUTHOMW OF THE COUNTY OF CONTRA COSTA Summwy of Energy Coftervadon Measures Swings Sum Rat {therms} (kWh) (tt#s) Sum Iter DZVTWPI+IB>NT Site# ya"URES VIT.DOLLAR COST Goo 13whk W*bw 3AVONIGS Payback TOTAL 51633 - 957 2 931 S"7.2661 7.9 W 1,INCtNTrVZS WstarG3awts i# {I+ 72 lrambrs xnN 11-01 ==7=== I0S 1,1460 $3,226 7..: tug"SonB,y 520,793 16,237 52,097 9.9 ks#s111 Gmnmoo Alft anew mcimtt LlghtlnB $11,139 27.011 $2,654 3.9 101011 LOOM efficient L4MbS in Apftlem, $16,032 23,730 52,363 6.8 ConvarttltmqMl3 otmetbioul DipulbotiontoP"g $58,751 13,107 31,576 37.3 psue3'$Mom)a Admin ifnfW4 Dfcn $1,320 3,415 $376 14.0 USTOTAL $132440 88,125 1,480 512,558 toe 9th18antnm 11.3 1 a 916,334 34,330 S1,64S 9.9 I"WI&At&11ftleatUghtigInAp ronects Sr2,795 14,203 $1,562 8.2 04 0.0 0.0 0.4 0:0 0.0 0.0 0.0 UH7'E7TAL 529,149 2033 83,210 9.1 LatNoealae CA11-4 MMI==e a0srZ= $27,195 - 2,496 $7,237 3:5 htpmw1tsiSttk*11%d=q24rkD-o8on $17,952 4,091 55,539 3.2 ItoKtttl BMW affid"t 518,345 14,476 51,665 11.0 !atoll Common Ata-Some cedant Ujglufat 5889 1,0% - S121 7,4 Imbill Bout MdW L*k q W Apas"aw $13,492 15,198 $1,672 8.3 0.0 0.0 0.0 0.0 0. SU TAI, 577372 30,7 f 6 8b 516,233 4.8 EF Pueblo FAX 11.3 ]Hata!! =80"dom 359.207 55,434 $6,331 9.4 bwall Common Ates Enew affioiem ughthv $4,403 6,145 : $696 4.9 In"lk"8011010ft 1 od"io Apsamoms $53,665 33,283 $5,590 24,0 Conan awne»hip of luto0w Diadibution to Mail 94,325 46,855 $3,618 16.6 4.4 31.0 0.0 4.0 0,0 1l.0 VWYA-L 13, 0 t65338 $18,436 11.6 Lee Dohn CA I1.6 Sn#at1 taw Vol= zwow SM9110 16U 1,033 12.6 WWI Lnewof olow ReApnon $15.263 10,$84 S3.,21T 12.3 Ift"I Common Am Romp ShWeet Id&k* $4,327 10,939 $1,203 3.6 I"to pnetS;3 wet ushtins to Apm4nents $37,742 $3,283 S5,661 6.4 0.0 0.0 0A fl,4 0.0 0.0 SU8 TAI. $?8 31 r 74,806 580 $9,.314 7 S Lot Alwas CA!1 natd} 2 Rtftf8nr*M S10,036 1,293 : $638 12..0 he4novakriieldi-BffioloaoYAAacDetention $12,240 5,48(1 $13,590 0.9 IMWl Common Atw hwSv 11t dent Ughting $2,363 3,324 $366 6.5 Insall 6not8 P.t1 ukat USlitiaS in Apo wAms 514,822 18,816 52,070 7.2 O.0 0A 0.4 0.0 0.0 40 SUBTOTAL 531,463 29,424 Se480 $16,863 2.3 Y,?!it/2002 t Appenft Bhiseoum Summary 3A HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA Summary of EnerV Conservation Meawres SSvin� Sum Rec (therms) (kWh) (tefs) Sum Ret DEVELf3PMENT Site N MEASUR3sS M.DIOL GAR COST Gas EEutrit Wotan SAV21G5 Pa back L"tla u C711.97 bww fllumrStaveC $1,6,070 1,113 2,Id T,4 In"WwJry MUM Roftanam $32,471 18,611 $2,140 15.2 las#i115mol Efilddnt Uphllnp In Apa men# $44,296 S1,364 $6,420 6.9 0,0 0.0 n.(} 0.0 0.0 fl.i1 0.0 SU OTAL $92,535 T6 975 E 315 S10,722 8.7 MD.4tea AIMB lnatd3 V®[nme $10,816 832 $1,461 7.3 bawl&ww MaimR*ftmwrs $'20,417 16,936 $1, 161 1014,63 Sonee5denl llghdty in Aptmtnoetua 533,744 46,459 $5,114 114 14 6.6.6 0.6 O.il 1?.{1 0.0 0.0 0.0 0.0 SUBTC>TAL 564,975 - 57,423 832 $7,852 5.3 Bayo Virta CAI1.10 larWi Mw oimna WsterCrorotr $96,419 5,627 $10,016 9.6 3anell BMW ElScieat Rohlgenttats $105,313 88,948 510,229 10.3 lma#il Common Ates 1"stteiV Minot LillwaS $11,740 19,914 $2,191 5.4 EmrWlliners claMLightinginApaeaasm# $125,718 139,821 $15,380 8.2 Ccavett ownerddp ordeal Dlndbidea to pa" 597,228 74,460 58,793 11A i 0.0 0.0 0.0 n.n 0.0 1TATOTAL 5436,419 325,143 s,62T 546,609 9.4 3-laaiamda CA 11-t1 =1=Vo=. aar=mu 522,154 84,* $3,799 5.8 lo"BMW Et9iowntRaltlgemmta S23,41S 20,fm $2,.332 WA baull Common Ams BwW Efficient Llghdng x3,984 7.495 $624 9.6 lnaW Enas Ef lem l.rghting in Apattmaou $13,813 13,978 $3,164 11.9 0.0 0,0 (M) 010 60 (7.0 SUBTO AL 565,426 41,572 844 $7,899 8 3 C,m De Maaaaa CA 11.12 IMWI ent to $16,811 15,074 51,733 9.7 lnapol Common Aron Sorgy$Bidet t LWoing x839 3:941 $434 2.0 ln6Wl&ws EfFicisat l.il Was in Apamnnem# xIM26 8,861 $973 17.0 0.n 0.0 0.0 0.0 0.0 0.D 0.0 !US AL 534,195 27,876 $3,142 10.9 Cua De Sam 11-13 =E ZW- !=gmatora $21,814 16,933 x1,941 11.7 IMOWCamtnatAnat&6WP.113ownt.ushtia8 Ss,984 1,795 $198 30,3 h2atell E tetg EfEdwn us)aing in Aparumaus $22,939 23,886 52,627 e.7 0.0 0,0 0.0 0.n 0.0 010 0.0 SUVWTAL 551751 41,20 54,773 10.8 elder widdl ZAX 1175 Ef'Kcwatt Mg to $58,236 6,4-10 $1,194 6.15 las#li Common Am Sttnrry Melo tt Lighdmg 53,718 28,464 $3,131 1.2 ltaataii&ml E{$oimt U*WAg In Apvtamm# 548,395 31,914 53,511 13.8 101#11 EflWOM Apmaaont Air C wAdoam 572.300 133.022 $35,298 4.7 0,0 0.0 OA 0.0 0.0 O.fl SUS TAk 5153.549 - 2g9,5T0 - 530,73$ 3.9 1219*002 2 Aptundix AMaaatar5 Summary 3A HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA Summary o}'BnerV Conservation Measures saving® Sum Rec (therm!) (kWh) {ccfl) Sum Ree DEVtWPMZrr Shxi N MEASURX.S M.DOLIAR COSY' Gas Electric WaterSAVINGS Pa back cAmim do vim. CA I I-16 b�W I L&w otamo Wmamsr 549,446 7,} Wtaii 5ner5y 8{YitSettt RaAF;ptkrsn $1!{,236 76,470 3,939 $9,794 . inaWlCommonArea 51,794 6,6 Smc++iYB.lEaantLlihtia; 57,517 3,640 5620 12.1 taw11 tr om BtBoleat ugbdm to Apmunow $6,2% 1.199 $176 33.s 0.0 0.0 IV.O 0.0 0.0 $ OTAL 5121,495 $3,709 3,933 $16,601 7.3 Kidd enar It-I ne F3Rteient n 516,sil 13,474 51,733 9.7 bsetMil Ctimmon Arra Elwejy 68idaA Lightleg S3,003 3,464 $603 5.0 bead{5nmg$8t"t UsUng to Apsemaw 9451 213 523 19.6 0.0 0.0 0.0 0.0 0.0 0,0 0.0 S— IOTA $30,272 20,771 $2,360 1.6 IZW2002 3 Appo"x BMeaeura 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 from 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.Cymenantj of 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 clone all things necessary to preserve and keep in full 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 perforin 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 FZbibit or by other appropriate official approval,and further represents,covenants,and warrants that all requirements have been meet 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 9shibkB, (e) During the term of this Agreement,the Equipment,as outlined in Exhibit attached hereto,will be used by Lessee only for the purpose of performing one or mom 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 statements, 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`Perm. ARTICLE II DEFINITIONS Section 2.01. Mfinitions, 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 h: it 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 1956,as amended,and to the extent applicable,the regulations and rulings issued thereunder. "Commencement Date"is the date when the term of this Agreement begins and Lessees 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 E-Yhiliitand which is the subject of this Agreement. „Lease Terni"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 E ''+tQ 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�at 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. SAMPLE LEASE AGREEMENT-HACCC 3/29/01 Page l ARTICLE III LEASE OF EQUIPMENT Section 3.91. IM-of Eguipingat 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, ARTICLE IV LEASE TERM Section 4.131. LgAll 'Term. This Agreement shall be in effect and shall commence 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 5.91. Quiet En3ovmi alt. Lessor hereby agrees not to interfere with Lessee's quiet use and enjoyment of the.Equipment so long as Lessee is not in default hereunder; Section 5.92. Use gf the EnulipmMI. 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 5.93. MAI Qt`Iggamtjap. During the Lease Terns,Lessor and its officers,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 5.94. Disclaimer o€Warranties. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED, AS TO THE VALUE,DESIGN, CONDITION,MERCHANTABILITY,OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF THE EQUIPMENT, OR ANY OTHER WARRANTY WITH RESPECT T1iERI TO 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 5.95. V t s` VVa�r,rap ice+ Lessee may assert claims and rights that the Lessor may have against any Vendor of any portion of the Equipment. ARTICLE VI RENTAL PAYMENTS Section 5.91. R n alj!#y -ments Ig Constitutener I QjLU#ti2n of JAssge. The obligation of Lessee to pay Mental 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 7.92 hereof. Section 6.92. Interest and Principal Como nems. A portion of each Rental Payment is paid as interest, and the balance of each Rental Payment is paid as principal, Fahij2ft hereto sets forth the interest component and the principal component of each Rental Payment during the Lease Tonin. Section 6.03, ftfal Fgym p Lto he,_Unco#&1on 1. 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 setoff 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. ARTICLE VII TI"T"LE TO EQUIPMENT;SECURITY INTEREST Section 7.91. Title to the Eatplapnent 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 7,92, Security Interest, As security for its obligations hereunder Lessee grants to Lessor a security interest constituting a first lien on the Equipment and on all additions,attachments,accessions,and substitutions thereto,and on any proceeds therefrom, Section 7.93. Utas and Tt ggymbraprces to Tltl Lessee shall promptly discharge any liens placed on the Equipment other than those created by Lessor. ARTICLE VIII SAMPLE LEASE AGREEMENT-HACCC 3/29101 Page 2 MAINTENANCE;MODIFICATION;TAXES;INSURANCE AND OTHER CHARGES Section 8.01. Mrtiatennnce of Enuinmetit by Lmm Lessee will, at Lessees 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. laza Qtb1t Ggvjrqm§MtAr Il . 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. Emy-Lslns&Wd`nsr 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 Leese Term)in the amounts and for the coverages set forth on 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. y_gnm. In the event Lessee shall fail to maintain the full 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 snake 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. Mificaggas, 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. DIM119C Dgtruction and Qad$Mna fign. 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 mid Lessor will cause 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 1X,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. InsuffidlUcy a Not Proeoods. 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 I0.0I. JBx Cgygg#nts. 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 lawful 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 perforin 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(a)of the Code or a"hedge bond"within the meaning of Section 149(8)of 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 tried 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 measling of Section 149(b)of tate Code. ARTICLE XI OPTION TO PURCHASE Section I I.O1. Pyrch r.Bigbo. Lessee shall be entitled to purchase Lessor's interest in the Equipment.(a) upon payment in full of all Rental Payments in accordance with 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 ENWhiQ together with all other amounts then due hereunder. SAMPLE LEASE AGREEMENT-HACCC 3/29/01 Page 3 ARTICLE X ASSIGNMENT,SUBLEASING,INDEMNIFICATION,MORTGAGING,AND SELLING Section 12.01. &ml nMy r a*by Lessor, (a) This Agreement,and the obligations of Lessee to make payments hereunder,may 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 prograin,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,#rust,limited partnership,or outer 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. No Sale.Assignment or Subleaslxig by Lessee. 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. Stiction 12.03. agISM adJUftAif#ration Covenants. 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 lquipment,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 properly or injury to or death to any person. no indemnification arising under this paragraph shall survive the termination of this Agreement. ARTICLE XHI EVENTS OF DEFAULT AND REMEDIES Section 13.01. E,yents of Dgbult. The following constitute"Events of Default"under this Agreement:(a) failure 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(c) failure by Lessee to observe and perform any other covenant,condition or agreement on its part to be observed or performed for a 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 30-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. Jkmidin g l l 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 mare 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 awing,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 dish 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. 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 Lessees sole cost and expense' Section 13.04. v 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. L&ft Qla-al;InIgrW 2U j,&g'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(2%e)of the amount past due,but in no event less than 5100,00. Any unpaid Rental Payment or other amount payable by Lessee to Lessor hereunder shall, to the extent permitted by law,bear interest at the lessor of(a)the rate payable on the principal portion of the Purchase Price,plus five full percentage points per annum,or(b)the maximum rate allowed by law. Section 13.06. ,f, rte.,�ti� if by reason of ice maiMM 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 3129101 Page 4 continuance of such inability, The terra"force rnajeure"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 kind 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. Ng§W 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. 11„}r, 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. g% hfl 1n 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, Amendrirerits. All amendments hereto must be in writing, Section 14,05. XXogutlog in Caygk>Rrts,This Agreement may be executed in several counterparts. Section 14.06. Agiftft Law, This Agreement shall be governed by and construed in accordance with the laws of the State. Section 14,07. Qptions. The captions or headings in this Agreement are for convenience only and no way define,limit,or describe the scope or intent of any provisions or sections of this Agr=nent Section 14.08. Entla A&ZI menti 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 15.41. Defoorice. 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 Lessem 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: housing Authority of the County of Contra Costa By: By: Title: Title: SAMPLE LEASE AGREEMENT-HACCC 3/29/01 Page 5 ............ EXHIBIT B OPINION OF LESSEE'S COUNSEL (To be fumished on Attomo)'s fathead) 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_ 2002,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 Lem 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: SAMPLE LEASE AGREEMENT-HACCC Page 7 3/29/01 EXHIBIT C DESCRIPTION OF THE EQUIPMENT EQUIPMENT AND EQUIPMENT LOCATION: 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. By: Title: Date: SAMPLE LEASE AGREEMENT-HACCC 3/23/01 Page 8 EXHIBIT E ACCEPTANCE CERTIFICATE To Lessor: In accordance with the terms of the Municipal Lease and Option Agreement (tire "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 9 EXHIBIT F INSURANCE COVERAGE REQUIREMENTS TO, FROM: Housing Authority of the County of Contra Costa SUBJECT: INSURANCE COVERAGE REQUIREMENTS I. 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) (Dame) (Street Address) (City,State,and Zip) (Telephone Number) to issue: & 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 Rewired: 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 13y: Title: Dated: SAMPLE LEASE AGREEMENT-HACCC 3129/01 Page 10 EXHIBIT G Certificate of Lessee a duly authorized representative and acting Executive Director and Secretary/Clark, 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. MQ0CX OE QEEL=AND-SIGNATURES; 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 filed with the appropriate officials ofthe State,and each such individual has the authority to enter into the Agreement on behalf of the Lessee: Name Title/Office Signature B. ESSENTIAL 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 Lessce. 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. SECTION 265(B)(3)MATTERS- 1. The Agreement is hereby designated as a"qualified tat-exempt obligation"for the purposes of Section 263(6)(3)of the Code. l 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(6)(3)(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 beliat as of this date,such facts,circumstances and estimates are true and correct and such expectations are reasonable. rN WITNESS WHEREOF,1 have executed and delivered this certificate as of the day of ��,2001, Executive Director and Secretary/Clerk SAMPLE LEASE AGREEMENT.RACCC 3/29101 Page l I 12£08102 Housing Authority of the County of Cruors Costs CASHFLOW PROJECTION -- APPENDIX 0 Be"Ilea and Rates Number at AffectedMisr manta: 1,145 Rebus eased on Fiscal Year HACCCrPmoHACCC-PskjfiA RsaidsnM akt Rsaldsni•Pa! Gat 404MMI Waitr#Sswae Gas $N+Cbtt kWh 11 TOTAL PROJECT COST: $1,931,144 $ser Use' 34, 9#9,394 104,2 401,6922, 4,7 Row Some$ $0.1150 31.8019 50.8860 $0.1150 CQST mm escalation 0.0% 0.0% 0.0% 0.0% 0.096 Owner Cost Share: $135,000 Consumption savings and Savings Rotes Potential utility Subsldies: 411481000 Rates based on Fiscal Year, 2042 Cost to Transfer Ownership: $225,379 Asset W,4 HACC Pal ttACC E W l2esidsnt-P:6id. Reartlwft-Pa Gas tharma e4cotc kWh W*We Sewer Gas thatrns Eied1,2 kYvh 28MO r�1 MMM Sayings 0 141,$59 26.582 0 1,31 Amount: $1,570,465 Rates' 30.9695 $0.1150 $2.0725 $0.8860 $0.1150 Terra: 12 yrs. EscatstionI 0.0% 0.0% 4.0% 0.0% 0.096 inarset Rah: 4.60% PRE•Eie tn4T5 ;RZrCAR ACCC-F t PA- CC-Paid RES-PA10 RFWPAlfa Total Audit Cost: $30,000 GAS ELECTRIC WATER/SEWER GAB: ELECTRIC TOTAL WE SILL BASE BILL, SASS ESIW BASS=$ILL BASE$I BASE BILL EYE A $ O E F2A+8+C4 + 22NSMMN Met 2003 $33.337 9105,535 $197,907 3354,074: $300,700 $916,$11 Subcontractors: $0 2004 $33,337 $108.875 $157,807 41356,071 $300,700 ;988,$58 CohUngancy: $0 3005 $33,337 $1061836 $187,907 $3581079: $3()D,700 1981,186 SUBTOTAL $0 2t7U6 $33,337 $106$35 $1871907 $386.076 $3001700 $986,83e 2007 $33,337 $1081835 $187,901 $359,074: $300,700 $Ilwads $32,600 2008 $33,337 $108,335 $187,907 $366.076 $300,700 s986,sse 2009 333,337 $108;835 $1$7,907 $359076 $300,100 $"S'ese Cameral Conditfoaa Fees $0 2010 $33,337 $108,835 $187,907 $366,071 $300,700 $os8,8ss 3011 $33,337 $106;835 $187,907 $3581076 $300,700 $681,886 2012 333,337 1108,835 087,507 $368,076 $300,700 #1088,556 2013 $33,337 $108.835 $157,907 $356,076 $300,100 s969,156 3014 $33,337 $104,335 $187,907 5354,078 3300,7170 $69$,858 Sate Monitoring&inspection Fees: $31,300 2015 $0 so $0 s0 s0 so 2018 $0 $0 $0 $0 s0 $rt 3017s0 s0 30 0 s0 0 34 ,044 1,304,024 ,254,$84 S4,272,914 $3,606,4V2 311$032 0 OMA MAUr N s1kymp Gas: 0.0% 1 WA ffAO C-P41 RAMrPW R PAID RES-PAID Eisebtt 16.0% GAS ELECTRIC WATERlSWER GAS ELECTRIC TOTAL Wow 25.5% SAVINGS BRVENGS SAVINGS f3AVt SAVIN SAVING REAM T aV1Nti� m }S I J K L«G+W+I+J+K Gee: 0.0% 2003 so $ 1093 ,131 FBI1,650 Eisokio: 46.6% 2004 so $14.325 $57:291 s0 5140,131 $211,763 2005 s0 $16,325 $59,548 so s140,131 $215, 5 Conatenption savings is a percent of batetate not total use. 2008 $0 $16,925 $61,572 $0 $140,131 $21$,429 3007 $0 $16,335 $64,451 $0 $140,131 $320,906 3008 s0 $14,325 $87029 $0 $140,131 1233,488 3009 $0 $16,325 $69,710 $0 $140,131 $226,147 2010 s0 $16.325 $72.495 $0 $140,131 $228;955 2011 $0 $16,325 $76,308 s0 $140,131 $231,585 2012 s0 $16,725 $78.414 $0 $1.00.131 $234,371 2013 s0 $18.325 $811651 so $140,131 $230,008 3014 s0 1is,333 $84,913 $0 5140.131 $241,210 2016 to $0 $0 so so $o 2016 so $0 s0 $4 $o $4 2017 $o $a 34 s0 so $o 195 W 862. 13 s0 1;68 ,5 11 705295 ADO-ON sU$9ft3 0987 % DEBT CGgANNISA Fat02:& dtALLOWAthfCS of Umm- PAYMENI M WAMIR ADJUSMIMr, SAMMOS SAVINGS m tY 0-1 Ps + ■ +N!L 2003 $195,612 $31,300 145:993 14MMY 961-0%, 154,431 2004 $149,412 $32,239 #17,246 $156,466 94.496 $11,9W 3006 $169,512 $33,206 159,186 $1540482 93.9% $13,217 2006 $164,912 $34,202 s6i,973 $164,397 97.3% $14,613 2007 $169,612 333.221 364,431 $156,457 92.1% $16,667 2008 1159;812 s36.245 $47.031/ $1841497 92.1% 517,3119 2009 $169,412 $37,374 $69,710 $186.467 91.6% $19,1#1 2010 1159,612 531,495 672.198 113$,457 90.9% $20440 2011 $169,612 $39,450 $15,391 $156,457 90.3% 5321593 22012 $169,612 340,434 $7#,414. si",457 89.8% $24,04 2013 $169,612 $42,065 11t,55I $156,487 $8.9% 526,331 2014 $189,5122 $43,327 114,613 $159,457 68.8% $31,331 2015 s0 10 so :$0 0.0% s0 2016 $0 so s0 $0 0.0% $4 2017 $0 $rl S0 0 0.091 54 44, $2.035,341 4211 153,913 11,87T,418 91.7% 1325,743 (1)Water savings cost per CCF based on weighted average will,of water for normal uses and Irrigation use at the Mae whams water-asvkhg measures are to be lrnpismsntad. 121 Water bels bit Includes only costs which ars Subject to orange N water Is conserved. Fixed saw charges are not Included: 131 HAOCC-gald gas and electric,Brae Uses include only those accounts for wAhtoh we hays received data to dais, Many accounts are missing from the data provided to CCS. Reatttant-pold gat 4lased on MACCC u84ty allowances In affect at time of suit CCS has not reviewed any actual resident gas accounts. 141 Electric unit cost is iter marginal k1A7tt out The average cost par kWh is higher for moat accounts. RosMent-paid gas rats is based on WACCC unit cost per tem k1 of d at time of audit APPENDIX E-1 CONTRACT COST,ANNUAL SERVICES, AND HOURLY RATES (a) The Housing Authority of the County of Centra 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 Cast is subject to change in accordance with the provisions of Section I I of the Agreement CONTRACT COST: $1,635,465 This cost is net of the estimated $225,673 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 III 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 Ci 'tens" and Subcontractor Ern to eesfor additional services): President $140 Vice 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 $60 Project Development Assistant $50 Energy Services Agreement 12/3/20{12 E-2 CHANGE ORDER FORM (Request&Agreement for change in Plans and/or Specifications and/or Contract) Change Request No. By HACCC: .Date: Department. Title: Project No. Contract No. Site: L REQUEST Description of change: 11. CI11.L,ENS' AGREiEME t For all costs involved in this change including extensions of time herein requested,CITIZENS proposes to perform the work described in accordance with the provisions of the subject Agreement and certifies that the attached cast data is accurate,complete and current,and mathematically correct. Payment shall be made on the basis of: { } (a) Predetermined lump sun total of (add) (deduct) $ ( ) (b) Bump sum "not-to-exceed" (add) (deduct) (Max,price based on contract or negotiated unit prices) ( ) (c) Time&Material Basis "not-to-exceed" (add) (deduct) (Computed in accordance with provisions of the Contract) Place an " " beside selected proposal method and strife out either(add)or(deduct) whichever does not apply. If necessary,attach detailed estimates and breakdown for above in accordance with change order instruction. A claim for work performed under protest 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 12/312602 11. _...... _........ ........ . 1.11.1 11 .. ........ .......... ........ ........... .... ....... .............. RACCC APPROVAL: Previous Additions $ Previous Deductions $ - Net Total $ Date: - - Title: This Change $ Total Energy Services Agreement 1219!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 HACCC and Citizens, as substantially complete and in good working condition, which are listed on Schedule F (1) hereto. HACCChereby 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. .Bate.Accepted by HACCC: Accepted for: HOUSING AUTHORITY OF THE CCJLTi.I'NTY OF CONTRA COSTA Accepted by: Name: Title: Note: Schedule F (1) setting f6rth the EOMs 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 $ Fate Accepted by Citizens: Accepted for: EUA Citizens Conservation Services, Inc. Accepted by: Name: Title: a °Wt ;01 44 W p g . °i _ _ __ 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 HOUSING 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-1 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 snake installment payments as specified in Exhibit to the Municipal Lease and Caption to Purchase Agreement executed by the HACCC on If, in a given year (every twelve consecutive months from the Municipal Lease iCommencement 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 terra 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-1 of the ESA and Exhibit_ to the Municipal Lease Agreement. In the event Appendix D-1, the Cash .Plow 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: Entergy Services Agreement Appendices :Page 2 December 9,2402 APPENDIX J NOTICE TO PROCEED [ON HACCC LETTERHEAD] Ms. Janice S. DeBarros Vice President . EUA Citizens Conservation Services,.Inc. 11 I Speen Street, Suite 410 Framingham, MA 0 1701 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 4 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: C APPENDIX L HUD APPROVAL LETTER. (To be Attached) [ON HACCC LETTERHEAD] This tetter would include request for Utility Allowance adjustments and, if necessary, an extension of Contract Term beyond 12 years. �3 v r r Y N ty l' Y u it WA v