Opening of Proposals - RFQ VPA Energy Savings Contract - Honeywell - Part 2

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the building in order to calibrate the simulation model. Energy usage for the Facilities for such Guarantee Year will be derived through the use of simulation programs. 3.3 RESERVED 3.4 Base Year Adjustments, Baseline Period shall be adjusted to reflect: changes in occupied square footage; changes in energy -consuming equipment, including any repairs or improvements made to the equipment as part of this Agreement; changes in the Facilities; changes in Energy Cost Avoidance Guarantee Practices adversely affecting energy consumption and/or demonstrated operational changes; changes in weather between the Baseline Period and the Guarantee Year; and documented or otherwise conclusively established metering errors for the Baseline Period and/or any Guarantee Year adversely affecting energy usage measurement. 3.4.1 Facility Operational Changes. Except in the case of emergencies, CITY agrees it will not, without the consent of an Authorized Representative of ESCO: make any significant deviations from the applicable Energy Cost Avoidance Guarantee Practices; put any system or item of equipment in a permanent "on" position, if the same would constitute a deviation from the applicable Energy Cost Avoidance Guarantee Practices; or assume manual control of any energy management system or item of equipment, if the same would constitute a deviation from the applicable Energy Cost Avoidance Guarantee Practices. 3.4.2 Hours and Practices. To achieve these energy savings, ESCO and CITY agree upon the operating practices listed herein. 3.4.3 Activities and Events Adversely Impacting Savin s. CITY shall promptly notify ESCO of any activities known to CITY which adversely impact ESCO's ability to realize the Guaranteed Savings and ESCO shall be entitled to reduce its Guaranteed Savings by the amount of any such adverse impact to the extent that such adverse impact is beyond ESCO's reasonable control. 3.4.3.1 If for any reason any facility and/or utility meter covered under this Agreement is materially unoccupied, closed, or discontinued, the CITY shall promptly notify ESCO within fifteen (1 S) days of this change. The savings will be deemed realized for such facilities or meters and the Guarantee will be adjusted accordingly. ESCO will provide written notice of such adjustment to the CITY. 3.5 Guarantee Adjustment. ESCO's Guaranteed Savings obligations under this Agreement are contingent upon: (1) CITY following the Energy Cost Avoidance Guarantee Practices set forth herein ; (2) no alterations or additions being made by CITY to any of the Covered Systems and Equipment without prior notice to and agreement by ESCO; (3) CITY sending all current utility bills to ESCO within two (2) weeks after receipt by CITY, if CITY fails to provide current utility bills for a period of time in excess of six (6) months ESCO will send CITY written notice that it must send ESCO copies of the utility bills and if CITY still fails to comply within thirty (30) days, ESCO may, at its sole discretion, deem the Guarantee Savings obligation met during that period and any successive periods, and (4) ESCO's ability to render services not being impaired by circumstances beyond its control. To the extent CITY defaults in or fails to perform fully any of its obligations under this Agreement, ESCO may, in its sole discretion, adjust its Guaranteed Savings obligation; provided, however, that no adjustment hereunder shall be effective unless ESCO has first provided CITY with written notice of CITY's default(s) or failure(s) to perform and CITY has failed to cure its default(s) or failure(s) to perform within thirty (30) days after the date of such notice. 4. EXTENT OF CONTRACTUAL GUARANTEE 4.1 Status of the ESCO Proposal. CITY's Request for Proposal, ESCO's proposal and any other documents submitted by ESCO to the City prior to negotiation of this Agreement are expressly excluded from and are not a part of this Agreement. The parties agree that although the ESCO Proposal may have contained scope items, guarantee savings and M&V options other than those stated in this Agreement and its Schedules were developed jointly by the parties through negotiation. The CITY has chosen to purchase the scope of work set forth in Schedule C Page 6