Resolution No 35-2021 - Ameresco Inc. Qualified Provider Approval Guaranteed Energy Savings Contract Morris

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Confidential & Proprietary Information of Ameresco, Inc. Page 8 of 54 and terminated, in each case without further action on any Party’s part. SECTION 3 Financing and Ability to Pay (a)By its execution of this Agreement, Customer hereby represents and warrants to Ameresco that Customer has adequate funds for payment of the Contract Cost, and for any portions which Customer may need to borrow, Customer intends to enter into a separate financing through a bond issuance, lease purchase, or similar structure (“Financing ”) with a third party finance company or other third party entity. (b)Customer agrees and acknowledges that its obligation to make the payments to Ameresco set forth in this Agreement are in no way contingent on the effectiveness of the Financing. However, Ameresco acknowledges that under Indiana law, all payments to Ameresco are subject to annual appropriation by the South Bend Common Council, the fiscal body for the City of South Bend, Indiana. SECTION 4 Contract Cost; Monthly Progress Payments (a)Subject to the terms of this Agreement, Ameresco shall perform the Scope of Services at a contract cost of FIVE MILLION THREE HUNDRED SIXTY-ONE THOUSAND AND 00/100 DOLLARS ($5,361,000.00) (subject to adjustment as provided in Section 8, the “Contract Cost”). (b)Upon execution of this Agreement and delivery by Customer to Ameresco of the Notice to Proceed, substantially in the form attached to this Agreement as Attachment E, Customer shall pay Ameresco ten percent (10%) of the Contract Cost for mobilization. Thereafter, Ameresco shall submit invoices to Customer for monthly progress payments to Ameresco based upon the percentage of the Project construction and equipment procurement completed at the end of each month, so that Ameresco is paid the percentage of the Contract Cost that is commensurate with the percentage of completion of the Scope of Services. A Percent Complete Acknowledgement Certificate in the form attached hereto as Attachment D (2) will be executed by Customer during each month of the construction period showing the percent complete and monthly payment due. Customer shall make payment to Ameresco, within thirty (30) days after the submission of each such invoice. Customer shall not unreasonably withhold, condition or delay the execution and delivery of any Percent Complete Acknowledgement Certificate. (c)Upon Substantial Completion of the installation of an ECM, Ameresco will deliver to Customer a Substantial Completion Certificate in the form of Attachment D (3). Within five (5) calendar days after receipt of each Substantial Completion Certificate, Customer shall complete, execute and deliver to Ameresco each such Substantial Completion Certificate. As used in this Agreement the term “Substantial Completion” shall mean that each subject ECM has been installed by Ameresco, and, if such ECM is equipment, such equipment is then operating in a manner such that Customer is deriving beneficial use thereof. A Delivery and Acceptance Certificate, in the form of Attachment D(1), shall be executed by Customer upon Substantial Completion of the installation of the final ECM. Customer shall not unreasonably withhold, condition or delay the execution and delivery of any Substantial Completion Certificate or the Delivery and Acceptance Certificate. (d)Within thirty (30) calendar days following the first day of each Guarantee Year, as such term is defined in Section 6, Customer shall pay Ameresco the additional amounts set forth on Attachment I, Measurement and Verification Fee Schedule, as an annual fee for the M&V Services. (e)All payments made by Customer under this Agreement shall be made in accordance with the provisions of any Prompt Payment Act applicable to Customer, and subject further to the South Bend Common Council’s annual appropriation as required by Indiana law . All