Construction Contract - LTCP WWTP Improvements Proj No. 121-071 – Bowen Engineering Corp.

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upon the Owner's Final Acceptance of the Project (as defined hereinafter).The wastewater savings and operational savings will be realized over a period of twenty (20) years following final installation of the Project, which term of years the Contractor represents is less than the average life of the Conservation Measures. The term of this Agreement shall extend for twenty (20) years effective with the Owner's acceptance of all Conservation Measures. 1.04 The Contractor guarantees that the Project will recover a total of $32,954,580 in wastewater and operational savings during the first twenty (20) years of operation, beginning on the first day of the month following completion and final acceptance by the Owner regarding the installation of the equipment provided under the Agreement. 1.05 If, at the end of any year during the guarantee period, the program has failed to achieve the annual guarantee of wastewater savings, Contractor will pay Owner the difference between the annual wastewater guarantee and the actual wastewater savings amount. 1.06 Wastewater savings that are achieved by the upgrades and the modifications in the Agreement prior to completion of the entire retrofit project (construction period savings) will be added to the first year actual annual wastewater savings amount. 1.07 Contractor and Owner also agree that if the actual annual wastewater savings amount exceeds the annual wastewater guarantee amount, such excess wastewater savings amounts will be added to the savings for any future year before calculating the savings amount. 1.08 This guarantee, whether or not exercised, is Contractor's sole liability with respect to any claim of wastewater savings. 1.09 As part of the Savings Guarantee, Contractor agrees to complete the annual report, required to be filed with the Indiana Department of Local Government Finance (see example Exhibit D). 1.10 The savings are calculated using Microsoft Excel spreadsheets. All assumptions, variables, and equations are shown on each page. The total annual savings, including wastewater and operational, are stipulated between the Owner and Contractor in the Agreement. Stipulated savings are savings that are agreed to be satisfied throughout the term of this performance guarantee. Any changes to the operation of the equipment or systems can be accounted for through calculation and the annual savings adjusted accordingly. Table 1, Table 2, Table 3, and Table 4; included as Exhibit C; summarize the guaranteed annual savings from the calculations. This saving guarantee is dependent upon these conditions being met. 1.11 Any shortfall payments between the Owner and Contractor shall be made within 90 days of the end of each annual period. ARTICLE 3 - ENGINEER 3.01 The Owner has retained American Structurepoint ("Engineer") for the CSO 045 Basin improvements and Arcadis ("Engineer") for the Final Clarifiers 1-3 Rehabilitation -Peripheral Feed EJCD0 C-525, Agreement between Owner and Contractor for Construction Contract (Cost -Plus -Fee). Copyright° 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 of 9