GESC for Olive WTP Solar Proj No 124-050 - Ameresco

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SECTION 4 Contract Cost; Mont hlv Progress Payments (a) Subject to the terms of this Agreement, Ameresco shall perform the Scope of Services at a contract cost of ONE MILLION SIX HUNDRED SIXTY ONE THOUSAND SIX HUNDRED TWENTY DOLLARS AND NO CENTS ($1,661,620.00) (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(11, 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. All amounts not paid to Ameresco on or before the due dates specified in Subsections 4(b) and, shall accrue interest at the interest rate prespecified in any Prompt Payment Act applicable to Customer or, if no such rate is specified, at the Prime rate of interest as published in the Wall Street Journal for major banks or such lower rate as is prescribed by applicable law. (f) Ameresco is not responsible for the cost impact of tariffs that are levied after the date of execution of this Agreement. If a tariff is established that impacts the cost of equipment purchased, Ameresco may request a change order to recover the additional cost of the tariff. SECTION 5 Term The term of this Agreement (the "Term"), shall begin on the date first above written and shall remain in effect through the "Guarantee Period' as such term is defined in Attachment C, unless terminated prior to such date, as provided for in this Agreement. Termination of this Agreement shall also terminate the Guarantee Period. Anything in this Agreement to the contrary notwithstanding, Customer shall not be relieved of its obligation to pay Ameresco when due all amounts which accrued prior to such termination. Confidential & Proprietary Information of Ameresco, Inc. Page 8 of 56