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

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SECTION 6 Savings Guarantee To the extent set forth in Attachment C. and solely in accordance with this Section 6 and Attachment C, Ameresco guarantees that the "Annual Savings" (as defined below) to be achieved as a result of installation and operation of the ECMs shall equal or exceed the Guaranteed Savings (as defined in Attachment C) over the "Guarantee Period' (as defined in Attachment C). For purposes of this Savings Guarantee, the following assumptions and provisions shall apply: (a) Ameresco guarantees that the Guaranteed Savings will be achieved by operation and beneficial use of all ECMs taken in the aggregate, but does not guarantee the savings amount achieved by each ECM individually. (b) The total savings achieved by the combined ECMs, determined as provided in the M&V Plan, shall be deemed the total "Annual Savings". Calculation of the Annual Savings shall be performed under, and governed by, the methods, formulas, and procedures described in the Measurement and Verification Plan set forth in Attachment G (the "M&VPlan"). (c) As it relates to the Annual Savings and this Savings Guarantee, the term "Guarantee Year'' shall mean the consecutive twelve (12) month period beginning with the first day of the month following the date of Substantial Completion of the ECMs, and each similar twelve (12) month period thereafter. (d) Ameresco's obligations in respect of this Savings Guarantee are subject to Customer performing all of its maintenance, repair, service and other obligations under this Agreement, including, without limitation, performance of its obligations in Section 10 and maintenance of the Standards of Service and Comfort set forth in Attachment 1, if any, which may affect achievement of the Guaranteed Savings. If Customer fails to perform its obligations under this Agreement or interferes with, or permits any third party to take any action which, in the reasonable opinion of Ameresco, may prevent the achievement of the Guaranteed Savings under this Agreement, Ameresco may, after providing Customer thirty (30) days advance notice, adjust the Annual Savings amount during the period in which such savings were affected to reflect the impact such actions had on same. Ameresco's rights set forth herein shall not be in limitation of any other rights it is entitled to by law or under this Agreement. Any disputes regarding achievement of Guaranteed Savings or any M&V Report delivered pursuant to Attachment G shall be resolved in accordance with the dispute resolution provisions of Section 13. SECTION 7 Right of Entry/Space During the Term of this Agreement, Customer shall provide Ameresco and its employees, agents and subcontractors access to the Property for the purpose of fulfilling Ameresco's obligations under this Agreement. Customer shall provide rent free space for the installation and operation of the ECM(s) and shall protect such items and equipment in the same careful manner that Customer protects the Property. SECTION 8 Changes in Services (a) The Scope of Services may be changed only by agreement of the Parties evidenced by execution of a "Change Order'' substantially in the form attached to this Agreement as Attachment F, including the quantity, quality, dimensions, type or other characteristics of the ECMs. During the Term hereof, either Customer or Ameresco may suggest that other energy efficiency measures and facilities be added to the Scope of Services, in which case the Parties shall endeavor to agree upon any new ECMs to be installed and may either amend this Agreement or execute a Change Order for the installation, financing and commissioning of any such new ECMs. Nothing in this paragraph shall obligate either Confidential & Proprietary Information of Ameresco, Inc. Page 9 of 56