03-23-15 Agenda. Packet & Committee Meeting Notice

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Shall endeavor to agree upon any mew EMS to he installed and may either amend this Agreement or enter into a new agreement for the installation, financing and commissioning of any such new 1 C1\ls. Nothing in this par>grtph shall obligate either pare to proceed with installation of any ECM., which are not put of the original Scope of Services or evidenced by execution of a Change Order. (b) Should Ameresco encounter Subsurface or hitelit physical conditions at the Site which duffel' materially from those indicated in the project documents or from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, Ameresco shall give written notice to the Customer before ash}' such condition is disturbed or further disturbed. 'llhe Customer will promptly investigate and, if it is determined that the conditions materially differ from those which Ameresco should reasonably have been expected to discover or anticipate, the Customer shall either (a) approve Such chaugcs in the Scope of Seizrices as arc necessarv, \cirh a corresponding adjustment in the Annual Guaranteed Savings Amount: or (b) abandon the Project and terminate this .Agreement, prodded that Costnner has paid to Ameresco Al au aunts title as set forth in Section =1 (including, without limitation, pro -rota portions thereof accnied under Sections 4(b), fd) and Attachment I and pursuant to any Change Order.) I f Such differing conditions cause an increase or decrease in ,Auuresco's cost or time of performance, and the parties agree upon a change in the Scope of Services, the parties shall negotiate ap equitable adjustment to Amcresco's cost and /or time for performance, as the case may be and a Change Order, Subject to approval by Customer's Board of Public Works, shall be issued and executed by the Customer to reflect such adltlStnent(s). (C) if at any time prior to Substantial Completion of an FCNI, Ameresco determines that an F'ChI is not conunercialh viable, Anheresco mav, at its option, remove Such BC \I from the Scope of Services and from the Property. In such event, ,Ameresco shall refund to Customer the portion of the Contract Cost attributable to Such ECM and the ,Annual Guaranteed Savings Amount will be reduced by an amount equal to the portion of the Annual Guaranteed Savings :Amount attributable to Such EC;\I. (d) If Anuresco and the Customer agree to am adjustment of the Contract Cost and the contract Schedule established for the Scope of Services, Such an agreement shall be effective immediately upon execution of a Change Order. SECTION 9 Warranties Anicresco herebw agrees as follows: (a) Auhcreseo warrants that the Work and all materials and equipment to be installed in the Project Shill he free from defects, in materials and workmanship arising from momal usage on an ECAI by F.CNI basis for a period of one (1) }ear from the (late of Substantial Completion of such I?CBI. .Amy manufacturers' warranties which exceed this one (1) year period Shall be assigned to Customer to the extent allowed by the manufacturer. This section does not apply in Inv wu to the Savings Guarantee. (b) FXCICPT AS PROVIDED IN THIS STC -11ON 9, AI\B -,Rl SCO 1\I.AKfiS NO WARRANTllSS OR IW)R1iSE.N'1 A'I'IONS OF ANY KIND, W141" HF.It STATUPORY, MUTFEN, OILAI, OR INWLIED, INCLUDING WITI POUT LIAIIT.ATION, AC ARR:ANTIHS AS TO THE A'ALU ', DISIGN,:AND CONDi17ON OR FITNESS FOR USI: OR PARTICULAR PURPOSE AND AIE1tCHAN1'ABILITY, REGARDING THE 10