04-13-15 Agenda, Packet & Committee Meeting Notice

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shall endeavor to agree upon any new 9:CNds to be installed and may either amend this Agreement or enter into a new agreement for the installation, financing and commissioning of any such new 6CNIs. Nothing in this paragraph shall obligate either part) to proceed with installation of amv ECMs which are not part of the original Scope of Services or evidenced by execution of a Change Order. (b) Should Ameresco encounter subsurface or latent }physical conditions at the site which differ materially from those indicated in the project documents or from those ordinarily encountered and generally recognized as inherent ill work of the character provided for in this Agreement, Ameresco shall give written notice to the Customer before ani such condition is disturbed or further disturbed. "Ilse Customer will promptly investigate and, if it is determined that the conditions materially differ from those which Ameresco should reasonable have been expected to discover or anticipate, the Customer shall either (a) approve such change; ill the Scope of Services as are necessary, with a corresponding adjustment in the Annual Guaranteed Savings Amount: or pi) abandon the Project and ternunate this Agreement, provided that Customer has paid to Ameresco all amounts duc as set forth in Section 4 (including, without lithlitation, pro -rata portions thereof accrued under Sectiols 4(b)4 b), "and Attachment I and pursuant to any Change Order.) If such differing conditions cause an increase or decrease in Atleresco's cost or time of performance, and the parties agree upon a change in the Scope of Services, the parties shall negotiate an equitable adjustment to Ameresco's cost alnd /or time for performance, as the case m)sy be and a Change Order, subject to approval bm Customer's Bond of Public Works, shall be issued and executed by the Customer to reflect such adjust)ncnt(s). (c) If at any time prior to Substantial Completion of an I Ml, Amcreseo determines that an P.CNI is not covumercialll viable, Ameresco mat•, at its option, remove such I-- -C M from) the Scope of Services and from the Properry. In such event, Ameresco shall refund to Customer the portion of the Contract Cost attributable to such P.CNI and the Annual Guaranteed Savings Amount will be reduced b) an amount equal to the portion of the Annual Guaranteed Savings Amount attributable to such ECM. (d) If Ameresco and the Customer agree to an 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 Anmeresco hereby agrees as follows: (n) Ameresco warrants that the \York and all materials and equipment to be installed ill the Project shall be fire from defects in materials and workmanship arising from normal usage on an by hCNI basis for a period of one (1) scar from the date of Substantial Completion of such IiCNL ally Manufacturers' warranties which exceed this one (1) year period shall be assigned to Customer to the extent allowed by the manufacturer. 'l liis section does not apply ill aliv wav to the SaCrngS Guarantee. (b) I- XCICPT AS PROVIDED IN 7'14TS SECTION 9, ANIERL•SCO \IAKFiS No V \RRANTIL:S OR RJiTRI:SE 1 ATIONS OF ANY KIND, \ \'T IJi I1 R S'1':1'1'l "I'OR1', MUTIEN, ORAL OR IMPLIED, INCLUDING WITIIOUT LIMITATION, WARRANTII S AS TO'1•H6 VALUE, DESIGN, AND CONDITION Olt FFINI ?SS FOR USE OR PARTICULAR PURPOSI? AND N113KCHANIABILITY, REGARDING 7'IIL H