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HomeMy WebLinkAboutAuthorizing and Approving the Execution Traffice Signals - LEDRES4LUT14N 3762-07 Passed by the Common Council of the City of South Bend, Indiana June 25, 20 07 Attest: City Clerk President of Common Council Presented by me to the Mayor of the City of South Bend, Indiana June 26, 20 07 Approved and signed by me ~ i ~ ~ n P ~ z, 20 ~ ~ ~~-' city clerk ~Ya RESOLUTION NO. 3 ~ ~ ZJ ~ A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA AUTHORIZING AND APPROVING THE EXECUTION OF A GUARANTEED ENERGY SAVINGS CONTRACT FOR TRAFFIC SIGNALS WITH JOHNSON CONTROLS, INC. WHEREAS, on February 12, 2007, the Common Council of the City of South Bend ("Council") adopted its Resolution No. 3705-07 thereby appointing the Board of Works ("Board") and the Department of Public Works of the City of South Bend ("Department") as authorized agents of the Council for purposes of meeting the provisions required by IC 36-1-12.5 and other Indiana laws leading up to the final review of and the execution by the Council of a Guaranteed Energy Savings Contract for the use of LED technology in mechanized traffic signals; and WHEREAS, on June 11, 2007, the Board adopted its Resolution No. 22-2007 confirming the Board's compliance with IC 36-1-12 and further making its advisory recommendation to the Common Council of the City of South Bend, Indiana of the approval of a Guaranteed Energy Savings Contract for traffic signals with Johnson Controls, Inc.; and WHEREAS, on June 11, 2007, the Council adopted its Resolution No. 3758-07 thereby accepting the Board's advisory recommendation, ratifying, confirming and approving certain actions taken by the Board, and approved the execution of a Guaranteed Energy Savings Contract for traffic signals with Johnson Controls, Inc. with such changes as suggested by legal counsel; and WHEREAS, pursuant to the authority granted by the aforementioned resolutions of the Board and the Council, the Board's legal counsel has completed negotiations with representatives of Johnson Control's, Inc. and has recommended the changes which have been incorporated in the final form of agreement that is attached hereto and incorporated herein as Exhibit I ("Contract"); and WHEREAS, the Council's attorney has reviewed the Contract and recommends approval of the changes which have been negotiated on the Council's behalf; and 1 *. *\Resolution\SBCCouncil2_Energys avings-LEDSignals_JohnsonControls.doc WHEREAS, the Contract has been reviewed by the Council's Public Works and Property Vacation Committee which has given the Contract a favorable recommendation to the full Council. NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, that: Section 1. The Common Council of the City of South Bend hereby accepts the favorable recommendation of the Public Works and Property Vacation Committee that the Council approve and execute the Energy Savings Contract with Johnson Controls, Inc., the final form of which is attached hereto as Exhibit 1. Section 2. The Common Council of the City of South Bend hereby finds that the Contract as described in this Resolution and as presented at this meeting in the best interests of the City of South Bend. Section 3. The Common Council of the City of South Bend hereby authorizes President to sign and the City Clerk to attest to the execution of the documents as described in this Resolution and as presented at this meeting. Section 4. The Common Council of the City of South Bend hereby reaffirms its direction to Board of Public Works that, upon approval and execution of the Energy Savings Contract by the Council, staff members of the Department of Public Works shall supervise all work done incidental to the Guaranteed Savings Contract concerning traffic signals, including the authorization change orders, and continued compliance Indiana law. Section 5. The Common Council of the City of South Bend hereby ratifies, confirms and approves the actions taken by the Board of Public Works, its legal counsel and the Department of Public Works of the City of South Bend on behalf of the Common Council in the negotiation and in the implementation of the Contract. Section 6. This Resolution shall be in full force and effect from and after its adoption by the Common Council and approval by the Mayor. Adopted this~S~hday of ~ ~ tee- , 2007. Member, o Bend Common Council PRESENTED ~ "Z s -" NOT APPROVEt 2 ~,DOPTEI~ ~o-ZS'O~ *.*\Resolution\SBCCouncil2_Energys avings-LEDSignals_JohnsonControls.doc Filed In Clerk's Office JUN 2 0 2007 JOHN VOORDE CITY CLERK, S0. BEND, IN. 1316 COUNTY-CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 PHONE 574/235-9251 F,ix 574/ 235-9171 TDD 574/ 235-5567 CITY OF SOUTH BEND STEPHEN J. LUECKE, MAYOR DEPARTMENT OF PUBLIC WORKS G~xY A. GILOT, P.E. DIRECTOR OF PUBLIC WORKS June 20, 2007 Mr. Timothy Rouse President, South Bend Common Council 435 County-City Building South Bend, Indiana 46601 RE: A Resolution Of The Common Council Of The City Of South Bend, Indiana Authorizing And Approving The Execution Of A Guaranteed Energy Savings Contract For Traffic Signals With Johnson Controls, Inc. Dear Council President Rouse: Attached for filing please find the above-referenced resolution to be considered by the Common Council at its June 25, 2007 meeting. This Resolution approves the final form of energy savings contract that has been negotiated on the Council's behalf with Johnson Controls, Inc. By state law governing energy savings contracts, the Council is the ultimate contracting authority. As previously requested by the Council, The Board of Public Works and the Department of Public Works will supervise the work done incidental to the contract. I will be present on June 25`h at the Committee and regular Common Council meeting to present briefly and answer any questions. Your favorable consideration is requested. Please do not hesitate to contact me if you need additional information. Sincerely, ~~! ~~ v ~~~~ Gary A. Gilot, P.E. Public Works Director City of South Bend, Indiana cc: Mayor Stephen J. Luecke ENGINEERING ENVIRONMENTAL SERVICES CENTRAL SERVICES CARL LITTRELL, P.E. JOHN J. DILLON, PH.D. MATT CHLEBOWSKI 574/235-9251 574/277-8515 574/235-9316 FAx 574/235-9171 FAx 574/277-8980 FAx 574/235-9007 STREETS SAM HENSLEY 574/235-9244 FAx 574/235-9272 d t~ C9 r~ c~ o ~~ N [ws ~~ ~, ~ m ~s o 4 c; ~ 4I C'~! -,. •,,: ~ ~ . ~ ~ .. ~ ~ a3 v i~: WATERWORKS ~~~ joHN F. STANCATI ti • 574/235-9322 '~ FAx 574/235-9728 PERFORMANCE CONTRACT PARTIES: JOHNSON CONTROLS, INC. (JCI) 1255 N. Senate Ave Indianapolis, IN 46202-2200 COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA (SOUTH BEND) 227 West Jefferson Blvd. Suite 1300 South Bend, IN 46601 AGREEMENT DOCUMENTS: In addition to the terms and conditions of this Performance Contract, incorporated into this Agreement are the following (check as applicable). ® Schedule 1--Scope of Work Schedule ® Schedule 2--Assured Performance Guarantee Schedule ^ Schedule 3--Services Schedule ^ Schedule 3 -Exhibit 1 ® Schedule 4-Price and Payment Terms Schedule ^ Schedule 4a--Cash Payment Schedule OR ^ Schedule 4b--Lease/Purchase Schedule WHEREAS, the Common Council of the City of South Bend, Indiana ("Council") is the legislative body of the City of South Bend, Indiana and pursuant to I.C. 36-1-12.5-1.5(5) is deemed to be its "governing body" with the authority to enter into a "guaranteed savings contract" as defined by IC 36-1-12.5-2; and WHEREAS, South Bend desires to enter into a Guaranteed Savings Contract with JCI in accordance with and under the authority of I.C. 36-1-12.5 et seq.; and WHEREAS, JCI is a "qualified provider" as defined by I.C. 36-1-12.5-3 with experience and expertise in the design, implementation and installation of energy conservation measures; and WHEREAS, South Bend has determined that due to JCI's experience and expertise, it is in the best interests of South Bend to retain JCI; and WHEREAS, JCI desires to enter into a Guaranteed Savings Contract with South Bend under the terms and conditions set forth in this agreement; and WHEREAS, pursuant to its Resolution No. 3705-07 adopted on February 12, 2007, the Council has authorized and directed the City's Department of Public Works to supervise all work done incidental to the Guaranteed Savings Contract, including the power to authorize change orders as provided by I.C. 36-7-12; and NOW THEREFORE, for and in consideration of the mutual covenants and promises contained herein, South Bend and JCI hereby agree as follows: 1. SCOPE OF THE AGREEMENT. JCI agrees to install identifiable improvement measures as delineated in Scope of Work Schedule (Schedule 1) which will result in Project Benefits as set forth in the Assured Performance Guarantee (Schedule 2). After installation of the improvement measures, JCI agrees to provide the services identified in Services Schedule (Schedule 3), that include services that are necessary to monitor, measure, and achieve the identified Project Benefits, subject to the terms of the Assured Performance Guarantee (Schedule 2). South Bend agrees to take all actions identified in this Agreement that are necessary to achieve the Project Benefits identified. JCI shall supervise and direct the Work and Services and shall be solely responsible for all construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work and Services under this Agreement. JCI shall be responsible to pay for all labor, materials, equipment, tools, construction equipment and machinery, transportation, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work and ServlCes. South Bend's payments to JCI and its interest in the Equipment will be based upon the terms of Schedule 4. Page 1 of 20 Performance Contract (Rev 14) SB LED Contract_15June 2007_FINAL(ver7) EXHIBIT 1 2. TERM.. The Term of this Agreement shall begin on the Commencement Date, which shall be July 7, 2007 or, if no date is included, the date of this Agreement. If the Work is divided into phases or individual projects for which individual prices have been negotiated, then separate Commencement Dates shall apply to each phase or individual project. The Work shall be completed by the Substantial Completion Date, which shall be the earlier of: (a) the date on which South Bend executes a Certificate of Substantial Completion; or (b) 270 days after the Commencement Date, subject to adjustments as set forth in Paragraph 3 below. If the Work is divided into phases or individual projects for which individual prices have been negotiated, then separate Substantial Completion Dates shall apply to each phase or individual project. Substantial Completion means that JCI has provided sufficient materials and services to permit South Bend to operate the Equipment or achieve the intended Project Benefits. The Services shall commence on the Substantial Completion Date and shall continue for 120 months. The term of the Assured Performance Guarantee (see Schedule 2) shall coincide with the term of the Services Schedule (see Schedule 3). If for any reason, South Bend cancels or breaches this Agreement, including but not limited to the Service Schedule, the Assured Performance Guarantee shall automatically terminate. The Payment Term shall be defined in Price and Payment Term Schedule (Schedule 4). 3. DELAYS. If JCI is delayed in the commencement or completion of the Work and/or Services by causes beyond its control and without its fault or negligence, including but not limited to inability to access property, fire, flood, labor disputes, unusual delays in deliveries, abnormal adverse weather conditions, acts of God, acts of war and acts of terrorism or by failure by South Bend to perform its obligations under the Performance Contract and Schedules or failure by South Bend to cooperate with JCI in the timely completion of the Work, then JCI shall provide written notice to South Bend of the existence, extent of, and reason for such delays. An equitable adjustment in Substantial Compietion Date, Payment Terms and Assured Performance Guarantee shall be made as a result. ACCESS. South Bend is responsible to provide JCI, its subcontractors and/or its agents reasonable and safe access to all facilities and properties that-are in South Bend's control which are subject to the Work and Services contained in this Agreement. South Bend further agrees to assist JCI, its subcontractors and/or its agents to gain access to facilities and properties that are not controlled by South Bend which are subject to the Work and Services contained in this Agreement. An equitable adjustment in Substantial Completion Date, Payment Terms and Assured Performance Guarantee shall be made as a result of any failure to grant such access. 4. CERTIFICATE OF SUBSTANTIAL COMPLETION. The Certificate of Substantial Completion to be executed by South Bend shall include: a. an acknowledgement by South Bend of the buildings or Improvement Measures substantially completed and the Substantial Completion Date for each building or Improvement Measure; b. an acknowledgment by South Bend of receipt of manuals and training provided by JCI under the Agreement; c. an acknowledgement by South Bend of the warranty start date and warranty period; d. a punchlist of items remaining to be completed by JCI and, e. an acknowledgement by South Bend that (i) changes of frre or alarm control points may significantly alter a life safety system, and contribute to a dangerous or life-threatening situation. (ii) changes to fire or alarm points may also require approval of local fire authority; changes to other control points may be linked to the life safety system and affect it; and after each such change, the life safety system should be exercised to see that its integrity has not been violated and it functions properly, as was intended. (iii) JCI does not warrant against system malfunction caused by improper use, misuse or wrong entry of data by South Bend, and JCI shall not be liable for situations or damages that are the direct result of user-generated databases. 5. TAXES, PERMITS, AND FEES. JCI shall be responsible for obtaining all permits and related permit fees associated with the Work and Services. JCI shall pay sales, consumer, use, and other similar taxes and shall secure and pay for Page 2 of 20 Performance Contract (Rev 14) S8 LED Contract_15June 2007_FINAL(ver7) the building permit and other permits and governmental fees, licenses, and inspections necessary for proper execution. South Bend shall be responsible for securing any necessary approvals, easements, assessments, or zoning changes and shall be responsible for real estate and personal property taxes where applicable. JCI makes no representations regarding the tax implications or South Bend's accounting treatment of this Agreement. 6. WARRANTY. JCI warrants that materials and equipment furnished by JCI will be of good quality and new; that the Work will be free from defects not inherent in the quality required or permitted; and that the Work and Services will conform to the requirements of the Agreement Documents. JCI warrants that the Work shall be free from defects in material and workmanship arising from normal usage for a period of one year from the Substantial Completion Date and that its Services will be free from defects in workmanship, design, and material until the end of the Term, or for one year, whichever is earlier. Upon written notice from South Bend, JCI shall, at its option, repair or replace the defective Work or re-perform defective Services. These warranties do not extend to any Work or Services that have been abused, altered, misused, or repaired by South Bend or third parties without the supervision of and prior written approval of JCI; or if JCI serial numbers or warranty date decals have been removed or altered. South Bend must promptly report any failure of the Equipment to JCI in writing. All replaced Equipment or parts become JCI's property. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE. South Bend understands that JCI is a provider of services under this Agreement. JCI shall not be considered a merchant or a vendor of goods. If JCI installs or furnishes a piece of equipment under this Agreement, and that equipment is covered by a warranty from the manufacturer, JCI will transfer the benefits of that manufacturer's warranty to South Bend if this Agreement with South Bend terminates before the equipment manufacturer's warranty expires. 7. CLEANUP. JCI shall keep the premises and the surrounding area free from accumulation of waste materials or rubbish caused by the Work and, upon completion of the Work, JCI shall remove all waste materials, rubbish, tools, construction equipment, machinery, and surplus materials. 8. SAFETY. JCI shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Work or Services. JCI shall comply with all applicable laws, ordinances, rules, regulations, and lawful orders of public authorities related to safety of persons or property. HAZARDOUS MATERIALS. Unless specifically noted in Schedule 1, JCI's obligations expressly exclude any Work or Services of any nature associated or connected with the identification, abatement, cleanup, control, removal, or disposal of hazardous materials or substances, including but not limited to asbestos, lead or PCBs, in or on the premises in which JCI will be required to perform Work. South Bend warrants and represents that, to the best of South Bend's knowledge, there is no asbestos or other hazardous materials in South Bend's building(s) or other premises in which JCI will be required to perform Work that will in any way affect JCI's Work. Should JCI become aware of or suspect the presence of asbestos or other hazardous materials, JCI shall have the right to stop work in the affected area immediately and notify South Bend. South Bend will be responsible for doing whatever is necessary to correct the condition in accordance with all applicable statutes and regulations. South Bend agrees to assume responsibility for any claims arising out of or relating to the presence of asbestos or other hazardous materials in South Bend's buildings or any premises in which JCI will be required to perform Work. 10. INSURANCE. Prior to commencing the Work, JCI shall provide a certificate of insurance with Contractor showing its insurance coverage's, and JCI shall maintain such insurance in full force and effect at all times until the Work and Services have been completed, in the following minimum amounts: COVERAGES Workmen's Compensation Insurance or self insurance, including Employer's Liability Comprehensive General Liability Insurance, including Contractual. Comprehensive Automobile Liability Insurance LIMITS OF LIABILITY Statutory $5,000,000 One Occurrence $5,000,000 Each Aggregate $5,000,000 Combined Single Limit Page 3 of 20 Pertormance Contract (Rev 14) SB LED Contract_15June 2007_FINAL(ver7) The above limits are obtained through primary and excess policies. The City of South Bend, Indiana is a municipal corporation that is self-insured under provisions of Indiana statutes and local ordinance. Specifically, 'the City of South Bend is covered by anon-reverting insurance premium and liability reserve fund created by the City of South Bend, Ordinance #6657-79, pursuant to I.C. 34-13-3-4, as amended from time to time. 11. INDEMNITY. South Bend assumes all risk and liability for the use, operation, and storage of the Equipment, and for injuries or death to persons or damage to property arising out of the use, operation, or storage of the Equipment, except for any injuries or death to persons or damage to property caused by the negligence of JCI, it employees, agents or assigns. South Bend shall indemnify and hold harmless JCI, its employees, agents, and assigns from and against all claims, actions, damages, liabilities, and expenses, including attorney's fees, arising out of or related to this Agreement, except for injuries or death to persons or damage to property caused by the negligence of JCI, its employees, agents or assigns. JCI shall indemnify and hold harmless South Bend, its employees, agents, and assigns against all claims, actions, damages, liabilities, and expenses, including attorney's fees, arising out of or related to any claims of patent infringement and any claims of construction or materialman's lien made by any subcontractor or materialman. JCI and South Bend agree that JCl shall be responsible only for such injury, loss, or damage caused by the intentional misconduct or the negligence act or omission of JCI. The obligations of JCI and of South Bend under this paragraph are further subject to paragraph 12 below. 12. LIABILITY AND FORCE MAJEURE. JCI shall not be liable under this Agreement in an amount in excess of its primary general comprehensive policy limits. Neither JCI nor South Bend will be responsible to the other for any special, indirect, or consequential damages arising in any manner from the Work or Services. Neither party will be responsible to the other for damages, loss, injury, or delay caused by conditions that are beyond the reasonable control, and without the intentional misconduct or negligence, of that party. Such conditions include, but are not limited to: acts of God; acts of Government agencies; strikes; labor disputes; fire; explosions or other casualties; thefts; vandalism; riots or war; acts of terrorism; or unavailability of parts, materials or supplies. If this Agreement covers fire safety or security equipment, South Bend understands that JCI is not an insurer regarding those services. JCI shall not be responsible for any damage or loss that may result from fire safety or security equipment that fails to perform properly or fails to prevent a casualty loss. JCI is also not responsible for any injury, loss, or damage caused by equipment that is not Covered Equipment, as defined in Schedule 3. 13. JCI'S PROPERTY. All materials furnished by and used by JCI personnel and/or JCI authorized subcontractors or agents at the installation site, including documentation, schematics, test equipment, software, and associated media remain the exclusive property of JCI. South Bend agrees not to use such materials for any purpose at any time. South Bend agrees to allow JCI personnel and/or JCI authorized subcontractors or agents to retrieve and to remove all such materials remaining after installation or maintenance operations have been completed. South Bend acknowledges that all JCI software included is proprietary and will be delivered only under the provisions of an appropriate Software License Agreement that will limit its use to the system purchased under this Agreement. 14. DISPUTES. If a dispute arises under this Agreement, the parties shall promptly attempt in good faith to resolve the dispute by negotiation. Any claim, dispute or other matter in question arising out of or related to this Agreement not resolved by negotiation shall be subject to mediation as a condition precedent to the institution of legal or equitable proceedings by either party. The party requesting mediation shall submit a written request to the other party and such request shall be submitted not less than sixty (60) days prior to any filing of legal or equitable proceedings. The parties shall share the mediator's fee equally and any filing fees equally. The mediation shall take place in a mutually agreed upon location. Agreements reached in mediation shall be enforceable as settlement agreements in any court of competent jurisdiction. 15. MODIFICATIONS. Additions, deletions, and modifications to this Agreement may be made upon the mutual agreement of the parties in writing. The parties contemplate that such modifications may include but are not limited to the installation of additional improvement measures, energy conservation measures, facility improvement measures, and operational efficiency improvements or furnishing of additional services within the identified facilities, as well as other facilities owned or operated by South Bend. These modifications may take the form of additional phases of work or modifications to the original scope of Work or Services. 16. NOTICES. All notices or communications related to this Agreement shall be in writing and shall be deemed served if and when sent by by certified or registered mail to JCI at the address listed on page 1 of this Performance Contract Page 4 of 20 Performance Contract (Rev 14) SB LED Contract 15June 2007_FINAL(ver7) and to JCI, ATTN: General Counsel -Controls, 507 East Michigan Street, Milwaukee, Wisconsin, 53202, and to South Bend at the address listed on page 1 of this Performance Contract with copies to (i} its City Clerk at the address listed on page 1 of this Performance Contract; (ii) the City Attorney, City of South Bend Department of Law, 227 West Jefferson, 1400 County-City Building, South Bend, Indiana 46601; and (iii) the City of South Bend Board of Public Works, 227 West Jefferson, 1300 County-City Building, South Bend, Indiana 46601. 17. ADDITIONAL TERMS. A. Any failure of JCI to require strict performance by South Bend, or any waiver by JCI of any requirement under this Agreement, does not consent to or waive any subsequent failure or breach by South Bend. B. If any provision of this Agreement is invalid under any applicable law, that provision shall not apply, but the remaining provisions shall apply as written. ' C. The captions and titles in this Agreement are for convenience only and shall not affect the interpretation or meaning of this Agreement. D. This Agreement is the full Agreement between JCI and South Bend as of the date it is signed. AA previous conversations, correspondence, agreements, or representations related to this Agreement (including any Project Development Agreement) are not part of the Agreement between JCI and South Bend and are superceded by this Agreement. E. This Agreement shall be construed in accordance with the laws of the state of Indiana. F. In accordance with I.C. 36-1-12.5-5(d)(4), payments by South Bend are subject to annual appropriation by its fiscal .body and do not constitute an indebtedness of the City of South Bend within the meaning of a constitutional or statutory debt limitation. G. In accordance with I.C. 36-1-12.5-5(e), this Agreement is subject to I.C. 5-16-7, as amended from time-to-time, which governs the wage scale of contractors' and subcontractors' employees. H. The undersigned persons executing and delivering this Agreement on behalf of the respective parties represent and certify that they are empowered by proper resolution of the Board of Director or governing body to execute and deliver this Agreement and that all necessary corporate action has been taken and done. NOTICE JCI MAKES NO WARRANTIES AS TO THE EQUIPMENT EXCEPT AS SET FORTH ABOVE. Dated June 25, 2007 SOUTH BEND: Timothy A. Rouse, Council President South Bend Common Council JOHNSON CONTROLS, INC. David M. Peters, Regional Solutions Manager Johnson Controls, Inc. Dr. David Varner, Chairperson Public Works and Property Vacation Committee South Bend Common Council ATTEST: John Voorde, City Clerk Page 5 of 20 Performance Contract (Rev 14) SB LED Contract_15June 2007_FINAL(ver7) Schedule 1 SCOPE OF WORK SCHEDULE SUMMARY OF WORK: The following summarizes the Work to be provided by JCI under this Agreement, as 'further defined below: Sco a Of Work Summa 1. Base LED Pro~ect 2. Countdown Timers 3. Uninterru ted Power Su lies 4. Pre-em tion Red Li ht Hold 1. Base LED Project a. Furnish and Install all necessary materials, labor, and equipment to upgrade City of South Bend Traffic Signals with Light Emitter Diode (LED) lamps and traffic signal heads, as required. This scope is. based on the survey submitted in the RFQ response for this project. The survey is included as part of this contract and is intended to cover all intersections within the South Bend city limits except for those designated as state intersections in the RFQ issued by the City of South Bend for this project. This project includes: i. Replacement of all balance adjuster mounted traffic signals with rigid-mast assemblies. ii. Replacement of all traffic signal heads that will not accept LED insert upgrades. iii. Replacement of all optically programmed traffic signal lamps with LED type lamps. iv. Replacement of signal cable within the mast arm poles for locations where the existing drop loop does not permit installation of LED signal head. v. Removal and re-aim all existing mid-mast bracket installations, to permit proper visibility. vi. Provide minor repairs at time of installation, including, for example, replacement of the damaged signal backplate at Ameritech and Cleveland. vii. Performance of all post-installation field survey, listing traffic signal clearance heights. Also provide detailed list of additional maintenance items that may be necessary. viii. Commencement of work within 30 days of notice-to-proceed. ix. Coordination with City Officials to establish work areas and schedules. City will retain "first call" response for maintenance of existing traffic signals. x. All necessary traffic control. No police escort is required. xi. Field Surveys and Documentation package. 2. Countdown Timers a. Install "countdown" type LED pedestrian signals in all existing pedestrian signal locations that do not already include countdown timers. 3. Uninterrupted Power Supplies a. Install battery back-up systems to 20 intersections with the locations to be determined by the City of South Bend. Color will match existing cabinets. 4. Pre-emption (Red Light Hold) a. Furnish and install Opticom emergency pre-emption at two intersections with the locations to be determined by the City of South Bend. Each system includes two emergency vehicle light detectors, Page 6 of 20' Performance Contract (Rev 14) SB LED Contract_15June 2007 FINAL(ver7) one two-direction confirmation beacon, one phase selector, and associated wire and hardware. Emergency Vehicle equipment is not included in this contract. Dated June 25, 2007 SOUTH BEND: Timothy A. Rouse, Council President South Bend Common Council JOHNSON CONTROLS, INC. David M. Peters, Regional Solutions Manager Johnson Controls, Inc. Dr. David Varner, Chairperson Public Works and Property Vacation Committee South Bend Common Council ATTEST: John Voorde, City Clerk Page 7 of 20 Performance Contract (Rev i4) SB LED Contract_15June 2007_FINAL(ver7) Schedule 2 ASSURED PERFORMANCE GUARANTEE SCHEDULE 1. DEFINITIONS. The following terms are defined for purposes of this Schedule as follows: Annual Guaranteed Project Benefits are the portion of the Total Guaranteed Project Benefits to be achieved in any one year of the Guarantee Term, calculated and adjusted as set forth in this Schedule. Annual Project Benefits are the Project Benefits achieved for any one year of this Agreement. Baseline is the mutually agreed upon calculated figures and/or usage amounts that reflect existing conditions and assumptions as set forth in Schedule 2, Exhibit 6. Billable Usage Increases are the incremental increases in billable usage that occur as a result of guaranteed meter efficiency improvements as calculated in (Schedule 2, Exhibit 6) pursuant to billing information. as provided by South Bend. Equipment is the product(s) installed by JCI, its subcontractors and/or its agents as outlined in Schedule 1 (Scope of Work). Guarantee Term is the term of this Assured Performance Guarantee. As outlined in paragraph 2 of this Agreement, the Guarantee Term shall coincide with the term of Services and shall be 120 months from the Substantial Completion Date, unless terminated earlier. Installation Period means the period between the Commencement Date and the first day of the month following the Substantial Completion Date. For purposes of the annual reconciliation, Project Benefits achieved during the Installation Period shall be considered Project Benefits achieved during the first year of the Guarantee Term. Measured Project Benefits are achieved and calculated as set forth in paragraph 3, Reconciliation, of this Schedule. Non-Measured Project Benefits are the Project Benefits that have been agreed by the parties will be deemed achieved on the Substantial Completion Date and are set forth in Exhibit 2 of this Schedule. JCI and South Bend agree that Non-Measured Project Benefits may include, but are not limited to, future capital or operational costs avoided as a result of this Agreement. South Bend agrees and acknowledges that JCI shall not be responsible for the achievement of such Project Benefits, as the actual realization of those Project Benefits is not within JCI's control. South Bend acknowledges that it has evaluated sufficient information to believe that the Non-Measured Project Benefits will occur. As a result, Non-Measured Project Benefits shall not be measured or monitored at any time during the Guarantee Term, but rather shall be deemed achieved on the Substantial Completion Date. Project Benefits are the Measured savings, cost avoidance &/or Billable Usage increases that occur in the Guarantee Term plus the Non-Measured savings, cost avoidance &/or Billable Usage increases achieved for that year as set forth in paragraph 3, Reconciliation, of this Schedule. Project Benefits Shortfall is the amount by which the Annual Guaranteed Project Benefits exceeds the Annual Project Benefits in any one-year of the Guarantee Term. Project Benefits Surplus is the amount by which the Annual Project Benefits that exceed the Annual Guaranteed Project Benefits in any one-year of the Guarantee Term. Service is the scope of work provided by JCI, its subcontractors and/or its agents as outlined in Schedule 3 (Service Schedule). Total Guaranteed Project Benefits are the Total Guaranteed Project Benefits to be achieved during the entire Guarantee Term, calculated and adjusted as set forth in this Schedule. Total Project Benefits are the Project Benefits achieved during the entire term of this Agreement. Z. GUARANTEE. Subject to the terms and conditions of this Agreement, JCI guarantees that South Bend will achieve $1,927,309 of Total Guarantee Project Benefits during the Term of the Agreement. Page 8 of 20 Aerformance Contract (Rev 14) SB LED Contract_15June 2007_FINAL(ver7) RECONCILIATION. Within 60 days after the Substantial Completion Date, or earlier if otherwise specified in this Performance Contract, JCI will calculate the Project Benefit achieved during the Installation Period and advise South Bend of the amount of such Project Benefits. The frequency and the methods of reconciliation to be used during the Guarantee Term have been approved by South Bend at the time that this Agreement was executed and are defined in the Exhibits attached to this Schedule. Except by mutual agreement of the parties, no changes to the frequency or methods of reconciliation may be made during the Guarantee Term; but, if a utility providing energy to South Bend modifies its method of billing during the Guarantee Term, or if South Bend changes its utility suppliers or method of purchasing, JCI may, at its option, adjust the reconciliation methods to methods appropriate to the utility's revised method of billing. South Bend agrees and acknowledges that JCI shall not be responsible for the achievement of such Project Benefits, as the actual realization of those Project Benefits is not within JCI's control. South Bend acknowledges that it has evaluated sufficient information to believe that the Non-Measured Project Benefits will occur. As a result, Non- Measured Project Benefits shall not be measured or monitored at any time during the Guarantee Term, but rather shall be deemed achieved on the Substantial Completion Date. 4. CHANGES IN USE. South Bend agrees to notify JCI, within five (5) business days, of any actual or intended change, whether before or during the Guarantee Term, in the use of any facility or equipment to which this Schedule applies, or of any other condition arising before or during the' Guarantee Term, that reasonably could be expected to change the amount of Project Benefits to which this Schedule applies. Such a change or condition would include, but is not limited to: changes in the primary use of any facility; changes to the hours of operation of any facility; changes or modifications to the Equipment or Services provided under this Agreement; failure of the premises to meet local building codes; changes in utility suppliers, method of utility billing, or method of utility purchasing; improper maintenance of the Equipment or of any related equipment other than by JCI; changes to the equipment or to any facility required by changes to local building codes; or additions or deletions of equipment at any facility. Such a change or condition need not be identified in the Base Line in order to permit JCI to make an adjustment. Upon receipt of such notice, or if JCI independently learns of any such change or condition, JCI shall calculate and send to South Bend a notice of adjustment to the Base Line to reflect the impact of such change or condition, and the adjustment shall become effective as of the date that the change or condition first arose. Should South Bend fail to provide JCI with notice of any such change or condition, JCI may make reasonable estimates as to the impact of such change or condition and as to the date on which such change or condition first arose in calculating the impact of such change or condition, and such estimates shall be conclusive. PROJECT BENEFIT SURPLUSES OR SHORTFALLS. If the Annual Project Benefits during a specific year of the Guarantee Term, plus amounts credited from surpluses in the Installation Period and earlier years of the Guarantee Term, are less than the Annual Guaranteed Project Benefits for that year, JCI, where permitted by law, at South Bend's written election, shall pay South Bend any remaining Project Benefit shortfalls Upon the mutual agreement of the parties, JCI may also provide additional products or services, in the value of the shortfall, at no additional cost to South Bend. Where Project Benefit shortfalls have occurred, JCI reserves the right, subject to the approval of South Bend, which shall not be unreasonably withheld, to implement additional operational improvements or conservation measures, at no cost to South Bend, that will generate additional Project Benefits in future years of the Guarantee Term. Such payment or credit shall be the sole and exclusive remedy of South Bend for any failure by JCI to achieve guaranteed Project Benefits under this Agreement, including any alleged breach of any other express or implied warranty of Project Benefits. The Guarantee provided herein shall fully comply with all requirements of I.C. 36-1-12.5 et seq., including, but not limited to, the requirement of I.C. 36-1-12.5-5 that the qualified provider will reimburse the City for the difference between the guaranteed savings and actual savings. Page 9 of 20 Performance Contract (Rev 14) SB LED Contract_15June 2007_FINAL(ver7) The following Exhibits are attached and made part of this Schedule: Exhibit 1 Annual Reconciliation & Guaranteed Project Benefit Allocation Exhibit 2 Non-Measured Project Benefits (Not applicable to this project) Exhibit 3 Responsibilities of JCI and South Bend Exhibit 4 Unit Utility Rates and Costs Exhibit 5 Primary Operations Schedules Pre & Post Retrofit (Not applicable to this project) Exhibit 6 Calculation of Base Line and Project Benefits ^ FEMP or IPMVP Option A ® FEMP or IPMVP Option B ^ FEMP or IPMVP Option C ^ FEMP or IPMVP Option D Page 10 of 20 Performance Contract (Rev 14) SB LED Contract 15June 2007_FINAL{verl) Schedule 2 Exhibit 1 ANNUAL RECONCILIATION 8~ GUARANTEED PROJECT BENEFIT ALLOCATION ar • Utility Cost Avoidance Operations & _. Maintenance Cosf voidance - Future Capital Cost Avoidance Mutually greed Billable Usage Increases Total Guaranteed - - Project Benefits Im lem. $ $ $ $ $ 1 $184,216 $ $ $ $184,216 2 $186,058 $ $ $ $186,058 3 $187,919 $ $ $ $187,919 4 $189,798 $ $ $ $189,798 5 $191,696 $ $ $ $191,696 6 $193,613 $ $ $ $193,613 7 $195,549 $ $ $ $195,549 8 $197,505 $ $ $ $197,505 9 $199,480 $ $ $ $199,480 10 $201,475 $ $ $ $201,475 Totals $1,927,309 $ $ $ $1,927,309 SOUTH BEND: Initial JOHNSON CONTROLS, INC. Initials: Page 11 of 20 Performance Contract (Rev 14) SB LED Contract_15June 2007_FINAL(ver7) Schedule Z Exhibit 3 Responsibilities of JCI and South Bend This Exhibit details the individual responsibilities of JCI and of South Bend, not otherwise set forth in this Performance Contract, in connection with the management and administration of the Assured Performance Guarantee. JCI will provide short term and long term monitoring of a representative sample of each of the new LED lamps used in the city traffic signal heads and walk/wait signs. These measured wattages will be compared annually to the manufacturers wattages on the pre-retrofit incandescent lamps. This net wattage differences will be multiplied by the % of time operated per year, annual hours, and the blended unit cost of electricity to determine the savings. The monthly blended cost of electricity is $0.074/kWh as mutually agreed upon in Schedule 2, Exhibit 4. The % of time operated per year for each type of lamp was determined by taking field measurements at the following nine (9) intersections. • SR23 & Olive & Locust • Monroe & Columbia • Corby & Eddy • SR23 & LaSalle • SR23 & Colfax • Bendix & Nimtz • Bendix & Lathrop • Lincoln Way West &Bendix • Bendix & Ardmore Both JCI and South Bend mutually agree that the % of time operated for each type of lamp is the average of these nine (9) intersections. The % of time for each type of lamp is listed below. .Red % On •56.0% .Yellow % On • 6.0% .Green % On •38.0% .Pedestrian •50.0% .Red(left) %On •70.0% •Green(left) %On •15.0% This average % of time operated will be use to calculate the savings for all intersections through the term of the contract. Annually JCI will prepare a report of savings for presentation to South Bend and for submittal to the State of Indiana in compliance with I.C. 36-1-12.5. South Bend will be responsible for maintaining the integrity of the Traffic Signal retrofits by replacing any failed LED lamp with the same wattage LED lamp. The following is a list of LED lamp wattages which South Bend_will use when replacing failed LED lamps. . • Red -10 watts • Amber - 19 watts • Green -13 watts • Green Arrow - 5 watts • Amber Arrow - 9 watts • Walk Countdown - 5 watts • Wait Countdown - 5 watts SOUTH BEND: JOHNSON CONTROLS, INC. Initials: Initials: Page 12 of 20 Performance Contract (Rev 14) SB LED Contract_15June 2007 FINAL(ver7) Schedule 2 Exhibit 4 Unit Utility Rates and Costs The unit energy costs by month for Base year of the Guarantee are set forth below and shall be used for all calculations made under this Schedule. Jan Feb Mar Apr May Jun July Aug Sep Oct Nov Dec Electric $0.074 /kWh $0.074 /kWh $0.074 /kWh $0.074 /kWh $0.074 /kWh $0.074 /kWh $0.074 /kWh $0.074 /kWh $0.074 /kWh $0.074 /kWh $0.074 kWh $0.074 /kWh Annual Energy Costs Increase The following table identifies the percentage increases that will be made to the amounts in the table for each succeeding year of the Guarantee. Year Electric 1 1% 2 1% . 3 1% 4 1% 5 1% 6 1% 7 1. 8 1% 9 1% 10 1% SOUTH BEND: Initial JOHNSON CONTROLS, INC. Initials: Page 13 of 20 Performance ConVact (Rev 14) SB LED ConVact_15June 2007_FINAL(verl) Schedule 2 Exhibit 6 1=EMP or IPMVP ® Option B Retrofit Isolation Project Benefits are determined by freid measurement of the energy use of the systems to which the improvement measure was applied, separate from the energy use of the rest of the facility. Short-term, long-term or continuous measurements are taken throughout the pre &post-retrofit period of the contract. Engineering calculations using short term, long-term of continuous pre &post-retrofit measurements will be used to calculate the Project Benefits for the life of the contract. SOUTH BEND: JOHNSON CONTROLS, INC. Initials: Initials: Page 14 of 20 Performance Contract (Rev 14) SB LED Contract_15June 2007_FINAL(ver7) Schedule 3 Exhibit 1 SERVICES SCHEDULE 1. SCOPE OF SERVICE. JCI and South Bend agree that the services checked below will be provided by JCI at South Bend's facility. ^ Primary Air Conditioning Equipment (PRIME) . ^ Primary Air Conditioning Equipment (Basic) ^ Fire Detection and Management Systems (Premium) ^ Fire Detection and Management Systems (Basic) ^ Facility Operations ^ Reciprocating Air Conditioning Equipment (Premium) ^ Reciprocating Air Conditioning Equipment (Basic) ^ Associated Air Conditioning and Heating Covered Equipment (Premium) ^ Associated Air Conditioning and Heating Covered Equipment (Basic) ^ Maintenance Management Services ^ Primary Heating Covered Equipment (Premium) ^ Primary Heating Covered Equipment (Basic) ^ Automatic Temperature Controls (Premium) ^ Automatic Temperature Controls (Basic) ^ Training ^ Facility Management Systems (Premium) ^ Facility Management Systems (Basic) ^ Security Management Systems (Premium) ^ Security Management Systems (Basic) ® Performance Reporting Services ^ Performance Consulting Service ^ Energy System Management Services 2. EXTENDED SERVICE OPTIONS FOR PREMIUM AND PRIME COVERAGES. On-site repair services will be provided during JCI's normal business hours, unless one of the following options is checked: ^ 24-5 Extended Service--JCI will provide on-site response 24 hours a day, 5 days a week (Monday thru Friday, except JCI holidays) ^ 24-7 Extended Service-JCl will provide on-site response 24 hours a day, 7 days a week (including holidays) 3. DEFINITIONS. The terms used in this Services Schedule shall be defined as follows: (a) BASIC COVERAGE includes Scheduled Service Visits, plus Scheduled Service Materials if otherwise noted in this Services Schedule, for Covered Equipment. Page 15 of 20 Performance Contract (Rev 14) SB LED Contract 15June 2007 FINAL(ver7) (b) COVERED EQUIPMENT means the equipment for which services are to be provided under this Services Schedule and installed under Schedule 1 and any other Covered Equipment Lists attached to this Services Schedule. (c) EQUIPMENT FAILURE means the sudden and accidental failure of moving parts or electric or electronic components that are part of the Covered Equipment and that are necessary for its operation. (d) EXTENDED SERVICE includes extended service for repairs and is available only if Customer has PREMIUM or PRIME coverage. The price for Extended Service, if chosen by South Bend, is part of the total price South Bend will pay. Should a defect be found during an Extended Service visit that JCI is not responsible for under this Services Schedule; South Bend agrees to pay JCI's standard fee for any services rendered. Should Repair Labor or Repair Materials be performed in periods beyond the Extended Service period, South Bend agrees to pay JCI's standard fee for any services rendered beyond the Extended Service period. PRIME LEVEL COVERAGE includes BASIC COVERAGE as well as Repair Labor, plus Repair Materials if otherwise set forth in this Services Schedule, for Covered Equipment consisting of centrifugal, absorption, or screw. chillers. PRIME LEVEL COVERAGE also includes Repair Labor, and Repair Materials if otherwise set forth in this Services Schedule, for diagnosed imminent equipment failure as well as actual equipment Failure, and the following: (i) JCI will analyze diagnostic tests including Pre?Vue Vibration Analysis and spectrochemical oil analysis megohm readings. All diagnostic tests must be performed at JCl-prescribed frequencies and to JCI- specified test standards. Coverage will include Repair Labor and Repair Material for heat exchanger tubes if an Eddy Current Analysis, acceptable to JCI, has been performed in the three years prior to this Services Agreement Schedule and is provided to JCI, or such a test will be performed as part of this Services Agreement Schedule. (ii) Should JCI's analysis suggest the existence or the possibility of equipment deterioration outside anticipated or acceptable conditions, JCI may at its option take corrective steps necessary to prevent further deterioration or breakdown of the Covered Equipment. JCI retains sole judgment over whether equipment conditions are considered acceptable, whether corrective steps should be taken, or what steps, if any, need to be taken. Performance of any corrective steps under this PRIME coverage is not a guarantee that equipment failure or downtime will not occur. (e) PREMIUM LEVEL COVERAGE includes BASIC COVERAGE as well as Repair Labor, plus Repair Material if otherwise noted in this Services Schedule, for Covered Equipment. (f) REPAIR LABOR includes labor necessary to restore Covered Equipment to working condition following an equipment failure and excludes total equipment replacement due to obsolescence or unavailability of parts. (g) REPAIR MATERIALS include materials necessary to restore Covered Equipment to working condition following an equipment failure and excludes total equipment replacement due to obsolescence or unavailability of parts. At JCI's option, Repair Materials may be new, used, or reconditioned. All Repair Materials are covered by the warranty as described below. (h) SCHEDULED SERVICE MATERIALS include materials required to perform Scheduled Service Visits on Covered Equipment. (i) SCHEDULED SERVICE VISITS include labor required to perform inspections and preventive maintenance on Covered Equipment. 4. INITIAL EQUIPMENT INSPECTION FOR PREMIUM OR PRIME COVERAGES. JCI will inspect the Covered Equipment within 45 days of the date of this Services Schedule or as seasonal or operational conditions permit. JCI will advise South Bend if JCI finds any Covered Equipment not in working order or in need of repair. With South Bend's approval, JCI will perform the work necessary to put the Covered Equipment in proper working condition. To the extent that Covered Equipment is not subject to warranty or other obligation of JCI for its repair, this work will be done at JCI's standard fee for parts and labor in effect at that time. If South Bend does not want JCI to do the work identified by JCI, or if South Bend does not have the work done, the Covered Equipment will be removed from the list of Covered Equipment and the price of this Services Schedule will then be adjusted. Page 16 of 20 Performance Contract (Rev 14) SB LED Contract_15June 2007_FINAL(ver7) 5. SOUTH BEND OBLIGATIONS AND COMMITMENTS TO JCI. South Bend warrants that, to the best of South Bend's knowledge, all Covered Equipment is in good working condition and South Bend has given JCl all information of which South Bend is aware concerning the condition of the Covered Equipment. South Bend agrees that, during the term of this Services Schedule, South Bend will: (a) operate the Covered Equipment according to the manufacturer's recommendations; (b) keep accurate and current work logs and information on the Covered Equipment as recommended by the manufacturer; (c) provide an adequate environment for Covered Equipment as recommended by the manufacturer or as recommended by JCI, including adequate space, electrical power, air conditioning, and humidity control; (d) notify JCI immediately of any Covered Equipment malfunction, breakdown, or other condition affecting the operation of the Covered Equipment; (e) allow JCI to start and stop, periodically turn off, or otherwise change or temporarily suspend equipment operations so that JCI can pertorm the services required under this Services Schedule; and (f) provide proper condenser and boiler water treatment, as necessary, for the proper functioning of Covered Equipment, if such services are not JCI's responsibility under this Services Agreement Schedule. South Bend acknowledges that its failure to meet these obligations will relieve JCI of any responsibility for any breakdown, or any necessary repair or replacement, of any Covered Equipment and may require adjustments under Schedule 2, Assured Performance Guarantee Schedule. 6. CHANGES TO COVERED EQUIPMENT. To the extent permitted under the Performance Contract, South Bend retains the right to make changes or alterations to the Covered Equipment. lf, in JCI's opinion, such changes or alterations substantially affect JCI's services or obligations, JCI shall have the right to make appropriate changes to the scope or to the price of this Services Schedule or to both. 7. ACCESS. South Bend will give JCI full access to all equipment that is either Covered Equipment or associated with it when JCi requests such access. If access cannot be provided, JCI's obligations under this Services Schedule will be suspended until such access to the equipment is provided. Matters affecting JCI's access to the equipment may include, but are not limited to, the removal, replacement, repair, refinishing, restoration, reconstruction, or other remedial actions taken by South Bend with respect to Covered Equipment or to South Bend's facility. Suspension of JCI's duties for this reason will not cancel or suspend any of South Bend's obligations under this Services Schedule. 8. EXCLUSIONS. JCI's services under this Services Agreement Schedule do not include: (a) supplies, accessories, or any items normally consumed during the use of Covered Equipment, such as ribbons, bulbs, and paper; (b) calls resulting from lack of operator-level preventive maintenance, site-related problems, or operator error; (c) service calls due to failures resulting from acts of God, abuse or misuse of Covered Equipment, or alterations, modifications, or repairs to Covered Equipment not performed or provided by JCI; (d) the furnishing of materials and supplies for painting or refinishing Covered Equipment; (e) electrical work to South Bend's facility necessary because of Covered Equipment; (f) service calls resulting from attachments made to Covered Equipment or other equipment not covered by this Services Schedule; (g) the repair or replacement of ductwork, casings, cabinets, structural supports, tower fill/slats/basin, hydronic and pneumatic piping, and vessels, gaskets, and piping not normally replaced or maintained on a scheduled basis, and removal of oil from pneumatic piping; (h) service calls resulting from the effects of erosion, corrosion, acid cleaning, or damage from unexpected or especially severe freezing weather that is beyond what is prevented by JCI's normal maintenance; (i) work caused by any operation of, adjustments to, or repair to, Covered Equipment by others not authorized in advance by JCI; Page 17 of 20 Performance Contract (Rev 14) SB LED Contract_15June 2007_FINAL(ver7) (j) work caused by the negligence of others, including but not limited to equipment operators and water treatment companies; (k) service calls due to failures caused by improper environmental conditions affecting Covered Equipment or electrical power fluctuations, if due to conditions beyond JCI's control, and service calls required because JCI had previously been denied access to the Covered Equipment; and (I) disposal of hazardous wastes. Hazardous wastes remain the property and the responsibility of South Bend even when removed from equipment or replaced by JCI as provided by the terms of this Services Schedule. South Bend shall be responsible for the proper storage and disposal of hazardous wastes. This includes, but is not limited to, used oil, contaminated or uncontaminated refrigerant, and PCBs. 9. PRICE. The total price for JCI's Services during the Term of this Service Schedule is $51,446. This amount will be paid to JCI in annual installments as shown below or on the attached chart. These payments will be due and payable when South Bend received JCI's invoice and in advance of the services JCI is to provide. Dated June 25, 2007 SOUTH BEND: Timothy A. Rouse, Council President South Bend Common Council JOHNSON CONTROLS, INC. David M. Peters, Regional Solutions Manager Dr. David Varner, Chairperson Public Works and Property Vacation Committee South Bend Common Council ATTEST: John Voorde, City Clerk Page 18 of 20 Performance Contract (Rev 14) SB LED Contract_15June 2007_FINAL(ver7) Schedule 4A PRICE AND PAYMENT TERMS SCHEDULE 1. South Bend shall make payments to JCI for Work performed, as well as payments for Services rendered pursuant to the Services Schedule. 4 (a) The price to be paid by South Bend for the Work shall be $1,458,109. Progress payments (including payment for materials delivered to JCI and work performed on and off-site) shall be made to JCI as follows: First payment due: $364,527 on July 1, 2007 Second payment due: $247,880 on August 1, 2007 Third payment due: $247,880 on September 1, 2007 Fourth payment due: $247,880 on October 1, 2007 Fifth payment due: $247,880 on November 1, 2007 Final payment due: $102,062 on December 1, 2007 Final payment, constituting the entire unpaid balance for the Work, shall be made to JCI within 30 days after the Substantial Completion Date. Payments maybe withheld on account of any breach of this Agreement by JCI and claims by third parties (including JCI subcontractors and material suppliers), but only to the extent that written notice has been provided to JCI and JCI has failed, within ten days of the date of receipt of such notice, to provide adequate security to protect South Bend from any loss, cost, or expense related to such claims. 4 (b) The total price to be paid by South Bend for JCI's Services ~Juring the Term of this Agreement is $51,446. This amount will be paid to JCI in annual installments as shown below or on the attached chart. These payments will be due and payable when South Bend receives JCI's invoice and in advance of the services JCI is to provide and shall be made throughout the Service Term. Year 1 $4,285 Year 2 $4,456 Year 3 $4,635 Year 4 $4,820 Year 5 $5,013 Year 6 $5,213 Year 7 $5,422 Year 8 $5,639 Year 9 $5,864 Year 10 $6,099 Total $51,446 Z. SOUTH BEND PURCHASE ORDERS. South Bend acknowledges and agrees that any purchase order issued by South Bend, in accordance with this Agreement, is intended only to establish payment authority for South Bend's internal accounting purposes. No purchase order shall be considered to be a counteroffer, amendment, modification, or other revision to the terms of this Agreement. No term or condition included in South Bend's purchase order will have any force or effect. [SIGNATURE PAGE FOLLOWS] Page 19 of 20 Performance Contract (Rev 14) SB LED Contract_15June 2007_FINAL(ver7) Dated June 25, 2007 SOUTH BEND: Timothy A. Rouse, Council President South Bend Common Council Dr. David Varner, Chairperson Public Works and Property Vacation Committee South Bend Common Council ATTEST: John Voorde, City Clerk JOHNSON CONTROLS, INC. David M. Peters, Regional Solutions Manager Page 20 of 20' Performance Contract (Rev 14) SB LED Contract_15June 2007_F1NAL(ver7)