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HomeMy WebLinkAboutAccepting the Advisory Recommendation of a Project Development Agreement with Ameresco Inc. Related to a guaranteed Energy Savings Contract for Century CenterAttes RESOLUTION 4382 -14 Passed by the Common Council of the City of South Bend, Indiana August 11, 14 20 Presented by me to the Mayor of the City of South Bend, Indiana August 12, 14 Approved and signed by me /4<k � tA > r City Clerk dent of Common Council i' 20 ` J_ . City Clerk RESOLUTIONNO.t" M- -14 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA ACCEPTING THE ADVISORY RECOMMENDATION OF THE BOARD OF PUBLIC WORKS, RATIFYING, CONFIRMING AND APPROVING CERTAIN ACTIONS AND APPROVING THE EXECUTION OF A PROJECT DEVELOPMENT AGREEMENT WITH AMERESCO, INC. RELATED TO A GUARANTEED ENERGY SAVINGS CONTRACT FOR CENTURY CENTER WHEREAS, on November 25, 2013, the Common Council of the City of South Bend ( "Council ") adopted its Resolution No. 4302 -13 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 energy saving technology at Century Center; and WHEREAS, IC 36 -1- 12.5 -2.5 -2 defines a "guaranteed savings contract" as a contract to (i) evaluate and recommend to the governing body conservation measures, and (ii) provide for the implementation of at least one (1) conservation measure; and WHEREAS, on August 7, 2014, the Board adopted its Resolution No. 35 -2014 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 that the Council approve and execute a Project Development Agreement with Ameresco, Inc., the form of said agreement being attached hereto and incorporated herein as Exhibit 1, and a copy of said Resolution No. 35 -2014 attached hereto and incorporated herein as Exhibit 2, and WHEREAS, the Board has heretofore reviewed the proposed form of Project Development Agreement as attached hereto and incorporated herein as Exhibit 1 to the Board's Resolution No. 35 -2014 and upon completion of the energy audit as described in the Project Development Agreement, Ameresco shall prepare and deliver a Project Proposal which shall be incorporated into a separate Energy Savings Contract which upon recommendation of the Board of Public Works is intended to be approved and executed as a separate agreement by and between the Council and Amerersco, Inc. WHEREAS, the Board has affirmed that the actions referred to in its Resolution No. 35- 2014 were undertaken solely at the direction of and as authorized agents to the Council pursuant to the Council's Resolution No. 3705 -07 and not on the Board's own behalf; and WHEREAS, the Common Council of the City of South Bend desires to accept the Board's advisory recommendation and to approve and execute the Guaranteed Energy Savings Contract with such changes as may be suggested by the City's Department of Law; and WHEREAS, the Common Council of the City of South Bend further desires to ratify, confirm and approve various other actions undertaken to date by the Board and the Department in 1 * *Vtes SBCCouncil Project Development, Century Center—Ameresco—FINAL 14085 their respective capacities as authorized agents of the Common Council incidental to the authority granted by Council Resolution No. 4302 -13. 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 advisory recommendation of the Board of Public Works of the City of South Bend that the Council approval and execute a Project Development Agreement with Ameresco, Inc., the form of said agreement being attached hereto and incorporated herein as Exhibit A with such changes as may be suggested by the City's Department of Law with approval of such changes evidenced by the execution and attestation respectively, of the agreement. Section 2. The Common Council of the City of South Bend hereby authorizes the execution of the documents as described in this Resolution and as presented at this meeting with such changes as may be suggested by legal counsel with approval of such changes evidenced by the execution and attestation respectfully, of the contract. Section 3. The Common Council of the City of South Bend hereby acknowledges the Board of Public Works assurance and commitment as expressed in the Board's Resolution No. 35 -2014 that, upon approval and execution of the Project Development Agreement and /or 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 Century Center, including the power to authorize change orders and ensure its continue compliance with Indiana law and its continued adherence to the direction expressed in the Council's Resolution No. 3705 -07. Section 4. The Common Council of the City of South Bend hereby ratifies, confirms and approves the actions taken by the Board of Public Works and the Department of Public Works of the City of South Bend in their respective capacities as authorized agents to and on behalf of the Common Council pursuant to the Counci;s solution No. 4302 -13. Section 5. This Resolution shall be in f rc. and effect f$>�m� and after it�doption b the Common Council and a roval b e o. I � 1 Adopted this il:K day of ce t r , 2014. PRESENTM �DC14J1�� 1 1 2 Filed in Qlmrk'g ()fte _ .rM a X914 CITY GLiER;, its,"- :C, IN *. *1Res SBCCouncil_Project Development, Century Center_Ameresco_FINAL 14085 TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND: Your Committee of the Whole, to whom was referred: BILL NO. 14 -76 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, ACCEPTING THE ADVISORY RECOMMENDATION OF THE BOARD OF PUBLIC WORKS, RATIFYING, CONFIRMING AND APPROVING CERTAIN ACTIONS AND APPROVING THE EXECUTION OF A PROJECT DEVELOPMENT AGREEMENT WITH AMERESCO, INC. RELATED TO A GUARANTEED ENERGY SAVINGS CONTRACT FOR CENTURY CENTER Respectfully report that they have examined the matter and that in their opinion, this bill is being recommended to the full Council with a favorable recommendation. This bill was heard by the PARCS Committee. Valerie Schey Chairperson, Committee of the Whole 1200 COUNTY- CI1'YBUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601 -1830 CRUSTAL C. BRISCO CORPORATION COUNSEL CITY OF SOUTH BEND PETE BU=GIEG, I&WOR DEPARTMENT OF LAW August 4, 2014 The South Bend Common Council 4`h Floor County -City Building South Bend, Indiana 46601 PHONE 574/235 -9241 FAx 574/235 -7670 ALADEAN M. DEROSE CITY ATTORNEY Re: Proposed Resolution Accepting Board of Public Works Advisory Recommendation and Authorizing Execution of Project Development Agreement Related to Guaranteed Energy Savings Contract for Century Center Dear Council Members: Under the provisions of Indiana Code 36 -1 -12.5, the South Bend Common Council as "governing body" of a "political subdivision" is granted the authority to enter into a Guaranteed Energy Savings Contract as defined by IC 36 -1- 12.5 -2. In accordance with the statute, the Council adopted its Resolution No. 4302 -13 on November 25, 2013 appointing the Board of Public Works ( "Board ") as the Council's authorized agent for purposes of meeting the requirements of IC 36 -1 -12.5 with respect to a Guaranteed Energy Savings Contract for the use of energy saving technology at Century Center. In compliance with state law and the authority granted by the Council as the Council's agent, the Board has reviewed a proposed form of Project Development Agreement with Ameresco, Inc., a for -profit corporation providing comprehensive energy efficiency and energy solutions for facilities throughout the United States. The Project Development Agreement provides for the evaluation of energy conservation measures through an energy and infrastructure audit and is consistent with the requirements of IC 36 -1 -12.5. It is anticipated that upon completion of the energy audit and evaluation of the facility, Ameresco would prepare a proposal detailing the scope of work for installation of energy improvements under a Guaranteed Energy Savings Contract. The Guaranteed Energy Savings Contract will be reviewed by the Board and submitted to the Council for its approval and execution by separate resolution. This proposed Resolution is the second of three (3) resolutions which the Common Council would be asked to act upon. Therese Dorau, Director of Sustainability, and Eric Horvath, Director of Public Works, will be working with the Council in this matter, and Eric Horvath or his designee will present this Resolution. Filed in Clerics Office AUG -6 2014 I JOHN VOORDE C1TY CLERK, SOUTH BEND, IN S ely Che . Gr Assistant City ttoxney and Legal Counsel to the Board of Public Works RESOLUTION NO. 35-2014 A RESOLUTION OF THE CITY OF SOUTH BEND BOARD OF PUBLIC WORKS CONFIRMING COMPLIANCE WITH IC 36- 1 -12 -1 ET SEQ. AND RECOMMENDING TO THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA THE APPROVAL AND EXECUTION OF A PROJECT DEVELOPMENT AGREEMENT WITH AMERESCO, INC. RELATED TO A GUARANTEED ENERGY SAVINGS CONTRACT FOR CENTURY CENTER WHEREAS, on November 25, 2013, the Common Council of the City of South Bend ( "Council ") adopted its Resolution No. 4302 -13 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 energy saving technology at Century Center; and WHEREAS, IC 36 -1- 12.5 -2.5 -2 defines a "guaranteed savings contract" as a contract to (i) evaluate and recommend to the governing body conservation measures, and (ii) provide for the implementation of at least one (1) conservation measure; and WHEREAS, in compliance with the requirements of Indiana law including, but not limited to, IC 36 -1 -12.5, the Board has taken certain actions as authorized agent to the Council including preparation of specifications and evaluation criteria for a Guaranteed Energy Savings Contract, publication of notice as required by IC 36 -1- 12.5 -5 requesting qualified providers to submit proposals, and has opened at a public meeting of the Board those proposals that were received in response to the notice, and has evaluated said proposals; and WHEREAS, the Board has heretofore reviewed the proposed form of Project Development Agreement with Ameresco, Inc. as attached hereto and incorporated herein as Exhibit A which provides for a detailed energy audit evaluating Century Center's conservation needs in anticipation of a Guaranteed Energy Savings Contract to implement such conservation measures as are determined through the energy audit; and WHEREAS, the Department's legal counsel has determined that the proposed form of Project Development Agreement is consistent with and meets the legal requirements of IC 36 -1- 12.5; and WHEREAS, the Board affirms that the actions referred to in its Resolution No. 35 -2014 are taken by the Board and the Department solely at the direction of and as authorized agents to the Council and not on the Board's own behalf. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF PUBLIC WORKS OF THE CITY OF SOUTH BEND, that: Section 1. The Board of Public Works hereby makes its advisory recommendation to the Common Council of the City of South Bend that the Council approval and execute a F:\ *. *\BPWV2eso1utions\Rcs 35 -2014 - BPW Recommending Guaranteed Energy Savings at Century Center_070611 'C„ x 1+1 B I I L Project Development Agreement with Ameresco, Inc., the form of said agreement being attached hereto and incorporated herein as Exhibit A with such changes as may be suggested by legal counsel with approval of such changes evidenced by the execution and attestation respectfully, of the agreement. Section 2. Upon completion of the energy audit as described in the Project Development Agreement, Ameresco shall prepare and deliver a Project Proposal which shall be incorporated into a separate Energy Savings Contract which upon recommendation of the Board of Public Works is intended to be approved and executed as a separate agreement by and between the Council and Amerersco, Inc. Section 3. The Board of Public Works hereby assures the Council that, upon approval and execution of the Project Development Agreement and /or 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 Century Center, including the power to authorize change orders. Section 4. The Board of Works hereby assures the Council of the Board's continued assistance as set forth in the Council's Resolution No. 4302 -13. Section S. This Resolution shall be in full force and effect upon its adoption ADOPTED at a meeting of the Board of Public Works of the City of South Bend, Indiana held on _August 2014, at 1308 County -City Building, 227 West Jefferson Boulevard, South Bend, Indiana 46601. ATTEST: Linda M. Martin, Clerk BOARD OF PUBLIC WORKS Gary A. Gilot, President Patrick Henthom, Member Brian Pawlowski, Member David Relos, Member Kathryn Roos, Member 2 F: \ *. *\BPW\Resolutions\Res 35 -2014 - BPW Recommending Guaranteed Energy Savings at Century Center_070611 PROJECT DEVELOPMENT AGREEMENT THIS PROJECT DEVELOPMENT AGREEMENT (this "Development Agreement") is entered into as of the 7' day of July, 2014, by and between the City of South Bend with a principal business address at 227 West Jefferson Blvd, Suite 1400 N, South Bend, Indiana 46601 ( "Client') and Ameresco, Inc. having its principal place of business at 111 Speen Street, Suite 410, Framingham, Massachusetts 01701 ("Ameresco "). The Client and Ameresco may be referred to herein individually as a "Party' and collectively as the "Parties". WHEREAS, Ameresco desires to perform certain energy services including a detailed energy audit for Client at the facilities identified in Exhibit A attached hereto (the "Facilities"); and WHEREAS, Client intends to enter into an energy services agreement ("ESA") with Ameresco for implementation of the Scope of Work (referred to below) identified by Ameresco as a result of its work under this Development Agreement. NOW THEREFORE, in consideration of the mutual promises and agreements contained herein, the Parties hereto hereby agree as follows: Ameresco shall complete the following work under this Development Agreement (the "Development Wot:Y) in accordance with the Time Table set forth in Schedule 1 attached hereto: (a) conduct an energy and infrastructure audit of the Facilities; (b) prepare and deliver to Client a proposal (the "Project Proposal'), which shall include: (i) the proposed scope of work for installation of energy efficiency and renewable energy improvements ("Scope of Wotk) which shall take into account improvements already planned for the Facilities, based on a schedule of planned improvements to be provided by Client to Ameresco within ten (10). days of execution of this Development Agreement; (ii) the implementation price for the Scope of Work (the "Implementation Price"); and (iii) the estimated cost savings as a result of implementation of the Scope of Work. Coincident with the completion of the Development Work and Client's notification that it has approved the Scope of Work set forth in the Project Proposal, Ameresco will prepare and submit to Client an ESA detailing the terms and conditions related to the implementation of the Project Proposal. 2. Client hereby agrees that if it does not enter into the ESA with Ameresco within thirty (30) days of submission of the Project Proposal, Client shall compensate Ameresco for its Project Development Work by paying an audit fee to Ameresco in the amount of Fifty Five Thousand Dollars ($55,000) (the "Project Development Fee"). The Project Development Fee shall be fully - earned, due and payable by Client to Ameresco no later than forty -five (45) days after the date that g� �r�onl 35 c�l� EP3+-r Ameresco submits the Project Proposal to Client. If Client and Ameresco enter into an ESA which includes the Scope of Work, Client will not be billed the Project Development Fee due under this Project Development Agreement as the Implementation Price shall be all inclusive. In the unlikely event that Ameresco is unable to develop a project that would result in sufficient energy savings and /or avoided future capital or operational costs to Client so that the installation costs can be paid from said savings over a period not to exceed 15 years, then Client is not obligated to reimburse Ameresco the Development Fee; provided, bowever, that Ameresco will be deemed to have satisfied the requirements of Section 1(b) above should Ameresco's failure to meet the requirements of such section result from either (a) a material adverse change in Client's credit or bond rating or (b) an increase in interest rates such that the costs associated with the Scope of Work increase due to conditions beyond the control or fault of Ameresco. 3. Ameresco's receipt of an executed copy of this Development Agreement shall be evidence of Client's agreement to the terms and conditions of this Development Agreement and its authorization of and notification to Ameresco to proceed with the Project Development Work. Ameresco will thereafter promptly initiate the Development Work. 4. This Development Agreement and exhibits hereto, if any, shall (a) constitute the entire agreement between the Parties relating to the subject matter hereof, (b) supersede all previous agreements, discussions, communications and correspondences with respect to the subject matter hereof and (c) only be amended, supplemented or modified by a written instrument executed by both Parties. If any provision of this Development Agreement is held by a court of competent jurisdiction to be unenforceable, no other provision shall be affected thereby, and the remainder of this Development Agreement shall be interpreted as if it did not contain such unenforceable provision. 5. Client hereby agrees to provide timely and complete access to all necessary property and energy consumption and cost records for the three (3) years preceding the commencement of Ameresco's services. Client will make available the assistance of such personnel as may be necessary for Ameresco's performance of the Development Work hereunder. If, during the performance of the Development Work, Ameresco should conclude, as a result Ameresco may, by written notice to Client, terminate this Agreement. 6. In no event shall Ameresco be liable for any special, consequential, incidental, punitive, exemplary or indirect damages in tort, contract or otherwise, including, without limitation, loss of profits, loss of use of the Facilities or other property, or business interruption, howsoever caused, in connection with this Development Agreement. 7. Ameresco and Client represent and warrant to each other that (a) the execution, delivery and performance of this Project Development Agreement have been duly authorized and approved by all necessary organizational action on the part of such Party, (b) the signatories hereto have been duly authorized by all necessary organizational action of such Party to sign and deliver this Development Agreement and (c) upon execution this Development Agreement will constitute a legal, valid and binding obligation of such Party. 8. In the event Customer and Ameresco fail to execute an ESA as provided in paragraph 2 above, because Ameresco will not therefore be engaged to perform services in connection with the Development Agreement DAC 7/7/14 implementation of its recommendations, Ameresco will have no control over such implementation by the Client or any third party. Accordingly, Ameresco specifically and expressly disclaims all responsibility for the use of or reliance upon such documents or memoranda by the Client or any third party. Client hereby agrees to indemnify and hold harmless Ameresco for any liability, loss, cost, expense, or damage which may result from the use of the documents and /or memoranda provided by Ameresco hereunder in the implementation of the energy savings recommendations made by Ameresco without its continued involvement. 9. This Development Agreement shall be governed by the laws of the State in which the Facilities are located. IN WITNESS WHEREOF, the duly authorized officers or representatives of the Parties have set their hand under seal on the date first written above with the intent to be legally bound. CLIENT AMERESCO, INC. Authorized Signature Name Title Development Agreement DAC 7/7/14 Authorized Signature Name Title EXHIBIT A FACILITIES LIST The Century Center 120 South Saint Joseph Street South Bend, IN 46601 Phone: (574) 235 -9711 Fax: (574) 235 -9185 Development Agreement DAC 7/7/14 EXHIBIT 1 TIME TABLE OF EVENTS Development Agreement DAC 7/7/14 What When 1 Execute Project - Development On or about August 151, 2014 Agreement - PDA Review preliminary findings with City 2 of South Bend & Century Center On or about August 15', 2014 Personnel 3 Review final project scope, costs, and On or about September 15s', 2014 savings with City of South Bend Deliver Energy Services Agreement 4 (ESA) to Client On or about September 30', 2014 Finalize Project Buildings Options — Final Scope & Pricing 5 Financial Funding Discussion & On or about September 15' — 30'b Review Final Scope and Legal Review of Completed on or about October 10 ", 6 Contract Documents 2014 7 Signing of Energy Service Agreement On or about November V, 2014 [ 8 Issuance of the "Notice to Proceed" by On or about November 1 ", 2014 Client to Ameresco Ameresco issues construction contracts 9 to subcontractors and equipment By November 30`h, 2014 suppliers 10 Construction begins On or before December, 2014 11 Development Agreement DAC 7/7/14 PROJECT DEVELOPMENT AGREEMENT THIS PROJECT DEVELOPMENT AGREEMENT (this "Development Agreement") is entered into as of the 7' day of July, 2014, by and between the City of South Bend with a principal business address at 227 West Jefferson Blvd, Suite 1400 N, South Bend, Indiana 46601 ( "Client") and Ameresco, Inc. having its principal place of business at 111 Speen Street, Suite 410, Framingham, Massachusetts 01701 C' Ameresco?). The Client and Ameresco may be referred to herein individually as a "Patty' and collectively as the "Parties". WHEREAS, Ameresco desires to perform certain energy services including a detailed energy audit for Client at the facilities identified in Exhibit A attached hereto (the "Facilities"); and WHEREAS, Client intends to enter into an energy services agreement ( "ESA") with Ameresco for implementation of the Scope of Work (referred to below) identified by Ameresco as a result of its work under this Development Agreement. NOW THEREFORE, in consideration of the mutual promises and agreements contained herein, the Parties hereto hereby agree as follows: 1. Ameresco shall complete the following work under this Development Agreement (the "Development Work) in accordance with the Time Table set forth in Schedule 1 attached hereto: (a) conduct an energy and infrastructure audit of the Facilities; (b) prepare and deliver to Client a proposal (the "Project Proposal'), which shall include: (i) the proposed scope of work for installation of energy efficiency and renewable energy improvements ("Scope of Work') which shall take into account improvements already planned for the Facilities, based on a schedule of planned improvements to be provided by Client to Ameresco within ten (10) days of execution of this Development Agreement; (ii) the implementation price for the Scope of Work (the "Implementation Pricer'); and (iii) the estimated cost savings as a result of implementation of the Scope of Work. Coincident with the completion of the Development Work and Client's notification that it has approved the Scope of Work set forth in the Project Proposal, Ameresco will prepare and submit to Client an ESA detailing the terms and conditions related to the implementation of the Project Proposal. 2. Client hereby agrees that if it does not enter into the ESA with Ameresco within thirty (30) days of submission of the Project Proposal, Client shall compensate Ameresco for its Project Development Work by paying an audit fee to Ameresco in the amount of Fifty Five Thousand Dollars ($55,000) (the "Project Development Fee"). The Project Development Fee shall be fully - earned, due and payable by Client to Ameresco no later than forty -five (45) days after the date that t op� l 16 1 Ameresco submits the Project Proposal to Client. If Client and Ameresco enter into an ESA which includes the Scope of Work, Client will not be billed the Project Development Fee due under this Project Development Agreement as the Implementation Price shall be all inclusive. In the unlikely event that Ameresco is unable to develop a project that would result in sufficient energy savings and /or avoided future capital or operational costs to Client so that the installation costs can be paid from said savings over a period not to exceed 15 years, then Client is not obligated to reimburse Ameresco the Development Fee; provided, however, that Ameresco will be deemed to have satisfied the requirements of Section 1(b) above should Ameresco's failure to meet the requirements of such section result from either (a) a material adverse change in Client's credit or bond rating or (b) an increase in interest rates such that the costs associated with the Scope of Work increase due to conditions beyond the control or fault of Ameresco. 3. Ameresco's receipt of an executed copy of this Development Agreement shall be evidence of Client's agreement to the terms and conditions of this Development Agreement and its authorization of and notification to Ameresco to proceed with the Project Development Work. Ameresco will thereafter promptly initiate the Development Work. 4. This Development Agreement and exhibits hereto, if any, shall (a) constitute the entire agreement between the Parties relating to the subject matter hereof, (b) supersede all previous agreements, discussions, communications and correspondences with respect to the subject matter hereof and (c) only be amended, supplemented or modified by a written instrument executed by both Parties. If any provision of this Development Agreement is held by a court of competent jurisdiction to be unenforceable, no other provision shall be affected thereby, and the remainder of this Development Agreement shall be interpreted as if it did not contain such unenforceable provision. 5. Client hereby agrees to provide timely and complete access to all necessary property and energy consumption and cost records for the three (3) years preceding the commencement of Ameresco's services. Client will make available the assistance of such personnel as may be necessary for Ameresco's performance of the Development Work hereunder. If, during the performance of the Development Work, Ameresco should conclude, as a result Ameresco may, by written notice to Client, terminate this Agreement. 6. In no event shall Ameresco be liable for any special, consequential, incidental, punitive, exemplary or indirect damages in tort, contract or otherwise, including, without limitation, loss of profits, loss of use of the Facilities or other property, or business interruption, howsoever caused, in connection with this Development Agreement. 7. Ameresco and Client represent and warrant to each other that (a) the execution, delivery and performance of this Project Development Agreement have been duly authorized and approved by all necessary organizational action on the part of such Party, (b) the signatories hereto have been duly authorized by all necessary organizational action of such Party to sign and deliver this Development Agreement and (c) upon execution this Development Agreement will constitute a legal, valid and binding obligation of such Party. 8. In the event Customer and Ameresco fail to execute an ESA as provided in paragraph 2 above, because Ameresco will not therefore be engaged to perform services in connection with the Development Agreement DAC 7/7/14 6 implementation of its recommendations, Ameresco will have no control over such implementation by the Client or any third party. Accordingly, Ameresco specifically and expressly disclaims all responsibility for the use of or reliance upon such documents or memoranda by the Client or any third party. Client hereby agrees to indemnify and hold harmless Ameresco for any liability, loss, cost, expense, or damage which may result from the use of the documents and /or memoranda provided by Ameresco hereunder in the implementation of the energy savings recommendations made by Ameresco without its continued involvement. 9. This Development Agreement shall be governed by the laws of the State in which the Facilities are located. IN WITNESS WHEREOF, the duly authorized officers or representatives of the Parties have set their hand under seal on the date fast written above with the intent to be legally bound. CLIENT AMERESCO, INC. Authorized Signature Authorized Signature WRIMM Title Development Agreement DAC 7/7/14 MMMIM Title n. EXHIBIT A FACILITIES LIST The Century Center 120 South Saint Joseph Street South Bend, IN 46601 Phone: (574) 235 -9711 Fax: (574) 235 -9185 Development Agreement DAC 7/7/14 6 EXHIBIT 1 TIME TABLE OF EVENTS Development Agreement DAC 7/7/14 What When 1 Execute Project - Development On or about August 1", 2014 Agreement - PDA Review preliminary findings with City 2 of South Bend & Century Center On or about August 15', 2014 Personnel 3 Review final project scope, costs, and On or about September 15 ", 2014 savings with City of South Bend Deliver Energy Services Agreement 4 (ESA) to Client On or about September 30's, 2014 Finalize Project Buildings Options — Final Scope & Pricing 5 Financial Funding Discussion & On or about September 15' — 30°i Review Final Scope and Legal Review of Completed on or about October 10s, G Contract Documents 2014 7 Signing of Energy Service Agreement On or about November 1 ", 2014 [ 8 Issuance of the "Notice to Proceed" by On or about November r', 2014 Client to Ameresco Ameresco issues construction contracts 9 to subcontractors and equipment By November 30'", 2014 suppliers 10 Construction begins On or before December, 2014 11, Development Agreement DAC 7/7/14 PROJECT DEVELOPMENT AGREEMENT THIS PROJECT DEVELOPMENT AGREEMENT (this "Development Agreemem") is entered into as of the 7' day of July, 2014, by and between the City of South Bend with a principal business address at 227 West Jefferson Blvd, Suite 1400 N, South Bend, Indiana 46601 ( "Clienf') and Ameresco, Inc. having its principal place of business at 111 Speen Street, Suite 410, Framingham, Massachusetts 01701 ( "Ameresco "). The Client and Ameresco may be referred to herein individually as a "Party' and collectively as the "Parties". WHEREAS, Ameresco desires to perform certain energy services including a detailed energy audit for Client at the facilities identified in Exhibit A attached hereto (the "Facilities"); and WHEREAS, Client intends to enter into an energy services agreement ("ESA") with Ameresco for implementation of the Scope of Work (referred to below) identified by Ameresco as a result of its work under this Development Agreement. NOW THEREFORE, in consideration of the mutual promises and agreements contained herein, the Parties hereto hereby agree as follows: Ameresco shall complete the following work under this Development Agreement (the "Development Work') in accordance with the Time Table set forth in Schedule 1 attached hereto: (a) conduct an energy and infrastructure audit of the Facilities; (b) prepare and deliver to Client a proposal (the "Project Proposal'), which shall include: (i) the proposed scope of work for installation of energy efficiency and renewable energy improvements ( "Scope of Work') which shall take into account improvements already planned for the Facilities, based on a schedule of planned improvements to be provided by Client to Ameresco within ten (10) days of execution of this Development Agreement; (ii) the implementation price for the Scope of Work (the "Implementation Price "); and (iii) the estimated cost savings as a result of implementation of the Scope of Work. Coincident with the completion of the Development Work and Client's notification that it has approved the Scope of Work set forth in the Project Proposal, Ameresco will prepare and submit to Client an ESA detailing the terms and conditions related to the implementation of the Project Proposal. 2. Client hereby agrees that if it does not enter into the ESA with Ameresco within thirty (30) days of submission of the Project Proposal, Client shall compensate Ameresco for its Project Development Work by paying an audit fee to Ameresco in the amount of Fifty Five Thousand Dollars ($55,000) (the "Project Development Fee "). The Project Development Fee shall be fully - earned, due and payable by Client to Ameresco no later than forty -five (45) days after the date that Ameresco submits the Project Proposal to Client. If Client and Ameresco enter into an ESA which includes the Scope of Work, Client will not be billed the Project Development Fee due under this Project Development Agreement as the Implementation Price shall be all inclusive. In the unlikely event that Ameresco is unable to develop a project that would result in sufficient energy savings and /or avoided future capital or operational costs to Client so that the installation costs can be paid from said savings over a period not to exceed 15 years, then Client is not obligated to reimburse Ameresco the Development Fee; provided, however, that Ameresco will be deemed to have satisfied the requirements of Section 1(b) above should Ameresco's failure to meet the requirements of such section result from either (a) a material adverse change in Client's credit or bond rating or (b) an increase in interest rates such that the costs associated with the Scope of Work increase due to conditions beyond the control or fault of Ameresco. 3. Ameresco's receipt of an executed copy of this Development Agreement shall be evidence of Client's agreement to the terms and conditions of this Development Agreement and its authorization of and notification to Ameresco to proceed with the Project Development Work. Ameresco will thereafter promptly initiate the Development Work. 4. This Development Agreement and exhibits hereto, if any, shall (a) constitute the entire agreement between the Parties relating to the subject matter hereof, (b) supersede all previous agreements, discussions, communications and correspondences with respect to the subject matter hereof and (c) only be amended, supplemented or modified by a written instrument executed by both Parties. If any provision of this Development Agreement is held by a court of competent jurisdiction to be unenforceable, no other provision shall be affected thereby, and the remainder of this Development Agreement shall be interpreted as if it did not contain such unenforceable provision. 5. Client hereby agrees to provide timely and complete access to all necessary property and energy consumption and cost records for the three (3) years preceding the commencement of Ameresco's services. Client will make available the assistance of such personnel as may be necessary for Ameresco's performance of the Development Work hereunder. If, during the performance of the Development Work, Ameresco should conclude, as a result Ameresco may, by written notice to Client, terminate this Agreement. 6. In no event shall Ameresco be liable for any special, consequential, incidental, punitive, exemplary or indirect damages in tort, contract or otherwise, including, without limitation, loss of profits, loss of use of the Facilities or other property, or business interruption, howsoever caused, in connection with this Development Agreement. 7. Ameresco and Client represent and warrant to each other that (a) the execution, delivery and performance of this Project Development Agreement have been duly authorized and approved by all necessary organizational action on the part of such Party, (b) the signatories hereto have been duly authorized by all necessary organizational action of such Party to sign and deliver this Development Agreement and (c) upon execution this Development Agreement will constitute a legal, valid and binding obligation of such Party. 8. In the event Customer and Ameresco fail to execute an ESA as provided in paragraph 2 above, because Ameresco will not therefore be engaged to perform services in connection with the Development Agreement DAC 7/7/14 6 implementation of its recommendations, Ameresco will have no control over such implementation by the Client or any third party. Accordingly, Ameresco specifically and expressly disclaims all responsibility for the use of or reliance upon such documents or memoranda by the Client or any third party. Client hereby agrees to indemnify and hold harmless Ameresco for any liability, loss, cost, expense, or damage which may result from the use of the documents and /or memoranda provided by Ameresco hereunder in the implementation of the energy savings recommendations made by Ameresco without its continued involvement. 9. This Development Agreement shall be governed by the laws of the State in which the Facilities are located. IN WITNESS WHEREOF, the duly authorized officers or representatives of the Parties have set their hand under seal on the date first written above with the intent to be legally bound. CLIENT AMERESCO, INC. Authorized Signature Authorized Signature Name Title Development Agreement DAC 7/7/14 Name Title 0 EXHIBIT A FACILITIES LIST The Century Center 120 South Saint Joseph Street South Bend, IN 46601 Phone: (574) 235 -9711 Fax: (574) 235 -9185 Development Agreement DAC 7/7/14 EXHIBIT 1 TIME TABLE OF EVENTS Development Agreement DAC 7/7/14 6 What When 1 Execute Project Development On or about August 151, 2014 Agreement - PDA Review preliminary findings with City 2 of South Bend & Century Center On or about August 15', 2014 Personnel 3 Review final project scope, costs, and On or about September 15s', 2014 savings with City of South Bend Deliver Energy Services Agreement 4 (ESA) to Client On or about September 30`h, 2014 Finalize Project Buildings Options — Final Scope & Pricing 5 Financial Funding Discussion & On or about September 15' — 30' Review Final Scope and Legal Review of Completed on or about October 10', 6 Contract Documents 2014 7 Signing of Energy Service Agreement On or about November 1 ", 2014 8 Issuance of the "Notice to Proceed" by On or about November 1 ", 2014 Client to Ameresco Ameresco issues construction contracts 9 to subcontractors and equipment By November 30', 2014 suppliers 10 Construction begins On or before December, 2014 11 Development Agreement DAC 7/7/14 6