Authorizing and Approving the Execution Traffice Signals - LED

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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)