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RESOLUTION NO. 5917
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHANDLER,
ARIZONA, APPROVING A MASTER ENERGY SERVICES AGREEMENT
AND RELATED WORK ORDERS AND DOCUMENTS BETWEEN THE CITY
OF CHANDLER AND AMERESCO, INC. FOR THE INSTALLATION OF
CERTAIN
ENERGY
CONSERVATION
MEASURES
AT
VARIOUS
FACILITIES OWNED BY THE CITY OF CHANDLER; AND AUTHORIZING
EXECUTION OF AGREEMENTS AND DOCUMENTS RELATED TO
INSTALLATION OF ENERGY CONSERVATION MEASURES AT VARIOUS
CITY OF CHANDLER FACILITIES.
WHEREAS, the City of Chandler (“Chandler”) owns certain real property and improvements as
further identified in a work order (collectively, the “Facilities”) and has determined to have
Ameresco, Inc. (“Ameresco”) install certain energy conservation measures at the Facilities to
reduce energy, water, operating and maintenance costs; and
WHEREAS, Chandler and Ameresco wish to enter a master energy services agreement and
individual work orders for the Facilities to describe the terms under which Ameresco will install
the energy conservation measures at the Facilities and how Ameresco will be compensated for the
work substantially in accordance with the terms and conditions set out in the form of agreement
shown in attached Exhibit A and individual work orders and related documents, all of which may
be modified as required by program partners.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chandler, Arizona,
as follows:
Section 1.
The City Council of the City of Chandler, Arizona does hereby authorize and
approve the master energy services agreement substantially in accordance with the
terms and conditions set out in the form of agreement shown in attached Exhibit A
and authorize and approve individual work orders and related documents for the
Facilities in an amount not to exceed $34,028,753, all of which may be modified as
required by program partners upon approval of the Chandler City Attorney.
Section 2.
The Mayor of the City of Chandler, Arizona, is hereby authorized to execute the
master energy services agreement and the City Manager or City Manager’s
designee is authorized to execute individual work orders and all other documents
related to the installation of energy conservation measures at various City of
Chandler Facilities, all upon approval as to form by the Chandler City Attorney.
PASSED AND ADOPTED by the City Council of the City of Chandler, Arizona, this _____ day
of _______________, 2025.
ATTEST:
______________________________
______________________________
CITY CLERK
MAYOR
Resolution No. 5917
Page 2
CERTIFICATION
I HEREBY CERTIFY that the above and foregoing Resolution No. 5917 was duly passed and
adopted by the City Council of the City of Chandler, Arizona, at a regular meeting held on the
____ day of _____________, 2025 and that a quorum was present thereat.
______________________________
CITY CLERK
APPROVED AS TO FORM:
______________________________
CITY ATTORNEY
EXHIBIT “A”
Master Energy Services Agreement
between
Ameresco, Inc.
and
City of Chandler
___________________________, 2025
ii
Appendices
Appendix A
Definitions and Interpretations
Appendix B
Supplement to Master Energy Services Agreement
Appendix C
Work Order
Appendix D
Notice to Proceed
Appendix E
Substantial Completion Certificate
Appendix F
Final Delivery and Acceptance Certificate
MASTER ENERGY SERVICES AGREEMENT
This Master Energy Services Agreement (this “MESA”) is made as of __________________,
2025 (“Effective Date”), by and between Ameresco, Inc., a Delaware corporation (together with
its permitted successors and assigns, “Provider”), and the City of Chandler, Arizona, an Arizona
municipal corporation (together with its permitted successors and assigns, “Customer”). Provider
and Customer are hereinafter sometimes referred to individually as “Party” and collectively as
“Parties”.
RECITALS
A.
The Customer owns certain properties and the improvements thereon, as further identified
in a Work Order (each, a “Facility” and collectively, the “Facilities”) and has determined to have
the Provider install certain energy conservation measures (each an “ECM” and collectively, the
“ECMs”) at the Facilities to reduce energy, water, operating and maintenance costs.
B.
The Parties are entering into this MESA to describe the terms under which Provider will
install such ECMs at the Facilities and how Provider will be compensated for such work as set
forth in the MESA.
C.
The Parties’ “Agreement” includes this MESA and the definitions that are attached hereto
or included herewith as Appendix A and each other supplement, exhibit, appendix and other
attachment hereto, each of which is incorporated by this reference.
AGREEMENT
SECTION 1
Scope of Work by Provider
1.1
Authorization and Summary of Scope of Work and Terms.
(a)
Customer authorizes Provider to commence implementation of the ECMs described
below on the terms as further set forth in the Agreement and the applicable Work Order. The
description of the affected Facilities and ECMs, as well as the Implementation Period, Performance
Period, Operation and Maintenance Services, and Measurement & Verification Services with
respect to such Facilities and ECMs shall be as set forth in the applicable Work Order.
1.2
Modifications in Scope of ECMs. The scope of any of the Work Orders may be changed
only by written agreement of the Parties (and, where required, any financier) evidenced by
execution of a written modification agreement.
1.3
Disposal. Provider, at its cost, and as applicable to the ECMs under the Work Order,
shall (i) be responsible for disposal of all non-hazardous equipment and materials which are
rendered useless and removed as a result of the installation of the ECMs and (ii) cause all lamps
which are classified as hazardous wastes by the rules and regulations of the U.S. Environmental
Protection Agency (40 CFR Parts 260 through 279) and PCB-contaminated ballasts, if any,
which have been rendered useless and removed as a result of the installation of the ECMs to be
transported and disposed of. Provider will notify Customer of any other existing PCB-
contaminated ballasts, lamps and any other Hazardous Materials of which Provider becomes
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aware in the course of performing the ECMs under the Work Order. Any such other existing
PCB-contaminated ballasts, lamps and any other Hazardous Materials (except to the extent the
same are or become Provider Hazardous Substances, as hereinafter defined), shall remain the
sole responsibility of Customer and Provider shall assume no liability whatsoever in connection
with their removal, transportation and disposal.
1.4
Asbestos and Lead Paint. The Scope of Services is predicated on the viability of the
ECMs without the Provider encountering or disturbing asbestos or lead paint or being required
to perform any abatement or provide any notice or take any other action with respect to asbestos
or lead paint. Unless expressly included in the Scope of Services or to the extent any asbestos or
lead paint is or becomes a Provider Hazardous Substance, under no circumstances shall Provider
be required to handle asbestos or lead paint. Customer hereby represents and warrants to
Provider that, to the best of Customer’s knowledge and belief, there is no asbestos or lead paint
in any area wherein Provider will be performing Provider’s services hereunder. If Provider: (A)
encounters any friable or non-friable asbestos which is in the immediate vicinity of Provider’s
work, (B) determines that Provider’s work will result in the disturbance of asbestos material, (C)
encounters any paint in any area where Provider are to perform Provider’s work, which work
will involve disturbing paint and Provider reasonably believes that such paint may be lead paint
or such work will involve disturbing paint which is in a building constructed prior to 1978, or
(D) determines that the presence of asbestos material or lead paint will impede Provider’s work,
the Parties shall proceed as set forth in Section 12 hereof. If Provider cannot determine whether
any particular material does or does not contain asbestos or lead paint, Customer, upon
Provider’s written request, shall, at Customer’s cost, promptly perform tests or cause tests to be
performed in order to determine whether or not such material contains asbestos or lead paint
and/or whether there are unacceptable levels of airborne particulate material containing asbestos
or lead and provide such test reports to Provider. If such test reports demonstrate the presence
of asbestos or lead paint or Provider reasonably believes that performing Provider’s services
under this Agreement is likely to cause the disturbance of asbestos or lead paint in such a manner
as to require Provider to provide any notification or take any actions pursuant to any federal,
state or local laws, rules, regulations or guidelines and Provider notifies the Customer of the
same, Customer will, in either case, at its cost, proceed as set forth in Section 12 hereof.
SECTION 2
Provider Responsibilities
2.1
Commencement and Performance of Installation Work. Pursuant to the schedule and
conditions set forth herein and in the Work Order, upon Provider’s receipt of (i) the Notice to
Proceed and (ii) evidence of immediately available funds sufficient for the payment of the
Implementation Cost,, Provider shall (a) furnish all labor, materials and equipment and (b)
perform (or cause to be performed) all work required for the completion of the installation of the
ECMs and related Equipment.
2.2
Legal Compliance; Permits. Provider shall, at its expense, comply with all applicable
Laws, and Provider shall obtain and comply with all applicable licenses and permits required by
applicable Laws, Governmental Authorities and utility companies in connection with the
performance of each of its installation, implementation, Performance Period Services and other
obligations and undertakings under the Agreement. Customer shall cooperate with Provider in
obtaining any such license or permit, including by making application for such license or permit
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in Customer’s name where required by applicable Laws, Governmental Authorities and/or utility
companies. .
2.3
Repair of Damages, Emergency Repair.
(a)
Provider shall be responsible for any damage or injury caused by it, its agents,
employees, representatives, or contractors to the Facilities, or to any Persons or property (whether
during the course of performing diligence, inspection, construction, installation, commissioning,
testing, operation, repairs, maintenance or management and/or other work or activities pursuant to
the Agreement or otherwise). Provider shall have the right to inspect and Provider shall have the
obligation to repair (or arrange for contractors to repair) such damage and shall coordinate such
repair with Customer (including access to the Facilities). Provider shall promptly commence to
repair such damage. If Provider fails to repair such damage within thirty (30) days (or within any
extended period which may be necessary if reasonably Provider determines that more than thirty
(30) days is required to fully repair the damage) from its receipt of notice of such damage,
Customer may promptly commence repair of such damage and Provider shall reimburse Customer
for all actual, out of pocket costs and expenses incurred to repair such damage within thirty (30)
days after receiving notice from Customer of the actual, out of pocket costs and expenses incurred
to repair such damage.
(b)
If Provider fails to make any payment owed by it pursuant to this Section 2.3 within
thirty (30) days after receiving notice of demand by Customer as provided above, such failure shall
constitute a Provider Event of Default pursuant to Section 11.3(d) without any additional cure
period, without the need of further notice or demand by Customer.
2.4
Manufacturer Warranties. Manufacturers’ warranties with respect to any Equipment
for ECMs shall remain with Provider during the Implementation Period and until Substantial
Completion applicable to such Equipment. Upon Substantial Completion of the applicable
ECM, all manufacturers’ warranties with respect to Equipment for such ECM shall be assigned
by Provider to Customer, provided that during the Warranty Period, Provider shall continue to
have the economic benefit of the warranties applicable to such Equipment.
2.5
Certain Warranties and Limitations.
(a)
Provider warrants that Provider shall perform (or cause to be performed) each of its
obligations under the Agreement diligently, promptly, in a good and workmanlike manner, in
compliance with all applicable Laws and with professional competence in accordance with
standard industry practices. EXCEPT AS EXPRESSLY PROVIDED OR CONTEMPLATED IN
THIS MESA (INCLUDING THIS SECTION 2.5), PROVIDER MAKES NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL OR
IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO THE CONDITION
OR FITNESS FOR USE OR PARTICULAR PURPOSE AND MERCHANTABILITY,
REGARDING THE SERVICES OR THE EQUIPMENT. Any manufacturers’ warranties as
described in Section 2.44 shall be the sole warranties with respect to manufacturing defects in any
Equipment. The term of Provider’s warranty with respect to labor and workmanship for the
installation of any ECMs shall be limited to claims arising from normal usage and shall be for a
period of two (2) years (“Warranty Period”) from the date of Substantial Completion with respect
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to the applicable ECM as provided in Section 4.1(b). This section does not apply in any way to
the Savings Guarantee.
(b)
Each Party shall provide written notice to the other Party reasonably promptly upon
becoming aware of any breach of any manufacturer’s warranties or any of the foregoing other
warranties. If Customer provides such a notice to Provider during the Warranty Period, Provider,
at its own expense, shall replace, repair or re-perform any work that does not comply with any of
the foregoing warranties by Provider. During the period that any manufacturers’ warranties with
respect to the applicable Equipment remain with Provider, Provider will use commercially
reasonable efforts to cause the manufacturer of such Equipment to perform all obligations of the
manufacturer under each applicable warranty.
2.6
No Liens on Facilities. Provider shall ensure that no other liens, security interests or
other encumbrances are filed against the site of the Facilities, the Facilities, Customer’s interests
therein or any other property or asset of Customer. If any such lien, security interest or other
encumbrance is filed against the site of the Facilities, the Facilities, Customer’s interests therein
or any other property or asset of Customer, Provider shall immediately notify Customer in
writing upon obtaining knowledge thereof, shall promptly cause such lien, security interest or
other encumbrance to be bonded over or discharged and released of record, at Provider’s
election, without cost to Customer, and shall indemnify Customer against all costs and expenses
(including reasonable attorneys’ fees and court costs at trial and on appeal) incurred in
discharging and releasing such lien, security interest or other encumbrance.
SECTION 3
Savings Calculations
3.1
Guaranteed Savings. The “Guaranteed Savings” to Customer are set forth in the
applicable Work Order. In general, and as applicable to the ECMs in the Work Order,
Guaranteed Savings shall consist of (a) aggregated energy cost reductions resulting, among other
things, from energy use and demand reduction, the generation of electricity and water savings
resulting from the ECMs, and (b) stipulated operating, maintenance and repair and replacement
cost reductions (measured either in total or by unit of output), including productivity
improvements and labor, materials, contracted services cost and capital expenditure reductions,
resulting from the ECMs in accordance with Arizona Revised Statutes (“A.R.S.”) sec. 34-105.
If part or all of any ECMs are abandoned or terminated by Customer pursuant to the provisions
of the Agreement, the Parties agree that the Guaranteed Savings after such date of abandonment
or termination shall be reasonably adjusted to reflect the effect of such abandonment or
termination. Termination of this Agreement for any reason shall terminate Provider’s obligations
with respect to the Guaranteed Savings, including any obligation to perform Performance Period
Services and to make payments pursuant to the Savings Reconciliation as provided in Section
3.3 below.
3.2
Verified Savings. The initial and ongoing measurement and verification of the actual
savings realized by Customer as a result of each ECM shall be performed under, and governed
by, the methods, formulas, stipulated values (including but not limited to utility rates, operating
hours and escalation rates), and procedures set forth in the M&V Plan. Such actual savings, as
measured and verified in accordance with the M&V Plan, are referred to as the “Verified
Savings.”
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3.3
Savings Reconciliation.
(a)
Provider shall prepare and furnish to Customer a savings reconciliation (“Savings
Reconciliation”) no later than 120 days after the anniversary of the Final Commencement Date
(such first period ending on the anniversary of the Final Commencement Date and each such
successive period from one anniversary to the next being referred to as a “Measurement Period”),
provided that Customer has made available to Provider any data specified in Section 7.1(a) that is
necessary to calculate the Savings Reconciliation (subject to any applicable limitations set forth in
Section 7.1(b)). Each Savings Reconciliation shall include a calculation of the Verified Savings
for the ECMs for the applicable Measurement Period. Any dispute between the Parties with
respect to a Savings Reconciliation for any period shall be resolved pursuant to the dispute
resolution procedures in Section 20.
(b)
If the Verified Savings realized by Customer for the applicable Measurement
Period, as detailed in the Savings Reconciliation, exceed the Guaranteed Savings specified in the
applicable Work Order for the applicable Measurement Period, Customer shall retain the benefit
of such excess savings and such excess savings shall not reduce the obligation of Provider with
respect to Guaranteed Savings in any future or prior period. If such Verified Savings are less than
the Guaranteed Savings specified in the applicable Work Order for the applicable Measurement
Period, then Provider shall pay to Customer the amount by which the Guaranteed Savings exceed
such Verified Savings (the “Shortfall Payment”) within thirty (30) days after the date of the
Savings Reconciliation. In addition to making such payment, Provider shall have the right to
remedy the underlying cause of the deficiency creating such reduction in Verified Savings at
Provider’s sole cost and expense. Provider shall receive the benefit of any savings which accrue
with respect to any ECM during the Implementation Period under a Work Order, and may use such
Implementation Period savings to offset any shortfall in Guaranteed Savings under such Work
Order.
(c)
The terms and conditions set forth in this Section 3.3 are sometimes herein referred
to as the “Savings Guarantee”.
SECTION 4
Completion and Acceptance of ECMs
4.1
Completion; Acceptance of ECMs; Commencement Date. The Parties shall
cooperate, in accordance with the following procedure, to confirm the full installation,
implementation and completion of the ECMs and related Equipment under this MESA.
(a)
Upon Substantial Completion of the installation of an ECM (or portion thereof, as
applicable), Provider will deliver to Customer a substantial completion certificate in the form of
Appendix E (the “Substantial Completion Certificate”). If Provider’s work and installation of the
ECM satisfies the terms and conditions of this Agreement and Customer accepts the ECM
installation, Customer shall complete, execute and deliver to Provider each such Substantial
Completion Certificate within five (5) business days after receipt of each Substantial Completion
Certificate. If Provider’s work and installation of all ECMs under a Work Order satisfy the terms
and conditions of this Agreement and Customer accepts all ECM installations as provided in this
Agreement, Customer will complete, sign and deliver a final acceptance certificate in the form of
Appendix F (the “Final Delivery and Acceptance Certificate”) within ten (10) business days after
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receipt of such Final Delivery and Acceptance Certificate. As used in the Agreement, the term
“Substantial Completion” for a non-solar related ECM shall mean that the subject ECM has been
installed by Provider and is operating: (i) for its intended purpose ; (ii) complies with the standards,
requirements, terms, and conditions set forth in the Agreement; and (iii) Customer is deriving
beneficial use thereof. “Substantial Completion” with respect to solar related ECMs shall mean
that the ECM is capable of producing electricity, is ready for regular, daily operation, has approval
to interconnect to the local electric distribution company’s system, and Permission to Operate from
the local electric distribution company, and has all relevant governmental approvals.
(b)
Ownership and title to each ECM or portion thereof, as applicable, shall
automatically pass to Customer upon Provider’s receipt of both (i) the executed Substantial
Completion Certificate delivered pursuant to Section 4.1(a) for such ECM or portion thereof, and
(ii) the indefeasible payment in full of all of Customer’s payment obligations to Provider pursuant
to such Substantial Completion Certificate for such installed ECM or portion thereof. Prior to
satisfaction of the conditions set forth in (i) and (ii) in the previous sentence with respect to an
ECM or portion thereof, title to each ECM and Equipment and other personal property installed
or incorporated into the ECMs shall at all times during the Term remain in the name of Provider,
and as such Provider shall be fully responsible and liable to undertake all obligations and
responsibilities as owner including, but not limited to, carry appropriate insurance or other security
to cover and indemnify Customer for all risks and damages to property, persons, or all ECMs, or
that arise out of this Agreement, or that result from the ECMs. If, notwithstanding the intent of
the Parties, Customer is deemed to hold title to the ECMs, and as security for the payment in full
of the Contract Cost, Customer hereby assigns, transfers and grants to Provider a security interest
in all of the ECMs. Customer hereby authorizes Provider to file, from time to time, Uniform
Commercial Code financing statements in such jurisdictions as may be necessary to perfect and
maintain its security interest in the ECMs. If requested by Provider, Customer agrees to execute
and deliver all further instruments and documents and take all further action that may be necessary
in order to create, perfect and protect Provider’s security interest in the ECMs. Solely in the
instance to perfect Provider’s security interest in the ECMs, Customer hereby appoints Provider
as Customer’s attorney-in-fact with full power to sign such instruments and documents. Any
provision in this Section to the contrary notwithstanding, ownership and title to an ECM shall
automatically pass to Customer and Provider’s security interest in such ECM shall be released and
terminated, in each case without further action on either Party’s part, upon Provider’s receipt of
both (i) the executed Substantial Completion Certificate (as defined in Section 4.1(a)) for such
ECM and (ii) the indefeasible payment in full of all of Customer’s payment obligations to Provider
for such ECM. Provided; however, Provider must issue and file as appropriate any release of lien
or ownership interest in the ECM on Provider’s receipt of the executed Substantial Completion
Certificate.
SECTION 5
Payment
5.1
Implementation Period Payments. With respect to the ECMs, for each month during
the Implementation Period of the Project following Customer’s issuance to Provider of a notice
to proceed with respect to such ECM as provided in section 4.1(a) (each being referred to herein
as a “Notice to Proceed”), Customer shall make monthly progress payments to Provider based
upon Customer’s reasonable determination of the percentage of the Project construction and
equipment procurement completed at the end of each month. Provider shall be paid the same
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percentage of the Implementation Cost as such percentage of completion. Following the end of
each month, during the Implementation Period of the Project, Provider will provide to Customer
an invoice together with a list in sufficient detail to reasonably identify construction and
equipment procurement during such month. Within thirty (30) days after receipt of such invoice,
Customer shall pay or cause to be paid to Provider the amount due under such invoice for ECM
work and installation that Customer accepts in its sole but reasonable discretion.
5.2
Performance Period Expenses. During the Performance Period, Customer shall pay to
Provider the defined Performance Period Expenses as set forth in each Work Order. Customer
shall pay such amounts within thirty (30) days after Customer’s receipt of an invoice thereof
from Provider (the “Due Date”) for ECM work and installation that Customer accepts in its sole
but reasonable discretion.
5.3
Late Payment. Amounts not paid when due and payable hereunder shall be payable
with interest in accordance with Ariz. Rev. Stat. §34-221, as applicable.
5.4
Tariffs. Costs that are the direct result of tariffs levied on equipment or materials by
any Governmental Authority, including any executive order of the President of the United States,
shall be treated as ”Change of Law Costs” as defined in this Agreement. To recover Change of
Law Costs, Provider must provide written notice to Customer as required under this Agreement
that shows the original cost of the item as set forth in the applicable Work Order on the date of
submission of such Work Order to Customer for execution and the new cost of the item after the
Change of Law Cost was incurred. Provider must bear Change of Law Costs up to and including
10% of the original agreed to cost of the item as set forth in the applicable Work Order on such
date of submission to Customer. Customer must bear the Change of Law Costs 11% or greater
than such original agreed to cost of the item. Customer acknowledges and agrees that undue
delay by Customer in final approval and execution of a Work Order after submission by Provider
may result in Change of Law Costs being imposed on a Work Order between the date of
submission and the Customer’s final approval.
SECTION 6
Term
The term of the Agreement shall commence upon the Effective Date and, unless earlier terminated
pursuant to the terms hereof, shall expire with respect to each ECM, upon the expiration or earlier
termination of the Performance Period of such ECM, as set forth in the applicable Work Order.
SECTION 7 Customer Responsibilities
6.1
Delivery of Information and Notices.
(a)
Customer shall comply with any reasonable requests by Provider for information
reasonably related to the Facilities and any applicable ECMs, including any information specified
in a Work Order required to perform a Savings Reconciliation, such as utility consumption and
utility cost data as well as maintenance records data of Customer.
(b)
Customer shall promptly notify Provider in writing if Customer becomes aware of
(i) any material malfunction in the operation of the ECMs, or (ii) any material interruption of, or
material alterations to, the energy supply to the Facilities.
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(c)
Customer shall promptly notify Provider in writing if Customer becomes aware that
(i) any material portion of the ECMs is lost, damaged, destroyed, stolen, or worn out or (ii) any
ECMs are involved in an accident-causing personal injury or property damage. Such notice shall
provide a reasonably detailed description of such loss, damage, or accident.
(d)
Customer shall promptly notify Provider in writing if Customer becomes aware of
any environmental condition, including any Hazardous Substances, at the Facilities.
(e)
During the term of this MESA, Customer shall promptly notify Provider prior to
making any major renovations to the Facilities that could reasonably be expected to materially
affect any ECMs or the energy usage at the Facilities.
6.2
Access and Monitoring.
(a)
Subject to the terms, policies, conditions and limitations referenced or specified in
Section 2.3 or in Section 2.6 above or in Section 6.2(b) and Customer’s background screening and
badging requirements listed in Appendix B, Customer grants to Provider for its personnel, or
personnel of Provider’s subcontractors or suppliers, and any representative of Customer’s utility
company reasonable access to the Facilities and to the ECMs during normal business hours and at
such other times as Customer may approve upon reasonable request, for the purpose of installing,
inspecting, operating, maintaining, repairing, and/or monitoring the ECMs and otherwise
performing any Provider obligations under the Agreement. Provider shall coordinate and schedule
access with Customer prior to Provider (or any of the other foregoing Persons) entering the
Facilities except in situations where there is imminent risk of damage to persons or property (in
which case Provider shall notify Customer as soon as possible). Provider shall exercise (and shall
cause its agents, employees, contractors, representatives and each of the other aforementioned
Persons to exercise) due care any time Provider, its agents, employees, contractors, representatives
and/or each of the other aforementioned Persons enters the Facilities.
(b)
Customer shall provide, or arrange for the provision of, temporary electricity, water
and communications utilities reasonably related to the implementation of the ECMs.
6.3
Operation and Maintenance for Non-Solar ECM’s This Section 7.3 applies to Non-
Solar ECMs only. Provider will provide operation and maintenance services for Solar ECMs
under a separate Operations and Maintenance Agreement. Customer shall, at its expense, repair,
operate and maintain the Non-Solar ECMs in good working order during the Term. Following
the date of Substantial Completion of each Non-Solar ECM, Customer shall, at its expense,
operate, repair and maintain (i) the Equipment and all other components which comprise the
Non-Solar ECM and (ii) all other equipment which is attached thereto and/or is integral to the
proper functioning of the Non-Solar ECM. The Parties agree that the Savings Guarantee herein
with respect to Non-Solar ECMs shall thereafter be subject to Customer performing its
maintenance and other obligations as set forth in this MESA and the applicable Work Order. If
Customer fails to perform, or fails to properly perform, its obligations with respect to Non-Solar
ECMs under this MESA or a Work Order or interferes with, or permits any person to take any
action which, in the reasonable opinion of Provider, prevents the achievement by any Non-Solar
ECM of the Guaranteed Savings under the Savings Guarantee, then Provider may equitably
adjust the Guaranteed Savings as allowed by A.R.S.34-105 during the period wherein savings
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were affected to reflect the same. Provider’s rights in this section shall not be in limitation of any
other rights it possesses under this Agreement.
6.4
Modification of ECMs (Solar and Non-solar).
(a)
The Parties shall not (x) modify, alter, move or remove the ECMs (including any
measurement and verification system installed as a part thereof) or (y) affix or install or allow to
be affixed or installed to any Equipment any accessory, equipment or device if such addition will
impair the originally intended function or use of the ECMs without the written consent of the other
Party.
(b)
If a Party wishes to alter the ECMs in any material respect, the Party shall give
written notice to the other Party providing a description and specifications of the proposed
alterations and shall give the other Party reasonable opportunity to review the proposed alterations
and to inspect the ECMs and Facilities involved. A Party may make such alterations only upon
receipt of the prior written consent of the other Party, which consent shall not be unreasonably
withheld, delayed or conditioned and shall be provided on an expedited basis in the event of an
emergency or hazardous situation unless such emergency or hazardous circumstances do not afford
the Party an opportunity to seek such consent in which case the Party may, without such consent,
make such alterations as are necessary under the circumstances. All alterations or additions to any
Equipment shall be made only in compliance with applicable Laws. If any such alteration or
addition, in the reasonable opinion of Provider, prevents the achievement of the Guaranteed
Savings under the Savings Guarantee, then Provider may equitably adjust the Guaranteed Savings
as allowed by A.R.S. 34-105 to reflect the same. Provider may also make retroactive adjustments
where Customer has not provided timely notice and, in such instances, any payments made
between the Parties shall be retroactively reconciled to reflect the changed baseline. Provider shall
notify Customer 30 days prior to making any such adjustment. If Customer disputes any such
adjustment, the Parties shall proceed in accordance with Section 20 hereof.
(c)
A Party shall notify the other Party in writing at least thirty (30) days prior to
making any change(s) to the Facility that could reasonably be expected to have an effect on any
ECMs or the energy usage at the Facility including, without limitation, changes in (i) the hours,
days or time of year that the Facility is occupied or operated, (ii) the number of staff, faculty and
students at the Facility, (iii) the activities conducted at the Facility and (iv) the equipment, the
facilities, or the size of the Facility. The Party shall notify the other Party regarding increases,
over time, in numbers and usage of “plug in” devices such as computers and printers. If Provider
receives such notification or otherwise determines that such a change has occurred, it will make
the appropriate revisions to the Guaranteed Savings or take such other action as may be provided
for hereunder. Provider may also make retroactive adjustments where Customer has not provided
timely notice and, in such instances, any payments made between the Parties shall be retroactively
reconciled to reflect the changed baseline. Provider shall notify Customer 30 days prior to making
any such adjustment. If Customer disputes any such adjustment, the Parties shall proceed in
accordance with Section 20 hereof.
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SECTION 7
Ownership and Tax Matters
7.1
Exempt Tax Status; Tax Liability. As applicable, Customer shall provide to Provider
written documentation of exempt status (if any) for state and/or local sales taxes held by
Customer as of the Effective Date. Notwithstanding the foregoing, Provider must pay all sales
taxes, use taxes, or other fees and assessments applicable to this Agreement, but may pass these
additional costs to Customer for reimbursement.
SECTION 8
Insurance; Casualty and Loss
8.1
Reserved. .
8.2
Without limiting any of its obligations or liabilities under this Agreement, following the
applicable Commencement Date, Customer shall, at its expense, provide and maintain at all
times during the Term, sufficient insurance against the loss or theft of or damage to the ECMs,
the related equipment and all components installed hereunder.
8.3
Following the applicable Commencement Date, Customer assumes all risk of loss of or
damage to the ECMs from any cause whatsoever except to the extent that such loss or damage
was caused by the acts, errors, or omissions of Provider or Provider’s agents, representatives,
contractors, or employees. Upon the discovery of damage to any item of the equipment installed
hereunder or the ECMs, Customer will notify Provider and place the same in good repair . If
Customer determines that any item of the ECMs are lost, stolen, confiscated, destroyed or
damaged beyond repair, Customer will replace the same with like equipment in good repair in a
timely fashion.
8.4
If at any time after the date of the Final Delivery and Acceptance Certificate and after
Customer’s complete payment to Provider in accordance with Section 5.1, as such amount may
be modified from time to time in accordance with this Agreement, any fire, flood, other casualty,
or condemnation renders a majority of the Facility incapable of being occupied and renders the
ECMs or the equipment installed hereunder inoperable and, in the case of a casualty, the affected
portion of such ECMs or equipment is not reconstructed or restored within one hundred twenty
(120) days from the date of such casualty, Provider or Customer may terminate this Agreement
as provided in this Agreement. Upon such termination, Customer will pay to Provider any
amounts, or prorated portions thereof, then due and payable under Section 5. If there is a
Casualty Loss to an ECM at any time after the Commencement Date and Customer does not
terminate the applicable ECM as provided in the foregoing sentence, then Customer may elect
to assume responsibility for the repair and replacement of the ECM to the same specifications as
set forth in the applicable Work Order or to assign such responsibility to Provider and shall pay
Provider the reasonable cost for the repair and replacement of the ECM. If Customer elects to
assume responsibility for the repair and replacement of the ECM, then Provider agrees to
commission the repaired or replaced ECM for a reasonable fee consistent with the pricing of
Provider’s services under this MESA. Customer’s obligation to pay the Performance Period
Expenses shall continue after a Casualty Loss and the Verified Savings for such ECM during
any such period of repair or replacement shall be deemed to be equal to the equivalent periods
most recently preceding the Casualty Loss; provided that the Performance Period Expenses, if
any, during the period when an ECM is being repaired or replaced shall be reduced by the costs
11
that are not incurred or can be reasonably avoided by Provider for the Performance Period
Services for the affected ECM.
SECTION 9
Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS MESA, NO
PARTY
(NOR
ANY
OF
ITS
OFFICERS,
DIRECTORS,
EMPLOYEES
OR
REPRESENTATIVES, NOR THE AFFILIATES OF ANY OF THEM) SHALL BE LIABLE TO
ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL
LOSSES OR DAMAGES CONNECTED WITH OR RESULTING FROM PERFORMANCE OR
NON-PERFORMANCE OF THIS AGREEMENT (IRRESPECTIVE OF WHETHER SUCH
CLAIM OF LIABILITY IS BASED UPON BREACH OF WARRANTY, STRICT LIABILITY,
TORT, CONTRACT, OPERATION OF LAW OR OTHERWISE) OR ANYTHING DONE IN
CONNECTION THEREWITH INCLUDING, WITHOUT LIMITATION, CLAIMS IN THE
NATURE OF LOST REVENUES, INCOME OR PROFITS (OTHER THAN PAYMENTS
EXPRESSLY REQUIRED AND PROPERLY DUE UNDER THIS AGREEMENT), OR
INCREASED EXPENSE OF, REDUCTION IN OR LOSS OF POWER GENERATION
PRODUCTION OR EQUIPMENT USED THEREFOR.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS MESA
PROVIDER’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL INJURIES,
DAMAGES, CLAIMS, LOSSES, EXPENSES OR CLAIM EXPENSES (INCLUDING
ATTORNEY’S FEES) ARISING OUT OF THIS MESA OR ANY WORK ORDER FROM ALL
CAUSES OR ANY CAUSES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH
LIABILITY IS IMPOSED, SHALL IN ALL CASES BE LIMITED TO THE AMOUNT OF TEN
MILLION DOLLARS ($10,000,000.00) RESPECTIVELY, EITHER (I) WITH RESPECT TO
LIABILITY UNDER THE MESA THAT IS NOT DIRECTLY RELATED TO PROVIDER’S
PERFORMANCE UNDER A WORK ORDER, OR (II) ON A PER WORK ORDER BASIS
WITH RESPECT TO PROVIDER’S PERFORMANCE UNDER A PARTICULAR WORK
ORDER. SUCH CAUSES SHALL INCLUDE, BUT NOT BE LIMITED TO, PROVIDER’S
NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT,
WARRANTY, BREACH OF WARRANTY OR ANY INDEMNIFIED CLAIMS.
SECTION 10 Indemnification
Reserved.
SECTION 11 Hazardous Substances
11.1
Customer Hazardous Substances. Provider shall not be responsible for liabilities,
damages, costs, or expenses related to: (i) pre-existing Hazardous Substances located at a Facility
that were not released by an act, error, or omission by Provider or Provider’s employees, agents,
contractors, subcontractors, licensees, or invitees; or (ii) Hazardous Substances located at a
Facility released by an act, error, or omission by Customer or Customer’s agents, employees,
contractors, subcontractors, licensees, or invitees (items (i) and (ii) together (“Customer
Hazardous Substances”). Customer shall indemnify and hold harmless Provider from liability,
damages, costs or expenses (including reasonable attorneys’ fees) arising out of or related to the
Customer Hazardous Substances and any remediation thereof; provided, however, that Customer
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shall not be required to reimburse or indemnify Provider for any loss or claim to the extent such
loss or claim is due to a violation of Law, act, error, or omission or breach of this Agreement or
any Work Order by Provider or any employee, agent, contractor, subcontractor, licensee or
invitee of Provider. Upon encountering any materials that Provider suspects may constitute
Hazardous Substances, Provider shall promptly notify Customer and may suspend work in the
affected area as reasonably necessary until such materials are properly remediated; provided,
however, that Provider shall not be responsible for liabilities, damages, costs, or expenses related
to Customer Hazardous Substances or the remediation thereof.
11.2
Provider Hazardous Substances. Customer shall not be responsible for liabilities,
damages, costs, or expenses related to: (i) pre-existing Hazardous Substances that are released
from a Facility, transported by, or not properly disposed by an act, error, or omission by Provider
or Provider’s employees, agents, contractors, subcontractors, licensees, or invitees; or (ii)
Hazardous Substances located at a Facility or released by or improperly disposed by or resulting
from or arising out of an act, error, or omission by Provider or Provider’s agents, employees,
contractors, subcontractors, licensees, or invitees (items (i) and (ii) together (“Provider
Hazardous Substances”). Provider shall indemnify, defend, and hold harmless Customer from
liability, damages, costs or expenses (including reasonable attorneys’ fees) arising out of or
related to Provider Hazardous Substances and any remediation thereof; provided, however, that
Provider shall not be required to reimburse or indemnify Customer for any loss or claim to the
extent such loss or claim is due to a violation of Law, negligence, fraud, willful misconduct, or
breach of this Agreement or any Work Order by Customer or any employee, agent, contractor
(other than Provider), subcontractor, licensee or invitee of Customer. Upon encountering any
materials that Provider suspects may constitute Hazardous Substances, Provider shall promptly
notify Customer and may suspend work in the affected area as reasonably necessary until such
materials are properly remediated; provided, however, that Customer shall not be responsible for
liabilities, damages, costs, or expenses related to Provider Hazardous Substances or the
remediation thereof.
11.3
ECM Installation at Facility. If Customer Hazardous Substances or Provider
Hazardous Substances (collectively “Hazardous Substances”) are encountered at a Facility and
such Hazardous Substances prevent or interfere with the installation of an ECM or performance
of the Performance Period Services with respect to an ECM, as applicable, the Parties will meet
and discuss next steps for the installation of the ECM at the subject Facility and amend the
applicable Work Order accordingly.
SECTION 13 Termination for Cause.
The Parties may terminate this Agreement for cause under the following terms and conditions. If
a court determines that a Party improperly invoked this Section, any improper termination for
cause must be treated as a termination for convenience as set forth in this Agreement.
13.1 Customer Events of Default. The occurrence of any one or more of the following events
shall constitute an event of default by Customer under the Parties’ Agreement (each, a “Customer
Event of Default”):
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(a)
A receiver, custodian, liquidator, or trustee of Customer, or of the property of
Customer, is appointed by court order and such order is consented to by Customer or remains in
effect for more than ninety (90) days after the commencement of such action; an order for relief
under any bankruptcy Law is entered with respect to Customer or Customer is adjudicated
bankrupt or insolvent; or a petition is filed against Customer under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution, or liquidation Law of any jurisdiction,
whether now or hereafter in effect, and is not dismissed or stayed within ninety (90) days after
such filing.
(b)
Customer files a petition in voluntary bankruptcy or seeking relief under any
provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution, or liquidation Law of any jurisdiction, whether now or hereafter in effect, or Customer
consents to the filing of or any order to relief under any petition against it under any such Law.
(c)
Customer makes an assignment for the benefit of creditors.
(d)
Customer fails to pay any payments it is required to pay under the Parties’
Agreement within sixty (60) days after Customer receives written notice of such failure. Provided,
however, that Customer shall not be in default under this clause (d) insofar as it is disputing in
good faith any such amount due and payable and has withheld payment only with respect to such
reasonably disputed amount or as permitted by the Parties’ Agreement.
(e)
Customer fails to maintain in any material respect the insurance it is required to
maintain under the Parties’ Agreement.
(f)
Customer makes or provides to Provider any financial statement, representation or
warranty furnished or made in connection with the Parties’ Agreement that is or shall be untrue or
misleading in any material respect as of the date made.
(g)
Customer fails in any material respect to observe or perform any obligation or
agreement to be observed or performed by it under the Parties’ Agreement (other than the matters
addressed in the prior clauses of this Section 13.1(g) and such failure shall continue for thirty (30)
days after Customer’s receipt of written notice thereof from Provider (unless another provision of
the Parties’ Agreement provides for a different specific cure or performance period (which specific
provision shall be controlling)); provided that if (i) the Customer Event of Default cannot be
completely cured within such 30-day period, (ii) Customer has commenced action to cure such
Customer Event of Default within such 30-day period, and (iii) Customer is diligently pursuing to
cure such Customer Event of Default, then such cure period shall be extended as is reasonably
necessary to cure such Customer Event of Default so long as it diligently prosecutes the same to
completion.
13.2 Remedies for Customer Event of Default. Upon the occurrence and continuation of a
Customer Event of Default, Provider may do any one or more of the following in addition to any
other remedies otherwise available under applicable Law, in equity or the Parties’ Agreement:
(a)
Recover compensation for actual damages, including costs and expenses incurred
in connection with the enforcement or preservation of its rights and remedies (including reasonable
attorney’s fees);
14
(b)
Repossess and sell or otherwise dispose of in a commercially reasonable manner
any property, including Equipment, in which Provider has a security interest or ownership interest
under the Parties’ Agreement and, in the sole discretion of Provider, dispose of the property by
sale, lease or otherwise;
(c)
Without duplication of any other payment terminations, reductions or offsets made
by Provider, withhold from any amount due and payable by Provider under the applicable Work
Order an amount that is finally determined pursuant to Section 20 as Provider’s actual damages in
connection with such Customer Event of Default;
(d)
Suspend or terminate any executory performance by Provider of Implementation
Period services or Performance Period Services under the Parties’ Agreement; and
(e)
Recover the amounts due to Provider due under the Parties’ Agreement in
accordance with its terms.
To the fullest extent permitted by applicable Law, no remedy conferred upon Provider under this
Section 13.2 is intended to be exclusive of any other remedy, and each remedy shall be cumulative
of all other remedies existing by contract, at Law, in equity, by statute or otherwise.
13.3 Provider Events of Default. The occurrence of any one or more of the following events
shall constitute an event of default by Provider under the Parties’ Agreement (each, a “Provider
Event of Default”):
(a)
A receiver, custodian, liquidator, or trustee of Provider, or of the property of
Provider, is appointed by court order and such order is consented to by Provider or remains in
effect for more than ninety (90) days after the commencement of such action; an order for relief
under any bankruptcy Law is entered with respect to Provider or Provider is adjudicated bankrupt
or insolvent; or a petition is filed against Provider under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution, or liquidation Law of any jurisdiction,
whether now or hereafter in effect, and is not dismissed or stayed within ninety (90) days after
such filing.
(b)
Provider files a petition in voluntary bankruptcy or seeking relief under any
provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution, or liquidation Law of any jurisdiction, whether now or hereafter in effect, or Provider
consents to the filing of or any order to relief under any petition against it under any such Law.
(c)
Provider makes an assignment for the benefit of creditors.
(d)
Provider fails to pay any amount due within thirty (30) days after Provider receives
written notice of such failure; provided, however, that Provider shall not be in default under this
clause (d) insofar as it is disputing in good faith any such amount due and payable and has withheld
payment only with respect to such reasonably disputed amount.
(e)
Provider fails to maintain in any material respect the insurance it is required to
maintain under the Parties’ Agreement.
15
(f)
Provider makes or provides to Customer any financial statement, representation or
warranty furnished or made in connection with the Parties’ Agreement that is or shall be untrue or
misleading in any material respect as of the date made.
(g)
Provider fails in any material respect to observe or perform any obligation or
agreement to be observed or performed by it under the Parties’ Agreement (other than the matters
addressed in the prior clauses of this Section 13.3(g)) and such failure shall continue for thirty (30)
days after Provider’s receipt of written notice thereof from Customer (unless another provision of
the Parties’ Agreement provides for a different specific cure or performance period (which specific
provision shall be controlling)); provided that if (i) the Provider Event of Default cannot be
completely cured within such 30-day period, (ii) Provider has commenced action to cure such
Provider Event of Default within such 30-day period, and (iii) Provider is diligently pursuing to
cure such Provider Event of Default, then such cure period shall be extended as is reasonably
necessary to cure such Provider Event of Default so long as it diligently prosecutes the same to
completion .
13.4 Remedies for Provider Defaults. Upon the occurrence and continuation of a Provider Event
of Default, Customer may do any one or more of the following in addition to any other remedies
otherwise available under the Parties’ Agreement, applicable Law or in equity:
(a)
Recover compensation for actual damages, including costs and expenses incurred
in connection with the enforcement or preservation of its rights and remedies (including
reasonable attorney’s fees);
(b)
Without duplication of any other payment terminations, reductions or offsets made
by Customer, withhold from any amount due and payable by Customer under the applicable Work
Order an amount that is finally determined pursuant to Section 20 as Customer’s actual damages
in connection with such Provider Event of Default;
(c)
Suspend or terminate any executory performance by Customer of Implementation
Period services or Performance Period Services under the Parties’ Agreement; and
(d)
Recover the amounts due to Customer due under the Parties’ Agreement in
accordance with its terms.
To the fullest extent permitted by applicable Law, no remedy conferred upon Customer
under this Section 13.4 is intended to be exclusive of any other remedy, and each remedy shall be
cumulative of all other remedies existing under the Parties’ Agreement, by contract, at Law, in
equity, by statute or otherwise.
13.5 Duty to Mitigate. Each Party agrees to undertake reasonable efforts to mitigate any loss
or damage it may suffer as a result of a breach or default by the other Party.
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SECTION 14 Force Majeure
Reserved.
SECTION 15 Assignment, Binding Effect, Financing Provisions
15.1 Assignment; Binding Effect. Except as provided in this Agreement, neither Party shall have
the right to assign or transfer, whether voluntarily or by operation of law, any of its rights, duties
or obligations under this Agreement without the prior written consent of the other Party, which
consent shall not be unreasonably withheld or delayed.
15.2 Permitted Assignment by Provider. Notwithstanding anything to the contrary herein,
Provider may assign all or a portion of its rights and obligations hereunder to (i) to one or more
Affiliates of Provider, or (ii) to any person succeeding to all or substantially all of the assets of
Provider (each, a “Permitted Transfer”). In the event of any such assignment, Provider shall
provide prior written notice to Customer of the existence of such assignment, together with the
name and address of the assignee, and documentation establishing that the assignee has assumed
(or as of the closing of such transaction will assume) all or a portion of the Provider’s rights and
obligations under this Agreement. Customer agrees to promptly review the proposed assignment
and if Customer determines the assignment is reasonable, execute any document reasonably
requested in acknowledgement of such assignment and in consent thereto in accordance with the
provisions hereof. Customer will not unreasonably withhold, condition or delay any such
approval.
15.3 Binding Effect. Subject to the foregoing restrictions on assignment, this Agreement will inure
to the benefit of and be binding upon the Parties and their respective successors and permitted
assigns.
SECTION 16 Representations and Warranties
Each Party represents and warrants (as to itself only) to the other Party that as of the
Effective Date:
(a)
(with respect to Provider only), it (i) is a corporation duly organized, validly
existing and in good standing under the laws of its state of incorporation, (ii) has all requisite
powers and all licenses, permits, franchises, certificates of convenience and necessity,
authorizations, consents, approvals, exemptions and orders required to carry on its business as now
conducted, and to perform its obligations under the Parties’ Agreement, and (iii) is duly qualified
to transact business as a foreign company in each jurisdiction where the nature of its business
requires the same, except where the failure to so qualify would not have a material adverse effect
on its business or condition (financial or otherwise) or the performance of its obligations under the
Parties’ Agreement;
(b)
its execution, delivery, and performance of the Parties’ Agreement (i) are within its
requisite powers, (ii) have been duly authorized by all requisite limited liability company or
governmental action, as applicable, and (iii) requires no action by or in respect of, or filing with,
any governmental body, agency or official;
17
(c)
the Parties’ Agreement has been duly executed and delivered by the signatories so
authorized, and constitutes a legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as the enforceability thereof may be limited by or subject to (i)
bankruptcy, reorganization, liquidation, insolvency and other similar laws of general application
affecting rights and remedies of creditors and (ii) the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law);
(d)
its execution, delivery, and performance of the Parties’ Agreement shall not (i)
contravene, conflict with, result in a breach or violation of, or constitute a material default under,
its Articles of Organization, Certificate of Organization, Operating Agreement or other similar
such document, any agreement, lease, mortgage, note, loan or other instrument, judgment,
injunction, order or decree to which it is a party or by which it or its properties may be bound,
except for breaches or defaults which have been waived by the applicable Government entities and
by Customer’s financing parties or (ii) result in a violation or contravention of any applicable
Laws; and
(e)
it has not received any notice of, nor to its knowledge is there pending or threatened,
any actions, investigations, suits or proceedings before any court, other Governmental Authority,
arbitrator or other Person against or affecting it or the Parties’ Agreement or which would
reasonably be expected to have a material adverse effect on its ability to perform its obligations
under the Parties’ Agreement or that would reasonably be expected to draw into question the
validity of the Parties’ Agreement.
SECTION 17 Confidentiality
17.1
Confidential Information. Provider’s systems, means, cost, and methodologies of
evaluating, implementing, accomplishing and determining energy savings and the terms of this
Agreement for the Project shall be considered privileged and proprietary information. Provider
must mark this information as “Confidential” that Provider deems privileged or proprietary
(“Marked Confidential Information”). Customer shall use the same level of effort to protect and
safeguard such Marked Confidential Information as it employs to safeguard its own confidential
information. Provider acknowledges, accepts, and agrees that Customer is subject to the Arizona
Public Records Act. If Customer receives a request to disclose Marked Confidential Information,
Customer will notify Provider of such request as provided in Section 19 to permit Provider to
undertake appropriate measures at Provider’s sole cost to prevent the disclosure of Marked
Confidential Information. If Customer does not receive a court order or other appropriate
instrument from Provider within ten (10) calendar days of Customer’s notice to Provider that
prevents Customer’s disclosure, Customer may disclose the Marked Confidential Information as
may be required by law.
17.2
Marketing. Neither Party shall make any public announcement regarding the terms or
provisions of the Parties’ Agreement without the prior written consent in each instance of the
other Party. Any such public announcement must be in form and substance approved by both
Parties in each instance.
18
SECTION 18 No Partnership or Joint Venture
The Parties agree that nothing herein shall serve to create any agency, employment or other master
and servant relationship or partnership or joint venture relationship or fiduciary relationship
between Provider and Customer.
SECTION 19 Notices
Except as provided otherwise in this MESA, every notice, request or other statement to be made
or delivered to a Party pursuant to this MESA shall be directed to such Party at the physical address
or email address given immediately below such Party’s signature on this MESA or to such other
physical address or email address as the Party may designate in writing from time to time. Each
Party, by written notice to the other Party, shall have the right to specify one additional address to
which copies of notices shall be sent. Except as provided otherwise in this MESA, (i) any notice,
request, statement, payment or other communication (including by facsimile where transmission
confirmation is received) shall be deemed to have been given on the date on which it is received
by the recipient and (ii) any notice of a Provider Event of Default or Customer Event of Default, a
termination pursuant to Section 13 Error! Reference source not found. or a Dispute for purposes
of Section 20 shall be deemed received when it is physically delivered to the recipient (e.g., by
physical delivery or overnight courier service, but not by email delivery).
SECTION 20 Dispute Resolution
If during the term of the Agreement any issue, dispute, claim or controversy should arise out of or
in connection with the Agreement (in each case, a “Dispute”) and the Parties are unable to resolve
the Dispute on or before the thirtieth (30th) day following written notice of such Dispute by one
Party to the other, which notice describes in reasonable detail the nature of the Dispute and the
facts and circumstances relating thereto, then either Party may initiate a non-binding, third party
mediation of the Dispute through a mediation service provider agreed to by the Parties. Such
mediation shall take place on or before forty-five (45) days following the date the initiating Party
gives notice of such mediation. The Parties shall share equally the costs of the mediator and
mediation service. If the Dispute has not been resolved within fifteen (15) days following such
mediation proceeding, any Party may commence judicial legal proceedings as provided in this
Agreement.
SECTION 21 Conditions.
21.1
Provider Conditions. Provider shall have no obligation to commence the installation or
implementation of ECMs until the following conditions have been satisfied (or waived by
Provider):
(a)
Customer has signed and delivered to Provider the Agreement;
(b)
no material adverse change shall have occurred in the financial condition of
Customer or the Facilities; and
(c)
Provider has received all of the following documents, which shall be reasonably
satisfactory in form and substance to the Provider:
19
(i)
evidence of insurance coverage required of each Party under this MESA,
(ii)
Uniform Commercial Code financing statements (for personal property and
fixtures) with respect to the Equipment for the ECMs, recorded or filed in such state and local
offices as Provider shall determine necessary or advisable to protect its ownership or security
interests in such Equipment,
(iii)
waivers, partial releases and/or intercreditor agreements by Customer’s
secured lenders as Provider may reasonably deem necessary or advisable to protect its
ownership or security interests in the applicable Equipment and providing such releases and
consents as Provider shall reasonably deem necessary to effect the release of any such lien,
security interest, or other claim by such lenders in the ECMs,
(iv)
Provider has obtained all permits, licenses, consents and approvals required
for the consummation of the transactions contemplated by the Agreement.
21.2
Customer Conditions. Customer shall have no obligation to commence the installation
or implementation of ECMs under any Work Order until the following conditions have been
satisfied (or waived by Customer):
(a)
Customer must receive City Council approval of: (i) the Work Order; (ii) any
agreement or documents required to finance the implementation of the ECMS; and (iii) the funding
for each ECM as work progresses.
(b)
To place a Work Order on the City Council agenda for approval, Customer must
first receive an original of such Work order signed and binding by Provider and Provider’s
representations and warranties (which may be established by Provider’s delivery of the required
performance and payment bonds pursuant to Section 21.2(d)(i) hereof) that it has the financial
resources to complete the work and services under the Agreement;
(c)
No material adverse change shall have occurred in the financial condition of
Provider since the Effective Date of this MESA; and
(d)
Customer has received all of the following documents, which shall be reasonably
satisfactory in form and substance to the Customer:
(i)
Evidence of insurance coverage required of Provider under this Agreement,
and performance and payment bonds for each ECM as required by A.R.S. Title 34,
(ii)
Provider has obtained or reasonably believes it can obtain all permits, licenses,
consents and approvals required for the consummation of the transactions contemplated by
the Work Order.
SECTION 22 Miscellaneous
22.1
Headings. The subject headings of the Sections of this MESA are inserted for the
purpose of convenient reference and are not intended to be part of this MESA nor to be
considered in any interpretation of the same.
20
22.2
Entire Agreement. This MESA (including each appendix, exhibit or attachment hereto
and document incorporated herein by reference) contains the entire understanding and agreement
between the Parties with respect to the applicable subject matter and supersedes all
contemporaneous and previous communications, negotiations, and agreements, whether oral or
written, between the Parties with respect to such subject matter.
22.3
Amendments. This MESA (including each appendix, exhibit or attachment hereto and
document incorporated herein by reference) may be amended, modified and/or supplemented
only in a writing signed by both Parties.
22.4
Waiver. No waiver by either Party, either express or implied, of any one or more defaults
by the other Party in the performance of any provisions of this MESA shall operate or be
construed as a waiver of any future default or defaults, whether of a like or different character.
Failure by a Party to enforce any of the terms, covenants, conditions, remedies or other
provisions of this MESA at any time shall not in any way affect, limit, modify or waive that
Party’s right thereafter to enforce strict compliance with every such term, covenant, condition,
remedy or provision in this MESA, notwithstanding any course of dealing or custom of the trade.
22.5
Preparation. The Parties and their legal counsel have cooperated in the drafting of this
MESA, and this MESA shall therefore be deemed their joint work product and not be construed
against either Party by reason of such preparation.
22.6
Exclusion of Third Party Rights. The provisions of these this MESA shall not impart
rights enforceable by any Person not a Party or bound as a Party (a) unless such Person is a
successor or permitted assignee of a Party bound by this MESA, (b) except for Persons identified
as indemnitees under the applicable indemnification provisions of this MESA and (c) as
specifically provided herein with respect to the rights of Customer’s financing parties.
22.7
Severability. If any provision of this MESA or the application thereof to any Party or
circumstance shall be unenforceable to any extent, the remainder of this MESA shall not be
affected thereby, so long as the material purposes of this MESA can be determined and
effectuated.
22.8
Applicable Law. THIS MESA AND THE RIGHTS AND DUTIES OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE INTERPRETED, PERFORMED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
22.9
Consent to Jurisdiction. The Parties irrevocably agree that any suit, action or
proceeding relating to arising out of this MESA may be brought in the state or federal courts
located in Maricopa County in the State of Arizona. The Parties irrevocably submit to the
jurisdiction of such courts. The Parties irrevocably waive any objections which they may have
now or hereafter to the venue of any proceedings brought in such courts, or that such proceedings
have been brought in a non-convenient forum.
22.10 Counterparts. This MESA may be signed in any number of counterparts and each
counterpart shall represent a fully executed original as if signed by both Parties.
21
22.11 Mutual Cooperation. The Parties shall reasonably cooperate with each other to
effectuate the purposes of this MESA.
[Signatures on following page.]
22
IN WITNESS WHEREOF, the Parties hereto have executed this MESA by and through their duly
authorized representatives as of the Effective Date.
AMERESCO, INC.
By
Name: Ron Haxton
Title: Senior Vice President
Address:
Ameresco, Inc.
2355 East Camelback Road, Suite 410
Phoenix, AZ 85016
Attn: Ron Haxton
Email: rhaxton@ameresco.com
CITY OF CHANDLER
By
Name:
Title:
Address:
City of Chandler
Attn:
Telephone:
Email:
Digitally signed by Ron Haxton
DN: C=US,
E=rhaxton@ameresco.com,
O=West Region,
OU=Ameresco, CN=Ron Haxton
Date: 2025.05.30
08:12:07-07'00'
APPROVED AS TO FORM:
_________________________________
City Attorney
ATTEST:
________________________________
City Clerk
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Appendix A - Definitions and Interpretations
1.1
Definitions. In addition to the terms defined in this MESA, the following terms shall have
the meanings given to them in this Appendix A.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly,
through one or more intermediaries, controls or is controlled by or is under common control
with such Person. For purposes of this definition, “control” (including related forms such
as “controlled by” and “under common control with”) means the power, directly or
indirectly, to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
“Agreement” means the documents in the following order of precedence (the document
that prevails and controls if a conflict or ambiguity arises among the documents): (1)
Appendix B – Supplement to Master Energy Services Agreement; (2) the Master Energy
Services Agreement; (3) Appendix A -- Definitions and Interpretations; (4) Appendix C –
Work Orders; (5) Appendix D – Notice to Proceed; (6) Appendix E -- Substantial
Completion Certificate; and (7) Final Delivery and Acceptance Certificate.
Notwithstanding the foregoing, the Parties may modify a specific term of this MESA, or
any Appendix of this MESA, by express written agreement in a Work Order.
“Business Day” means a day on which both Parties are open for business on the same
calendar day.
“Casualty Loss” has the meaning set forth in Section 8 of this MESA.
“Change of Law Cost” means the difference in cost of equipment or materials that is the
direct result of a change in Federal, Arizona, or City law, rule, or regulation, which occurs
after the Parties agree to a Work Order Amount (as set forth in Section 5.4 of the MESA)
but before the subject Work Order equipment or materials have been installed by Provider
and accepted by Customer.
“Claims” means any and all third party claims and resulting liabilities, obligations,
damages, losses, demands, penalties, fines, claims, actions, suits, judgments, settlements,
costs, expenses and disbursements (including reasonable, actually incurred legal fees,
expenses and costs of investigation) of any kind and nature whatsoever, including those
arising out of property damage and personal injury and bodily injury (including death,
sickness and disease).
“Commencement Date” with respect to each ECM (or separable portion thereof) means
the date that Provider has delivered the Substantial Completion Certificate with respect to
such ECM pursuant to Section 4.1(a).
“Customer” has the meaning set forth in the preamble of this MESA.
“Customer Event of Default” has the meaning set forth in Section 13.10 of this MESA.
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“Dispute” has the meaning set forth in Section 20 of this MESA.
“Due Date” has the meaning set forth in Section 5.2 of this MESA.
“ECM” means Solar ECM and Non-Solar ECM collectively.
“Equipment” means the equipment and materials installed as part of an ECM which is
expressly contemplated in this MESA.
“MESA” has the meaning set forth in the preamble of this agreement.
“Effective Date” has the meaning set forth in the preamble of this MESA.
“Facilities” has the meaning set forth in the preamble of this MESA.
“Final Delivery and Acceptance Certificate” has the meaning set forth in Section 4.1(a).
“Final Commencement Date” means the date that Customer has delivered the Final
Delivery and Acceptance Certificate pursuant to Section 4.1(a)for all of the ECMs under a
Work Order.
“Force Majeure” or “Force Majeure Event” means an event, condition or circumstance
that is not reasonably in the control of (and is not due to the fault or negligence of) the
Party claiming it which causes the affected Party to be delayed in or prevented from
performing or carrying its obligations, including but not limited to an act of God, strikes,
lockouts or other industrial disturbances, acts of public enemies, acts of terrorism,
epidemic, pandemic, orders or restraints of any kind of the government of the United States
or any state or any of their departments agencies or officials or any other civil
governmental, military or judicial authority, war, blockage, insurrection, riot, sudden
action of the elements, fire, explosion, flood, earthquake, storms, drought, landslide, or
explosion or nuclear emergency., Economic hardship of or suffered by a Party shall not
constitute a Force Majeure event. Furthermore, the settlement of strikes and labor
disturbances expressly directed at the affected Party are deemed to be wholly within the
control of the Party whose performance is prevented or delayed by the same, such that such
strikes or labor disturbances shall also not constitute Force Majeure events.
Notwithstanding any of the foregoing, Force Majeure Events shall not include (a) a failure
of equipment except if caused by a Force Majeure Event, (b) unavailability of replacement
or spare parts except if caused by a Force Majeure Event or (c) with respect to damage to,
or performance of, the Equipment, climatic or operating conditions at the Facilities that are
inside the design parameters of the ECMs (structural or non-structural).
“Governmental Authority” means, with respect to any Person or property, any national,
state, provincial, county, department, city, or other political subdivision that exercises
jurisdiction over such Person or property, and any court, agency, department, commission,
board, bureau, or instrumentality, whether civil or military, of any of them.
“Guaranteed Savings” has the meaning set forth in Section 3.1 of this MESA.
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“Hazardous Substance” means any substance, waste or material which is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or
otherwise hazardous, including petroleum, its derivatives, by-products and other
hydrocarbons, lead paint and asbestos, and which is or becomes regulated by any applicable
Governmental Authority, including any agency, department, commission, board or
instrumentality of the United States, the State of Arizona or any political subdivision
thereof.
“Implementation Period” means, with respect to each Work Order, the period beginning
on the date of the applicable Notice to Proceed and ending on the Final Commencement
Date.
“Implementation Price” means, with respect to each ECM, the amount set forth as the
“Implementation Price” for such ECM in the applicable Work Order.
“Indemnified Party” has the meaning set forth in Section 10 of this MESA.
“Indemnifying Party” has the meaning set forth in Section 10 of this MESA.
“Law” means any constitutional provision, statute, act, code, regulation, rule, ordinance,
order, decree, directive, ruling, proclamation, resolution, judgment, decision, declaration,
or other official interpretation thereof by an applicable Governmental Authority; and a
reference to a Law shall be deemed to refer to such Law as it may be amended from time
to time, including any successor legislation thereof.
“M&V Plan” means the Measurement and Verification Plan attached as to each Work
Order under this MESA; it being understood and agreed that wherever the M&V Plan
contains the phrase “it is assumed,” “it is proposed” or language of similar effect, such
language shall be presumed to be a definitive statement that the relevant party is obligated
to perform the task or obligation specified; provided that where the M&V Plan establishes
a standard or specification but allows flexibility in the actions that may be taken to meet
such standard or specification, the foregoing presumption shall not diminish such
flexibility.
“Measurement Period” has the meaning set forth in Section 3.3(a) of this MESA.
“Measurement & Verification Services” has the meaning set forth in the Work Order.
“Non-Solar ECM” means any ECM which is not a Solar ECM.
“Notice to Proceed” has the meaning set forth in Section 5.1 of this MESA.
“Operation and Maintenance Services” has the meaning set forth in the Work Order.
“Party” and “Parties” has the meaning set forth in the preamble of this MESA.
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“Performance Period” means the period beginning on the Final Commencement Date
and ending upon Customer’s final payment with respect to the ECMs, as applicable, under
the applicable Work Order.
“Performance Period Expenses” means fees and expenses payable by Customer to
Provider for the Performance Period Services and any other services rendered by Provider
with respect to the ECMs, calculated as directed in the applicable Work Order.
“Performance Period Services” means, with respect to any ECM, the Operation and
Maintenance Services and the Measurement & Verification Services to be provided by
Provider during the Performance Period or other services to be provided by Provider during
the Performance Period, in each case as expressly set forth in the applicable Work Order.
“Person” means any individual, corporation, partnership, limited liability company, joint
venture, association, joint stock company, trust, Governmental Authority or
unincorporated organization.
“Provider” means Ameresco, Inc.
“Provider Event of Default” has the meaning set forth in Section 13.3 of this MESA.
“Savings Guarantee” has the meaning set forth in Section 3.3(c) of this MESA.
“Savings Reconciliation” has the meaning set forth in Section 3.3(a) of this MESA.
“Shortfall Payment” has the meaning set forth in Section 3.3(b) of this MESA.
“Solar ECM” means an integrated assembly of energy storage systems, photovoltaic
panels, mounting assemblies, inverters, converters, metering, transformers, disconnects,
combiners, switches, wiring devices and wiring (excluding any interconnection facilities)
intended to generate and/or store electricity.
“Substantial Completion” means, with respect to an ECM, that (i) the ECM and related
Equipment have been fully implemented, installed and completed in accordance with the
specifications in this MESA, (ii) that such ECM and related Equipment have been
commissioned by Provider and are then operating as intended and (iii) all punchlist items
have been completed in connection with the full implementation, installation and
completion of the ECM.
“Substantial Completion Certificate” has the meaning set forth in Section 4.1(a) of this
MESA.
“Verified Savings” has the meaning set forth in Section 3.2 of this MESA.
“Warranty Period” has the meaning set forth in Section 2.5(a) of this MESA.
1.2
Terminology. Except where the context otherwise requires, in this MESA, (a) words
imparting the singular number shall include the plural number, and vice versa, and shall be
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construed to be of such gender or number as the context requires; (b) the words “herein,” “hereof,”
“hereunder” and words of similar import when used in this MESA refer to this MESA as a whole,
and not to any particular article, section or subsection; (c) any reference to Section shall mean such
Section of the portion of this MESA in which such reference is made; (d) pronouns shall include
Persons of every kind and character; (e) the gender of all words used herein shall include the
masculine, feminine and neuter; (f) the words “include(s)” or “including” shall mean “including
without limitation”; and (g) all references to “dollars,” “$” and “U.S. Dollars” shall refer to legal
currency of the United States.
1.3
Additional Defined Terms. Additional terms otherwise defined in this MESA or the
Appendices hereto shall be deemed to have the meanings set forth therein.
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APPENDIX B
SUPPLEMENT TO MASTER ENERGY SERVICES AGREEMENT
BETWEEN AMERESCO, INC. AND CITY OF CHANDLER
CITY OF CHANDLER DOCUMENT NO. [INSERT]
THIS SUPPLEMENT TO THE AGREEMENT (Supplement) is entered into by and between the
City of Chandler, an Arizona municipal corporation, by its Mayor, (Customer), and Ameresco,
Inc. (Provider), (Customer and Provider may individually be referred to as Party and collectively
referred to as Parties) and made effective the same date as the Master Energy Services Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises contained in this
Agreement, Customer and Provider agree to the following terms and conditions that supplement
and modify the Master Energy Services Agreement as follows:
SECTION I: DEFINITIONS
For purposes of this Supplement, the definitions set forth in Appendix A apply except as modified
in this section:
“Agreement” means this Supplement, the Master Energy Services Agreement, and all attached
appendices and exhibits approved and agreed to by the Parties.
“Customer” means the City of Chandler, Arizona.
“Days” means calendar days.
“May or Should” means something that is not mandatory but permissible.
“Provider” means Ameresco
“Shall, Will, or Must” means a mandatory requirement.
“Supplement” means this agreement which supersedes, modifies, and amends the Master Energy
Services Agreement.
SECTION II: ENTIRE AGREEMENT; PRECEDENCE OF DOCUMENTS
The Parties’ Agreement in its entirety includes and incorporates by this reference the following
documents. If a conflict or ambiguity arises among the following documents, the documents in
the following order prevail and control: (1) Appendix B -- this Supplement; (2) the Master Energy
Services Agreement; (3) Appendix A -- Definitions and Interpretations; (4) Appendix C – Work
Orders; (5) Appendix D – Notice to Proceed; (6) Appendix E -- Substantial Completion Certificate;
and (7) Appendix F -- Final Delivery and Acceptance Certificate.
SECTION III. GENERAL CONDITIONS
3.1 Title 34. Arizona Revised Statutes Title 34, chaps. 1-6, secs. 34-101 and following, as
amended, as applicable, control this Agreement. The provisions related to master job order
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contractor agreement apply and control the MESA and each Work Order must comply with job
order agreement requirements as provided in Title 34.
3.2 Records/Audit. Records of the Provider’s direct personnel payroll, reimbursable expenses
pertaining to this Agreement and records of accounts between the Customer and Provider must be
kept on the basis of generally accepted accounting principles and must be made available to the
Customer and its auditors for up to three years following the Customer’s final acceptance of the
services under this Agreement. The Customer, its authorized representative, or any federal agency,
reserves the right to audit Provider’s records to verify the accuracy and appropriateness of all cost
and pricing data relating to this Agreement and any Work Orders, including data used to negotiate
this Agreement and any Work Orders. The Customer reserves the right to decrease the total amount
of Agreement price or payments made under this Agreement or request reimbursement from the
Provider following final contract payment on this Agreement if, upon audit of the Provider’s
records, the audit discloses the Provider has provided false, misleading, or inaccurate cost and
pricing data. The Provider will include a similar provision in all of its contracts with subcontractors
providing services under the Agreement to ensure that the Customer, its authorized representative,
or the appropriate federal agency, has access to the subcontractors’ records to verify the accuracy
of all cost and pricing data. The Customer reserves the right to decrease Contract price or payments
made on this Agreement or request reimbursement from the Provider following final payment on
this Agreement if the above provision is not included in subcontractor agreements, and one or
more subcontractors refuse to allow the Customer to audit their records to verify the accuracy and
appropriateness of all cost and pricing data. If, following an audit of this Agreement, the audit
discloses the Provider has provided false, misleading, or inaccurate cost and pricing data, and the
cost discrepancies exceed 1% of the total Agreement billings, the Provider will be liable for
reimbursement of the reasonable, actual cost of the audit. Any audit will be performed at the
Customer’s expense, except as provided herein, and shall take place at the Provider’s offices
during normal business hours and following reasonable prior notice from the Customer.
3.3 Alteration in Character of Work. Whenever an alteration in the character of work results in a
substantial change in this Agreement, thereby materially increasing or decreasing the scope of
services, cost of performance, or Project schedule, the work will be performed as directed by the
Customer. However, before any modified work is started, a written amendment must be approved
and executed by the Customer and the Provider. Such amendment must not be effective until
approved by the Customer. Additions to, modifications, or deletions from this Agreement as
provided herein may be made, and the compensation to be paid to the Provider and, if applicable,
the Project schedule and the Provider’s obligations with respect to the Savings Guarantee may
accordingly be adjusted by mutual agreement of the Parties. It is distinctly understood and agreed
that no claim for extra work done or materials furnished by the Provider will be allowed by the
Customer except as provided herein, nor must the Provider do any work or furnish any materials
not covered by this Agreement unless such work is first authorized in writing. Any such work or
materials furnished by the Provider without prior written authorization will be at Provider’s own
risk, cost, and expense, and Provider hereby agrees that without written authorization Provider will
make no claim for compensation for such work or materials furnished.
3.4 Termination for Convenience. The Parties hereby agree to the full performance of the
covenants contained herein, except that the Customer reserves the right, at its discretion and
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without cause, to terminate or abandon any service provided for in this Agreement or abandon
any portion of the Agreement for which services have been performed by the Provider. In the
event the Customer abandons or suspends the services, or any part of the services as provided
in this Agreement, the Customer will notify the Provider in writing at least thirty (30) days in
advance, and immediately after receiving such notice, the Provider must discontinue
advancing the work specified under this Agreement. Upon such termination, abandonment,
or suspension, and subject to Provider’s receipt of payment therefor as provided in this Section
3.4, the Provider must deliver to the Customer all drawings, plans, specifications, special
provisions, estimates and other work entirely or partially completed, together with all unused
materials supplied by the Customer. The Provider must appraise the work Provider has
completed and submit Provider’s appraisal to the Customer for evaluation. The Customer may
inspect the Provider’s work to appraise the work completed. The Provider will receive
compensation in full for services performed to the date of such termination. The fee shall be
paid in accordance with Section 5 of this Agreement, and as mutually agreed upon by the
Provider and the Customer. If there is no mutual agreement on payment, the final
determination will be made in accordance with Section 20 of this Agreement. However, in no
event may the fee exceed the fee set forth in this Agreement nor as amended in accordance
with Section 3.3 of this Appendix B (Alteration in Character of Work). The Customer will
make the final payment within 30 days after the Provider has delivered the last of the partially
completed items and the Parties agree on the final fee. If the Customer is found to have
improperly terminated the Agreement for cause or default, the termination will be converted
to a termination for convenience in accordance with the provisions of this Agreement.
3.5 Reserved
3.6 Indemnification. The Provider (Indemnitor) must indemnify, defend, save and hold
harmless the Customer and its officers, officials, agents and employees (Indemnitee) from any
and all third party claims and resulting actions, liabilities, damages, losses or expenses
(including court costs, reasonable attorneys' fees and reasonable costs of claim processing,
investigation and litigation) (Claims) to the extent caused or alleged to be caused, in whole or
in part, by the wrongful, negligent or willful acts, or errors or omissions of the Provider or
any of its owners, officers, directors, agents, employees, or subcontractors in connection with
this Agreement. This indemnity includes any claim or amount arising out of or recovered
under workers' compensation law, or on account of the failure of the Provider to conform to
any federal, state or local law, statute, ordinance, rule, regulation or court decree. The Provider
must indemnify Indemnitee from and against any and all Claims, except to the extent arising
from an Indemnitee's own negligent or willful acts or omissions. The Provider is responsible
for primary loss investigation, defense and judgment costs where this indemnification applies.
In consideration of the award of this Agreement, the Provider agrees to waive all rights of
subrogation against Indemnitee for losses arising from or related to this Agreement. The
obligations of the Provider under this provision survive the termination or expiration of this
Agreement.
3.7 Insurance Requirements. Provider must procure insurance under the terms and conditions
and for the amounts of coverage set forth below against claims that may arise from or relate
to performance of the work under this Agreement by Provider and its agents, representatives,
employees, and subcontractors. Provider and any subcontractors must maintain this insurance
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until all of their obligations have been discharged, including any warranty periods under this
Agreement. These insurance requirements are minimum requirements for this Agreement and
in no way limit the indemnity covenants contained in this Agreement. The Customer in no
way warrants that the minimum limits stated in this section are sufficient to protect the
Provider from liabilities that might arise out of the performance of the work under this
Agreement by the Provider, the Provider’s agents, representatives, employees, or
subcontractors. Provider is free to purchase such additional insurance as may be determined
necessary.
3.7.1 Scope and Limits of Insurance: Provider must provide coverage with the
following limits of liability.
3.7.1.1 Commercial General Liability – Occurrence Form. Policy must also include
coverage for products completed operations, independent contractors, personal injury,
property damage, and advertising injury. Such limits may be achieved through a
combination of primary and umbrella liability policies.
Products – Completed Operations Aggregate
$10,000,000
Each Occurrence
$10,000,000
The policy must be endorsed to include the following additional insured language:
"The City of Chandler, its agents, representatives, officers, directors, officials,
employees, and volunteers must be named as an additional insured with respect to
liability arising out of the activities performed by the Provider." This endorsement
may not contain an exclusion or limitation of completed operations coverage as regards
the additional insured except with respect to the stated aggregate limits of liability. The
policy may not exclude the explosion/collapse/underground (“xcu”) hazard.
3.7.1.2 Automobile Liability. Bodily Injury and Property Damage for any owned, hired, and
non-owned vehicles used in the performance of work under this Agreement.
Combined Single Limit (CSL)
$1,000,000
The policy must contain an “MCS-90” endorsement providing for clean-up of pollution
conditions arising from transported product, if the work performed under the Agreement
requires the transportation of any Hazardous Substances by motor vehicle. The policy must
also be endorsed to include the following additional insured language: "The City of Chandler
its agents, representatives, officers, directors, officials, employees, and volunteers must be
named as an additional insured with respect to liability arising out of the activities performed
by Provider, including automobiles owned, leased, hired, or borrowed by Provider ".
3.7.1.3 Worker's Compensation and Employers' Liability.
Workers' Compensation
Statutory
Employers' Liability
Each Accident
$1,000,000
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Disease – Each Employee
$1,000,000
Disease – Policy Limit
$1,000,000
Policy must contain a waiver of subrogation against the City of Chandler.
3.7.1.4 Pollution Liability.
Per Occurrence
$10,000,000
Annual Aggregate
$10,000,000
The policy must be endorsed to include the following additional insured language: "The City
of Chandler its agents, representatives, officers, directors, officials, employees, and volunteers
must be named as an additional insured with respect to liability arising out of the activities
performed by Provider." The policy must include coverage for cleanup of sudden or accidental
pollution conditions arising from the Wireless Facilities and Communications Equipment, as
defined in the Agreement; cleanup of new conditions arising from Provider’s operations and
use of Work Order sites under this Agreement; and third-party claims for on and off-site bodily
injury and property damage. Provider warrants that any retroactive date under the policy must
precede the Effective Date of this Agreement; and that either continuous coverage will be
maintained, or an extended discovery period will be exercised for a period of three (3) years
beginning at the time work under this Agreement is completed.
3.7.1.5 Tech E&O and Network Security and Privacy Liability Insurance (Cyber).
Per Loss
$5,000,000
Annual Aggregate
$5,000,000
The policy must cover professional misconduct or lack of ordinary skill for those positions
defined in the Scope of Services of this Agreement. If the professional liability insurance
required by this Agreement is written on a claims-made basis, Provider warrants that any
retroactive date under the policy will precede the Effective Date of this Agreement; and
that either continuous coverage will be maintained, or an extended discovery period will
be exercised for a period of three (3) years beginning at the Effective Date of this
Agreement. If such insurance is maintained on an occurrence form basis, Provider must
maintain such insurance for an additional period of one (1) year following termination or
expiration of this Agreement. If such insurance is maintained on a claims-made basis,
Provider must maintain such insurance for an additional period of three (3) years following
termination or expiration of this Agreement. If Provider contends that any of the insurance
it maintains pursuant to other sections of this clause satisfies this requirement (or otherwise
insures the risks described in this section), Provider must provide proof of same. The
insurance must provide coverage for the following risks: (i) Liability arising from theft,
dissemination or use of confidential information (a defined term including but not limited
to bank account, credit card account, personal information such as name, address, social
security numbers, etc. information) stored or transmitted in electronic form; (ii) Network
security liability arising from the unauthorized access to, use of or tampering with the solar
energy services software including hacker attacks, inability of an authorized third party, to
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gain access to your services including denial of service, unless caused by a mechanical or
electrical failure; (iii) Liability arising from the introduction of a computer virus into, or
otherwise causing damage to, a customer’s or third person’s computer, the solar energy
services network or similar computer related property and the data, software, and programs
thereon. The policy must provide a waiver of subrogation.
3.7.1.6 Professional Liability. If the Agreement is the subject of any professional services
or work performed by Provider, or if Provider engages in any professional services or work
adjunct or residual to performing the work under this Agreement, the Provider must
maintain Professional Liability insurance covering errors and omissions arising out of the
work or services performed by the Provider, or anyone employed by the Provider, or
anyone whose acts, mistakes, errors and omissions Provider is legally liable, with a liability
limit of $1,000,000 each claim and $2,000,000 all claims. In the event the Professional
Liability insurance policy is written on a “claims made” basis, coverage must extend for 3
years past completion and acceptance of the work or services, and Provider, or its selected
Design Professional will submit Certificates of Insurance as evidence the required coverage
is in effect. The Design Professional must annually submit Certificates of Insurance citing
that the applicable coverage is in force and contains the required provisions for a 3-year
period.
3.7.1.7 Builders’ Risk/Installation Floater Insurance. Provider bears all responsibility for
loss to all equipment or Work under construction. Unless waived in writing by Customer
Provider will purchase and maintain in force Builders’ Risk/Installation Floater insurance
on the entire Work until completed and accepted by Customer. This insurance will be
Special Causes of Loss policy form, (minimally including perils of fire, flood, lightning,
explosion, windstorm and hail, smoke, aircraft and vehicles, riot and civil commotion,
theft, vandalism, malicious mischief, and collapse), completed value, replacement cost
policy form equal to the contract price and all subsequent modifications. The Contractor’s
Builders’ Risk/Installation Floater insurance must be primary and not contributory.
A.
Builders’ Risk/Installation Floater insurance must cover the entire Work
including reasonable compensation for architects and Provider’s services and expenses and
other “soft costs” made necessary by an insured loss. Builders’ Risk/Installation Floater
insurance must provide coverage from the time any covered property comes under
Provider’s control and or responsibility, and continue without interruption during course
of construction, renovation and or installation, including any time during which any project
property or equipment is in transit, off site, or while on site for future use or installation.
Insured property must include, but not be limited to, scaffolding, false work, and temporary
buildings at the site. This insurance must also cover the cost of removing debris, including
demolition as may be legally required by operation of any law, ordinance, regulation or
code.
B.
Provider must also purchase and maintain Boiler and Machinery insurance
with the same requirements as Builders’ Risk/Installation Floater insurance cited above if
the Work to be performed involves any exposures or insurable property normally covered
under a Boiler and Machinery insurance policy or made necessary as required by law or
testing requirements in the performance of this Agreement. Provider will be responsible
for any and all deductibles under these policies and Provider waives all rights of recovery
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and subrogation against Customer under Provider’s Builders’ Risk/Installation Floater
insurance described herein.
C.
Builders’ Risk/Installation Floater Insurance must be maintained until
whichever of the following first occurs: (i) final payment has been made; or (ii) until no
person or entity, other than Customer, has an insurable interest in the property required to
be covered.
D.
The Builders’ Risk/Installation Floater insurance must be endorsed so that
the insurance will not be canceled or lapse because of any partial use or occupancy by
Customer.
E.
The Builders Risk/Installation Floater insurance must include as named
insureds, Customer, Provider, and all tiers of subcontractors and others with an insurable
interest in the Work who will be named as additional insureds unless they are able to
provide the same level of coverage with Customer and Provider named as additional
insureds. Certificates must contain a provision that the insurance will not be canceled or
materially altered without at least 30 days advance notice to Customer. Customer must
also be named as a Loss Payee under the Builders’ Risk/Installation Floater coverage.
F.
The Builders Risk/Installation Floater insurance must be written using the
Special Causes of Loss policy form, replacement cost basis.
G.
All rights of subrogation under the Builders Risk/Installation Floater
insurance are, by this Contract/Agreement, waived against Customer, its officers, officials,
agents and employees.
H.
Provider is responsible for payment of all deductibles under the Builders’
Risk/Installation Floater insurance policy.
3.7.2 Additional Insurance Requirements. The policies are to contain, or be endorsed
to contain, the following provisions.
3.7.2.1 Any self-insured retentions and deductibles must be declared and approved by
Customer. If not approved, Customer may require that the insurer reduce or eliminate any
deductible or self-insured retentions with respect to Customer, its officers, officials, agents,
employees, and volunteers.
3.7.2.2
Provider’s insurance must contain broad form contractual liability
coverage.
3.7.2.3
Provider’s insurance coverage must be primary insurance with respect to
Customer, its officers, officials, agents, and employees. Any insurance or self-insurance
maintained by Customer, its officers, officials, agents, and employees shall be in excess of
the coverage provided by Provider and must not contribute to it.
3.7.2.4
Provider’s insurance must apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the insurer's liability.
3.7.2.5. Coverage provided by Provider must not be limited to the liability assumed under
the indemnification provisions of this Agreement.
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3.7.2.6 The policies must contain a severability of interest clause and waiver of subrogation
against Customer, its officers, officials, agents, and employees, for losses arising from
Work performed by Provider for Customer.
3.7.2.7
Provider, its successors and or assigns, are required to maintain Commercial
General Liability insurance as specified in this Agreement for a minimum period of 3 years
following completion and acceptance of the Work. Provider must submit a Certificate of
Insurance evidencing Commercial General Liability insurance during this 3-year period
containing all the Agreement insurance requirements, including naming the City of
Chandler, its agents, representatives, officers, directors, officials and employees as
Additional Insured as required.
3.7.2.8 If a Certificate of Insurance is submitted as verification of coverage, Customer will
reasonably rely upon the Certificate of Insurance as evidence of coverage, but this
acceptance and reliance will not waive or alter in any way the insurance requirements or
obligations of this Agreement.
3.7.3 Insurance Cancellation During Term of Agreement.
3.7.3.1 If any of the required policies expire during the life of this Agreement, Provider
must forward renewal or replacement Certificates to Customer within 10 days after the
renewal date containing all the required insurance provisions.
3.7.3.2. Each insurance policy required by the insurance provisions of this Agreement shall
provide the required coverage and shall not be suspended, voided or canceled except after
thirty (30) days prior written notice has been given to Customer, except when cancellation
is for non-payment of premium, then ten (10) days prior notice may be given. Such notice
shall be sent directly to Chandler Law-Risk Management Department, Post Office Box
4008, Mailstop 628, Chandler, Arizona 85225. If any insurance company refuses to provide
the required notice, Provider or its insurance broker shall notify Customer of any
cancellation, suspension, non-renewal of any insurance within seven (7) days of receipt of
insurers’ notification to that effect.
3.7.4
Acceptability of Insurers. Insurance is to be placed with insurers duly licensed or
approved unlicensed companies in the State of Arizona and with an "A.M. Best" rating of not less
than A-VII. Customer in no way warrants that the above-required minimum insurer rating is
sufficient to protect Provider from potential insurer insolvency.
3.7.5
Verification of Coverage. Provider must furnish Customer with certificates of
insurance (ACORD form or equivalent approved by Customer) as required by this Agreement.
The certificates for each insurance policy are to be signed by a person authorized by that insurer
to bind coverage on its behalf. All certificates and endorsements are to be received and approved
by Customer before work commences. Each insurance policy required by this Agreement must be
in effect at or prior to commencement of work under this Agreement and remain in effect for the
duration of the Agreement. Failure to maintain the insurance policies as required by this
Agreement or to provide evidence of renewal is a material breach of this Agreement. All
36
certificates required by this Agreement must be sent directly to Customer with a copy to Risk
Management as the addresses listed in Section 3.7.3. The Agreement number and description are
to be noted on the certificate of insurance. At Customer’s request, Provider must make certified
copies of all insurance policies required by this Agreement available for Customer’s review
through a representative and at a location within Maricopa County, Arizona designated by
Provider.
3.7.6
Contractors. Provider’s certificate(s) must include all contractors as additional
insureds under its policies or contractors must maintain separate insurance as determined by
Provider and contractors must name City of Chandler as an additional insured, however,
contractor’s limits of liability must not be less than $1,000,000 per occurrence, $2,000,000
aggregate.
3.7.7
Approval. Any modification or variation from the insurance requirements in this
Agreement must have prior approval from the Office of the City Attorney, whose decision will be
final. Such action will not require a formal contract amendment but may be made by administrative
action.
3.7.8
Risk of Loss. Provider assumes the risk of all loss, damage or claims related to
Provider’s use of the Work Order sites or other Public Property, Provider or third parties throughout
the term of this Agreement and the term(s) of all permits. Provider must be responsible for all damage
to its property and equipment related to this Agreement unless caused by the negligence of the
Customer or its agents or contractors.
3.7.9
Insurance to be Provided by Others. Provider must cause its contractors or other
persons occupying, working on or about, or using the Work Order sites pursuant to this Agreement
to be covered by their own or Provider’s insurance as required by this Agreement. The required
policy limits for commercial general liability insurance provided by such persons must be $1,000,000
for each occurrence, $1,000,000 for products and completed operations annual aggregate, and
$2,000,000 general aggregate limit per policy year. This paragraph does not apply to persons who do
not actually perform physical labor at the Work Order sites (such as Provider’s consulting design
engineers).
3.8 Reserved
3.9 Reserved
3.10 Successors and Assigns. Customer and Provider each bind itself, its partners, successors,
assigns, and legal representatives to the other party to this Agreement and to the partners,
successors, assigns, and legal representatives of such other party in respect to all covenants of
this Agreement. In no event may any contractual relation be created between any third party
and Customer.
3.11 Disputes. In addition to the dispute resolution provisions set forth in Section 20 of the
Agreement, the Parties agree that in any dispute arising out of an interpretation of this
Agreement or the duties required not disposed of by agreement between Provider and
37
Customer, the final determination at the administrative level will be made by the Chandler
City Manager or City Manager’s designee.
3.12 Completeness and Accuracy of Provider’s Work. Provider must be responsible for the
completeness and accuracy of Provider’s services, data, and other work prepared or compiled
under Provider’s obligations under this Agreement and must correct, at Provider’s expense,
all willful or negligent errors, omissions, or acts that may be discovered. The fact that
Customer has accepted or approved the Provider’s work will in no way relieve the Provider
of any of Provider’s responsibilities.
3.13 Reserved
3.14 City's Right of Cancellation. The Parties acknowledge that this Agreement is subject to
cancellation by Customer under the provisions of Section 38-511, Arizona Revised Statutes
(A.R.S.).
3.15 Independent Contractor. For this Agreement Provider constitutes an independent
contractor. Any provisions in this Agreement that may appear to give Customer the right to
direct Provider as to the details of accomplishing the work or to exercise a measure of control
over the work means that Provider must follow the wishes of Customer as to the results of the
work only. These results must comply with all applicable laws and ordinances.
3.16 Project Staffing. Prior to the start of any work under this Agreement, Provider must
assign to Customer the key personnel that will be involved in performing services prescribed
in the Agreement. Customer may acknowledge its acceptance of such personnel to perform
services under this Agreement. At any time hereafter that Provider desires to change key
personnel while performing under the Agreement, Provider must submit the qualifications of
the new personnel to Customer for prior approval. Provider will maintain an adequate and
competent staff of qualified persons, as may be determined by Customer, throughout the
performance of this Agreement to ensure acceptable and timely completion of the Scope of
Services. If Customer objects, with reasonable cause, to any of Provider staff, Provider must
take prompt corrective action acceptable to Customer and, if required, remove such personnel
from the Project and replace with new personnel agreed to by Customer.
3.17 Subcontractors. Prior to beginning the work, Provider must furnish Customer for
approval the names of subcontractors to be used under this Agreement. Any subsequent
changes are subject to Customer’s written prior approval.
3.18 Force Majeure. If either party is delayed or prevented from the performance of any act
required under this Agreement by reason of any Force Majeure Event, performance of that act
shall be excused, but only for the period of the delay, if the Party provides written notice to
the other Party within ten days of such act. The time for performance of the act shall be
extended for a period equivalent to the duration of the Force Majeure event.
3.19 Compliance with Federal Laws. Provider understands and acknowledges the
applicability of the Americans with Disabilities Act, the Immigration Reform and Control Act
38
of 1986 and the Drug Free Workplace Act of 1989 to it. Provider agrees to comply with these
laws in performing this Agreement and to permit Customer to verify such compliance.
3.20 No Israel Boycott. By entering into this Agreement, Provider certifies that Provider is
not currently engaged in, and agrees for the duration of the Agreement, not to engage in a
boycott of Israel as defined by state statute.
3.21 Legal Worker Requirements. A.R.S. § 41-4401 prohibits Customer from awarding a
contract to any contractor who fails, or whose subcontractors fail, to comply with A.R.S. §
23-214(A). Therefore, Provider agrees Provider and each subcontractor it uses warrants their
compliance with all federal immigration laws and regulations that relate to their employees
and their compliance with§ 23-214, subsection A. A breach of this warranty will be deemed
a material breach of the Agreement and may be subject to penalties up to and including
termination of the Agreement. Customer retains the legal right to inspect the papers of any
Provider’s or subcontractor’s employee who provides services under this Agreement to ensure
that the Provider and subcontractors comply with the warranty under this provision.
3.22 Lawful Presence Requirement. A.RS. §§ 1-501 and 1-502 prohibit Customer from
awarding a contract to any natural person who cannot establish that such person is lawfully
present in the United States. To establish lawful presence, a person must produce qualifying
identification and sign a Customer-provided affidavit affirming that the identification
provided is genuine. This requirement will be imposed at the time of contract award. This
requirement does not apply to business organizations such as corporations, partnerships, or
limited liability companies.
3.23 Covenant Against Contingent Fees. Provider warrants that no person has been employed
or retained to solicit or secure this Agreement upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee, and that no member of the Chandler
City Council, or any Customer employee has any interest, financially, or otherwise, in
Provider’s firm. For breach or violation of this warrant, Customer may annul this Agreement
without liability or, at its discretion, to deduct from the Agreement price or consideration, the
full amount of such commission, percentage, brokerage, or contingent fee.
3.24 Reserved
3.25 Disclosure of Information Adverse to Customer’s Interests. To evaluate and avoid
potential conflicts of interest, Provider must provide written notice to Customer, as set forth
in this Section, of any work or services performed by Provider for third parties that may
involve or be associated with any real property or personal property owned or leased by
Customer. Such notice must be given 7 business days prior to commencement of the services
by Provider for a third party, or 7 business days prior to an adverse action as defined below.
Written notice and disclosure must be sent to the Customer’s project manager. An adverse
action under this Agreement includes, but is not limited to: (a) using data as defined in the
Agreement acquired in connection with this Agreement to assist a third party in pursuing
administrative or judicial action against Customer; or (b) testifying or providing evidence on
behalf of any person in connection with an administrative or judicial action against Customer;
39
or (c) using data to produce income for Provider or its employees independently of performing
the services under this Agreement, without the prior written consent of Customer. Provider
represents that except for those persons, entities, and projects identified to Customer, the
services performed by Provider under this Agreement are not expected to create an interest
with any person, entity, or third-party project that is or may be adverse to Customer’s interests.
Provider’s failure to provide a written notice and disclosure of the information as set forth in
this Section constitute a material breach of this Agreement.
3.26 Data Confidentiality and Data Security. As used in the Agreement, data means all
information, whether written or verbal, including plans, photographs, studies, investigations,
audits, analyses, samples, reports, calculations, internal memos, meeting minutes, data field
notes, work product, proposals, correspondence and any other similar documents or
information prepared by, obtained by, or transmitted to Provider or its subcontractors in the
performance of this Agreement. The Parties agree that all data, regardless of form, including
originals, images, and reproductions, prepared by, obtained by, or transmitted to Provider or
its subcontractors in connection with Provider’s or its subcontractor’s performance of this
Agreement is confidential and proprietary information belonging to Customer. Except as
specifically provided in this Agreement, Provider or its subcontractors must not divulge data
to any third party without Customer’s prior written consent. Provider or its subcontractors
must not use the data for any purposes except to perform the services required under this
Agreement. These prohibitions do not apply to the following data provided to Provider or its
subcontractors have first given the required notice to Customer: (a) data which was known to
Provider or its subcontractors prior to its performance under this Agreement unless such data
was acquired in connection with work performed for Customer; or (b) data which was
acquired by Provider or its subcontractors in its performance under this Agreement and which
was disclosed to Provider or its subcontractors by a third party, who to the best of Provider’s
or its subcontractors knowledge and belief, had the legal right to make such disclosure and
Provider or its subcontractors are not otherwise required to hold such data in confidence; or
(c) data which is required to be disclosed by virtue of law, regulation, or court order, to which
Provider or its subcontractors are subject. In the event Provider or its subcontractors are
required or requested to disclose data to a third party, or any other information to which
Provider or its subcontractors became privy as a result of any other contract with Customer,
Provider must first notify Customer as set forth in this Section of the request or demand for
the data. Provider or its subcontractors must give Customer sufficient facts so that Customer
can be given an opportunity to first give its consent or take such action that Customer may
deem appropriate to protect such data or other information from disclosure. Unless prohibited
by law, within ten calendar days after completion of services for a third party on real or
personal property owned or leased by Customer, Provider or its subcontractors must promptly
deliver, as set forth in this Section, a copy of all such data received from a third party with
respect to real or personal property owned or leased by Customer to Customer. All data must
continue to be subject to the confidentiality agreements of this Agreement. Provider or its
subcontractors assume all liability to maintain the confidentiality of the data in its possession
and agrees to compensate Customer if any of the provisions of this Section are violated by
Provider, its employees, agents or subcontractors. Solely for the purposes of seeking
injunctive relief, it is agreed that a breach of this Section must be deemed to cause irreparable
harm that justifies injunctive relief in court. Provider agrees that the requirements of this
40
Section must be incorporated into all subcontracts entered into by Provider. A violation of this
Section may result in immediate termination of this Agreement without notice.
3.27 Personal Identifying Information-Data Security. Personal identifying information,
financial account information, or restricted Customer information, whether electronic format
or hard copy, must be secured and protected at all times by Provider and any of its
subcontractors. At a minimum, Provider must encrypt or password-protect electronic files.
This includes data saved to laptop computers, computerized devices, or removable storage
devices. When personal identifying information, financial account information, or restricted
Customer information, regardless of its format, is no longer necessary, the information must
be redacted or destroyed through appropriate and secure methods that ensure the information
cannot be viewed, accessed, or reconstructed. In the event that data collected or obtained by
Provider or its subcontractors in connection with this Agreement is believed to have been
compromised, Provider or its subcontractors must immediately notify the Customer contact.
Provider agrees to reimburse Customer for any costs incurred by Customer to investigate
potential breaches of this data and, where applicable, the reasonable cost of notifying
individuals who may be impacted by the breach. Provider agrees that the requirements of this
Section must be incorporated into all subcontracts entered into by Provider. It is further agreed
that a violation of this Section must be deemed to cause irreparable harm that justifies
injunctive relief in court. A violation of this Section may result in immediate termination of
this Agreement without notice. The obligations of Provider or its subcontractors under this
Section must survive the termination of this Agreement.
3. 28 Reserved
3.29 Survival. All warranties, representations, and indemnifications by the Parties must
survive the completion or termination of this Agreement.
3.30 Reserved
3.31 Reserved
3.32 Reserved
3.33 Time is of the Essence. Time of each of the terms, covenants, and conditions of this
Agreement is hereby expressly made of the essence.
3.34 Date of Performance. If the date of performance of any obligation or the last day of any
time period provided for should fall on a Saturday, Sunday, or holiday for Customer, the
obligation will be due and owing, and the time period will expire, on the first day after which
is not a Saturday, Sunday or legal City holiday. Except as may otherwise be set forth in this
Agreement, any performance provided for herein will be timely made if completed no later
than 5:00 p.m. (Chandler time) on the day of performance.
3.35 Third Party Beneficiary. Nothing under this Agreement will be construed to give any
rights or benefits in the Agreement to anyone other than Customer and Provider, and all duties
41
and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive
benefit of Customer and Provider and not for the benefit of any other party.
3.36 Document/Information Release. Documents and materials released to Provider, which
are identified by Customer as sensitive and confidential, are the Customer’s property. The
document/material must be issued by and returned to Customer upon completion of the
services under this Agreement. Provider’s secondary distribution, disclosure, copying, or
duplication in any manner is prohibited without Customer’s prior written approval. The
document/material must be kept secure at all times. This directive applies to all Customer
documents, whether in photographic, printed, or electronic data format.
3.37 Non-Discrimination and Anti-Harassment Laws. Provider must comply with all
applicable Customer, state, and federal non-discrimination and anti-harassment laws, rules,
and regulations.
3.38 Licenses and Permits. Beginning with the Effective Date and for the full term of this
Agreement, Provider must maintain all applicable local, state, and federal licenses and permits
required to fully perform Provider’s services under this Agreement.
3.39 Reserved 3.40 Emergency Purchases. Customer reserves the rights to purchase from
other sources those items, which are required on an emergency basis and cannot be supplied
immediately by Provider.
3.41 Non-Exclusive Agreement. This Agreement is for the sole convenience of Customer.
Customer reserves the right to obtain like goods or services from another source when
necessary.
3.42 Budget Approval Into Next Fiscal Year. This Agreement will commence on the Effective
Date and continue in full force and effect until it is terminated or expires in accordance with the
provisions of this Agreement. The Parties recognize that the continuation of this Agreement after
the close of Customer’s fiscal year, which ends on June 30 of each year, is subject to the City
Council's approval of a budget that includes an appropriation for this item as an expenditure.
Customer does not represent that this budget item will be adopted. This determination is solely
made by the City Council.
3.43 Forced Labor of Ethnic Uyghurs Prohibited. By entering into this Agreement, Provider
certifies and agrees Provider does not currently use and will not use for the term of this Agreement:
(i) the forced labor of ethnic Uyghurs in the People's Republic of China; or (ii) any goods or
services produced by the forced labor of ethnic Uyghurs in the People's Republic of China; or (iii)
any contractors, subcontractors or suppliers that use the forced labor or any goods or services
produced by the forced labor of ethnic Uyghurs in the People's Republic of China.
3.44 Intellectual Property.
42
3.44.1 Customer Ownership of Project Documents. All work products (electronically or
manually generated) including, but not limited to: plans, specifications, cost estimates, tracings,
studies, design analyses, original drawings, Computer Aided Drafting and Design (CADD) file
diskettes which reflect all final drawings, and other related documents which are prepared in the
performance of this Agreement (collectively referred to as "Documents") are to be and remain the
property of Customer and are to be delivered to the Project Manager subject to Provider’s receipt
of final payment therefor.
3.44.2 Provider to Retain Copyrights. The copyrights, patents, trade secrets or other
intellectual property rights associated with the ideas, concepts, techniques, inventions, processes
or works of authorship developed or created by Provider, its subcontractors or personnel, while
performing this Agreement or arising out of the Project shall belong to the Provider.
3.44.3 License to Customer for Reasonable Use. With this Agreement, Provider and its
subcontractors hereby grant a license to Customer, its agents, employees, and representatives for
an indefinite period of time to reasonably use, make copies, and distribute as appropriate the
Documents, works or deliverables developed or created as a result of the Project and this
Agreement. This license also includes the making of derivative works.
3.44.4 Documents to Bear Seal. Provider and its subcontractors shall endorse by
professional seal all plans, works, and deliverables prepared by each for this Agreement as required
by state law
3.45 Access To Customer’s Facilities.
3.45.1 Contract Worker Access Controls, Badge and Key Access Requirements.
Provider’s employees, agents, representatives, or subcontractors who provide services under this
Agreement or the Project (collectively “Contract Worker”) shall not be allowed to begin work in
any Customer facility without: (i) prior completion and the Customer’s acceptance of the required
background screening; and (ii) when required, the Contract Worker's receipt of a City issued
badge. A badge will be issued to a Contract Worker solely for access to the Customer’s facility(ies)
to which the Contract Worker is assigned. Each Contract Worker who enters a Customer facility
must use the badge issued to the Contract Worker.
3.45.2 Badges. After receipt of the badge application, the Contract Worker will proceed
to the Badging Office for processing of the badge application and issuance of the badge. customer
will not process the badge application until the Contract Worker satisfies the required Background
Screening (as defined herein). The Contract Worker shall comply with all requirements and furnish
all requested information as requested by the Badging Office. Any and all fees associated with
security badging will be assessed in compliance with Chandler City Code §4-22.
3.45.3 Key Access Procedures. If the Contract Worker's services require keyed access to
enter a Customer facility(ies), a separate key issue/return form must be completed and submitted
by Provider for each key issued.
43
3.45.4 Stolen or Lost Badges or Keys. Provider shall report lost or stolen badges or keys
to Customer immediately. A new badge application or key issue form shall be completed and
submitted along with payment of the applicable fees prior to issuance of a new badge or key.
3.45.5 Return of Badges or Keys. All badges and keys are the property of Customer and
must be returned to Customer at the Badging Office within one (1) business day of when the
Contract Worker's access to a Customer facility is no longer required to furnish the services under
this Agreement. Provider shall collect a Contract Worker's badge and key(s) upon the termination
of the Contract Worker's employment; when the Contract Worker's services are no longer required
at the particular Customer facility(s); or upon termination, cancellation or expiration of this
Agreement.
3.45.6 Provider’s Default. Provider’s default under this Section shall include, but is not
limited to the following: (1) Contract Worker gains access to a Customer facility(s) without the
proper badge or key; (2) Contract Worker uses a badge or key of another to gain access to a
Customer facility; (3) Contract Worker commences services under this Agreement without the
proper badge, key or Background Screening; (4) Contract Worker or Provider submits false
information or negligently submits wrong information to Customer to obtain a badge, key or
applicable Background Screening; or (5) Provider fails to collect and timely return Contract
Worker's badge or key upon termination of Contract Worker's employment, reassignment of
Contract Worker to another Customer facility or upon the expiration, cancellation or termination
of this Agreement. Provider acknowledges and agrees that the access control, badge and key
requirements in this Section are necessary to preserve and protect public health, safety and welfare.
Accordingly, Provider agrees to properly cure any default under this Section within three (3)
business days from the date notice of default is sent by the Customer. The Parties agree that
Provider’s failure to properly cure any default under this Section shall constitute a breach of this
Section. In addition to any other remedy available to Customer at law or in equity, Provider shall
be liable for and shall pay to Customer the sum of one thousand dollars ($1,000.00) for each breach
by Provider of this Section. The Parties further agree that the sum fixed above is reasonable and
approximates the actual or anticipated loss to Customer at the time and making of this Agreement
in the event that Provider breaches this Section. Further, the Parties expressly acknowledge and
agree to the fixed sum set forth above because of the difficulty of proving Customer’s actual
damages in the event that Provider breaches this Section. The Parties further agree that three (3)
breaches by Provider of this Section arising out of any default within a consecutive period of three
(3) months or three (3) breaches by Provider of this Section arising out of the same default within
a period of twelve (12) consecutive months shall constitute a material breach of this Agreement
by Provider and Customer expressly reserves all of its rights, remedies and interests under this
Agreement, at law and in equity including, but not limited to, termination of this Agreement.
3.46
Background Screening.
3.46.1 Contract Worker Background Screening. Provider agrees that all Contract Workers
(defined above) that Provider furnishes to Customer pursuant to this Agreement shall be subject
to background and security checks and screening (collectively Background Screening) at
Provider’s sole cost and expense as set forth in this Section. The Background Screening provided
by Provider shall comply with all applicable laws, rules and regulations. Provider further agrees
44
that the Background Screening required in this Section is necessary to preserve and protect public
health, safety and welfare. The Background Screening requirements set forth in this Section are
the minimum requirements for this Agreement. Customer in no way warrants that these minimum
requirements are sufficient to protect Provider from any liabilities that may arise out of Provider’s
services under this Agreement or Provider’s failure to comply with this Section. Therefore, in
addition to the specific measures set forth below, Provider and its Contract Workers shall take such
other reasonable, prudent and necessary measures to further preserve and protect public health,
safety and welfare when providing services under this Agreement.
3.46.2 Background Screening Requirements and Criteria. Provider agrees that it will
verify legal Arizona worker status as required by Arizona Revised Statutes (A.RS.) §41-4401.
Provider further agrees that it will conduct a background check for real identity/legal name on all
Contract Workers prior to proposing the Contract Worker to Customer.
3.46.3 Additional Customer Rights Regarding Security Inquiries. In addition to the
foregoing, Customer reserves the right but not the obligations to: (1) have a Contract Worker be
required to provide fingerprints and execute such other documentation as may be necessary to
obtain criminal justice information pursuant to A.R.S. § 41-1750(G) (4) or Chandler City Code §
4-22; (2) act on newly acquired information whether or not such information should have been
previously discovered; (3) unilaterally change its standards and criteria relative to the acceptability
of Contract Workers; and (4) object, at any time and for any reason, to a Contract Worker
performing work (including supervision and oversight) under this Agreement.
3.46.4 Provider Certification. By executing this Agreement, Provider certifies and
warrants that Provider has read the Background Screening requirements and criteria in this Section,
understands them and that all Background Screening information furnished to Customer is
accurate and current. Also, by executing this Agreement, Provider further certifies and warrants
that Provider has satisfied all such Background Screening requirements as required. A Contract
Worker rejected for work under this Agreement shall not be proposed to perform work under other
Customer contracts or engagements without Customer’s prior written approval.
3.46.5 Terms of This Section Applicable to all of Provider’s Contracts and Subcontracts.
Provider shall include the terms of this Section for Contract Worker Background Screening in all
contracts and subcontracts for services furnished under this Agreement including, but not limited
to, supervision and oversight services.
3.46.6 Materiality of Background Screening Requirements: Indemnity. The Background
Screening requirements of this Section are material to Customer’s entry into this Agreement and
any breach of this Section by Provider shall be deemed a material breach of this Agreement. In
addition to the indemnity provisions set forth in Section III, Section 3.6, Indemnification Clause
of the General Conditions, Provider shall defend, indemnify and hold harmless Customer for any
and all Claims arising out of this Background Screening Section including, but not limited to, the
disqualification of a Contract Worker by Provider or the Provider’s failure to satisfy this Section.
3.46.7 Continuing Duty: Audit. Provider’s obligations and requirements that Contract
Workers satisfy this Background Screening Section shall continue throughout the entire term of
45
this Agreement. Provider shall notify Customer immediately of any change to a Background
Screening of a Contract Worker previously approved by Customer. Provider shall maintain all
records and documents related to all Background Screenings and Customer reserves the right to
audit Provider’s compliance with this Section pursuant to Section III, Section 3.2, "Records/Audit"
of the General Conditions.
Remainder of page left blank intentionally
46
Appendix C
Work Order #___
[Project Description]
PURPOSE:
The purpose of this Work Order is to:
1. Authorize Provider to proceed with Work Order #__ noted herein.
2. Direct Provider to contract directly with all subcontractors as necessary.
3. Define the Scope of Work for the ECM.
FULLY FUND THE PROJECT:
The amount of the Work Order #__ ECM Project is $___________ (__________________ and no/100
Dollars).
SCOPE OF WORK:
The Scope of Work is defined in Exhibit A, attached hereto.
INCORPORATION OF ALL DOCUMENTS:
The following documents are hereby incorporated, by reference, into this ECM Work Order.
Exhibit A:
Scope of Work that will be provided by Ameresco, Inc. for this Work Order
Exhibit B:
Solar Production Guarantee
Exhibit C:
Operations and Maintenance Plan
Exhibit D:
Measurement and Verification Plan
MESA:
The Ameresco, Inc./City of Chandler Master Energy Services Agreement, dated
______________, 2025.
These Exhibits and their attached Schedules apply to the ____________________ Project to be provided
to the City of Chandler under this Work Order and are considered a part of this Work Order.
EXECUTION OF WORK ORDER:
Agreed and accepted.
______________________________________
_________________________________
Ameresco, Inc.
City of Chandler
Executive Vice President
_________________________________
47
Appendix D
Form Notice to Proceed Work Order No.
[PLACE ON CUSTOMER LETTERHEAD]
Mr. Ron Haxton
Senior Vice President
Ameresco, Inc.
2355 East Camelback Road, Suite 410
Phoenix, AZ 85016
SUBJECT:
NOTICE TO PROCEED
Dear Mr. Haxton:
In accordance with Section 5 of the Master Energy Services Agreement (the “MESA”)
dated as of _________ __, 2025 and the related Work Order dated as of _____________, 20___,
by and between the City of Chandler (“Customer”) and Ameresco, Inc. (“Ameresco”), Customer
hereby submits to Ameresco this Notice to Proceed in relation to the Scope of Services as
defined in the MESA and the Work Order.
Sincerely,
City of Chandler
By:_______________________________
Duly Authorized Signatory
Name:___________________________
Title:____________________________
Date:____________________________
48
Appendix E
Form of Substantial Completion Certificate
[Date]
To:
City of Chandler
Re:
Work Order # ___
Reference – [Note: If a Substantial Completion in part – list the ECMs and related units as an
Attachment; If Substantial Completion in whole – list the Applicable ECM or ECMs]
Reference is made to that certain Work Order under Energy Services Agreement, dated as of
________________, between City of Chandler (“Customer”) and Ameresco, Inc. (“Provider”),
including all schedules, attachments, appendices and exhibits thereto (such agreement and any
such schedules, attachments, appendices and/or exhibits, as amended, restated modified and/or
supplemented from time to time, the “MESA”). Initially-capitalized terms used in this Substantial
Completion Certificate and not otherwise defined have the meanings ascribed thereto in the
MESA.
This is to certify that on this ____ day of _________, ______, [that certain portion of ECMs set
forth on Attachment A hereto] [the above referenced ECM] and related Equipment (i) have been
installed in accordance with the specifications in the MESA (excepting the punchlist items
identified herein), (ii) that such ECM and related Equipment have been commissioned by Provider
in accordance with the MESA and is operating as intended and (iii) only certain punchlist items
remain to be completed in connection with the implementation of the ECM. Such punchlist items
are listed on Exhibit A attached to this Substantial Completion Certificate. Provider will complete
or correct the punch list items within the timeframes set forth on Exhibit A prior to delivering its
Substantial Completion Certificate.
AMERESCO, INC.
NOT FOR EXECUTION
By:
Name:
Title:
[ATTACHMENT A: SUBSTANTIALLY COMPLETED IN PART]
49
ATTACHMENT A: PUNCHLIST
[To be attached – list of punchlist items and times for completion.]
50
Appendix F
Form of Final Delivery and Acceptance Certificate
[Date]
City of Chandler
To:
__________________
Work Order No. _______________
Reference is made to that certain Work Order under Energy Services Agreement, dated as of
_________, between City of Chandler (“Customer”) and Ameresco, Inc. (“Provider”), including
all schedules, attachments, appendices and exhibits thereto (such agreement and any such
schedules, attachments, appendices and/or exhibits, as amended, restated modified and/or
supplemented from time to time, the “MESA”). Initially capitalized terms used in this Final
Delivery and Acceptance Certificate and not otherwise defined have the meanings ascribed thereto
in the MESA.
Pursuant to the MESA, this is to certify that as of this ____ day of _________, ______ (the
“Commencement Date”) the conditions for final acceptance by Customer of [the ECMs and related
Equipment specified in the MESA] have been satisfied and without waiving any of its rights or
remedies under the MESA with respect to such Equipment and ECM or otherwise, the Customer
accepts such ECM and related Equipment. Customer acknowledges that the Commencement Date
stated above shall be the Commencement Date with respect to such ECM (as defined in the
MESA).
_____________________
NOT FOR EXECUTION
By:
Name:
Title: