Council Memorandum. To: From:

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1 Council Memorandum To: From: Through: The Honorable Mayor and City Council Theresa Worsham, Sustainability Manager Steve Glueck, Director of Community and Economic Development Mike Bestor, City Manager Date: August 15, 2013 Re: Follow up items for Resolution 2281 and Ordinance 1952 Purpose of Agenda Item: To review a contract and budget appropriation for nine solar photovoltaic projects at various municipal facilities. Background: To review, the City s progression for municipal solar efforts have included the following: 2006 Citizens provide input through open house and working groups for Golden Sustainabilty Initiative efforts Council adoption of Sustainability goals through Resolution Several smaller solar proposals using a power purchase agreement are evaluated but are rejected for unfavorable financial terms The Renewable Energy Technical Advisory Committee (RETAC) is seated with experts from CSM, NREL, DOE, and the Colorado Energy Office who recommend solar PV as a main renewable energy strategy Technical energy audit and financial modeling performed to identify the most cost-effective solar package. At the August 8 th meeting, Council reviewed details about the project and passed a first reading of an ordinance to appropriate funding. The following information includes answers to several of Council s questions asked on August 8 th : Quantifying Sustainability Benefits. While the previous meeting focused on overall financial details, Council asked staff about environmental benefits of the project. 1. Progress toward Golden s adopted renewable energy goals. City Council s commitment to offseting a portion of the city s energy use with renewable energy is provided through Resolution 1789: d. Increase our community's energy efficiency and our use of renewable sources of energy. Specifically:

2 1) Reduce the City of Golden's energy usage by 25% and increase to 50% the proportion of its energy use derived from renewable energy sources within ten years (25 x 50 in 10). The solar thermal system at the Golden Community Center is the City s sole renewable energy project, and provides less than 2% of the municipal electricity needs. The proposed PV projects will achieve an additional 8% for a total of 10% of the municipal electric use (or 20% of the renewable energy goal). 2. Carbon Emission Reductions. The nine solar projects will save 702 tons of CO2 each year, which equates to*: Emissions from 146 vehicles; or 78,700 gallons of gas; or Electricity for 105 homes; or Carbon sequestered for 575 acres of U.S. forests; or Avoided GHG for recycling 263 tons of waste. *Source: 3. Clean Energy Independence. An investment in solar will reduce the City s use of limited fossil fuel resources, lessen pressure for new coal plants and mitigating risk against rising utility costs. Historic Energy Prices. An attached analysis shows Xcel Energy s progression of rate increases for electricity. While Xcel shows an average of 7.29% annual increase over 10 years, the City project uses a conservative 5% rate increase assumption. Renewable Goal Outlook. Council asked for information on what it will require of the City to achieve 50% of our energy needs to be provided by renewable energy. In 2012, the Renewable Energy Technical Advisory Committee (RETAC) acknowledged that the 50% target is ambitious, but suggested that solar photovoltaic is the best investment to achieve the goal. Staff believes that this solar proposal presents the best opportunity currently available for solar PV investment. Renewable energy projects for the City in the future may include investment in community solar gardens, hydroelectric projects at Upper and Lower Urad reservoirs, and potential new financial incentives for solar PV. Solar Monitoring. Council asked for clarification of what solar monitoring, community dashboard and kiosk would be used for. In addition, several Councilors suggested that a more comprehenseive environmental management system (EMS) software that included the ability to measure other sustainability areas might be appropriate. Staff is working with McKinstry to define monitoring components more suitable to this and future projects and will present details to Council at the meeting. City-Managed Project. While there is not sufficient time to convert this specific project to a solely internally managed project, (and still achieve the REC credits) Council asked for rough estimates of what it would require if the City managed this project itself, rather than through the specialized consultant. The additional duties that would be required of the City include solar design, RFP issuance and evaluations, structural engineering design Page 2

3 and cost, project management for construction, commissioning (testing for performance after installation) and staff training for operation, and post-construction measurement & verification. The difficulty with this analysis is the uncertainty of whether the City would receive as good of bids as we currently have, since any of the sub contractor bids taken as a whole would have resulted in significantly more cost than the way the consultant divided the award among the bidders. Consequently this use of multiple sub-contractors increases the complexity and effort of the project management thereby reducing any potential savings. Further, as the complexity of the project increases, the City s indirect costs in other staff time would also increase. In the end, staff is not convinced there would be significant savings to try to design and manage such a project internally, except in the case where PV was incorporated into a new building or substantial remodel or addition. Refinement of Financing Options. Please refer to the separate memo from Steve Glueck and Jeff Hansen. Recommendations: Staff will present additional details at the meeting. Council should review and discuss the project elements in consideration of Resolution Depending on Council s preference to act or continue the discussion to September 12 th, the second reading and public hearing for budget appropriations will follow action on the Resolution. encl: Historic Xcel Energy prices for Secondary General Rate Financing Memo from Steve Glueck and Jeff Hansen Resolution 2281 Energy Services Performance Contract Ordinance 1952 Page 3

4 Xcel Energy Electric History For Secondary General Rates (commercial use) Based on the most recent reporting by Xcel Energy, the significant increases in electricity rates started in 2002 and continue to trend upward. Xcel Energy, electric rate increases: 10 year average escalation rate 7.29% 7/99-7/ average 5.47% /02 to 2010 average 11.50% year average escalation rate 6.80% Golden s project assumes a 5% escalation rate for electricity prices, slightly lower than the historic trend. The following graph forecasts the average residential prices to continue upward (Xcel Energy pricing in red). Source: City of Boulder

5 Council Memorandum To: From: Through: The Honorable Mayor and City Council Steve Glueck, Director of Community and Economic Development Jeff Hansen, Finance Director City Manager, Mike Bestor Date: August 14, 2013 Re: Internal Loan Option for Municipal PV Systems Purpose of Agenda Item: This memo is intended to supplement the information submitted by Ms. Theresa Worsham, Sustainability Coordinator, pertaining to the planned August 22, 2013 continued Council discussion of a municipal solar electric (photovoltaic) project affecting a number of City facilities. This memo details the advantages of financing the project through an internal loan, if the project proceeds. Council discussion of this material should follow the general discussion about the project. Background: As noted in the August 8, 2013 discussion, staff had approached the fiscal aspect of the project as a lease purchase type project with financing from a third party and no up-front capital contribution. A sample pro-forma from a lending institute contacted by the consultant was provided and is the first attachment hereto. As noted in this table: The fixed rate interest rate for a 20 year financing would be 3.75%. Total interest paid would be over $1,215,000. The City would need to subsidize the guaranteed savings to make the annual debt payments by a cumulative amount of $840,000, and therefore would not recoup all investment until part way into year 25. During the course of the Council discussion, staff suggested that it could benefit the City in two ways to self finance the project by borrowing from one or more internal funds that carry healthy balances, paying a higher interest rate to those funds than they otherwise would realize. Council noted that current yields are quite low, in the range of 0.64%, and not expected to rise quickly over coming years. The two most likely funds to share in the loan are the Cemetery Perpetual Care Fund and the General Fund. Therefore, these funds would benefit if the loan were at an adjustable rate at 50 basis points (0.5%) above normal yields.

6 At the same time, it was felt that the project may benefit from more favorable financing terms. In order to estimate such loan implications, Mr. Hansen directed his staff to prepare 15 and 20 year amortization tables for the anticipated amount, based upon the following assumptions: Quarterly payments (4 times a year) starting on March 31, % interest for 2014, increasing in 2015 and every two years thereafter up to a cap of 4.5% after 15 years or 5.5% after 20 years. (Mr. Hansen indicates that this is conservative and he does not expect yields to reach these levels) The City would still need to subsidize the guaranteed savings to make the debt payments, but by a lesser amount. As noted in the two additional summary tables entitled Net Fiscal Benefit (one for 15 years and one for 20 year financing): In the 15 year scenario: o Total interest paid is about $519,000 (to ourselves) o The early year City subsidy is up to $986,000 but is repaid in years o Pay-off of the entire project is in 19 years o Direct fiscal benefit from year is over $1,000,000. In the 20 year scenario: o Total interest paid is about $856,700 (to ourselves) o The early year subsidy is up to $255,000 but is repaid in years 17 thru 21. o Pay-off of the entire project is in 21 years. o Direct fiscal benefit from year is about $740,000 Fiscal Impact: It is clear to staff that if Council proceeds with the project, an internal loan financing plan is significantly more beneficial than bank lease purchase financing. From a pro-forma perspective, the 15 year option is attractive, however from a cash flow/ pay as you go perspective, the 20 year program has the least City subsidy in early years, and may even cash flow by the project savings if they slightly exceed the guaranty. Alternatives: Any action by Council on this request is totally discretionary. If Council approves the project, staff does recommend that it be based upon the internal loan model. Recommendations: Staff recommends that if City Council authorizes the project, it be based upon the internal loan model, with the City Manager and Finance Director finalizing the package for Council action. Page 2

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10 RESOLUTION NO.2281 A RESOLUTION OF THE GOLDEN CITY COUNCIL TO AUTHORIZE A PERFORMANCE CONTRACT FOR SOLAR PHOTOVOLTAIC PROJECTS AT CITY FACILITIES WHEREAS, the City is committed to the sustainability goals adopted in Resolution No. 1793, including a pledge to increase to 50% the proportion of its energy use derived from renewable energy sources within ten years. WHEREAS, the City has conducted a Technical Energy Audit that identified nine solar photovoltaic opportunities that may be eligible to receive current incentives from Xcel Energy with municipal electric meters suitable for solar renewable energy; and WHEREAS, the City hereby finds it appropriate to enter into an Energy Performance Contract ( Contract ) with McKinstry Essention Inc. for the acquisition and installation of solar photovoltaic panels at various municipal properties; and WHEREAS, the investment in city facilities is significant. THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GOLDEN, COLORADO: Section 1. City Council hereby approves the Contract, in substantially the form attached. The City Manager is authorized and directed to execute the Contract at such time as City Council appropriates the necessary funds. Section 2. Declaration of Official Intent to Finance with Tax-Exempt Obligations. The City presently intends and reasonably expects to initially fund all or a portion of the capital expenditures on the Project, which are not expected to exceed $3,300,000, with legally available funds from the Sales and Use Tax Capital Improvements Fund. The City presently intends and reasonably expects to obtain tax-exempt financing of the Project through a lease purchase agreement or other obligation in an amount not expected to exceed $3,600,000, to be issued within 18 months of the latter of (i) such expenditure of City moneys or (ii) the date the Project is placed in service (but in no event more than 3 years after the date of the original expenditure of City moneys on Project capital expenditures) and to allocate proceeds of such taxexempt financing to reimburse itself for capital expenditures incurred by it in connection with the Project. All of the capital expenditures covered by this Section were or will be made on or after a date which is 60 days prior to the effective date of this Resolution. Section 3. City Council hereby authorizes and directs the City Finance Director to secure and present to City Council for separate approval, third party lease purchase style financing to cover the costs of the project, with debt service over the period of the lease purchase agreement to be derived from Xcel Energy credits, energy savings at the specific facilities and City contribution. Council further commits to process a Supplemental Budget Appropriation pertaining to the financing and to cover the principal cost of the contract amount from General Fund Reserves, if Council subsequently chooses not to proceed with the lease purchase style financing. Council further authorizes the approved financing package to reimburse the City for any costs incurred under the contract prior to the finalization of said financing.

11 Adopted this day of August, Marjorie Sloan Mayor ATTEST: Susan M. Brooks, MMC City Clerk Approved as to form: David S. Williamson City Attorney

12 Draft Performance Contract_081613_Clean_FINAL Energy Performance Contract for City of Golden, Colorado Colorado Energy Office Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado.

13 Energy Performance Contract for City of Golden, Colorado Contents ARTICLE 1: DEFINITIONS, SCHEDULES, EXHIBITS AND APPENDICES... 7 SECTION 1.1. DEFINITIONS SECTION 1.2. SCHEDULES SCHEDULE 1.3 EXHIBITS... 9 SECTION 1.4. APPENDICES... 9 ARTICLE 2: PAYMENTS SECTION 2.1: PURCHASE AND SALE SECTION 2.2. CONTRACTOR COMPENSATION INTERIM PERIOD SECTION 2.3. ENERGY AND COST SAVINGS GUARANTEE SECTION 2.4. ALLOWABLE PAYMENT SOURCES SECTION 2.5. CAPITAL CONTRIBUTION FROM THE CITY SECTION 2.6. INDEPENDENT MONITORING SECTION 2.7. ANNUAL REVIEW AND REIMBURSEMENT/RECONCILIATION SECTION 2.8. MEASUREMENT INFORMATION PROCEDURE SECTION 2.9. M&V FEE SECTION LATE PAYMENT ARTICLE 3. UTILITY AND OTHER AWARD PAYMENTS SECTION 3.1. UTILITY AWARD PAYMENTS SECTION 3.2. ENERGY POLICY ACT ARTICLE 4: TIME FOR COMPLETION; COMMENCEMENT DATE; TERM OF CONTRACT SECTION 4.1. CONSTRUCTION COMMENCEMENT DATE AND TIME FOR COMPLETION OF WORK SECTION 4.2. PERFORMANCE COMMENCEMENT DATE SECTION 4.3. PERFORMANCE TERM OF CONTRACT ARTICLE 5: ENERGY USAGE RECORDS AND DATA SECTION 5.1. ENERGY USAGE RECORDS AND DATA ARTICLE 6: CONSTRUCTION AND INSTALLATION BY CONTRACTOR SECTION 6.1.PERMITS AND APPROVALS SECTION 6.2. CONTRACTOR S DUTY OF PROPER INSTALLATION SECTION 6.3. USE OF STATED PROJECT PERCENTAGES SECTION 6.4. OPEN BOOK PRICING SECTION 6.5. ADMINISTRATION ARTICLE 7: ENVIRONMENTAL REQUIREMENTS SECTION 7.1. EXCLUDED MATERIAL AND ACTIVITIES ARTICLE 8: ACCEPTANCE TESTING Colorado Energy Office Page 1 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

14 SECTION 8.1. MODIFICATION OF SCHEDULES SECTION 8.2. SYSTEMS STARTUP AND EQUIPMENT COMMISSIONING ARTICLE 9: OWNERSHIP SECTION 9.1. OWNERSHIP OF CERTAIN PROPRIETARY PROPERTY RIGHTS SECTION 9.2. OWNERSHIP OF DOCUMENTS (A) Instruments of Service (B) As-Built Drawings/Record Drawings SECTION 9.3. OWNERSHIP OF EXISTING EQUIPMENT SECTION 9.4. OWNERSHIP OF MEASUREMENT AND VERIFICATION EQUIPMENT ARTICLE 10: STANDARDS OF COMFORT ARTICLE 11: EQUIPMENT WARRANTIES SECTION 11.1 ACTIONS BY CONTRACTOR SECTION MALFUNCTIONS AND EMERGENCIES SECTION 11.3 ACTIONS BY THE CITY ARTICLE 12: MODIFICATION, UPGRADE OR ALTERATION OF EQUIPMENT SECTION MODIFICATION OF EQUIPMENT SECTION UPGRADE OR ALTERATION OF EQUIPMENT ARTICLE 13: LOCATION AND ACCESS SECTION CONTRACTOR ACCESS SECTION UTILITY ACCESS ARTICLE 14: MATERIAL CHANGES SECTION MATERIAL CHANGE DEFINED SECTION REPORTED MATERIAL CHANGES; NOTICE BY THE CITY SECTION OTHER ADJUSTMENTS ARTICLE 15: TRAINING AND FOLLOW-UP ACTIVITIES BY CONTRACTOR SECTION TRAINING SECTION EMISSIONS REDUCTIONS DOCUMENTATION AND REPORTING ARTICLE 16: GENERAL CONTRACTUAL PROVISIONS SECTION 16.1 ADDITIONAL INSURANCE REQUIREMENTS- PROFESSIONAL LIABILITY INSURANCE ARTICLE 17: EVENTS OF DEFAULT SECTION EVENTS OF DEFAULT BY THE CITY SECTION EVENTS OF DEFAULT BY CONTRACTOR SECTION DISPUTE RESOLUTION (A) NOTICE OF CURE PERIOD (B) REMEDIES I. TERMINATION FOR CAUSE AND/OR BREACH A. OBLIGATIONS AND RIGHTS B. PAYMENTS C. DAMAGES AND WITHHOLDING Colorado Energy Office Page 2 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

15 D. TERMINATION OF M&V TERM II. REMEDIES NOT INVOLVING TERMINATION A. SUSPEND PERFORMANCE B. WITHHOLD PAYMENT C. DENY PAYMENT D. REMOVAL ARTICLE 18: ASSIGNMENT SECTION ASSIGNMENT BY CONTRACTOR SECTION ASSIGNMENT BY THE CITY ARTICLE 19: REPRESENTATIONS AND WARRANTIES SECTION GENERAL REPRESENTATIONS AND WARRANTIES ARTICLE 20. ADDITIONAL REPRESENTATIONS OF THE PARTIES SECTION BY THE CITY SECTION BY CONTRACTOR ARTICLE 21: MISCELLANEOUS DOCUMENTATION PROVISIONS SECTION PERFORMANCE BONDS, LABOR AND MATERIAL PAYMENT BONDS SECTION FURTHER DOCUMENTS SECTION 21.3 MISCELLANEOUS ARTICLES SECTION 21.3 THE CITY S RESPONSIBILITIES (A) Methods of Operation by the City (B) The City s Maintenance Responsibilities (C) Inspection of Premises ARTICLE 22: CONFLICTS OF INTEREST SECTION 22.1 CONFLICTS OF INTEREST ARTICLE 23: CONTRACT DOCUMENTS SECTION TEA SECTION GENERAL AND SUPPLEMENTARY CONDITIONS (A) Contract or SC (B) Overhead/Profit/Commission SECTION ORDER OF PRECEDENCE SECTION FACSIMILE SIGNATURES Colorado Energy Office Page 3 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

16 SCHEDULES Schedule A Schedule B Schedule C Schedule D Schedule E Schedule F Schedule G Schedule H Schedule I Schedule J Schedule K Schedule L Schedule M Schedule N Schedule O Schedule P Schedule Q Schedule R Schedule S Schedule T Schedule U Equipment to be Installed by Contractor Description of Premises; Pre-Existing Equipment Inventory Energy and Cost Savings Guarantee Contractor M&V, Maintenance and Service Contract Baseline Energy Consumption Savings Measurement & Calculation Formulae; Methodology to Adjust Baseline; Measurement and Verification Plan Construction and Installation Schedule Systems Start-Up and Commissioning; Operating Parameters of Installed Equipment Standards of Comfort Contractor s Maintenance Responsibilities The City s Maintenance Responsibilities Facility Maintenance Checklist Contractor s Training Responsibilities General and Supplemental Conditions Payment Schedule and Schedule of Values Pre-Existing Service Agreements Current and Known Capital Projects at Facility Projected Financial Performance Certificate of Insurance Technical Energy Audit Bond Coverage Clarification EXHIBITS Exhibit I Performance Bond Exhibit II Labor and Material Payment Bond Exhibit III (i) Notice of Acceptance Technical Energy Audit and Monitoring and Verification Plan Exhibit III (ii) Notice of Substantial Completion Exhibit III (iii) Notice of Final Acceptance Exhibit IV Equipment Warranties Exhibit V Minority and Women-Owned Business Enterprises ( Not Applicable) Exhibit VI Certification that Lifetime of Equipment Exceeds Financing Term Exhibit VII Record of Reviews APPENDICES Appendix A TEA Contract Colorado Energy Office Page 4 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

17 ENERGY PERFORMANCE CONTRACT This Energy Performance Contract (the Contract ) is made and entered into as of this August 22 nd 2013, by and between the City of Golden, (hereinafter called the Owner or City ) and McKinstry Essention, LLC (hereinafter called Contractor or Engineer ), rd Avenue South, Seattle, Washington, 98134, a Washington corporation doing business in Colorado (the State ). WITNESSETH: WHEREAS, the City is a Colorado home rule municipality, and is authorized and empowered under the laws of the State, including Colorado Revised Statutes (C.R.S.) et seq. and et seq. to enter into this Contract for the purpose of the sale and installation of certain energy saving equipment, and provision of other services designed to save energy and reduce related costs as per the guarantee described herein for certain property and buildings owned by the City; and WHEREAS, authority exists in the Colorado law and sufficient funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for encumbering and subsequent payment of this Contract; and WHEREAS, the City has been authorized to enter into a lease-purchase agreement (if applicable) for all professional services, construction/improvements, Project contingencies, reimbursable expenses and miscellaneous expenses for the purchase and installation of energy conservation measures, collectively referred to as the Work(as herein after defined); and WHEREAS, required approval, clearance, and coordination has been accomplished from and with appropriate agencies; and WHEREAS, Contractor has developed or become knowledgeable about certain procedures for controlling energy consumption through services provided and equipment installed and maintained at facilities similar in scope and scale of the City; and WHEREAS, Contractor was selected after a determination that it was the most advantageous to the City for the Project pursuant to the City s selection process and contract for the Technical Energy Audit Contract (as hereinafter defined); and WHEREAS, Contractor has made an assessment of the utility consumption characteristics of facilities, which was delivered to the City as a Technical Energy Audit which the City has approved; and is made part of this Contract in Schedule T; and WHEREAS, the City owns and operates the Premises (as hereinafter defined); and WHEREAS, the City desires to retain Contractor to sell to it, install and service certain energy efficiency equipment of the type or class described herein and to provide other services for the purpose of achieving utility cost reductions within Premises; and Colorado Energy Office Page 5 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

18 WHEREAS, Contractor has selected the Equipment (as hereinafter defined) on the basis of competitive quality, compliance with Contractor s specifications, and price; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and intending to be legally bound hereby, the City and Contractor hereto covenant and agree as follows:. Colorado Energy Office Page 6 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

19 ARTICLE 1: DEFINITIONS, SCHEDULES, EXHIBITS AND APPENDICES Section 1.1. Definitions. Certificate of Acceptance: The certificate substantially in the form provided in Exhibit III(i) Notice of Acceptance. Contract: This Energy Performance Contract and all Schedules, Exhibits, and Appendices attached hereto. Contract Sum: The sum of all materials, labor, auditing, design, engineering, Project construction management fees, overhead, profit, contingency, outside services, and bidding and construction contingencies related to the Project. Energy Cost Savings: The savings as provided in Schedule C and in accordance with the Savings Calculation Formula set forth in Schedule F. Equipment: The goods enumerated on Schedule A that is now or hereafter from time to time become attached hereto and incorporated herein by reference, together and with any and all additions, modifications, attachments, replacements and parts thereof. Event of Default: Those events described in Section 17.1 and Section 17.2 hereof. Guarantee: The utility and cost savings achieved as a result of the installation and operation of the Equipment and provision of services provided for in this Contract as specified in Schedule D and in accordance with the Savings Calculation Formula as set forth in Schedule F. Interim Period: The period from contract execution until the Performance Commencement Date. Maximum Contract Price: The maximum amount of total allowable costs under this Contract, as set forth in Section 2.1, which shall be the total amount paid by the City, to Contractor. Measurement and Verification (M&V): The standards and definitions in the most current Measurement and Verification Guidelines for Energy Saving Performance Contract in State of Colorado Facilities ( COMV ), as may be amended. M&V Services: Colorado Energy Office Page 7 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

20 Services relating to the measurement and verification by Contractor of the efficiency and effectiveness of the Project, pursuant to this Contract and the most current COMV document. M&V Fee: The annual fee according to Schedule D for M&V Services. Performance Commencement Date: The date described in Section 4.2. Performance Term: The timeframe as defined in Section Premises: The certain properties owned or controlled by the City that is included as part of the Scope of Work as described in the TEA. Professional Services: Architecture, engineering, Project/construction management related to the Contract. Project: Contractor s design, acquisition, construction, and installation of the ECMs, and all Equipment and Services related thereto, as set forth in Schedule A and the Contract Documents, but does not include M&V Services. Project Acceptance The stage in the progress of the Project where the Project is sufficiently complete in accordance with this Contract that the City can utilize and take beneficial use of the Project for its intended use or purpose. Final Acceptance of the Project does not occur until after a Notice of Final Acceptance, Exhibit III (iii), is fully executed, in accordance with Section 4.2. Substantial Completion The stage in the progress of the Project where an ECM is sufficiently complete in accordance with this Contract. Substantial Completion does not occur until after a Notice of Substantial Completion, Exhibit III (ii), is fully executed, in accordance with Section 4.2. Technical Energy Audit (TEA) A detailed audit of the Premises, conducted by Contractor or another party pursuant to the TEA Contract, which serves as the basis for the ECMs. A copy of the TEA is attached as Schedule T Technical Energy Audit. Work: Collectively, the Equipment installed and/or upgraded, Professional Services and Project construction related to the Project. Colorado Energy Office Page 8 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

21 Section 1.2. Schedules. Schedule A Schedule B Schedule C Schedule D Schedule E Schedule F Schedule G Schedule H Schedule I Schedule J Schedule K Schedule L Schedule M Schedule N Schedule O Schedule P Schedule Q Schedule R Schedule S Schedule T Schedule U Equipment to be Installed by Contractor Description of Premises; Pre-Existing Equipment Inventory Energy and Cost Savings Guarantee Contractor M&V, Maintenance and Service Agreement Baseline Energy Consumption Savings Measurement & Calculation Formulae; Methodology to Adjust Baseline; Measurement and Verification Plan Construction and Installation Schedule Systems Start-Up and Commissioning; Operating Parameters of Installed Equipment Standards of Comfort Contractor s Maintenance Responsibilities The City s Maintenance Responsibilities Facility Maintenance Checklist Contractor s Training Responsibilities General and Supplemental Conditions Payment Schedule and Schedule of Values Pre-Existing Service Agreements Current and Known Capital Projects at Facility Projected Financial Performance Certificate of Insurance Technical Energy Audit Bond Coverage Clarification Schedule 1.3 Exhibits Exhibit I Form of Performance Bond Exhibit II Form of Labor and Material Payment Bond Exhibit III (i) Form of Notice of Acceptance Technical Energy Audit and Measurement and Verification Plan Exhibit III (ii) Form of Notice of Substantial Completion Exhibit III (iii) Form of Notice of Final Acceptance Exhibit IV Form of Equipment Warranties Exhibit V Form of Minority and Women-Owned Business Enterprises Exhibit VI Form of Certification that Lifetime of Equipment Exceeds Financing Term Exhibit VII Record of Reviews Section 1.4. Appendices AppendixA TEA Contract Colorado Energy Office Page 9 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

22 ARTICLE 2: PAYMENTS Section 2.1: Purchase and Sale The agreed to Contract Sum for the Work is a Maximum Contract Price of $3,213,735 as set forth in Schedule R. Payment terms are described in Schedule O. The Owner has appropriated funds equal to or in excess of the Maximum Contract Price. No change in the Maximum Contract Price requiring additional compensable work, which causes the aggregate amount payable under this Contract to exceed the amount appropriated shall be valid unless Owner provides Contractor written assurance that funds have been appropriated and are available prior to the performance of any additional work, unless such work is covered under a remedy of this Contract. Contractor will provide the Work and all related services identified on Schedule A and the services detailed on Schedule D, Schedule H, Schedule J, and Schedule M. Contractor shall supervise and direct the Work and shall be solely responsible for all construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work under this Contract. Contractor shall be responsible to pay for all labor, materials, equipment, tools, construction equipment and machinery, transportation and other facilities and services necessary for the proper execution and completion of the Work. Section 2.2. Contractor Compensation Interim Period. The City shall pay Contractor the Contract Sum in accordance with Schedule O. Payments will be made on a progress basis in accordance with Schedule O, for Work completed and authorized by the City during the Interim Period. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below, but, in each case, less the aggregate of payments previously made and less such amounts as Contractor shall determine, or owner may withhold, in accordance with paragraph B.% of the General Conditions. a. 95% of Work completed (with the balance being retainage). If Work has been at least 50% completed as determined by Engineer, and if the character and progress of the Work have been satisfactory to Owner and Engineer, Owner, on recommendation of Engineer, may determine that as long as the character and progress of the Work remain satisfactory to them, there will be no additional retainage except as provided by the General Conditions, or State law. b. 95% (with the balance being retainage) of materials and equipment not incorporated in the Work (but delivered, suitably stored and accompanied by documentation satisfactory to Owner as provided in Paragraph A.1 of the General Conditions) Upon Substantial Completion, an amount sufficient to increase total payments to Contractor to 95% of the Contract Price, less such amounts as Engineer shall determine Colorado Energy Office Page 10 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

23 or Owner may withhold in accordance with Paragraph B.5 of the General Conditions. 5.2 Final Payment. Upon final completion and acceptance of the Work in accordance with Paragraph of the General Conditions, Owner shall pay the remainder of the Contract Price as provided in said Paragraph 14.07, as amended by the Supplementary Conditions. 5.3 No Lien Rights. Contractor understands that this is a contract for the construction or repair of a public building or public works and is therefore governed by C.R.S thru 107. Contractor further understands that these statutory provisions are in lieu of lien rights. Contractor further understands that failure on the part of Contractor, any sub-contractor, supplier, or laborer furnishing labor or supplies to the Work must follow the statutory provisions in the filing of any claim for payment, and that failure on the part of any claimant to comply with the statutory requirements shall relieve the Owner from any liability for making payment to such claimant. Contractor agrees to include this provision in any and all subcontracts. Section 2.3. Energy and Cost Savings Guarantee. Subsequent to the Performance Commencement Date and throughout the term of this Contract, Contractor hereby guarantees the level of utility and cost savings as detailed in Schedule C. Contractor shall provide the M&V Services as defined in Schedule D, for every year of the contract term as legislated by C.R.S (3)(c) or until such time that the City issues a notice to terminate the M&V Services. The City may terminate the Guarantee and related M&V Services, and M&V Fee, as set forth in Section 2.9 and defined in Schedule D, after the first two years of the performance period as legislated by C.R.S (3)(c) and this Contract shall terminate and Contractor shall have no further obligations, including but not limited to the Guarantee and M&V Services. This Guarantee is achieved as a result of the installation and operation of the Equipment and provision of services provided for in this Contract as specified in Schedule D and in accordance with the Savings Calculation Formula as set forth in Schedule F. The Guarantee per Schedule C shall not be reduced even in the event of a Material Change per Article 14 except as the parties may mutually agree to such a reduction and act in good faith in determining such an agreement. In the event this Contract is terminated due to an uncured Event of Default, as defined in Section 17.1, by the City, the Guarantee and related M&V Services shall be cancelled and Contractor shall have no further obligations hereunder, except to guarantee the City the prorated portion of the annual Guarantee for the year in which Contract is terminated. The prorated portion shall include all Guaranteed Savings incurred prior to the termination date except that such portion should only go up until the Event of Default if the Event is related to the non-payment or other violations impacting the Energy and Cost Savings including but not limited to providing utility bills and access to the Equipment. Contractor has structured the Guarantee to be sufficient to exceed any and all annual payments required by the City in connection with the acquisition of Equipment to be installed by Contractor under this Contract and the City s financing obligations. Actual energy and operations savings Colorado Energy Office Page 11 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

24 achieved by Contractor through the operation of Equipment and performance of services by Contractor, including the annual Guarantee, shall be sufficient to cover any and all annual fees to be paid by the City to Contractor for the provision of services as set forth and in accordance with the provisions of Schedule D. Section 2.4. Allowable Payment Sources. The City has pre-determined allowable payment sources to be applied to annual payments, which may include: Energy cost savings; material/commodity savings (including avoided cost from replacement lamps, ballasts, and scheduled replacement of parts); and other cost savings including maintenance contracts. Section 2.5. Capital Contribution from the City. Not Applicable Section 2.6. Independent Monitoring The City may hire, with consultation of Contractor and paid for with the Guarantee, an independent third party monitor to review the Contractor s measurement and verification reports and to advise the City of compliance in measurement and verification of savings. The independent monitor s responsibilities could also include verifying the prorated share of the Guarantee in the Event of Contract Termination. Compliance checks will relate to the established baseline (Schedule E), baseline adjustments monitoring and verification plan and savings calculations of (Schedule F). Section 2.7. Annual Review and Reimbursement/Reconciliation. Energy-related cost savings shall be measured and/or calculated as specified in Schedule D, Schedule E, and Schedule F and a report provided within sixty (60) days of receipt of all data (as specified in Schedule D hereof) for the previous year for each anniversary of the Performance Commencement Date. Contractor agrees that Schedule F shall follow and use as a standard the procedures and protocol for Measurement and Verification located in the document Measurement and Verification (M&V) Guidelines for Energy Saving Performance Contracts in State of Colorado Facilities 1. In the event the Energy and Cost Savings achieved during such Contract Year is less than the Guaranteed Energy and Cost Savings (as defined in Schedule C hereof), set forth for such year during the years the Guarantee is in effect, Contractor shall pay the City an amount equal to the deficiency. If during the Contract Year the Energy and Cost Savings achieved are greater than the Guaranteed Energy and Cost Savings, such excess Energy and Cost Savings shall be retained by the City. 1 Located on CEO s website at Colorado Energy Office Page 12 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

25 Section 2.8. Measurement Information Procedure. Energy and Cost Savings shall be calculated annually in the following manner: (i) Each month, by the 10th day after receipt, the City shall provide Contractor with copies of all relevant energy bills received for the preceding month; (ii) Reporting to the City is outlined in Schedule D. Section 2.9. M&V Fee. Throughout the Term of this Contract, or until the Contractor M&V Agreement is cancelled by the City, the City shall pay Contractor an annual M&V Fee according to Schedule D for measuring the Energy and Cost Savings. Annual guaranteed energy and cost savings achieved shall be sufficient to cover any and all fees to be paid to Contractor pursuant to the provisions of Schedule D. Notwithstanding the provisions in Section(s) 4.1, 4.2 and 4.3 hereof, the City shall not be required to begin any M&V Fee payments to Contractor under this Contract unless and until all equipment installation is completed by Contractor in accordance with the provisions of Article 6 and Article 9, Schedule H and Schedule M, and accepted by the City as evidenced by the signed Notice of Final Acceptance as set forth in Exhibit III (iii), and unless and until said equipment is fully and properly functioning in accordance with Schedule A and related details and specifications. Section Late Payment. Payment during construction will be in accordance with Schedule O. Payment due during the Performance Period shall be due and payable within forty-five (45) days of the invoice date. Interest shall accrue on Guaranteed Savings not in dispute and rightfully owned for past due balance, owed to the City hereunder at the rate of one percent (1%) per month (or the highest rate not prohibited by law, whichever is lower). All moneys not paid when due hereunder as provided in Article 14 of the General Conditions shall bear interest at the maximum rate of 8% per year ARTICLE 3. UTILITY AND OTHER AWARD PAYMENTS Section 3.1. Utility Award Payments The City has applied for inclusion in the Utility s Solar*Rewards Program and to that end has entered or will enter into several agreements with the Utility, including a Solar*Rewards Rebate Agreement, an Interconnection Agreement and a Solar*Rewards REC Purchase Contract wherein a portion of the Contract Sum and Guaranteed Savings will be subsidized by the Utility (the REC Purchase Contract ) upon the Utility s inspection and approval of the Work. (The Solar*Rewards Program is hereinafter referred to as the Award Program and the payments available through the Award Program is hereinafter referred to collectively as the Award Payment. ) The total Award Payments are as indicated in Schedule C and Schedule N. These amounts have been applied by Contractor in determining the Maximum Contract Price and the Guaranteed Savings. There shall be no adjustment to the Maximum Contract Price, Guaranteed Savings, or Schedule of Values if the Award Payments allowed by the Utility are other than the amount specified herein, unless the disallowance or reduction is attributable to delay caused by neglect or an act of the City constituting a breach of its obligations Colorado Energy Office Page 13 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

26 under this Contract. The City understands that Contractor is not a representative or an agent of Xcel Energy. All Solar*Rewards program agreements will be mutually executed by the City and Xcel energy, McKinstry cannot be a party to those agreements. The City agrees to comply with all requirements of the Award Programs, including execution of the required contracts with Xcel Energy a.k.a. Public Service Company of Colorado. Renewable Energy Credit Payments through the Solar*Rewards Program will be paid directly from the Utility to the City. The City agrees to maintain the system per manufacturer's specifications and replace any defective parts after the warranty period, as detailed in Schedule K such that the originally installed system size is operational during the Performance Term of this Contract. Section 3.2. Energy Policy Act The City agrees that for the work to be performed herein, Contractor shall be the designer as that term is identified in the Energy Policy Act of 2005, and Contractor shall have the exclusive right to report to any federal, state, or local agency, authority or other party, including without limitation under Section 179(b) of the Energy Policy Act of 2005, any tax benefit associated with the work. Upon Final Completion, the City, at its sole discretion, agrees to execute a Written Allocation including a Declaration related to Section 179D of the Internal Revenue Code. Contractor will prepare the Declaration and all accompanying documentation. Contractor will be designated the Section 179D beneficiary. Contractor will offer the City the opportunity to benefit from any tax credit or rebate received by Contractor under this program. ARTICLE 4: TIME FOR COMPLETION; COMMENCEMENT DATE; TERM OF CONTRACT Section 4.1. Construction Commencement Date and Time for Completion of Work. Work must commence within thirty (30) days of execution of this Contract and shall be completed as set forth in Schedule G. The Time for Completion of Work is of the essence of this Contract. By executing this Contract, the parties hereto confirm the Time of Completion of Work is a reasonable period for performing the Work. Except for obligation to make payments of money, Contractor shall not be responsible for any failure to fulfill, or any delay in fulfilling, its obligations hereunder, if such failure or delay is beyond the reasonable ability of such party to control, avoid or mitigate and is due to storm, flood, or other Act of God, or to fire, war, rebellion, scarcity of water, insurrection, riots, strikes (other than strikes directed at subcontractor), or is the result of some order, rule or regulation of any federal, state, municipal, or other governmental agency that could not have been reasonably anticipated or that was not scheduled to take effect. Time for Completion of the Work and the costs related thereto shall be extended and modified by Change Order, for such reasonable time and amount as the parties hereto may determine. Change Orders in excess of contingency funds and/or completion date shall not be allowed unless mutually re-negotiated by both parties and no Change Order in excess of contingency funds shall be valid unless the City has appropriated all funds necessary for such work and provided documentation of such appropriation to Contractor. Colorado Energy Office Page 14 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

27 Section 4.2. Performance Commencement Date. The Performance Commencement Date shall be the first day of the month after the month in which all schedules are in final form and accepted by the City and when Contractor shall have delivered a Notice to the City that it has installed and commenced operating all of the Equipment specified in Schedule A and in accordance with the provisions of Article 6 and Schedule H, the City has inspected and accepted said installation and operation as evidenced by the execution of the Notice of Final Acceptance as set forth in Exhibit III (iii). Notwithstanding anything to the contrary in Article 2 and Article 4 the Performance Commencement Date shall not occur and the City shall not be required to accept the work under this Contract unless and until: all Equipment installation for the subject Premises is completed by Contractor in accordance with the terms and conditions of this Contract. The City shall have thirty (30) days after notification by the Contractor to inspect and accept the Equipment, file, in writing, any disputed issues, and execute Notice of Final Acceptance. The City reserves the right to reject the Equipment if installation fails to meet reasonable standards of workmanship, does not comply with applicable building codes, or is otherwise not in compliance with this Contract. Section 4.3. Performance Term of Contract. The Performance Term of this Contract shall begin with the Performance Commencement Date and continue for the length of the term up to a maximum of 25 years, but may not exceed the cost-weighted average lifetime of the Equipment. The City has the option to terminate the Performance Term of this Project after a minimum of two years. This Contract shall be effective and binding upon the parties immediately upon its execution. All energy savings achieved during the Interim Period shall not be applicable to the Guaranteed Savings after the Performance Commencement Date. ARTICLE 5: ENERGY USAGE RECORDS AND DATA Section 5.1. Energy Usage Records and Data The City has furnished and shall continue to furnish (or authorize its energy suppliers to furnish) during the Term of this Contract to Contractor or its designee, upon its request, all of its records and complete data concerning energy usage and related maintenance for the Premises. ARTICLE 6: CONSTRUCTION AND INSTALLATION BY CONTRACTOR Section 6.1.Permits and Approvals. The City shall use its best efforts to assist Contractor in obtaining all necessary permits and approvals for installation of the Equipment. In no event shall the City, however, be responsible for direct payment of any permit or license fee or the delay of any such permit or license fee. As directed by the City, design documentation will be submitted to the City for review. As deemed necessary by the City, design documentation will be forwarded by the City to the appropriate code review Contractor for review. These costs of code review will be borne by the City. Colorado Energy Office Page 15 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

28 Section 6.2. Contractor s Duty of Proper Installation. All services called for by this Contract which constitute the practice of architecture or the practice of engineering, as those terms are defined in Title 12, Colorado Revised Statutes, as amended (C.R.S.), shall be performed by properly qualified and licensed professionals employed by Contractor and shall be performed in accordance with applicable law. Contractor shall perform all tasks/phases under this Contract, including construction, and shall install the Equipment in such a manner so as not to harm the structural integrity of the buildings or their operating systems and so as to conform to the standards set forth in Schedule H. Section 6.3. Use of Stated Project Percentages. In establishing the Contract Sum the Contractor has used predetermined percentages of project price for overhead and profit as disclosed in the Contractor Proposal (Appendix C), as negotiated in the Contract for Technical Energy Audit and applied to the labor and material costs as shown in Schedule O. It has also provided a contingency equal to a percentage of the project budget. The Contract Sum shall be adjusted based on the actual direct costs to the Contractor, but in no event shall the Contract Sum be increased. In the event it is possible to reduce the Contract Sum because the actual labor and material costs are less than budgeted, the City can, at its sole option, increase the Work to include additional equipment such that the original Contract Sum is reached. If the City declines to increase the Work, at its sole option, the Contract Sum shall be reduced to an amount consistent with the pricing using the stated project percentages and the balance shall be applied to the lease financing amount. Section 6.4. Open Book Pricing. Open book pricing will be required, such that the Contractor will fully disclose all costs. Contractor will maintain cost accounting records on authorized work performed under actual costs for labor and material, or other basis requiring accounting records. Contractor will afford the City access to these records and preserve them for a period of three (3) years after final payment. Costs will be evaluated through price analysis to compare costs with reasonable criteria such as established catalog and market prices or historical prices. The pricing methodology and individual project percentage costing disclosed during preliminary contract negotiations will be expected to be applied, providing the scope and size of the Project remain the same as assumed when project percentage costing was disclosed. Section 6.5. Administration. The Contractor s contact person (Project Manager) shall forward all communications in writing and all documents to the City s contact person and the Program Manager s contact person simultaneously as listed below: For the City: Steve Glueck For the Contractor Project Manager: Tara Carney For the Program Manager: John Canfield For the Contractor Superintendent: Shane Smith Colorado Energy Office Page 16 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

29 ARTICLE 7: ENVIRONMENTAL REQUIREMENTS Section 7.1. Excluded Material and Activities. The City recognizes that in connection with the installation and/or service or maintenance of Equipment at the City s Premises, Contractor may encounter, but is not responsible for, any work relating to (i) asbestos, materials containing asbestos, or the existence, use, detection, removal, containment or treatment thereof, or (ii) pollutants, hazardous wastes, hazardous materials, contaminants other than those described in this Section below (collectively Hazardous Materials ), or the storage, handling, use, transportation, treatment, or the disposal, discharge, leakage, detection, removal, or containment thereof. The materials and activities listed in the foregoing sentence are referred to as Excluded Materials and Activities. The City agrees that if performance of work involves any Excluded Materials and Activities, the City will perform or arrange for the performance of such work and shall bear the sole risk and responsibility therefore. In the event Contractor discovers Hazardous or Excluded Materials, Contractor shall immediately cease work, remove all Contractor personnel or subcontractors from the site, and notify the City. The City shall be responsible to handle such Materials at its expense. Contractor shall undertake no further work on the Premises except as authorized by the City in writing. Notwithstanding anything in this Contract to the contrary, any such event of discovery or remediation by the City shall not constitute a default by the City. In the event of such stoppage of work by Contractor, the Time for Completion of Work will be automatically extended by the amount of time of the work stoppage and any additional costs incurred by Contractor as a result will be added by Change Order. Contractor shall be responsible for any hazardous or other materials, including, without limitation, those listed in this Section 7.1 that it may bring to the Premises. ARTICLE 8: ACCEPTANCE TESTING Section 8.1. Modification of Schedules. To ensure this Contract properly accounts for as-installed conditions, which conditions may vary from the pre-installation analyses, the Contractor shall re-validate or modify Schedule A and Schedule H prior to System Start-Up. Section 8.2. Systems Startup and Equipment Commissioning. The Contractor shall conduct a thorough and systematic performance test of each element and total system of the installed Equipment in accordance with the procedures specified in Schedule H and prior to acceptance of the ECM by the City as specified in Exhibit III (ii). Contractor agrees that Schedule H shall follow and use as a standard the procedures and protocol for Commissioning located in the document Commissioning Guidelines for Energy Saving Performance Contracts For the Governor s Energy Office 2. Testing shall be designed to determine if the Equipment is functioning in 2 Located on CEO s website at Colorado Energy Office Page 17 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

30 accordance with both its published specifications and the Schedules to this Contract, and to determine if modified building systems, subsystems or components are functioning properly within the new integrated environment. The Contractor shall provide notice to the City of the scheduled test(s) and the City and/or its designees shall have the right to be present at any or all such tests conducted by Contractor and/or manufacturers of the Equipment. The Contractor shall be responsible for correcting and/or adjusting all deficiencies in the Equipment operation that may be observed during system commissioning procedures of Schedule H. Prior to the City acceptance, Contractor shall also provide the City with reasonably satisfactory documentary evidence that the Equipment installed is the Equipment specified in Schedule A. ARTICLE 9: OWNERSHIP Section 9.1. Ownership of Certain Proprietary Property Rights. The City shall not, by virtue of this Contract, acquire any ownership interest in any formulas, patterns, devices, secret inventions or processes, copyrights, patents, other intellectual or proprietary rights, or similar items of property which are or may be used in connection with the Equipment. The City shall, however, have a nonexclusive license to utilize all such intellectual or proprietary rights obtained by Contractor related to Equipment in connection with its use of the Equipment under this Contract. The Contractor hereby grants to the City a perpetual, irrevocable, royalty-free license to any and all software or other intellectual property or proprietary rights it obtains from Equipment manufacturers necessary for the City to continue to operate, maintain, and repair the Equipment in a manner that will yield maximal energy consumption reductions. This license shall continue subsequent to any termination or expiration of this Contract other than termination due to breach by the City. Section 9.2. Ownership of Documents. (A) Instruments of Service Drawings, specifications and other documents, including those in electronic form, prepared by the Contractor and the Contractor s consultants are Instruments of Service for use solely with respect to this Project. The Contractor and the Contractor s consultants shall be deemed the authors and owners of their respective instruments of service and shall retain all common law, statutory and other reserved rights, including copyrights. Upon execution of this Contract, the Contractor hereby grants to the City a perpetual nonexclusive license to reproduce and use, and permit others to reproduce and use for the City, the Contractor s Instruments of Service solely for purposes of constructing, using and maintaining the Project or for future alterations, or additions to the Project. The Contractor shall obtain similar nonexclusive licenses from the Contractor s consultants consistent with this Contract. If, and upon the date the Contractor is adjudged in default of this Contract, the foregoing license shall be deemed terminated and replaced by a second, nonexclusive license permitting the City to authorize other similarly credentialed design professionals to reproduce and, where permitted by law, to make changes, corrections or additions to the Instruments of Service solely for purposes of completing, using and maintaining the Project, or for future alterations, or additions to the Project. Any unilateral use by the City of the Instruments of Service for completing, using, maintaining, adding to or altering the Project or facilities shall be at the City s sole risk and without liability to the Contractor and Colorado Energy Office Page 18 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

31 the Contractor s consultants; provided, however, that if the City s unilateral use occurs for completing, using or maintaining the Project as a result of the Contractor s breach of this Contract, nothing in this Article shall be deemed to relieve the Contractor of liability for its own acts or omissions or breach of this Contract. (B) As-Built Drawings/Record Drawings The City and its consultants shall, upon completion of the Construction Phase receive redline As-Built Drawings from the Contractor. These redline changes shall describe the built condition of the Project. This information and all of the incorporated changes directed by Bidding Addenda, Change Order/Amendment or Contractor s Supplementary Instructions shall be incorporated by the Contractor and its consultants into a Record Drawings document provided to the City in the form of an electro-media format and a reproducible format as agreed between the parties. The Contractor shall also provide the City with the As-Built Drawings. Section 9.3. Ownership of Existing Equipment. Ownership of the equipment and materials existing at the Premises at the time of execution of this Contract shall remain the property of the City even if it is replaced or its operation made unnecessary by work performed by Contractor pursuant to this Contract. If applicable, Contractor shall advise the City in writing of all equipment and materials to be replaced at the Premises and the City shall within fifteen (15) days designate in writing to the Contractor which equipment and materials should not be disposed of off-site by the Contractor. It is understood and agreed to by both Parties that the City shall be responsible for and designate the location and storage for any equipment and materials that should not be disposed of off-site. Except as may be otherwise provided in this Contract, the Contractor shall be responsible for the disposal of all equipment and materials designated by the City as disposable offsite in accordance with all applicable laws and regulations regarding such disposal. Except as indicated in Section 7.1 and Section 7.2, under no circumstance shall Contractor be obligated to dispose of or take responsibility for any materials identified in Section 7.1 or Section 7.2 of this Contract. Section 9.4. Ownership of Measurement and Verification Equipment. The City agrees to own the equipment required to provide the ongoing measurement of energy savings (the Metering Equipment ). Upon mutual agreement between Contractor and the City, the City shall provide and maintain any necessary communication equipment to facilitate remote monitoring of the Equipment. ARTICLE 10: STANDARDS OF COMFORT Not Applicable Colorado Energy Office Page 19 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

32 ARTICLE 11: EQUIPMENT WARRANTIES Section 11.1 Actions by Contractor. Contractor warrants that all equipment sold and installed as part of this Contract is new, unless otherwise agreed, will be materially free from defects in materials or workmanship, will be installed properly in a good and workmanlike manner, and will function properly for a period of one (1) year from the date of the Substantial Completion for the particular energy conservation measure if operated and maintained in accordance with the procedures established per building. Substantial Completion shall be defined as the stage in the progress of the Work where the Work is sufficiently complete in accordance with the Contract so that the City can utilize and take beneficial use of the Work for its intended use or purpose. Substantial Completion does not occur until the Equipment or system has been commissioned, accepted, and Exhibit III(ii) - Notice of Substantial Completion is fully executed. After the warranty period, Contractor shall have no responsibility for performing maintenance, repairs, or making manufacturer warranty claims relating to the Equipment, except as provided in Schedule D, Schedule J, and Schedule N. Contractor further agrees to assign to the City all available manufacturer s warranties relating to the Equipment and to deliver such written warranties and which shall be attached and set forth as Exhibit IV; reasonably assist the City in its pursuit of its rights and remedies against the manufacturers under the warranties in the event of Equipment malfunction or improper or defective function, and defects in parts, workmanship and performance. Contractor shall, during the warranty period, notify the City whenever defects in Equipment parts or performance occur, which give rise to such rights and remedies and those rights and remedies are exercised by Contractor. During this period, the cost of any risk of damage or damage to the Equipment and its performance, including damage to property and equipment of the City or the Premises, due to Contractor s failure to exercise its warranty rights shall be borne solely by Contractor. However, these warranties do not extend to any damage as a result of the City or third party neglect, modification, abuse or alteration. All warranties, to the extent transferable, shall be transferable and extend to the City. The warranties shall specify that only new, not reconditioned, parts may be used and installed when repair is necessitated by malfunction. Notwithstanding the above, nothing in this Section shall be construed to alleviate/relieve the Contractor from complying with its obligations to perform under all terms and conditions of this Contract and as set forth in all attached Schedules. Section Malfunctions and Emergencies. The City shall use its best efforts to notify the Contractor or its designated subcontractor within twenty-four (24) hours after the City's actual knowledge and occurrence of: (i) any malfunction in the operation of the Equipment or any preexisting energy related equipment that might materially impact upon the Energy Savings or Energy Savings Guarantee, (ii) any interruption or alteration to the energy supply to the Premises, or (iii) any alteration or modification in any energy-related equipment or its operation. Colorado Energy Office Page 20 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

33 Where the City exercises due diligence in attempting to assess the existence of a malfunction, interruption, or alteration it shall be deemed not at fault in failing to correctly identify any such conditions as having a material impact upon the savings. The City shall notify Contractor within twenty-four (24) hours upon its having actual knowledge of any emergency condition affecting the Equipment. If such malfunction, interruption, or alteration occurs during the Warranty Period, Contractor shall respond to any such notice within twenty-four (24) hours for non-critical equipment, and eight (8) hours for critical equipment, and shall promptly thereafter proceed with corrective measures. Any telephonic notice of such conditions by the City shall be followed within three business days by written notice to Contractor from the City. If the City unreasonably delays in so notifying Contractor of a malfunction or emergency, and the malfunction or emergency is not otherwise corrected or remedied, Contractor may charge the City for its loss, due to the delay, associated with the Guarantee under this Contract for the particular time period, provided that Contractor is able to show the direct causal connection between the delay and the loss. The Contractor will provide a written record of all service work performed. This record will indicate the reason for the service, description of the problem and the corrective action performed. Section 11.3 Actions by the City. During the term of this Contract, the City shall not move, remove, modify, alter, or change in any way the Equipment or any part thereof without the prior written approval of Contractor except as set forth in Schedule K. Notwithstanding the foregoing, the City may take reasonable steps to protect the Equipment if, due to an emergency, it is not possible or reasonable to notify Contractor before taking any such actions. In the event of such an emergency, the City shall take reasonable steps to protect the Equipment from damage or injury. The City agrees to maintain the Premises in good repair and to protect and preserve all portions thereof, which may in any way affect the operation or maintenance of the Equipment, all in accordance with the same standard of care the City applies to the Premises generally, that of a reasonably prudent government owner. ARTICLE 12: MODIFICATION, UPGRADE OR ALTERATION OF EQUIPMENT Section Modification of Equipment. During the Term of this Contract, the City will not, without the prior written consent of Contractor, affix or install any accessory Equipment or device on any of the Equipment if such addition will change or impair the originally intended functions, value or use of the Equipment without Contractor s prior written approval, which shall not be unreasonably withheld. Section Upgrade or Alteration of Equipment. Contractor shall at all times have the right, subject to the City's prior written approval, which approval shall not be unreasonably withheld, to change the Equipment, revise any procedures for the operation of the Equipment or implement other energy saving actions in the Premises, provided that: (i) such modifications or additions to, or replacement of the Equipment, and any operational changes, or new Colorado Energy Office Page 21 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

34 procedures are necessary to enable the Contractor to achieve greater energy and cost savings at the Premises and; (ii) any cost incurred relative to such modifications, additions or replacement of the Equipment, or operational changes or new procedures shall be the responsibility of the Contractor. All modifications, additions or replacements of the Equipment or revisions to operating or other procedures shall be described in a supplemental Schedule(s) to be provided to the City for approval, which shall not be unreasonably withheld, provided that any replacement of the Equipment shall, unless otherwise agreed, be new and have equal or better potential to reduce energy consumption at the Premises than the Equipment being replaced. The Contractor shall update any and all software necessary for the operation of the Equipment in accordance with the provisions of Section 9.1 and Schedule J. All replacements of and alterations or additions to the Equipment shall become part of the Equipment described in Schedule A and shall be covered by the provisions and terms of Article 6 and Article 8. ARTICLE 13: LOCATION AND ACCESS Section Contractor Access. Contractor acknowledges that there exists sufficient space on the Premises for the installation and operation of the Equipment. The City shall take reasonable steps to protect such Equipment from harm, theft and misuse during the term of this Contract. The City shall provide access to the Premises for Contractor to perform any function related to this Contract during regular business hours, or such other reasonable hours as may be requested by Contractor and acceptable to the City. Contractor shall be granted immediate access to make emergency repairs or corrections as it may, in its discretion, determine are needed. Contractor s access to the Premises to make emergency repairs or corrections as it may determine are needed shall not be unreasonably restricted by the City. Contractor shall immediately notify the City when emergency action is taken and follow up with written notice with three (3) business days specifying the action taken, the reasons therefore, and the impact upon the Premises, if any. Section Utility Access. If a Utility Award Payment is made as described in Section 3 (Utility Award Payments), the following applies. Upon request by the Utility (or its agent) and with prior consent of the City which consent shall not be unreasonably withheld, the City shall agree to allow Utility to interview the City and to enter the Premises at reasonable times throughout the life of the installed equipment to install metering equipment, perform energy audits or inspect the facilities and any equipment installed. The City also agrees to cooperate with the Utility or its agent upon request and with prior consent of the City, in conducting such activities and/or in analyzing energy savings. At all times a representative of the City (or its agent) shall be present during such inspections. Colorado Energy Office Page 22 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

35 ARTICLE 14: MATERIAL CHANGES Section Material Change Defined. A Material Change shall include any change or cumulative changes in or to the Premises, whether structural, operational or otherwise in nature which reasonably could be expected, in the judgment of the City, to increase or decrease annual energy consumption in accordance with the provisions and procedures set forth in Schedule E and Schedule F after adjustments for climatic variations and provided a correlation exists between usage and Material Change. Actions by the City that may result in a Material Change include but are not limited to the following: (i) manner of use of the Premises by the City; or (ii) hours of operation for the Premises or for any equipment or energy using systems operating at the Premises; or (iii) permanent changes in the comfort and service parameters or (iv) occupancy of the Premises; or (v) structure of the Premises; or (vi) types and quantities of equipment used at the Premises or (vii) modification, renovation or construction at the Premises; or (viii) the City's failure to provide maintenance of and repairs to the Equipment in accordance with Schedule K; or (ix) casualty or condemnation of the Premises or Equipment, or (x) changes in utility provider or utility rate classification, or (xi) any other conditions other than climate affecting energy use at the Premises. Section Reported Material Changes; Notice by the City The City shall use its best efforts to deliver to the Contractor a written notice describing all actual or proposed Material Changes in the Premises or in the operations of the Premises at least 14 days before any actual or proposed Material Change is implemented or as soon as is practicable after an emergency or other unplanned event. Notice to the Contractor of Material Changes which result because of a bona fide emergency or other situation which precludes advance notification shall be deemed sufficient if given by the City within five (5) business days after having actual knowledge that the event constituting the Material Change occurred or was discovered by the City to have occurred. Section Other Adjustments. As agreed in Section 16.1 the City will alert Contractor of materials changes as known. Both parties have a vested interest in meeting the guaranteed savings of the Contract. As such, the Contractor will work with the City to investigate, identify and correct any changes that prevent the guaranteed savings from being realized. As a result of such investigation, Contractor and the City shall determine what, if any, adjustments to the baseline will be made in accordance with the provisions set forth in Schedule F and Schedule E. ARTICLE 15: TRAINING AND FOLLOW-UP ACTIVITIES BY CONTRACTOR Section Training. The Contractor shall conduct the training program described in Schedule M. Appropriate training must be completed prior to acceptance of the Equipment installation. The Contractor shall provide ongoing training as defined in Schedule M. Colorado Energy Office Page 23 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

36 Section Emissions Reductions Documentation and Reporting. The Contractor shall include emissions reductions quantities in each annual report and advise the City on opportunities to achieve monetary benefit from such credits. ARTICLE 16: GENERAL CONTRACTUAL PROVISIONS Section 16.1 Additional Insurance Requirements- Professional Liability Insurance. Contractor promises and agrees to maintain in full force and effect an Errors and Omissions Professional Liability Insurance Policy as is required for compliance with the City. The policy, including claims made forms, shall remain in effect for the duration of the Interim Period and for at least three years beyond the completion and acceptance of the Equipment. The Contractor shall be responsible for all claims, damages, losses or expenses, including attorney fees, arising out of or resulting from the performance of professional services contemplated in this Contract, provided that any such claim, damage, loss or expense is caused by any negligent act, error or omission of the Contractor, any consultant or associate thereof, or anyone directly or indirectly employed by the Contractor. The Contractor shall submit a Certificate of Insurance verifying said coverage at the signing of this Contract and also any notices of renewals of Renewals of the said policy as they occur. ARTICLE 17: EVENTS OF DEFAULT Section Events of Default by the City. Each of the following events or conditions shall constitute an "Event of Default" by the City: (i) (ii) (iii) any failure by the City to pay Contractor any sum due that is not in dispute, hereunder for a service and maintenance period of more than thirty (30) days after written notification by Contractor that the City is delinquent in making payment; any other mutually determined material failure by the City to perform or comply with the terms and conditions of this Contract, including breach of any covenant contained herein, provided that such failure continues for thirty (30) days after notice to the City demanding that such mutually determined failures to perform be cured or if such cure cannot be effected in such forty-five (45) days; the City shall be deemed to have cured default upon the commencement of a cure within such forty-five (45) days and diligent subsequent completion thereof; any representation or warranty furnished by the City in this Contract that was false or misleading in any material respect when made. Section Events of Default by Contractor. Each of the following events or conditions shall constitute an "Event of Default" by Contractor: Colorado Energy Office Page 24 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

37 (i) (ii) (iii) (iv) (v) any representation or warranty furnished by Contractor in this Contract is false or misleading in any material respect when made; any material failure by Contractor to perform or comply with the terms and conditions of this Contract, including breach of any covenant contained herein except that such failure, if corrected or cured within thirty (30) days after written notice to Contractor demanding that such failure to perform be cured, shall be deemed cured for purposes of this Contract; any lien or encumbrance upon the equipment by any subcontractor, laborer or material man of Contractor which is not released in thirty (30) days after notice of said filing; the filing of a bankruptcy petition whether by Contractor or its creditors against Contractor which proceeding shall not have been dismissed within ninety (90) days of its filing, or an involuntary assignment for the benefit of all creditors or the liquidation of Contractor. failure by the Contractor to pay any amount due that is not in dispute, or perform any material obligation under the terms of this Contract, unless such amount due or failure to perform is excused pursuant to the provisions of this Contract. Section Dispute Resolution (A) Notice of Cure Period In the event of any breach that is not an Event of Default, notice of such shall be given in writing by the aggrieved Party to the other Party. If such breach is not cured, cannot be cured, or if due diligence to cure the breach has not begun within 30 days of receipt of written notice, unless otherwise stated herein, or if an Event of Default has occurred, the aggrieved Party may exercise any of the remedies set forth in Section 17.3B. Notwithstanding anything to the contrary herein, the City, in its sole discretion, need not provide advance notice or a cure period and may immediately terminate this Contract in whole or in part if reasonably necessary to preserve public safety or to prevent immediate public crisis. (B) Remedies If Contractor is in breach under any provision of this Contract or commits an Event of Default, the City shall have all of the remedies listed in this Section 17(B)(i) and (ii) in addition to all other remedies set forth in other sections of this Contract following the notice and cure period set forth in Section 17.3(A). The City may exercise any or all of the remedies available to it, in its sole discretion, concurrently or consecutively. If the City is in breach under any provision of this Contract or commits an Event of Default, the Contractor shall have all of the remedies listed in Section 17(B)(iii) in addition to all other remedies set forth in other sections of this Contract following the notice of cure period set forth in Section 17.3(A). Colorado Energy Office Page 25 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

38 i. Termination for Cause and/or Breach The City may terminate this entire Contract or any part of this Contract as provided herein or pursuant to the General Conditions. Exercise by the City of this right shall not be a breach of its obligations hereunder. Contractor shall continue performance of this Contract to the extent not terminated, if any. a. Obligations and Rights To the extent specified in any termination notice, Contractor shall not incur further obligations or render further performance hereunder past the effective date of such notice, and shall terminate outstanding orders and subcontracts with third parties. However, Contractor shall complete and deliver to the City all Work not cancelled by the termination notice and may incur obligations as are necessary to do so within this Contract s terms. At the sole discretion of the City, Contractor shall assign to the City all of Contractor's right, title, and interest under such terminated orders or subcontracts. Upon termination, Contractor shall take timely, reasonable and necessary action to protect and preserve property in the possession of Contractor in which the City has an interest. All materials owned by the City in the possession of Contractor shall be immediately returned to the City. All Work Product, at the option of the City, shall be delivered by Contractor to the City and shall become the City s property. b. Payments The City shall reimburse Contractor only for accepted performance up to the date of termination or as provided in the General Conditions, in the City s sole discretion. If, after termination by the City, it is determined that Contractor was not in breach or that Contractor's action or inaction was excusable, such termination shall be treated as a termination in the public interest and the rights and obligations of the Parties shall be the same as if this Contract had been terminated in the public interest, as described in General Conditions. c. Damages and Withholding Notwithstanding any other remedial action by the City, Contractor shall remain liable to the City for any damages sustained by the City by virtue of any breach under this Contract by Contractor and the City may withhold any payment to Contractor for the purpose of mitigating the City s damages, until such time as the exact amount of damages due to the City from Contractor is determined. The City may withhold any amount that may be due Contractor as The City deems necessary to protect The City against loss, including loss as a result of outstanding liens, claims of former lien holders, or for the excess costs incurred in procuring similar goods or services. Contractor shall be liable for excess costs incurred by The City in procuring from third parties replacement Work as cover. Liability may alternatively be assessed per the General Conditions, in The City s discretion. d. Termination of M&V Term Notwithstanding anything to the contrary herein, The City may terminate this Contract after the first two years of the M&V Term, and if so terminated, Contractor shall have no further obligations hereunder thereafter. Colorado Energy Office Page 26 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

39 ii. Remedies Not Involving Termination The City, its sole discretion, may exercise one or more of the following remedies in addition to other remedies available to it: a. Suspend Performance Suspend Contractor s performance with respect to all or any portion of this Contract pending necessary corrective action as specified by The City without entitling Contractor to an adjustment in price/cost or performance schedule. Contractor shall promptly cease performance and incurring costs in accordance with The City s directive and The City shall not be liable for costs incurred by Contractor after the suspension of performance under this provision. b. Withhold Payment Withhold payment to Contractor until corrections in Contractor s performance are satisfactorily made and completed. c. Deny Payment Deny payment for those obligations not performed, that due to Contractor s actions or inactions, cannot be performed or, if performed, would be of no value to The City; provided, that any denial of payment shall be reasonably related to the value to The City of the obligations not performed. d. Removal Notwithstanding any other provision herein, The City may demand immediate removal of any of Contractor s employees, agents, or Subcontractors whom The City deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued relation to this Contract is deemed to be contrary to the public interest or The City s best interest. e. Intellectual Property If Contractor infringes on a patent, copyright, trademark, trade secret or other intellectual property right while performing its obligations under this Contract, Contractor shall, at The City s option (a) obtain for the City or Contractor the right to use such products and services; (b) replace any Goods, Services, or other product involved with non-infringing products or modify them so that they become non-infringing; or, (c) if neither of the foregoing alternatives are reasonably available, remove any infringing Goods, Services, or products and refund the price paid therefore to The City. ii. Remedies and Termination by Contractor The Contractor, upon the City being held in Default in this Contract, in its sole discretion, may exercise one or more of the following remedies in addition to other remedies available to it: a. City Payment Upon failure by the City to pay Contractor as stated in section 17.1(i), Contractor may suspend further Work on Project until payment is made; if no payment or cure is made Colorado Energy Office Page 27 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

40 after thirty (30) days of the City being found in default of this Contract, Contractor shall have no further obligation to the City under the terms of this Contract. b. City Material Failure Upon material failure by the City as stated in section 17.1(ii), Contractor may in its sole discretion, suspend further Work on Project until default is resolved or if no cure is made after thirty (30) days of the City being found in default of this Contract Contractor shall have no further obligation to the City under the terms of this Contract. c. City Warranty Misrepresentation Upon warranty misrepresentation by the City to pay Contractor as stated in section 17.1(iii), Contractor may suspend further work on Project until cure is made or may cancel this Contract and Contractor shall have no further obligation to the City under the terms of this Contract. ARTICLE 18: ASSIGNMENT Section Assignment by Contractor. The Contractor acknowledges that the City is induced to enter into this Contract by, among other things, the professional qualifications of the Contractor. The Contractor agrees that neither this Contract nor any right of obligations hereunder may be assigned in whole or in part to another firm, without the prior written approval of The City except in the event that any third party acquires substantially all of the assets and obligations of Contractor, except as otherwise provided herein. Section Assignment by the City. The City may transfer or assign this Contract and its rights and obligations herein to a successor or purchaser of the Premises or an interest therein with the consent of Contractor, which shall not be unreasonably withheld. The lack of financial qualification of the new owner shall be grounds for withholding such consent. ARTICLE 19: REPRESENTATIONS AND WARRANTIES Section General Representations and Warranties. Each party warrants and represents to the other that: (i) it has all requisite power, authority, licenses, permits, and franchises, corporate or otherwise, to execute and deliver this Contract and perform its obligations hereunder; (ii) its execution, delivery, and performance of this Contract will not result in a breach or violation of, or constitute a default under any Contract, lease or instrument to which it is a party or by which it or its properties may be bound or affected; Colorado Energy Office Page 28 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

41 ARTICLE 20. ADDITIONAL REPRESENTATIONS OF THE PARTIES. Section By the City. The City hereby warrants, represents and promises that: (i) The City is authorized under the Constitution and laws of the State of Colorado and its Charter and Municipal Code to enter into this Contract, each transaction contemplated hereby, and to perform all of its obligations under this Contract. (ii) Subject to the provisions contained herein, the City has provided or shall provide timely to Contractor, all records relating to energy usage and energy-related maintenance of Premises requested by Contractor and the information set forth therein is, and all information in other records to be subsequently provided pursuant to this Contract will be true and accurate in all material respects and Contractor shall be entitled to rely thereon; and (iii) The City has not entered into any prior leases, contracts or agreements with other persons or entities regarding the leasing or acquisition of energy efficiency equipment or the provision of energy management services for the Premises or with regard to servicing any of the Equipment located in the Premises that would encroach upon the scope of this Contract. The City shall provide Contractor with copies of any successor or additional leases of energy efficiency equipment and contracts for management or servicing of preexisting equipment at Premises that may be executed from time to time hereafter within seven days after execution thereof. Section By Contractor. Contractor hereby warrants, represents and promises that: (i) Before commencing performance of this Contract: a. Contractor shall have become licensed or otherwise permitted to do business in the State of Colorado b. Contractor shall have provided proof and documentation of all required insurance and bonds pursuant to this Contract. (ii) Contractor shall make available, upon reasonable request, documents relating to its performance under this Contract, including contracts and subcontracts it shall enter into; (iii) Contractor shall use subcontractors who are qualified, licensed and bonded in this State to perform the work so subcontracted pursuant to the terms hereof; (iv) Contractor has all requisite authority to license the use of proprietary property, both tangible and intangible, contemplated by this Contract; (v) The Equipment will meet or exceed the Acceptance Testing procedures set forth in Article 8 of this Contract. Colorado Energy Office Page 29 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

42 (vi) The Equipment is or will be compatible with all other current Premises mechanical and electrical systems, subsystems, or components with which the Equipment interacts, and that, as installed, neither the Equipment nor such other systems, subsystems, or components will materially adversely affect each other as a direct or indirect result of Equipment installation or operation; (vii) That Contractor is financially solvent, able to pay its debts as they mature and possessed of sufficient working capital to complete the Installation and perform its obligations under this Contract. ARTICLE 21: MISCELLANEOUS DOCUMENTATION PROVISIONS. Section Performance Bonds, Labor and Material Payment Bonds. Such executed bonds are incorporated herein by reference as Exhibit I (Performance Bond) and Exhibit II (Labor and Material Payment Bond) per Schedule N (General and Supplementary Conditions)). Section Further Documents The parties shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the provisions of this Contract. Section 21.3 Miscellaneous Articles No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and specifically but without limitation, monies that may become due and monies that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment no assignment will release or discharge that assignor from any duty or responsibility under the Contract. Except for the intended beneficiaries of the Labor and Material Payment Bond executed in conjunction with this Agreement, nothing in this Agreement shall be construed to give any rights or benefits by virtue of this Agreement to anyone other than Owner and Contractor, and all duties and responsibilities undertaken pursuant to this Agreement will be for sale and exclusive benefit of Owner and Contractor and not for the benefit of any other party. Owner and Contractor each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect to all covenants, agreements and obligations contained in the Contract. Colorado Energy Office Page 30 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

43 Any provision or part of the Contract held to be void or unenforceable under any law or regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Contractor, who agree that the Contract shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes a close as possible to expressing the intention of the stricken provision. The Owner and Contractor acknowledge and agree that the payments hereunder shall constitute current expenditures of the Owner payable in the fiscal years for which funds are appropriated for the payment thereof. The Owner s obligations under this Agreement shall be from year to year only and shall not constitute a multiple-fiscal year direct or indirect debt or other financial obligation of the Owner, or an obligation of the Owner payable in any fiscal year beyond the fiscal year for which funds are appropriated for the payment thereof, or payable from any funds of the Owner other than funds appropriated for the payment of current expenditures. No provision of this Agreement shall be construed to pledge or to create a lien on any class or source of Owner monies, assets or properties. Contractor certifies, through signature of its authorized representative executing this Agreement, that it does not knowingly employ or contract with an illegal alien who will perform work under the public contract for services and that the Contractor will participate in the United States Government s E-Verify Program or the State of Colorado Department of Labor and Employment Program ( Department Program ) in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services. Contractor shall not: 1) Knowingly employ or contract with an illegal alien to perform work under this Agreement; or 2) Enter into a contract with a subcontractor that fails to certify to the contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. Contractor shall affirm as required by C.R.S (c) (II) the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through participation in either the E-Verify Program or the Department Program. Contractor is prohibited from using the E-Verify Program or Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. Colorado Energy Office Page 31 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

44 If Contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, Contractor shall be required to: 1) Notify the subcontractor and the City within three days that the Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and 2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to sub-subparagraph 9.2 2) required the subcontractor does not stop employing or contracting with the illegal alien; except that the Contractor shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. Contractor shall comply with all rules and regulations and any reasonable request by the State Department of Labor and Employment made in the course of the Department s performance of its lawful duties pursuant to C.R.S et seq., as amended from time to time. If Contractor violates any of the provisions set forth in this section, the City may terminate the Agreement and Contractor shall be liable for all actual and consequential damages incurred by the City Section 21.3 The City s Responsibilities. (A) Methods of Operation by the City The Parties acknowledge and agree that said Energy and Cost Savings would not likely be obtained unless certain procedures and methods of operation designed for energy conservation shall be implemented, and followed by the City on a regular and continuous basis. (B) The City s Maintenance Responsibilities The City agrees that it shall adhere to, follow and implement the energy conservation procedures and methods of operation to be set forth on Schedule K, to be attached hereto and made a part hereof after the City's approval, such approval not to be unreasonably withheld, conditioned or delayed. (C) Inspection of Premises During the Performance Term of this Contract, the City agrees that Contractor shall have the right once a month, with prior notice, to inspect Premises to determine if the City is complying, and shall have complied with its obligations as set forth in Section 21.3(b). For the purpose of determining the City's compliance, the checklist to be set forth at Schedule L as completed and recorded by Contractor during its monthly inspections, shall be used to measure and record the City's compliance. The City shall make the Premises available to Contractor for and during each monthly inspection, and shall have the right to witness each inspection and Contractor s recordation on the checklist. The City may Colorado Energy Office Page 32 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

45 complete its own checklist at the same time. Contractor agrees to not interfere with The City operations during any monthly inspection. ARTICLE 22: CONFLICTS OF INTEREST Section 22.1 Conflicts of Interest. Conflicts of interest relating to this Contract are strictly prohibited. Except as otherwise expressly provided herein, neither party hereto nor any director, employee or agent of any party hereto shall give to or receive from any director, employee or agent of any other party hereto any gift, entertainment or other favor of significant value, or any commission, fee or rebate in connection with this Contract. Likewise, neither party hereto nor any director, employee or agent of either party hereto, shall without prior notification thereof to the other party enter into any business relationship with any director, employee or agent of the other party or of any affiliate of the other party, unless such person is acting for and on behalf of the other party or any such affiliate. A party shall promptly notify the other party of any violation of this section and any consideration received as a result of such violation shall be paid over or credited to the party against whom it was charged. Any representative of any party, authorized by that party, may audit the records of the other party related to this Contract, upon reasonable notice and during regular business hours including the expense records of the party s employees involved in this Contract, upon reasonable notice and during regular business hours, for the sole purpose of determining whether there has been compliance with this section. ARTICLE 23: CONTRACT DOCUMENTS Section TEA Contractor prepared a complete Technical Energy Audit which has been approved and accepted by the City as set forth in Exhibit III (i) - Notice of Acceptance Technical Energy Audit and Measurement and Verification Plan. Section General and Supplementary Conditions. The City s General and Supplementary Conditions are attached hereto as Schedule N and may be incorporated and made a part hereof as follows. (A) Contract or SC6.21 Shall be defined to be this Energy Performance Contract and all related Schedules, Exhibits and Appendices. (B) Overhead/Profit/Commission Amounts shall be as specified in Contractor s proposal and Schedule R. Section Order of Precedence. Colorado Energy Office Page 33 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

46 Notwithstanding, the provisions of this Contract and the attached Schedules, Exhibits and Appendices shall govern in the event of any inconsistencies between the Technical Energy Audit and the provisions of this Contract. In the event of conflicts or inconsistencies between this Contract and its Schedules, Exhibits or Appendices, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: a) Contract body, b) Schedule N General and Supplementary Conditions for all construction matters and concerns, c) The remaining Schedules/Exhibits/Appendices, d) Contractor Proposal. In the event of any conflicts between Schedule C and other parts of this Contract regarding calculation or measurement of the Guarantee, Schedule C shall govern. Section Facsimile Signatures. Parties agree that facsimile signatures shall be accepted as originals. Colorado Energy Office Page 34 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

47 THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT CONTRACTOR: CITY OF GOLDEN, COLORADO: Marjorie N. Sloan, Mayor McKinstry Essention, LLC By Executive Director Social Security Number or FEIN Joseph Hagar, Director of Finance LEGAL REVIEW: NO LEGAL REVIEW REQUIRED By CORPORATIONS: (A corporate attestation is required and seal, if available.) ATTEST: (Susan M. Brooks, MMC, City Clerk) APPROVED AS TO FORM: David S. Williamson, City Attorney Colorado Energy Office Page 35 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

48 SCHEDULES Colorado Energy Office Page 36 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

49 SCHEDULE A. EQUIPMENT TO BE INSTALLED BY CONTRACTOR FIM XXX: SOLAR PV To continue progress towards meeting the City of Golden s renewable energy goals (50% renewable energy by 2017), fixed-axis Solar Photovoltaic systems will be installed at (9) different sites throughout the City of Golden. The systems are a mix of ground-mounted systems, roof-mounted systems, and carports. McKinstry will complete final design and installation for a minimum of 677kW- DC at the following (9) sites: Tony Grampsas City Maintenance Shops Splash Water Park Fossil Trace Maintenance Public Works South Parking Garage Fire Station #4 Fossil Trace Johnson Restroom Fossil Trace Illinois Restroom Systems shall include all necessary components for a fully functional and code-compliant PV installation including structural upgrades, panels, racking, inverters, combiners, wiring, conduit, fencing, and all other necessary components. Colorado Energy Office Page 37 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

50 TONY GRAMPSAS GYMNASIUM A 69.62kW Solar PV system will be installed at this site. Approximately 26kW will be located on the south-facing roof of the Tony Grampsas Gymnasium. The remaining 43kW will be groundmounted to the west of the facility and will surrounded by fencing. Figure 1: Tony Grampsas Proposed Layout Colorado Energy Office Page 38 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

51 CITY MAINTENANCE SHOPS A 260kW Solar PV system will be installed at this site. Approximately 124.5kW will be roof mounted on the shop and fleet maintenance buildings. The remaining 136.5kW will be located on carport structures in the North employee and visitor parking lot. Figure 2: City Maintenance Shops Proposed Layout Colorado Energy Office Page 39 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

52 SPLASH WATER PARK A 153kW Solar PV system will be installed at this site. Approximately 103kW will be on south facing carport structures. The remaining 50kW will be on southwest facing carports. Figure 3: Splash Water Park Proposed Layout Colorado Energy Office Page 40 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

53 FOSSIL TRACE MAINTENANCE SHOPS A 41.25kW Solar PV system will be installed at this site. All of the installed capacity will be located on the south facing roof of the maintenance shop. Figure 4: Fossil Trace Maintenance Shops Proposed Layout Colorado Energy Office Page 41 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

54 PUBLIC WORKS A 40.5kW Solar PV system will be installed at this site. Approximately 33kW will be roof mounted on the southeast facing roof area. The remaining 7.5kW will be installed on a southeast facing awning system. Figure 5: Public Works Proposed Layout Colorado Energy Office Page 42 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

55 SOUTH PARKING GARAGE A 55.08kW Solar PV system will be installed at this site. Approximately 30kW will be located on southwest facing carport structures. The remaining 25kW will be located on southeast facing carport structures. Figure 6: South Parking Garage Proposed Layout **Design still under City review. Likely that majority of solar installations along the East side will be relocated to the North side. There is no cost impact for this design change. Colorado Energy Office Page 43 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

56 FIRE STATION #4 A 40kW Solar PV system will be installed at this site. All installed capacity will be located on the ground to the southwest of the existing Fire Station. Figure 7: Fire Station #4 Proposed Layout Colorado Energy Office Page 44 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

57 FOSSIL TRACE JOHNSON RESTROOM A 9kW ground mount Solar PV system will be installed at this site. Figure 8: Fossil Trace Johnson Proposed Layout FOSSIL TRACE ILLINOIS RESTROOM A 9kW ground mount Solar PV system will be installed at this site. Figure 9: Fossil Trace Illinois Proposed Layout Colorado Energy Office Page 45 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

58 FIM XXX: ELECTRIC RATE CHANGE The intent of this measure is to reduce electric demand costs. McKinstry will work with the City of Golden and Xcel Energy to switch the following accounts from the SG rate to the SGL rate. All rate switches for ballfield sites should occur as soon as possible. All rate switches for PV sites shall occur in June of 2014 or at an earlier time determined by McKinstry. Table 1: Sites to Switch from SG to SGL rate Site Account # Premise # Meter # Timing of Rate Switch Ulysses Ballfield W51893T As soon as possible Tony Grampsas Field As soon as possible Weir St A Ballfield W74728S As soon as possible th Ballfield As soon as possible Tony Grampsas Gym W52021T City Maintenance Shops Splash Pool W40060T Fossil Trace Mnt Bldg W43568T South Parking Garage June 2014 or earlier as determined by McKinstry June 2014 or earlier as determined by McKinstry June 2014 or earlier as determined by McKinstry June 2014 or earlier as determined by McKinstry June 2014 or earlier as determined by McKinstry FIM XXX: SOLAR MONITORING, TRENDING, & ALARMING McKinstry shall provide solar monitoring hardware and software for the (9) sites where Solar PV will be installed. McKinstry shall provide installation of all devices, wiring, and terminals as well as mapping of all data points from inverters to a central JACE panel. Communication of interval data shall occur via cellular communication at (4) sites and City of Golden network communication at (5) sites. Note that cellular communications can be fragile and potential connectivity and data transfer losses must be acceptable. Table 2: Data Communication Approach Site Communications Tony Grampsas Gym City Maintenance Shops Splash Pool Cellular Network drop provided by the City of Golden Network drop provided by the City of Golden Colorado Energy Office Page 46 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

59 Site Fossil Trace Mnt Bldg Public Works South Parking Garage Fire Station #4 Fossil Trace Johnson RR Fossil Trace Illinois RR Communications Network drop provided by the City of Golden Network drop provided by the City of Golden Cellular Network drop provided by the City of Golden Cellular Cellular Additionally, McKinstry shall provide trend data storage, performance analytics, and alarms. Colorado Energy Office Page 47 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

60 SCHEDULE B. DESCRIPTION OF PREMISES; PRE-EXISTING EQUIPMENT INVENTORY The City of Golden has approximately 85 electricity accounts on Xcel Energy s Commercial (C) rate and Secondary General (SG) rate. There are presently no Solar Photovoltaic or monitoring systems installed within the City. Colorado Energy Office Page 48 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

61 SCHEDULE C: ENERGY AND COST SAVINGS GUARANTEE Definition of Terms Used in the Performance Guarantee The following terms are defined for use in these CONTRACT documents for the performance guarantee. Accumulated Realized Savings means the sum of the actual energy savings achieved from the Effective Date of this Agreement through the end of the current Annual Period, derived from the sum of Measured & Verified Savings plus the Stipulated Savings. Accumulated Guaranteed Savings means the sum of the Guaranteed Measured & Verified Savings plus the Stipulated Savings from the Performance Commencement Date of the Agreement through the end of the current Annual Period. City means City of Golden. Annual Guaranteed Savings are the Measured & Verified Savings and the Stipulated Savings that occur in any Annual Period of the Guarantee Term. Avoided Cost means savings in units of consumption (e.g. kwh, kw demand, therms, gallons, etc.) in a Billing Period multiplied by the utility rate for the Billing Period, as set forth in Schedule E. Billing Period is the term defined by a utility company as the time between meter readings or fuel deliveries. It does not refer to the time when the bill was sent or when the payment was to have been received. In some cases, the billing period is the same as the billing cycle that corresponds closely (within several days) to meter-reading dates. For fuel oil and LPG, the billing period is the number of days between fuel deliveries. BTU is a unit of thermal energy defined as a British Thermal Unit and is the amount of energy required to raise the temperature of one pound of water by one degree Fahrenheit. CCF is a measure of energy, hundred cubic feet of natural gas, equal approximately 103,000 BTUs. Actual values change based upon fuel source and range from 100,000 BTU to 107,000 BTU. Calculations may be adjusted for gas energy content if the data is available from the Utility. CONTRACTOR means McKinstry Essention, LLC. Energy Conservation Measure or ECM means, in general, any energy saving equipment, service, means, method, technique, procedure, or activity. For the sake of the CONTRACT only ESCO Equipment and ESCO Services relating to installation, or modification of an installation, in a facility which is primarily intended to reduce Energy Consumption or to allow use of an alternate energy source will apply. Colorado Energy Office Page 49 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

62 Energy Consumption means the amount of electrical energy and demand, natural gas, oil, propane, or other fuel, consumed in the Facility in any Billing Period, as calculated by utilizing the data, methodology and variables set forth in Schedule F. Energy Consumption may also include other utilities such as water and sewer. Energy Cost Savings (also see Avoided Costs ) means savings in units of consumption (e.g. kwh, kw demand, therms, gallons, etc.) in a Billing Period multiplied by the utility rate for the Billing Period, as set forth in Schedule E. Energy Savings means, for each form of energy for each Billing Period, the difference between the Baseline Energy Consumption for the Billing period and the Energy Consumption actually incurred in the Billing Period as set forth in the Schedule F. Escalation Factor means an annual escalation percentage, defined in Schedule E, to be applied to the previous year s Energy Savings, Operational Savings and Measurement and Verification Program, beginning the second Annual Period after the Acceptance Date. ESCO means Energy Services Company, McKinstry Company. ESCO Equipment means the equipment installed or caused to be installed by the ESCO, as set forth in the Schedule A. ESCO Service means all the services to be provided by the ESCO, as set forth in this CONTRACT. Excess Savings means the Realized Annual Savings less the Annual Guaranteed Savings for the Annual Period. If the amount is zero or less there is no Excess Savings amount for that Annual Period. Facility means the buildings(s) or facility(s) included in the Energy Services Agreement and described in the Technical Energy Audit. Facility Improvement Measure or FIM means, in general, an equipment, service, means, method, technique, procedure, or activity. For the sake of the CONTRACT only ESCO Equipment and ESCO Services relating to installation, or modification of an installation, in a facility which is primarily intended to reduce Energy Consumption or improve the facility or to allow use of an alternate energy source will apply. Guaranteed Savings means the amount of Avoided Cost that this Agreement anticipates will be achieved at the Facilities under this Agreement, calculated as the aggregate of the Measured & Verified Savings and the Stipulated Savings amounts identified in the Performance Guarantee section of Schedule C, but not to exceed the aggregate of the Contract Sum; the M & V Payments; and the OWNER S cost of financing the Work. Guaranteed Measured & Verified Savings means the Measured & Verified Savings guaranteed to be achieved as described in the Performance Guarantee, Schedule C. kw means Kilowatt, and is a measure of electric power. Colorado Energy Office Page 50 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

63 kwh means Kilowatt hour, and is the product of kw and hours, which is a measure of electric consumption. M&V Option is the measurement and verification option used to measure and verify the savings of a particular ECM or FIM. Options A though D follow the protocols identified by the International Performance Measurement and Verification Protocol (IPMVP). Measured and Verified Savings means the product of the energy savings which can be measured and verified by the methodology as set forth in Schedule F and the applicable utility rates described in Schedule E. Notice of Commencement of Energy Cost Savings means written notice from the ESCO to the Owner that the ESCO has substantially completed installation of ESCO Equipment and/or that it has provided ESCO Services and that such equipment or services are now providing Energy Savings. Date of signature of this notice by the Owner shall be referred to as the Performance Commencement Date. Owner means City of Golden. Operational & Maintenance Savings or O&M Savings are non-guaranteed non-utility savings that have been mutually agreed upon and stipulated by the CONTRACTOR and OWNER prior to or upon implementation of the FIMs. The operational and maintenance savings for each Performance Guarantee Period, with the corresponding Escalation Factor, are set forth in Schedule E. Simple Payback means the cost of the project including development, audit, design, construction, management, fees, and other direct project costs divided by the sum of the first year annual Energy Cost Savings and O&M Savings, but does not include financing costs or other escalation rates. Performance Guarantee Period means each successive twelve month period following the Performance Commencement Date described in Section 4.2. Realized Annual Savings means the actual cost savings achieved by OWNER during an Annual Period, calculated as the sum of the Measured & Verified Savings plus the Stipulated Savings. Savings Shortfall means the Annual Guaranteed Savings less the Realized Annual Savings for the Annual Period. If the amount is zero or less there is no Savings Shortfall amount for that Annual Period. Stipulated Savings or Non-Measured Savings are the savings that have been mutually agreed upon and stipulated by the CONTRACTOR and OWNER prior to or upon implementation of the FIMs. Utility Savings means, for each form of energy or other utility for each Billing Period, the difference between the Baseline Consumption for the Billing period and the Consumption actually incurred in the Billing Period as determined in Schedule F. Therm is a measure of energy equal to 100,000 BTUs. Colorado Energy Office Page 51 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

64 GUARANTEE OVERVIEW For this project, CONTRACTOR is prepared to guarantee the performance of the installed initiatives to reduce energy consumption specific to units of energy. The target energy reductions for the initiatives that will be implemented are as described in Table C.2. Based upon the stipulated conditions as enumerated by CITY personnel and the utility rates as described in Schedule E, the utility cost savings are also shown in Table C.2. Table C.2, the Savings Summary by M&V Option, provides the specific energy consumption savings for each facility improvement measure (FIM) and the guarantee that CONTRACTOR will provide associated with that measure. The savings guarantee is based upon specific energy unit(s) (ie: kwh, Therms, etc.). The utility rates mentioned in Schedule E are only used in calculating baseline and proposed energy savings. Savings calculations are based upon both baseline operating characteristics and proposed operation criteria. Baseline: Baseline refers to the existing operating characteristics that were used to calculate energy cost savings. In general, all parties acknowledge the baseline associated with any specific measure has been derived from the following sources: 1. Actual operating information gathered through field observation, measurement, and Xcel energy bills. Proposed: The proposed operating criteria and system performance are described in Schedule F in order to determine the savings provided in Schedule F. The operational expenditures and analysis are described at the end of Schedule E. Systems must be operated per the proposed criteria to ensure energy cost savings are realized. CONTRACTOR will provide the initial start-up and commissioning of the systems to ensure that the systems operate per the proposed operating criteria. CITY acknowledges their responsibility to ensuring that these criteria are maintained and associated energy savings are realized. Energy Savings Guarantees are predicated on the CITY maintaining their responsibilities as provided in Schedule K, City s Responsibilities. PERFORMANCE GUARANTEE CONTRACTOR guarantees that the Guaranteed Savings generated from the Performance Commencement Date of this agreement to the last date of the Performance Guarantee Period will be equal to the Guaranteed Savings shown on Table C.1. The measurement and verification calculation methodology for determining the Measured & Verified Savings is set forth in Schedule F. The Performance Guarantee is dependent upon and is subject to the express condition precedent that the CITY enters into and maintains, during the entire term of the Performance Guarantee Period, the Measurement and Verification Program. If the CITY fails to enter into, breaches, cancels or otherwise causes the termination of the Measurement and Verification Program, this Performance Guarantee shall terminate immediately and be void and of no force or effect. Colorado Energy Office Page 52 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

65 Table C.1: Guaranteed Avoided Costs GUARANTEE ACCOUNTING CONTRACTOR shall prepare an annual reconciliation statement within sixty (60) calendar days of the last day of each Performance Guarantee Period to determine whether Realized Annual Savings for such Performance Guarantee Period resulted in an Excess Savings or a Savings Shortfall by comparing the Annual Guaranteed Savings and the Realized Annual Savings. All operational, maintenance, and energy costs avoided by the CITY from any steps taken by CONTRACTOR in the Facilities will be included in the Realized Annual Savings for each year. If, during the Construction Period, additional measures are identified and implemented that generate additional energy, maintenance, and operational savings, these savings may be included in the Realized Annual Savings after the Performance Commencement Date. In addition, any refunds collected, including but not limited to refunds from utility companies or maintenance contractors after the Performance Commencement Date will be added to total savings. If CONTRACTOR can correct a shortfall through operational improvement at no expense to the CITY and with no future operational expenses or negative impact on the operations of the CITY, and the CITY declines to allow such operational improvement without reasonable cause, then any future shortfall the improvement would have corrected will be stipulated and added to the savings on Colorado Energy Office Page 53 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

66 an annual basis. Should the Accumulated Realized Savings at the end of the Annual Period be less than the Accumulated Guaranteed Savings, CONTRACTOR shall pay the CITY the Savings Shortfall within thirty (30) days following the completion of the annual reconciliation for such Annual Period. INFORMATION AND CHANGES IN USE CITY will notify CONTRACTOR in writing within thirty (30) calendar days of: a. Any material changes to building use function, remodels, or additions;; or b. Any malfunctions, failures and related changes in energy consuming or regulating equipment; or c. Any damage to, destruction of, or condemnation of the Work. d. Executed preventive maintenance and repair records. CITY will provide CONTRACTOR with accurate Facility operating information, including energy usage and cost, and executed preventive maintenance and repair recordsas soon as such information becomes available to the CITY. GUARANTEE LIMITS The payments and credits based on Savings Shortfalls, if any, are the sole remedy of CITY for this Performance Guarantee. Any payments made or to be made to CITY under the terms of this Performance Guarantee shall not exceed the payments actually made by CITY to CONTRACTOR for the Contract Sum. GUARANTEE TYPES There are five guarantee options to measure and verify savings: Option A Partially Measured Retrofit Isolation Option B Retrofit Isolation Option C Whole Facility Energy Use Option D Calibrated Simulation Option E Non-measured Option A Partially Measured Retrofit Isolation Option A is a retrofit isolation approach designed for projects in which the potential to generate savings must be verified, but the actual savings can be determined from short-term data collection, engineering calculations, and stipulated factors. Post-installation energy use, equipment performance, and usage are NOT measured throughout the term of the CONTRACT. Post-installation and baseline energy use is estimated using an engineering analysis of information that does not involve long-term measurements. The intent of Option A is to verify performance through pre- and post-retrofit measurements. Usage factors can be measured or stipulated based upon engineering estimates, operating schedules, operator logs, typical weather data, or other documented information source. Post-retrofit measurements are Colorado Energy Office Page 54 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

67 made only once. Thereafter, inspections verify that the potential to perform exists. As long as the potential to perform is verified, the savings are as originally claimed and do not vary over the CONTRACT term. Option A methods are appropriate for less complex measures for which performance and operational characteristics are well understood and are unlikely to change. An Option A approach can also be suitable when the value of the measure s cost savings are low. Examples of projects where Option A may be appropriate include one-for-one lighting replacement measures, high efficiency motors with constant loads, or measures with a small percentage of overall cost savings. Option B Retrofit Isolation Option B is a retrofit isolation or system level approach, and requires continuous measurement to provide long-term verification of the savings. This method is intended for retrofits with performance factors and operational factors that can be measured at the component or system level and where longterm performance needs to be verified. Option B is similar to Option A but uses periodic or continuous metering. Short-term periodic measurements can be used when variations in the measured factor are small. Continuous monitoring information can be used to improve or optimize the operation of the equipment over time, thereby improving the performance of the retrofit. The intent of Option B is to verify performance periodically or continuously with long-term measurements. Usage factors may be stipulated as in Option A or measured continuously. Option B methods are appropriate for complex systems whose load or operating conditions are not well known or are highly dependent on external factors. Examples of projects where Option B may be appropriate include variable frequency drive installations, modifications to control systems, chiller system upgrades, or measures with a high percentage of overall cost savings. Option C Whole Facility Energy Use Option C is a whole-building verification method. Savings are based on actual energy consumption as measured by the utility meter(s) and/or regression modeling. Estimated savings will vary over the CONTRACT term. Option C verification methods determine savings by studying overall energy use in a facility. The evaluation of whole-building or facility-level metered data is completed using techniques ranging from simple billing comparison to multivariate regression analysis. Regression analysis can be used to account for weather and other factors to adjust the baseline and determine savings. Option C is an appropriate and cost-effective method ONLY if facility operation is stable and savings are expected to exceed 20% of total energy consumption. However, Option C cannot verify the performance of individual measures but can verify the total performance of all measures including interactions Option C methods are appropriate for projects whose measures have a high degree of interaction that would be difficult to predict, when overall energy savings are very large, or when dedicated utility meters are available for retrofitted equipment or systems. Colorado Energy Office Page 55 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

68 Option D Calibrated Simulation Option D is primarily a whole-building method but can be used at the component level. Savings are based on the results of a calibrated computer simulation model. Estimated savings may vary over the CONTRACT term if real weather data is used. Option D uses calibrated computer simulation models of component or whole-building energy consumption to determine energy savings. Linking simulation inputs to baseline and post-installation conditions completes the calibration, and may involve metering performance and operating factors before and after the retrofit. Specialized software packages, such as DOE-2 or e-quest, are used in Option D and the development of accurate building models requires substantial time and expertise. Option D methods are appropriate for complex projects where complex system interactions need to be tracked. Due to the expense of properly conducting Option D, suitable projects should have substantial cost savings or major building renovations such as window replacements and building insulation. Option E Non Measured Option E uses variables that are known and agreed upon by the CITY and the CONTRACTOR in advance, that are used in a calculation or simulated analysis that will stipulate the outcome. Based on the established analytical methodology the savings will be achieved upon completion of installation and commissioning of the Facility Improvement Measure and no further measurements or calculations will need to be performed. Colorado Energy Office Page 56 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

69 Table C.2: Summary by M&V Option Colorado Energy Office Page 57 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

70 SCHEDULE D: M&V, MAINTENANCE, AND SERVICE AGREEMENT Check if Included X X Table 3: Services Covered Service Annual Measurement and Verification Annual Solar Monitoring Maintenance Equipment Maintenance Equipment Service ANNUAL MEASUREMENT & VERIFICATION CONTRACTOR will provide ongoing services as described in Schedule F and below, to document the performance of this Contract. The ongoing responsibilities are included in the Contractor Measurement and Verification (M&V), Maintenance and Service Agreement as described herein. Metering Equipment As described in Section 9.4 Ownership of Measurement and Verification Equipment, the Metering Equipment to be owned by the CITY shall be as follows: All communication and automation equipment required to facilitate remote monitoring of the Equipment All other equipment required to perform the Measurement and Verification services will be provided by and owned by CONTRACTOR. SOLAR MONITORING ALARMING & MAINTENANCE CONTRACTOR will provide the client access to the Energy Management, InfoCentre, and the Enterprise Portal as a Software as a Service (SaaS) in a web based software environment. CONTRACTOR will be responsible for software upgrades and license fees associated with EEM Suite and the analytics software. CONTRACTOR shall maintain the data flow to the Enterprise Portal and create, document, and troubleshoot alarm conditions for the service period. CITY is responsible for managing uptime of equipment (power, IT network, etc.) utilized to access and transmit the data. CITY shall provide on-going remote connection to their network for CONTRACTOR for the purpose of data acquisition and maintenance. CITY shall provide notification via Service Desk of any scheduled maintenance, repairs or system down times to client network, meter end devices or monitored systems that would affect remote monitoring capability or generate false alarms, including any site activity that would affect the routing and receiving of alarms. EQUIPMENT MAINTENANCE Not Included EQUIPMENT SERVICE Colorado Energy Office Page 58 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

71 Not Included REPORTING FREQUENCY CONTRACTOR shall create and deliver a Measurement and Verification Report annually within 60 days of receipt of all data for the current Performance Guarantee Period. CITY PROVIDED DATA CITY agrees to provide the following records and data at the frequency noted, and acknowledges that delay in delivering this data to CONTRACTOR may delay the generation of the Measurement and Verification Report as detailed above. a. Utility Bills - Monthly b. Maintenance & Service Logs - Annually PERFORMANCE INSPECTION METHODOLOGY & FREQUENCY At the time of annual M&V execution as detailed in Schedule F, CONTRACTOR will provide general visual inspection of equipment installed as part of this project to evaluate the system s potential to perform. Additional tasks described in the table below will be completed. Colorado Energy Office Page 59 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

72 Table 4: M&V Plan and Annual Tasks Audit Stage (Baselining) Post Retrofit (Commissioning) FIM Name Building IPMVP Option KPI Key Performance Indicators Baseline Values Proposed Values Tasks Tasks Remote Alarming Recommended Annual M&V Tasks Ongoing Owner Responsibilities Stipulated Factors XXX Solar PV Tony Grampsas City Maintenance Shops Splash Water Park Fossil Trace Maintenance Public Works South Parking Garage Fire Station #4 Fossil Trace Johnson RR Fossil Trace Illinois RR A 1. Contractual System Size 0 kw DC Tony Grampsas: 69kW DC City Maintenance Shops: 260kW DC Splash Water Park: 153kW DC Fossil Trace Maintenance: 41kW DC Public Works: 40.5kW DC South Parking Garage: 55kW DC Fire Station #4: 40kW DC Fossil Trace Johnson RR: 9kW DC Fossil Trace Illinois RR: 9kW DC Ensure system size meets site, use, and Solar Rewards requirements. Verify installed system configuration (size, tilt, & azimuth) has potential to meet design system kwh output. None Proposed N/A Owner shall notify McKinstry of any operational issues and shall maintain panels. TMY weather, Derate factors, Baseline annual kwh, Baseline annual kw, electric rates with escalation factors, REC payment rates Instantaneous System Output Assigned Electric Rate 0 kw AC SG Instantaneous output shall be greater than Anticipated Output based on capacity, insolation, and derates as described in full M&V plan. SGL Ensure system size meets site, use, and Solar Rewards requirements. Determine existing electric rate and optimal electric rate. See Cx plan. Monitor monthly kwh output and determine optimal month to switch rates from SG to SGL. The timing of the rate switch shall be coordinated with McKinstry. 5 min trend data shall be gathered to monitor kwh output, PV inverter fault, and communication failures None Proposed. See tasks in M&V plan in TEA. Verify rate switch is in place. Owner shall notify McKinstry of any operational issues and shall maintain panels. Owner shall notify McKinstry of any operational issues and shall maintain panels. TMY weather, Derate factors, Baseline annual kwh, Baseline annual kw, electric rates with escalation factors, REC payment rates. TMY weather, Derate factors, Baseline annual kwh, Baseline annual kw, electric rates with escalation factors, REC payment rates XXX Electric Rate Switch Tony Grampsas City Maintenance Shops Splash Water Park Fossil Trace Maintenance, South Parking Garage Ulysses Ballfield Tony Grampsas Field Weir St A Ballfield th Ballfield Non- Measured 1. Assigned Electric Rate SG SGL Determine existing electric rate and optimal electric rate. The timing of the rate switch shall be coordinated with McKinstry. None Proposed Verify rate switch is in place. Owner shall limit existing kwh use and reduce use where possible to maximize rate switch value. Baseline annual kwh, Baseline annual kw, electric rates with escalation factors. Colorado Energy Office Page 60 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

73 PERFORMANCE DATA, ENGINEERING AND REVIEW The periodic inspections detailed above and specific M&V plans detailed in Schedule F, will provide data to be analyzed to determine verified annual savings and the continued potential to perform for the installed FIMs. This performance evaluation process may also be used to identify additional recommendations with the potential to improve overall energy savings results to the CITY. Listed below is a summary of the tasks to be delivered as part of this measurement and verification program: REPORTING CONTRACTOR will compile performance data, inspections, deficiencies, recommendations, and reported verified savings annually. The verified savings results will be compared to the guaranteed annual energy and operational savings. The findings will be provided in the annual report, delivered no later than 90 days after the end of the Performance Guarantee Period. REPORT STRUCTURE Each Measurement and Verification Report shall contain the information and be organized as described below: Table of Contents layout of report and key contacts Executive Summary Background Overview of key project and contract dates Guaranteed and verified project cost savings Guaranteed and verified project energy unit savings Performance period utility rates Key project successes and recommendations Cost savings by FIM Brief overview of FIM descriptions, background, and scope Detailed summary of guaranteed and verified energy and cost savings by FIM Total energy and cost savings for current and previous periods combined Performance period utility rate determination and agreed to escalations Overview of baseline energy use by facility Detailed M&V Section (sub-sections for each FIM) Brief description of FIM Overview of M&V plan and activities conducted this performance period Results of measurements, inspections, and analysis Colorado Energy Office Page 61 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

74 Appendices Deficiencies and recommendations CITY OVERSIGHT REVIEW RESPONSE Description of how verified savings was calculated and/or determined Summary table for guaranteed and verified energy unit and cost savings Details regarding material change orders to guaranteed savings Copy of Schedule E for details of utility rate determination Details including trends, data, photos, documentation, and updated calculation inputs in support of Detailed M&V Section(s). CONTRACTOR will respond to questions from the CITY regarding the M&V program and annual reports. CONTRACTOR has included provisions for responding to M&V overview of annual reports from the CEO in this scope of work. CHANGE OF USE In the event that the CITY chooses to make changes to the facility requiring modifications to the final commissioned states of the installed FIMs, including but not limited to set point and schedule adjustments, modifications to controls sequences, increased occupancy, changes in equipment use, type, and loads; or continuous/disabled equipment operation, the CITY agrees that: a. Savings deemed as met previously will continue to be deemed as met. b. Additional cost of extended or disrupted equipment operation is a cost of the change, not due to a failure of CONTRACTOR or the equipment detailed in SCHEDULE A. c. CONTRACTOR shall not be responsible for any increase in energy, maintenance, or any other costs incurred as a result of the extended or disrupted equipment operation. d. CONTRACTOR at its option may make a baseline energy use adjustment to account for a change-of-use at any facility. CUSTOMER SATISFACTION & QUALITY ASSURANCE PROGRAM CONTRACTOR will meet with CITY one time per year to review your satisfaction with the quality of service that is being provided under your Measurement and Verification Program. M&V, MAINTENANCE, AND SERVICE AGREEMENT COMPENSATION SCHEDULE AGREEMENT TERM The term of the M&V, Maintenance, and Service Agreement shall be 24 months and shall commence on the Performance Commencement Date set forth in Section 4.2 of the Performance Contract herein. CITY may elect to terminate the M&V after Year Two (2) or after any year Colorado Energy Office Page 62 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

75 following by giving the CONTRACTOR written notice of at least sixty (60) days prior to the anniversary date for that year as shown in Table D.1 below. M&V, MAINTENANCE, AND SERVICE AGREEMENT COMPENSATION CITY agrees to pay CONTRACTOR the additional sum of $4,500 ( M&V Sum ) or a prorated portion according to Table D.1, for the Measurement and Verification Program as described herein. The M&V Sum is payable according to the schedule below where the first year M&V service cost is $4,500 and each year of service after is escalated by 3%. CITY also agrees to pay CONTRACTOR the additional sum of $4,832 for the solar monitoring maintenance and alarming as described herein. The Solar Monitoring Maintenance Sum is payable according to the schedule below where the first year service cost is $4,832 and each year of service after is escalated by 3%. The CITY must continue to pay this annual fee in order for the Solar Monitoring to remain in effect. Years After Notice of Final Acceptance PAYMENT SCHEDULE Table D.1 Annual M&V Amount Annual Solar Monitoring Amount 1 $4,500 $4,832 2 $4,635 $4, $5, $5, $5, $5, $5, $5, $6, $6,305 Colorado Energy Office Page 63 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

76 . Colorado Energy Office Page 64 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

77 UTILITY RATES SCHEDULE E: BASELINE ENERGY CONSUMPTION All cost savings calculations presented in this report are based on the following utility rates. All sites receive electric service from Xcel Energy. Baseline and savings calculations use rates effective 4/01/2013. Rate: C Commercial Service and Facility Charge, flat monthly: Energy Use Charge, per kwh: Winter Summer Weighted Average $12.63/month $ /kWh $ /kWh $ /kWh rate used in calculations Rate: SG Secondary General Service and Facility Charge, flat monthly: $47.01/month Energy Use Charge, per kwh: $ /kWh rate used in calculations Demand Rate, per kw: Winter $17.95/kW Summer $21.43/kW Weighted Average $19.11/kW rate used in calculations Rate: SGL Secondary General Low Load Factor Service and Facility Charge, flat monthly: Energy Use Charge, per kwh: Winter Summer Weighted Average Demand Rate, All Months: $47.01/month $ /kWh $ /kWh $ /kWh rate used in calculations $5.69/kW rate used in calculations UTILITY RATES BY SITE The following table shows which rates apply to which sites. These rates are used in first year utility savings calculations. Table 5: Utility Rates by Site Site Name Utility Provider Rate Name Utility Type Dollars Per Unit th Ballfield Xcel Energy of Colorado SG - Ave Demand Electricity Demand $ kw th Ballfield Xcel Energy of Colorado SG - Use Electricity $ kwh th Ballfield Xcel Energy of Colorado SGL - Ave Use Electricity $ kwh th Ballfield Xcel Energy of Colorado SGL - Demand Electricity Demand $ kw City Maintenance Shops (Golden) Xcel Energy of Colorado SG - Ave Demand Electricity Demand $ kw City Maintenance Shops (Golden) Xcel Energy of Colorado SG - Use Electricity $ kwh City Maintenance Shops (Golden) Xcel Energy of Colorado SGL - Ave Use Electricity $ kwh City Maintenance Shops (Golden) Xcel Energy of Colorado SGL - Demand Electricity Demand $ kw Units Colorado Energy Office Page 65 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

78 Fire Station #4 (Golden) Xcel Energy of Colorado C - Ave Use Electricity $ kwh Fossil Trace Illinois Restroom Xcel Energy of Colorado C - Ave Use Electricity $ kwh Fossil Trace Johnson Restroom Xcel Energy of Colorado C - Ave Use Electricity $ kwh Fossil Trace Maintenance Building Xcel Energy of Colorado SG - Ave Demand Electricity Demand $ kw Fossil Trace Maintenance Building Xcel Energy of Colorado SG - Use Electricity $ kwh Fossil Trace Maintenance Building Xcel Energy of Colorado SGL - Demand Electricity Demand $ kw Public Works (Golden) Xcel Energy of Colorado C - Ave Use Electricity $ kwh South Parking Garage (Golden) Xcel Energy of Colorado SG - Ave Demand Electricity Demand $ kw South Parking Garage (Golden) Xcel Energy of Colorado SG - Use Electricity $ kwh South Parking Garage (Golden) Xcel Energy of Colorado SGL - Ave Use Electricity $ kwh South Parking Garage (Golden) Xcel Energy of Colorado SGL - Demand Electricity Demand $ kw Splash Water Park Xcel Energy of Colorado SG - Ave Demand Electricity Demand $ kw Splash Water Park Xcel Energy of Colorado SG - Use Electricity $ kwh Splash Water Park Xcel Energy of Colorado SGL - Ave Use Electricity $ kwh Splash Water Park Xcel Energy of Colorado SGL - Demand Electricity Demand $ kw Tony Grampsas Field Xcel Energy of Colorado SG - Ave Demand Electricity Demand $ kw Tony Grampsas Field Xcel Energy of Colorado SG - Use Electricity $ kwh Tony Grampsas Field Xcel Energy of Colorado SGL - Ave Use Electricity $ kwh Tony Grampsas Field Xcel Energy of Colorado SGL - Demand Electricity Demand $ kw Tony Grampsas Gymnasium Xcel Energy of Colorado SG - Ave Demand Electricity Demand $ kw Tony Grampsas Gymnasium Xcel Energy of Colorado SG - Use Electricity $ kwh Tony Grampsas Gymnasium Xcel Energy of Colorado SGL - Ave Use Electricity $ kwh Tony Grampsas Gymnasium Xcel Energy of Colorado SGL - Demand Electricity Demand $ kw Ulysses Ballfield Xcel Energy of Colorado SG - Ave Demand Electricity Demand $ kw Ulysses Ballfield Xcel Energy of Colorado SG - Use Electricity $ kwh Ulysses Ballfield Xcel Energy of Colorado SGL - Ave Use Electricity $ kwh Ulysses Ballfield Xcel Energy of Colorado SGL - Demand Electricity Demand $ kw Weir St A Ballfield Xcel Energy of Colorado SG - Ave Demand Electricity Demand $ kw Weir St A Ballfield Xcel Energy of Colorado SG - Use Electricity $ kwh Weir St A Ballfield Xcel Energy of Colorado SGL - Ave Use Electricity $ kwh Weir St A Ballfield Xcel Energy of Colorado SGL - Demand Electricity Demand $ kw BASE YEAR ELECTRIC DESCRIPTIONS The electric base year for this project is typically an average of three years of use and demand ending May Data is based on usage and cost reports provided by the electric utility, Xcel Energy. The table below shows a summary of annual usage. The tables following the summary table show the baseline electric use and cost by site. Colorado Energy Office Page 66 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

79 Table 6: Summary of Baseline Electricity Use & Cost Sites Electric (name) (kwh/yr) (peak kw /mo) ($/y) Tony Grampsas Gymnasium 86, $11,756 City Maintenance Shops (Golden) 327, $28,488 Splash Water Park 207, $21,451 Fossil Trace Maintenance Building 54, $5,999 Public Works (Golden) 49,530 - $4,895 South Parking Garage (Golden) 103, $9,021 Fire Station #4 (Golden) 50,653 - $4,803 Fossil Trace Johnson Restroom 16,344 - $1,545 Fossil Trace Illinois Restroom 22,102 - $2,044 Ulysses Ballfield 38, $15,932 Tony Grampsas Field 24, $12,753 Weir St A Ballfield 7, $9, th Ballfield 9, $7,536 TOTALS 998,147 4,957 $135,374 Table 7: Baseline Electricity Use & Cost by Site Tony Grampsas Gym 4471 Salvia St Rate: Secondary General Premise # Meter #00000W52021T Month kwh kw Total Bill Cost Data Source 1 10, $824 Average of 3-yr XCEL Data from 6/2010 to 5/ , $786 Average of 3-yr XCEL Data from 6/2010 to 5/ , $965 Average of 3-yr XCEL Data from 6/2010 to 5/ , $853 Average of 3-yr XCEL Data from 6/2010 to 5/ , $950 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,056 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,279 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,202 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,136 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,040 Average of 3-yr XCEL Data from 6/2010 to 5/ , $876 Average of 3-yr XCEL Data from 6/2010 to 5/ , $790 Average of 3-yr XCEL Data from 6/2010 to 5/ , $11,756 Colorado Energy Office Page 67 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

80 Maintenance Shops Golden Gate Canyon Rd Rate: Secondary General Premise # Meter # Month kwh kw Total Bill Cost Data Source 1 30, $2,426 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,273 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,509 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,269 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,248 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,259 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,403 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,575 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,446 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,461 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,293 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,325 Average of 3-yr XCEL Data from 6/2010 to 5/ , $28,488 Splash Water Park 3153 Illinois Street Pool Rate: Secondary General Premise # Meter #00000W40060T Month kwh kw Total Bill Cost Data Source 1 3, $532 Average of 3-yr XCEL Data from 6/2010 to 5/ , $500 Average of 3-yr XCEL Data from 6/2010 to 5/ , $555 Average of 3-yr XCEL Data from 6/2010 to 5/ , $537 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,294 Average of 3-yr XCEL Data from 6/2010 to 5/ , $4,236 Average of 3-yr XCEL Data from 6/2010 to 5/ , $4,543 Average of 3-yr XCEL Data from 6/2010 to 5/ , $4,507 Average of 3-yr XCEL Data from 6/2010 to 5/ , $2,138 Average of 3-yr XCEL Data from 6/2010 to 5/ , $547 Average of 3-yr XCEL Data from 6/2010 to 5/ , $535 Average of 3-yr XCEL Data from 6/2010 to 5/ , $528 Average of 3-yr XCEL Data from 6/2010 to 5/ , $21,451 Colorado Energy Office Page 68 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

81 Fossil Trace Maintenance Building 3150 Illinois St Rate: Secondary General Premise # Meter #00000W43568T Month kwh kw Total Bill Cost Data Source 1 3, $388 Average of 3-yr XCEL Data from 6/2010 to 5/ , $443 Average of 3-yr XCEL Data from 6/2010 to 5/ , $468 Average of 3-yr XCEL Data from 6/2010 to 5/ , $453 Average of 3-yr XCEL Data from 6/2010 to 5/ , $501 Average of 3-yr XCEL Data from 6/2010 to 5/ , $552 Average of 3-yr XCEL Data from 6/2010 to 5/ , $625 Average of 3-yr XCEL Data from 6/2010 to 5/ , $607 Average of 3-yr XCEL Data from 6/2010 to 5/ , $603 Average of 3-yr XCEL Data from 6/2010 to 5/ , $526 Average of 3-yr XCEL Data from 6/2010 to 5/ , $439 Average of 3-yr XCEL Data from 6/2010 to 5/ , $392 Average of 3-yr XCEL Data from 6/2010 to 5/ , $5,999 Public Works th St Rate: Commercial Premise # Meter # Month kwh kw Total Bill Cost Data Source 1 4,710 - $426 1-yr XCEL Data 2 4,338 - $397 1-yr XCEL Data 3 4,666 - $428 1-yr XCEL Data 4 4,242 - $388 1-yr XCEL Data 5 3,749 - $343 1-yr XCEL Data + kw estimate 6 3,961 - $451 Estimate 7 4,093 - $466 Estimate 8 4,093 - $466 1-yr XCEL Data 9 3,517 - $401 1-yr XCEL Data + kw estimate 10 3,772 - $378 1-yr XCEL Data + kw estimate 11 4,003 - $360 1-yr XCEL Data + kw estimate 12 4,385 - $392 1-yr XCEL Data + kw estimate - 49,530 - $4,895 Colorado Energy Office Page 69 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

82 South Parking Garage 1250 Jackson Street Rate: Secondary General Premise # Meter # Month kwh kw Total Bill Cost Data Source 1 7, $642 1-yr XCEL Data 2 6, $615 1-yr XCEL Data 3 6, $666 1-yr XCEL Data 4 5, $580 1-yr XCEL Data 5 5, $598 1-yr XCEL Data 6 6, $670 1-yr XCEL Data 7 4, $506 1-yr XCEL Data 8 4, $482 1-yr XCEL Data 9 4, $527 1-yr XCEL Data 10 5, $558 1-yr XCEL Data 11 5, $538 1-yr XCEL Data 12 5, $586 1-yr XCEL Data - 68, $6,968 Fire Station #4 151 Highway 93 Fire Rate: Commercial Premise # Meter # Month kwh kw Total Bill Cost Data Source 1 5,533 - $480 Average of 3-yr XCEL Data from 6/2010 to 5/ ,732 - $410 Average of 3-yr XCEL Data from 6/2010 to 5/ ,144 - $445 Average of 3-yr XCEL Data from 6/2010 to 5/ ,920 - $429 Average of 3-yr XCEL Data from 6/2010 to 5/ ,288 - $379 Average of 3-yr XCEL Data from 6/2010 to 5/ ,040 - $426 Average of 3-yr XCEL Data from 6/2010 to 5/ ,944 - $359 Average of 3-yr XCEL Data from 6/2010 to 5/ ,510 - $366 Average of 3-yr XCEL Data from 6/2010 to 5/ ,350 - $390 Average of 3-yr XCEL Data from 6/2010 to 5/ ,110 - $321 Average of 3-yr XCEL Data from 6/2010 to 5/ ,095 - $363 Average of 3-yr XCEL Data from 6/2010 to 5/ ,987 - $436 Average of 3-yr XCEL Data from 6/2010 to 5/ ,653 - $4,803 Colorado Energy Office Page 70 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

83 Fossil Trace Johnson Restroom 1515 Johnson Rd Rate: Commercial Premise # Meter #0000W Month kwh kw Total Bill Cost Data Source 1 3,009 - $265 Average of 3-yr XCEL Data from 6/2010 to 5/ ,630 - $232 Average of 3-yr XCEL Data from 6/2010 to 5/ ,599 - $231 Average of 3-yr XCEL Data from 6/2010 to 5/ ,577 - $148 Average of 3-yr XCEL Data from 6/2010 to 5/ ,065 - $106 Average of 3-yr XCEL Data from 6/2010 to 5/ $20 Average of 3-yr XCEL Data from 6/2010 to 5/ $16 Average of 3-yr XCEL Data from 6/2010 to 5/ $16 Average of 3-yr XCEL Data from 6/2010 to 5/ $15 Average of 3-yr XCEL Data from 6/2010 to 5/ $80 Average of 3-yr XCEL Data from 6/2010 to 5/ ,991 - $183 Average of 3-yr XCEL Data from 6/2010 to 5/ ,572 - $231 Average of 3-yr XCEL Data from 6/2010 to 5/ ,344 - $1,545 Fossil Trace Illinois Restroom 2010 Illinois St Rate: Commercial Premise # Meter #0000W Month kwh kw Total Bill Cost Data Source 1 3,492 - $306 Average of 3-yr XCEL Data from 6/2010 to 5/ ,139 - $275 Average of 3-yr XCEL Data from 6/2010 to 5/ ,404 - $299 Average of 3-yr XCEL Data from 6/2010 to 5/ ,467 - $225 Average of 3-yr XCEL Data from 6/2010 to 5/ ,297 - $127 Average of 3-yr XCEL Data from 6/2010 to 5/ $37 Average of 3-yr XCEL Data from 6/2010 to 5/ $17 Average of 3-yr XCEL Data from 6/2010 to 5/ $17 Average of 3-yr XCEL Data from 6/2010 to 5/ $15 Average of 3-yr XCEL Data from 6/2010 to 5/ ,252 - $132 Average of 3-yr XCEL Data from 6/2010 to 5/ ,250 - $290 Average of 3-yr XCEL Data from 6/2010 to 5/ ,433 - $304 Average of 3-yr XCEL Data from 6/2010 to 5/ ,102 - $2,044 Colorado Energy Office Page 71 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

84 Ulysses 1206 Ulysses St Ball Rate: Secondary General Premise # Meter #W51893T Month kwh kw Total Bill Cost Data Source 1 1, $347 Average of 3-yr XCEL Data from 6/2010 to 5/ , $487 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,423 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,400 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,610 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,669 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,874 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,812 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,765 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,869 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,347 Average of 3-yr XCEL Data from 6/2010 to 5/ , $329 Average of 3-yr XCEL Data from 6/2010 to 5/ , $15,932 Tony Grampsas Field Service Easley Rd SOFT Rate: Secondary General Premise # Meter # Month kwh kw Total Bill Cost Data Source 1 1, $317 Average of 3-yr XCEL Data from 6/2010 to 5/ , $313 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,185 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,154 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,166 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,308 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,418 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,545 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,318 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,345 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,255 Average of 3-yr XCEL Data from 6/2010 to 5/ , $429 Average of 3-yr XCEL Data from 6/2010 to 5/ , $12,753 Colorado Energy Office Page 72 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

85 Weir St A 1050 Weir St Ball-A Rate: Secondary General Premise # Meter #W74728S Month kwh kw Total Bill Cost Data Source $205 Average of 3-yr XCEL Data from 6/2010 to 5/ $498 Average of 3-yr XCEL Data from 6/2010 to 5/ $756 Average of 3-yr XCEL Data from 6/2010 to 5/ $891 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,296 Average of 3-yr XCEL Data from 6/2010 to 5/ $1,390 Average of 3-yr XCEL Data from 6/2010 to 5/ $300 Average of 3-yr XCEL Data from 6/2010 to 5/ $837 Average of 3-yr XCEL Data from 6/2010 to 5/ $625 Average of 3-yr XCEL Data from 6/2010 to 5/ $1,134 Average of 3-yr XCEL Data from 6/2010 to 5/ , $1,007 Average of 3-yr XCEL Data from 6/2010 to 5/ $212 Average of 3-yr XCEL Data from 6/2010 to 5/2013-7, $9, th th ST SOFT Rate: Secondary General Premise # Meter # Month kwh kw Total Bill Cost Data Source $169 Average of 3-yr XCEL Data from 6/2010 to 5/ $167 Average of 3-yr XCEL Data from 6/2010 to 5/ $428 Average of 3-yr XCEL Data from 6/2010 to 5/ $795 Average of 3-yr XCEL Data from 6/2010 to 5/ $582 Average of 3-yr XCEL Data from 6/2010 to 5/ , $834 Average of 3-yr XCEL Data from 6/2010 to 5/ , $961 Average of 3-yr XCEL Data from 6/2010 to 5/ $790 Average of 3-yr XCEL Data from 6/2010 to 5/ $910 Average of 3-yr XCEL Data from 6/2010 to 5/ , $919 Average of 3-yr XCEL Data from 6/2010 to 5/ , $805 Average of 3-yr XCEL Data from 6/2010 to 5/ $176 Average of 3-yr XCEL Data from 6/2010 to 5/2013-9, $7,536 Colorado Energy Office Page 73 Colorado Energy Performance Contracting Program Energy Performance Contract for City of Golden, Colorado

86 UTILITY RATE ESCALATION The kwh savings escalation rate mutually agreed upon by McKinstry and the City for electricity is 5%. The rate switch or demand savings escalation rate mutually agreed upon by McKinstry and the City is 3%. Historical electric rate data from Xcel Energy is summarized below. Table 8: Summary of Historical Xcel Energy Rate Year Electric C Use [$/kwh] Electric SG Use [$/kwh] Electric SG Demand [$/kw] Average Change per Year 2008 $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ % -1.24% 5.26%

87 SCHEDULE F: SAVINGS MEASUREMENT AND CALCULATION FORMULAE; METHODOLOGY TO ADJUST BASELINE; MEASUREMENT AND VERIFICATION PLAN FIM XXX: SOLAR PV Year One Savings Calculations Cost savings for this measure result from the avoided cost of purchasing electricity (kwh) from Xcel Energy and from the Renewable Energy Credit (REC) payments made to the City for each kwh that is produced. Per the requirements of the Xcel Energy Solar*Rewards program, as well as generally accepted PV industry norms, PV Watts version 1.1 was used to calculate annual energy savings for all sites. Copies of PV Watts output reports for each site can be found in Appendix B. First year energy cost savings for this measure are calculated as: First year REC payments are calculated as: Measurement & Verification Plan McKinstry performs Measurement and Verification on Solar PV systems by verifying the instantaneous system performance (kw AC Output) at the utility meter and comparing to the performance required to meet the guarantee. This includes an in-field test of the system performance combined with measurement of solar intensity at the surface of the collectors and outside air temperature. Measuring the instantaneous performance of the system against the inputs used to calculate annual production allows for an accurate determination of the system s potential to perform while excluding the year to year variability of weather conditions which cannot be guaranteed. The models used to determine the anticipated output under given sun conditions are established and accepted by NREL and the solar industry. Weather data used to model the anticipated annual output comes from NREL s Typical Meteorological Year (TMY) weather data. Thus the annual output guarantee is based on a typical year s sun conditions. To meet the guarantee under this M&V plan McKinstry is assuring that all system components are performing at or above the design assumptions including: efficiency of the panels, proper orientation to

88 the sun, total system losses do not exceed design, string voltages matched, dirt levels, and that there are no wiring or panel level performance issues. Overall, McKinstry is guaranteeing and monitoring the ability of the system to maximize output; however McKinstry does not guarantee the annual kwh output at the meter. M&V Option: IPMVP Option A Partially Measured Retrofit Isolation Guarantee Factor: 95% To execute the M&V plan, the following steps will be taken: 1. Data Collection: The actual insolation level in the plane of the collectors will be determined (either via direct measurement or local insolation data). Instantaneous performance measurement may require an input insolation of at least 650 Watt/m² in the plane of the collector. The actual system output (kw AC) and the Outside Air Temperature ( F) will be recorded at the time of the insolation measurement. 2. Determine System Derate: Because PV panels are installed in terms of DC wattage and the output is in AC, the contract wattage (kw DC) must be converted to kw AC. In addition, the temperature of the solar cells and the age of the system can degrade performance (solar cells perform worse at higher temperatures). As a result, the total system derate factor will be determined as: Where: AC to DC Conversion Factor (%) = 77% (PV watts conversion factor), which includes: o PV module nameplate DC rating: 95% o Inverter and transformer: 92% o Mismatch: 98% o Diodes and connections: 99.5% o DC wiring: 98% o AC wiring: 99% o Soiling: 95% o System Availability: 98% Temperature Derate (%) = (Cell Temp C 25 C) * 0.49%/ C where the cell temperature is determined as the outside air temperature plus 20 F Age Derate (%) = Age of System * 0.8% per year 3. Determine Anticipated Output: The anticipated output of the system will be calculated as:

89 4. Verified Savings: The verified savings (kwh) for each system will be calculated: For each subsequent annual guarantee period, the arrays will be spot checked to ensure that they are still providing the instantaneous output indicated by the panel manufacturer s guarantee which includes a 0.8% anticipated annual age degradation. The method for comparing instantaneous vs. actual output will continue to be as described above. FIM XXX: ELECTRIC RATE CHANGE Year One Savings Calculations Savings for this measure are based on switching utility rates from the SG rate to the SGL rate. The savings calculation is as follows: Measurement & Verification Plan M&V Option: Non-measured Guarantee Factor: 100% Verify that all specified rate switches have occurred. For site with Solar PV, review utility bills to evaluate if building metered electric use has increased above the baseline. Also evaluate if the building metered use is exceeding the annual PV output and is impacting the expected cost savings from the SG to SGL rate switch.

90 SCHEDULE G: CONSTRUCTION AND INSTALLATION SCHEDULE

91

92

93

94 SCHEDULE H: SYSTEMS START-UP AND COMMISSIONING; OPERATING PARAMETERS OF INSTALLED EQUIPMENT FIM XXX: SOLAR PV The following tasks provide a framework for post-implementation equipment commissioning: 1. Verify that equipment startup has been performed properly. 2. Assure kw readings at inverters match monitoring system readings. 3. Ensure remote communications to site equipment is functional and matching values shown on the on-site inverters. 4. Perform the following performance verification tasks: a. Allow the inverter to operate for at least 15 minutes. b. Measure average module cell temperature. c. Perform (3) sets of readings of the plane-of-array irradiance and inverter power, alternating between the two. d. Calculate the average plane-of-array irradiance and average inverter power from the (3) sets of values. e. Circle the average irradiance value (closest) on the table referenced above. f. Using the table, circle the expected performance fraction. Figure 10: Irradiance vs. Cell Temperature g. Multiply the expected performance fraction by the DC STC rating of the array: (DC STC) x (performance fraction) = Watts

95 h. Divide the average inverter output power by the expected performance power and multiply by 100: i. (avg inverter AC output power) (result from step 7 above) x 100 =. j. The result is the percentage of expected power that the array is producing. It should be close to 100%. k. Record all values and results in commissioning report. 5. Review O&M manuals to ensure that content clearly identifies equipment installed, maintenance schedules, and warranty procedures. 6. Verify that rollover option has been selected for all new PV systems with Xcel energy. 7. Assemble final commissioning report and deliver to owner. FIM XXX: ELECTRIC RATE CHANGE The following tasks provide a framework for post-implementation commissioning: Ensure rate switches at ballfield sites have been completed with bill verification. Once several months of PV system production has occurred, engage McKinstry EE to determine if rate switch shall occur prior to June of Ensure rate switches occur no later than June of 2014 with bill verification. Assemble final commissioning document and deliver to owner for sign-off.

96 Not applicable to this project. SCHEDULE I: STANDARDS OF COMFORT

97 SCHEDULE J: CONTRACTOR S MAINTENANCE RESPONSIBILITIES CONTRACTOR shall provide warranty services for a one-year period or longer per the manufacturer s warranty on all installed items. This warranty is specific to defects to original quality and/or workmanship. No maintenance coverage of the Solar PV systems is provided by CONTRACTOR is included in this Contract. Regarding the Solar Monitoring and Alarming, CONTRACTOR will provide the client access to the Energy Management data and to InfoCentre. CONTRACTOR will be responsible for software upgrades and license fees associated with EEM Suite and the analytics software. CONTRACTOR shall maintain the data flow to the Enterprise Portal and create, document, and troubleshoot alarm conditions for the service period.

98 SCHEDULE K: THE CITY'S MAINTENANCE RESPONSIBILITIES The CITY shall provide the following services as part of this CONTRACT. 1. Maintain all equipment per manufacturers recommendations. 2. Maintain active and updated maintenance logs for all equipment. Logs shall be kept for a minimum of the warranty period and must be provided to CONTRACTOR upon request in either electronic or hard copy format. 3. Upon request of CONTRACTOR, provide CONTRACTOR with copies of actual monthly utility billing information on a quarterly basis for the duration of the ongoing service period. This includes utility bills for electric usage. For this project, the ongoing service period shall be for the term of the contract. The associated facilities where utility information shall be provided include all meters providing direct or indirect service to all buildings included in this project. 4. CITY is responsible for managing uptime of equipment (power, IT network, etc.) utilized to access and transmit data. CITY shall provide on-going remote connection to their network for CONTRACTOR for the purpose of data acquisition and maintenance. CITY shall provide notification via Service Desk of any scheduled maintenance, repairs or system down times to client network, meter end devices or monitored systems that would affect remote monitoring capability or generate false alarms, including any site activity that would affect the routing and receiving of alarms. In addition to the maintenance responsibilities described above, the CITY shall maintain a log of all maintenance activities as described in the maintenance checklist provided with the O&M manuals.

99 SCHEDULE L: FACILITY MAINTENANCE CHECKLIST The facility maintenance checklists will be provided as a part of the Operation and Maintenance Manuals delivered at project completion. All Facility Maintenance shall be completed by CITY personnel in accordance with manufacturer s recommendations and specifications.

100 SCHEDULE M: CONTRACTOR S TRAINING RESPONSIBILITIES FIM XXX: SOLAR PV Training agenda and topics shall be developed by McKinstry and may include proper equipment operation and diagnosing and troubleshooting equipment issues. The final training agenda shall be approved by McKinstry and the district. FIM XXX: ELECTRIC RATE CHANGE There is no training required for this measure. FIM XXX: SOLAR MONITORING, TRENDING, & ALARMING Training agenda and topics shall be developed by McKinstry and may include proper equipment operation and diagnosing and troubleshooting equipment issues. The final training agenda shall be approved by McKinstry and the district.

101 SCHEDULE N: Engineers Joint Documents Committee Design and Construction Related Documents Instructions and License Agreement Instructions Before you use any EJCDC document: 1. Read the License Agreement. You agree to it and are bound by its terms when you use the EJCDC document. 2. Make sure that you have the correct version for your word processing software. How to Use: 1. While EJCDC has expended considerable effort to make the software translations exact, it can be that a few document controls (e.g., bold, underline) did not carry over. 2. Similarly, your software may change the font specification if the font is not available in your system. It will choose a font that is close in appearance. In this event, the pagination may not match the control set. 3. If you modify the document, you must follow the instructions in the License Agreement about notification. 4. Also note the instruction in the License Agreement about the EJCDC copyright. License Agreement You should carefully read the following terms and conditions before using this document. Commencement of use of this document indicates your acceptance of these terms and conditions. If you do not agree to them, you should promptly return the materials to the vendor, and your money will be refunded. The Engineers Joint Contract Documents Committee ("EJCDC") provides EJCDC Design and Construction Related Documents and licenses their use worldwide. You assume sole responsibility for the selection of specific documents or portions thereof to achieve your intended results, and for the installation, use, and results obtained from EJCDC Design and Construction Related Documents. You acknowledge that you understand that the text of the contract documents of EJCDC Design and Construction Related Documents has important legal consequences and that consultation with an attorney is recommended with respect to use or modification of the text. You further acknowledge that EJCDC documents are protected by the copyright laws of the United States. License: You have a limited nonexclusive license to: 1. Use EJCDC Design and Construction Related Documents on any number of machines owned, leased or rented by your company or organization. 2. Use EJCDC Design and Construction Related Documents in printed form for bona fide contract documents. 3. Copy EJCDC Design and Construction Related Documents into any machine readable or printed form for backup or modification purposes in support of your use of EJCDC Design and Construction Related Documents.

102 You agree that you will: 1. Reproduce and include EJCDC s copyright notice on any printed or machine-readable copy, modification, or portion merged into another document or program. All proprietary rights in EJCDC Design and Construction Related Documents are and shall remain the property of EJCDC. 2. Not represent that any of the contract documents you generate from EJCDC Design and Construction Related Documents are EJCDC documents unless (i) the document text is used without alteration or (ii) all additions and changes to, and deletions from, the text are clearly shown. You may not use, copy, modify, or transfer EJCDC Design and Construction Related Documents, or any copy, modification or merged portion, in whole or in part, except as expressly provided for in this license. Reproduction of EJCDC Design and Construction Related Documents in printed or machine-readable format for resale or educational purposes is expressly prohibited. If you transfer possession of any copy, modification or merged portion of EJCDC Design and Construction Related Documents to another party, your license is automatically terminated. Term: The license is effective until terminated. You may terminate it at any time by destroying EJCDC Design and Construction Related Documents altogether with all copies, modifications and merged portions in any form. It will also terminate upon conditions set forth elsewhere in this Agreement or if you fail to comply with any term or condition of this Agreement. You agree upon such termination to destroy EJCDC Design and Construction Related Documents along with all copies, modifications and merged portions in any form. Limited Warranty: EJCDC warrants the CDs and diskettes on which EJCDC Design and Construction Related Documents is furnished to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of delivery to you as evidenced by a copy of your receipt. There is no other warranty of any kind, either expressed or implied, including, but not limited to the implied warranties of merchantability and fitness for a particular purpose. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. This warranty gives you specific legal rights and you may also have other rights which vary from state to state. EJCDC does not warrant that the functions contained in EJCDC Design and Construction Related Documents will meet your requirements or that the operation of EJCDC Design and Construction Related Documents will be uninterrupted or error free. Limitations of Remedies: EJCDC s entire liability and your exclusive remedy shall be: 1. the replacement of any document not meeting EJCDC's "Limited Warranty" which is returned to EJCDC s selling agent with a copy of your receipt, or 2. if EJCDC s selling agent is unable to deliver a replacement CD or diskette which is free of defects in materials and workmanship, you may terminate this Agreement by returning EJCDC Document and your money will be refunded. In no event will EJCDC be liable to you for any damages, including any lost profits, lost savings or other incidental or consequential damages arising out of the use or inability to use EJCDC Design and Construction Related Documents even if EJCDC has been advised of the possibility of such damages, or for any claim by any other party. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. General: You may not sublicense, assign, or transfer this license except as expressly provided in this Agreement. Any attempt otherwise to sublicense, assign, or transfer any of the rights, duties, or obligations hereunder is void.

103 This Agreement shall be governed by the laws of the State of Virginia. Should you have any questions concerning this Agreement, you may contact EJCDC by writing to: Arthur Schwartz, Esq. General Counsel National Society of Professional Engineers 1420 King Street Alexandria, VA Phone: (703) Fax: (703) You acknowledge that you have read this agreement, understand it and agree to be bound by its terms and conditions. You further agree that it is the complete and exclusive statement of the agreement between us which supersedes any proposal or prior agreement, oral or written, and any other communications between us relating to the subject matter of this agreement.

104 This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the controlling Laws and Regulations. STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly by AMERICAN COUNCIL OF ENGINEERING COMPANIES ASSOCIATED GENERAL CONTRACTORS OF AMERICA AMERICAN SOCIETY OF CIVIL ENGINEERS PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A Practice Division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS Endorsed by CONSTRUCTION SPECIFICATIONS INSTITUTE EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved.

105 These General Conditions have been prepared for use with the Suggested Forms of Agreement Between Owner and Contractor (EJCDC C-520 or C-525, 2007 Editions). Their provisions are interrelated and a change in one may necessitate a change in the other. Comments concerning their usage are contained in the Narrative Guide to the EJCDC Construction Documents (EJCDC C-001, 2007 Edition). For guidance in the preparation of Supplementary Conditions, see Guide to the Preparation of Supplementary Conditions (EJCDC C-800, 2007 Edition). Copyright 2007 National Society of Professional Engineers 1420 King Street, Alexandria, VA (703) American Council of Engineering Companies th Street N.W., Washington, DC (202) American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA (800) Associated General Contractors of America 2300 Wilson Boulevard, Suite 400, Arlington, VA (703) The copyright for this EJCDC document is owned jointly by the four EJCDC sponsoring organizations and held in trust for their benefit by NSPE. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved.

106 STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT TABLE OF CONTENTS ARTICLE 1 DEFINITIONS AND TERMINOLOGY DEFINED TERMS 1.02 TERMINOLOGY 9 ARTICLE 2 PRELIMINARY MATTERS 2.01 DELIVERY OF BONDS AND EVIDENCE OF INSURANCE 2.02 COPIES OF DOCUMENTS 2.03 COMMENCEMENT OF CONTRACT TIMES; NOTICE TO PROCEED 2.04 STARTING THE WORK 2.05 BEFORE STARTING CONSTRUCTION 2.06 PRECONSTRUCTION CONFERENCE; DESIGNATION OF AUTHORIZED REPRESENTATIVES 2.07 INITIAL ACCEPTANCE OF SCHEDULES 12 ARTICLE 3 CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.01 INTENT REFERENCE STANDARDS 3.03 REPORTING AND RESOLVING DISCREPANCIES 3.04 AMENDING AND SUPPLEMENTING CONTRACT DOCUMENTS 3.05 REUSE OF DOCUMENTS 3.06 ELECTRONIC DATA ARTICLE 4 AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS 4.01 AVAILABILITY OF LANDS 4.02 SUBSURFACE AND PHYSICAL CONDITIONS 4.03 DIFFERING SUBSURFACE OR PHYSICAL CONDITIONS 4.04 UNDERGROUND FACILITIES 4.05 REFERENCE POINTS 4.06 HAZARDOUS ENVIRONMENTAL CONDITION AT SITE ARTICLE 5 BONDS AND INSURANCE 5.01 PERFORMANCE, PAYMENT, AND OTHER BONDS 5.02 LICENSED SURETIES AND INSURERS 5.03 CERTIFICATES OF INSURANCE 5.04 CONTRACTOR S INSURANCE 5.05 OWNER S LIABILITY INSURANCE 5.06 PROPERTY INSURANCE 5.07 WAIVER OF RIGHTS 5.08 RECEIPT AND APPLICATION OF INSURANCE PROCEEDS EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page i Page

107 5.09 ACCEPTANCE OF BONDS AND INSURANCE; OPTION TO REPLACE 5.10 PARTIAL UTILIZATION, ACKNOWLEDGMENT OF PROPERTY INSURER ARTICLE 6 CONTRACTOR S RESPONSIBILITIES 6.01 SUPERVISION AND SUPERINTENDENCE 6.02 LABOR; WORKING HOURS 6.03 SERVICES, MATERIALS, AND EQUIPMENT 6.04 PROGRESS SCHEDULE 6.05 SUBSTITUTES AND OR-EQUALS 6.06 CONCERNING SUBCONTRACTORS, SUPPLIERS, AND OTHERS 6.07 PATENT FEES AND ROYALTIES 6.08 PERMITS 6.09 LAWS AND REGULATIONS 6.10 TAXES USE OF SITE AND OTHER AREAS 6.12 RECORD DOCUMENTS SAFETY AND PROTECTION 6.14 SAFETY REPRESENTATIVE 6.15 HAZARD COMMUNICATION PROGRAMS 6.16 EMERGENCIES SHOP DRAWINGS AND SAMPLES 6.18 CONTINUING THE WORK 6.19 CONTRACTOR S GENERAL WARRANTY AND GUARANTEE 6.20 INDEMNIFICATION 6.21 DELEGATION OF PROFESSIONAL DESIGN SERVICES ARTICLE 7 OTHER WORK AT THE SITE 7.01 RELATED WORK AT SITE 7.02 COORDINATION 7.03 LEGAL RELATIONSHIPS ARTICLE 8 OWNER S RESPONSIBILITIES 8.01 COMMUNICATIONS TO CONTRACTOR 8.02 REPLACEMENT OF ENGINEER 8.03 FURNISH DATA 8.04 PAY WHEN DUE 8.05 LANDS AND EASEMENTS; REPORTS AND TESTS 8.06 INSURANCE 8.07 CHANGE ORDERS 8.08 INSPECTIONS, TESTS, AND APPROVALS 8.09 LIMITATIONS ON OWNER S RESPONSIBILITIES 8.10 UNDISCLOSED HAZARDOUS ENVIRONMENTAL CONDITION 8.11 EVIDENCE OF FINANCIAL ARRANGEMENTS 8.12 COMPLIANCE WITH SAFETY PROGRAM ARTICLE 9 ENGINEER S STATUS DURING CONSTRUCTION 9.01 OWNER S REPRESENTATIVE 9.02 VISITS TO SITE EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page ii

108 9.03 PROJECT REPRESENTATIVE 9.04 AUTHORIZED VARIATIONS IN WORK 9.05 REJECTING DEFECTIVE WORK 9.06 SHOP DRAWINGS, CHANGE ORDERS AND PAYMENTS 9.07 DETERMINATIONS FOR UNIT PRICE WORK 9.08 DECISIONS ON REQUIREMENTS OF CONTRACT DOCUMENTS AND ACCEPTABILITY OF WORK 9.09 LIMITATIONS ON ENGINEER S AUTHORITY AND RESPONSIBILITIES 9.10 COMPLIANCE WITH SAFETY PROGRAM ARTICLE 10 CHANGES IN THE WORK; CLAIMS AUTHORIZED CHANGES IN THE WORK UNAUTHORIZED CHANGES IN THE WORK EXECUTION OF CHANGE ORDERS NOTIFICATION TO SURETY CLAIMS ARTICLE 11 COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK COST OF THE WORK ALLOWANCES UNIT PRICE WORK ARTICLE 12 TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK NOTICE OF DEFECTS ACCESS TO WORK TESTS AND INSPECTIONS UNCOVERING WORK OWNER MAY STOP THE WORK CORRECTION OR REMOVAL OF DEFECTIVE WORK CORRECTION PERIOD ACCEPTANCE OF DEFECTIVE WORK OWNER MAY CORRECT DEFECTIVE WORK ARTICLE 13 PAYMENTS TO CONTRACTOR AND COMPLETION SCHEDULE OF VALUES PROGRESS PAYMENTS CONTRACTOR S WARRANTY OF TITLE SUBSTANTIAL COMPLETION PARTIAL UTILIZATION FINAL INSPECTION FINAL PAYMENT FINAL COMPLETION DELAYED WAIVER OF CLAIMS ARTICLE 14 SUSPENSION OF WORK AND TERMINATION OWNER MAY SUSPEND WORK OWNER MAY TERMINATE FOR CAUSE OWNER MAY TERMINATE FOR CONVENIENCE EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page iii

109 15.04 CONTRACTOR MAY STOP WORK OR TERMINATE ARTICLE 15 DISPUTE RESOLUTION METHODS AND PROCEDURES ARTICLE 16 MISCELLANEOUS GIVING NOTICE COMPUTATION OF TIMES CUMULATIVE REMEDIES SURVIVAL OF OBLIGATIONS CONTROLLING LAW HEADINGS EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page iv

110 ARTICLE 1 DEFINITIONS AND TERMINOLOGY 1.01 Defined Terms A. Wherever used in the Bidding Requirements or Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms. 1. Addenda Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Requirements or the proposed Contract Documents. 2. Agreement The written instrument which is evidence of the agreement between Owner and Contractor covering the Work. 3. Application for Payment The form acceptable to Engineer which is to be used by Contractor during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 4. Asbestos Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 5. Bid The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 6. Bidder The individual or entity who submits a Bid directly to Owner. 7. Bidding Documents The Bidding Requirements and the proposed Contract Documents (including all Addenda). 8. Bidding Requirements The advertisement or invitation to bid, Instructions to Bidders, Bid security of acceptable form, if any, and the Bid Form with any supplements. 9. Change Order A document recommended by Engineer which is signed by Contractor and Owner and authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Agreement. 10. Claim A demand or assertion by Owner or Contractor seeking an adjustment of Contract Price or Contract Times, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 5

111 11. Contract The entire and integrated written agreement between the Owner and Contractor concerning the Work. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral. 12. Contract Documents Those items so designated in the Agreement. Only printed or hard copies of the items listed in the Agreement are Contract Documents. Approved Shop Drawings, other Contractor submittals, and the reports and drawings of subsurface and physical conditions are not Contract Documents. 13. Contract Price The moneys payable by Owner to Contractor for completion of the Work in accordance with the Contract Documents as stated in the Agreement (subject to the provisions of Paragraph in the case of Unit Price Work). 14. Contract Times The number of days or the dates stated in the Agreement to: (i) achieve Milestones, if any; (ii) achieve Substantial Completion; and (iii) complete the Work so that it is ready for final payment as evidenced by Engineer s written recommendation of final payment. 15. Contractor The individual or entity with whom Owner has entered into the Agreement. 16. Cost of the Work See Paragraph for definition. 17. Drawings That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings and other Contractor submittals are not Drawings as so defined. 18. Effective Date of the Agreement The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 19. Engineer The individual or entity named as such in the Agreement. 20. Field Order A written order issued by Engineer which requires minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 21. General Requirements Sections of Division 1 of the Specifications. 22. Hazardous Environmental Condition The presence at the Site of Asbestos, PCBs, Petroleum, Hazardous Waste, or Radioactive Material in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto. 23. Hazardous Waste The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 6

112 24. Laws and Regulations; Laws or Regulations Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 25. Liens Charges, security interests, or encumbrances upon Project funds, real property, or personal property. 26. Milestone A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work. 27. Notice of Award The written notice by Owner to the Successful Bidder stating that upon timely compliance by the Successful Bidder with the conditions precedent listed therein, Owner will sign and deliver the Agreement. 28. Notice to Proceed A written notice given by Owner to Contractor fixing the date on which the Contract Times will commence to run and on which Contractor shall start to perform the Work under the Contract Documents. 29. Owner The individual or entity with whom Contractor has entered into the Agreement and for whom the Work is to be performed. 30. PCBs Polychlorinated biphenyls. 31. Petroleum Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non-hazardous Waste and crude oils. 32. Progress Schedule A schedule, prepared and maintained by Contractor, describing the sequence and duration of the activities comprising the Contractor s plan to accomplish the Work within the Contract Times. 33. Project The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part. 34. Project Manual The bound documentary information prepared for bidding and constructing the Work. A listing of the contents of the Project Manual, which may be bound in one or more volumes, is contained in the table(s) of contents. 35. Radioactive Material Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 36. Resident Project Representative The authorized representative of Engineer who may be assigned to the Site or any part thereof. 37. Samples Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 7

113 38. Schedule of Submittals A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to support scheduled performance of related construction activities. 39. Schedule of Values A schedule, prepared and maintained by Contractor, allocating portions of the Contract Price to various portions of the Work and used as the basis for reviewing Contractor s Applications for Payment. 40. Shop Drawings All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. 41. Site Lands or areas indicated in the Contract Documents as being furnished by Owner upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by Owner which are designated for the use of Contractor. 42. Specifications That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto. 43. Subcontractor An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the Site. 44. Substantial Completion The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms substantially complete and substantially completed as applied to all or part of the Work refer to Substantial Completion thereof. 45. Successful Bidder The Bidder submitting a responsive Bid to whom Owner makes an award. 46. Supplementary Conditions That part of the Contract Documents which amends or supplements these General Conditions. 47. Supplier A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or Subcontractor. 48. Underground Facilities All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 8

114 1.02 Terminology 49. Unit Price Work Work to be paid for on the basis of unit prices. 50. Work The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents. 51. Work Change Directive A written statement to Contractor issued on or after the Effective Date of the Agreement and signed by Owner and recommended by Engineer ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change ordered or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. A. The words and terms discussed in Paragraph 1.02.B through F are not defined but, when used in the Bidding Requirements or Contract Documents, have the indicated meaning. B. Intent of Certain Terms or Adjectives: 1. The Contract Documents include the terms as allowed, as approved, as ordered, as directed or terms of like effect or import to authorize an exercise of professional judgment by Engineer. In addition, the adjectives reasonable, suitable, acceptable, proper, satisfactory, or adjectives of like effect or import are used to describe an action or determination of Engineer as to the Work. It is intended that such exercise of professional judgment, action, or determination will be solely to evaluate, in general, the Work for compliance with the information in the Contract Documents and with the design concept of the Project as a functioning whole as shown or indicated in the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjective is not intended to and shall not be effective to assign to Engineer any duty or authority to supervise or direct the performance of the Work, or any duty or authority to undertake responsibility contrary to the provisions of Paragraph 9.09 or any other provision of the Contract Documents. C. Day: 1. The word day means a calendar day of 24 hours measured from midnight to the next midnight. D. Defective: 1. The word defective, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient in that it: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 9

115 a. does not conform to the Contract Documents; or b. does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents; or c. has been damaged prior to Engineer s recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion in accordance with Paragraph or 14.05). E. Furnish, Install, Perform, Provide: 1. The word furnish, when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition. 2. The word install, when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use. 3. The words perform or provide, when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use. 4. When furnish, install, perform, or provide is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of Contractor, provide is implied. F. Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. ARTICLE 2 PRELIMINARY MATTERS 2.01 Delivery of Bonds and Evidence of Insurance A. When Contractor delivers the executed counterparts of the Agreement to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish. B. Evidence of Insurance: Before any Work at the Site is started, Contractor and Owner shall each deliver to the other, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance which either of them or any additional insured may reasonably request) which Contractor and Owner respectively are required to purchase and maintain in accordance with Article Copies of Documents A. Owner shall furnish to Contractor up to ten printed or hard copies of the Drawings and Project Manual. Additional copies will be furnished upon request at the cost of reproduction. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 10

116 2.03 Commencement of Contract Times; Notice to Proceed A. The Contract Times will commence to run on the thirtieth day after the Effective Date of the Agreement or, if a Notice to Proceed is given, on the day indicated in the Notice to Proceed. A Notice to Proceed may be given at any time within 30 days after the Effective Date of the Agreement. In no event will the Contract Times commence to run later than the sixtieth day after the day of Bid opening or the thirtieth day after the Effective Date of the Agreement, whichever date is earlier Starting the Work A. Contractor shall start to perform the Work on the date when the Contract Times commence to run. No Work shall be done at the Site prior to the date on which the Contract Times commence to run Before Starting Construction A. Preliminary Schedules: Within 10 days after the Effective Date of the Agreement (unless otherwise specified in the General Requirements), Contractor shall submit to Engineer for timely review: 1. a preliminary Progress Schedule indicating the times (numbers of days or dates) for starting and completing the various stages of the Work, including any Milestones specified in the Contract Documents; 2. a preliminary Schedule of Submittals; and 3. a preliminary Schedule of Values for all of the Work which includes quantities and prices of items which when added together equal the Contract Price and subdivides the Work into component parts in sufficient detail to serve as the basis for progress payments during performance of the Work. Such prices will include an appropriate amount of overhead and profit applicable to each item of Work Preconstruction Conference; Designation of Authorized Representatives A. Before any Work at the Site is started, a conference attended by Owner, Contractor, Engineer, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules referred to in Paragraph 2.05.A, procedures for handling Shop Drawings and other submittals, processing Applications for Payment, and maintaining required records. B. At this conference Owner and Contractor each shall designate, in writing, a specific individual to act as its authorized representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 11

117 2.07 Initial Acceptance of Schedules A. At least 10 days before submission of the first Application for Payment a conference attended by Contractor, Engineer, and others as appropriate will be held to review for acceptability to Engineer as provided below the schedules submitted in accordance with Paragraph 2.05.A. Contractor shall have an additional 10 days to make corrections and adjustments and to complete and resubmit the schedules. No progress payment shall be made to Contractor until acceptable schedules are submitted to Engineer. 1. The Progress Schedule will be acceptable to Engineer if it provides an orderly progression of the Work to completion within the Contract Times. Such acceptance will not impose on Engineer responsibility for the Progress Schedule, for sequencing, scheduling, or progress of the Work, nor interfere with or relieve Contractor from Contractor s full responsibility therefor. 2. Contractor s Schedule of Submittals will be acceptable to Engineer if it provides a workable arrangement for reviewing and processing the required submittals. 3. Contractor s Schedule of Values will be acceptable to Engineer as to form and substance if it provides a reasonable allocation of the Contract Price to component parts of the Work. ARTICLE 3 CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.01 Intent A. The Contract Documents are complementary; what is required by one is as binding as if required by all. B. It is the intent of the Contract Documents to describe a functionally complete project (or part thereof) to be constructed in accordance with the Contract Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the indicated result will be provided whether or not specifically called for, at no additional cost to Owner. C. Clarifications and interpretations of the Contract Documents shall be issued by Engineer as provided in Article Reference Standards A. Standards, Specifications, Codes, Laws, and Regulations 1. Reference to standards, specifications, manuals, or codes of any technical society, organization, or association, or to Laws or Regulations, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Laws or Regulations in effect at the time of opening of Bids (or on the Effective Date of the EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 12

118 Agreement if there were no Bids), except as may be otherwise specifically stated in the Contract Documents. 2. No provision of any such standard, specification, manual, or code, or any instruction of a Supplier, shall be effective to change the duties or responsibilities of Owner, Contractor, or Engineer, or any of their subcontractors, consultants, agents, or employees, from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to Owner, Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents Reporting and Resolving Discrepancies A. Reporting Discrepancies: 1. Contractor s Review of Contract Documents Before Starting Work: Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements. Contractor shall promptly report in writing to Engineer any conflict, error, ambiguity, or discrepancy which Contractor discovers, or has actual knowledge of, and shall obtain a written interpretation or clarification from Engineer before proceeding with any Work affected thereby. 2. Contractor s Review of Contract Documents During Performance of Work: If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents, or between the Contract Documents and (a) any applicable Law or Regulation, (b) any standard, specification, manual, or code, or (c) any instruction of any Supplier, then Contractor shall promptly report it to Engineer in writing. Contractor shall not proceed with the Work affected thereby (except in an emergency as required by Paragraph 6.16.A) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in Paragraph Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor had actual knowledge thereof. B. Resolving Discrepancies: 1. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or discrepancy between the provisions of the Contract Documents and: a. the provisions of any standard, specification, manual, or code, or the instruction of any Supplier (whether or not specifically incorporated by reference in the Contract Documents); or EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 13

119 b. the provisions of any Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation) Amending and Supplementing Contract Documents A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof by either a Change Order or a Work Change Directive. B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized, by one or more of the following ways: 1. A Field Order; 2. Engineer s approval of a Shop Drawing or Sample (subject to the provisions of Paragraph 6.17.D.3); or 3. Engineer s written interpretation or clarification Reuse of Documents A. Contractor and any Subcontractor or Supplier shall not: 1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer or its consultants, including electronic media editions; or 2. reuse any such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of Owner and Engineer and specific written verification or adaptation by Engineer. B. The prohibitions of this Paragraph 3.05 will survive final payment, or termination of the Contract. Nothing herein shall preclude Contractor from retaining copies of the Contract Documents for record purposes Electronic Data A. Unless otherwise stated in the Supplementary Conditions, the data furnished by Owner or Engineer to Contractor, or by Contractor to Owner or Engineer, that may be relied upon are limited to the printed copies (also known as hard copies). Files in electronic media format of text, data, graphics, or other types are furnished only for the convenience of the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user s sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. B. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data s creator, the party receiving electronic files EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 14

120 agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any errors detected within the 60-day acceptance period will be corrected by the transferring party. C. When transferring documents in electronic media format, the transferring party makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the data s creator. ARTICLE 4 AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS 4.01 Availability of Lands A. Owner shall furnish the Site. Owner shall notify Contractor of any encumbrances or restrictions not of general application but specifically related to use of the Site with which Contractor must comply in performing the Work. Owner will obtain in a timely manner and pay for easements for permanent structures or permanent changes in existing facilities. If Contractor and Owner are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times, or both, as a result of any delay in Owner s furnishing the Site or a part thereof, Contractor may make a Claim therefor as provided in Paragraph B. Upon reasonable written request, Owner shall furnish Contractor with a current statement of record legal title and legal description of the lands upon which the Work is to be performed and Owner s interest therein as necessary for giving notice of or filing a mechanic s or construction lien against such lands in accordance with applicable Laws and Regulations. C. Contractor shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment Subsurface and Physical Conditions A. Reports and Drawings: The Supplementary Conditions identify: 1. those reports known to Owner of explorations and tests of subsurface conditions at or contiguous to the Site; and 2. those drawings known to Owner of physical conditions relating to existing surface or subsurface structures at the Site (except Underground Facilities). B. Limited Reliance by Contractor on Technical Data Authorized: Contractor may rely upon the accuracy of the technical data contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such technical data is identified in the Supplementary Conditions. Except for such reliance on such technical data, Contractor may not rely upon or make any claim against Owner or Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors with respect to: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 15

121 1. the completeness of such reports and drawings for Contractor s purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions, and information contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from any technical data or any such other data, interpretations, opinions, or information Differing Subsurface or Physical Conditions A. Notice: If Contractor believes that any subsurface or physical condition that is uncovered or revealed either: 1. is of such a nature as to establish that any technical data on which Contractor is entitled to rely as provided in Paragraph 4.02 is materially inaccurate; or 2. is of such a nature as to require a change in the Contract Documents; or 3. differs materially from that shown or indicated in the Contract Documents; or 4. is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents; then Contractor shall, promptly after becoming aware thereof and before further disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.16.A), notify Owner and Engineer in writing about such condition. Contractor shall not further disturb such condition or perform any Work in connection therewith (except as aforesaid) until receipt of written order to do so. B. Engineer s Review: After receipt of written notice as required by Paragraph 4.03.A, Engineer will promptly review the pertinent condition, determine the necessity of Owner s obtaining additional exploration or tests with respect thereto, and advise Owner in writing (with a copy to Contractor) of Engineer s findings and conclusions. C. Possible Price and Times Adjustments: 1. The Contract Price or the Contract Times, or both, will be equitably adjusted to the extent that the existence of such differing subsurface or physical condition causes an increase or decrease in Contractor s cost of, or time required for, performance of the Work; subject, however, to the following: a. such condition must meet any one or more of the categories described in Paragraph 4.03.A; and EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 16

122 b. with respect to Work that is paid for on a unit price basis, any adjustment in Contract Price will be subject to the provisions of Paragraphs 9.07 and Contractor shall not be entitled to any adjustment in the Contract Price or Contract Times if: a. Contractor knew of the existence of such conditions at the time Contractor made a final commitment to Owner with respect to Contract Price and Contract Times by the submission of a Bid or becoming bound under a negotiated contract; or b. the existence of such condition could reasonably have been discovered or revealed as a result of any examination, investigation, exploration, test, or study of the Site and contiguous areas required by the Bidding Requirements or Contract Documents to be conducted by or for Contractor prior to Contractor s making such final commitment; or c. Contractor failed to give the written notice as required by Paragraph 4.03.A. 3. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times, or both, a Claim may be made therefor as provided in Paragraph However, neither Owner or Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors shall be liable to Contractor for any claims, costs, losses, or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Contractor on or in connection with any other project or anticipated project Underground Facilities A. Shown or Indicated: The information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the Site is based on information and data furnished to Owner or Engineer by the owners of such Underground Facilities, including Owner, or by others. Unless it is otherwise expressly provided in the Supplementary Conditions: 1. Owner and Engineer shall not be responsible for the accuracy or completeness of any such information or data provided by others; and 2. the cost of all of the following will be included in the Contract Price, and Contractor shall have full responsibility for: a. reviewing and checking all such information and data; b. locating all Underground Facilities shown or indicated in the Contract Documents; c. coordination of the Work with the owners of such Underground Facilities, including Owner, during construction; and EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 17

123 d. the safety and protection of all such Underground Facilities and repairing any damage thereto resulting from the Work. B. Not Shown or Indicated: 1. If an Underground Facility is uncovered or revealed at or contiguous to the Site which was not shown or indicated, or not shown or indicated with reasonable accuracy in the Contract Documents, Contractor shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.16.A), identify the owner of such Underground Facility and give written notice to that owner and to Owner and Engineer. Engineer will promptly review the Underground Facility and determine the extent, if any, to which a change is required in the Contract Documents to reflect and document the consequences of the existence or location of the Underground Facility. During such time, Contractor shall be responsible for the safety and protection of such Underground Facility. 2. If Engineer concludes that a change in the Contract Documents is required, a Work Change Directive or a Change Order will be issued to reflect and document such consequences. An equitable adjustment shall be made in the Contract Price or Contract Times, or both, to the extent that they are attributable to the existence or location of any Underground Facility that was not shown or indicated or not shown or indicated with reasonable accuracy in the Contract Documents and that Contractor did not know of and could not reasonably have been expected to be aware of or to have anticipated. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment in Contract Price or Contract Times, Owner or Contractor may make a Claim therefor as provided in Paragraph Reference Points A. Owner shall provide engineering surveys to establish reference points for construction which in Engineer s judgment are necessary to enable Contractor to proceed with the Work. Contractor shall be responsible for laying out the Work, shall protect and preserve the established reference points and property monuments, and shall make no changes or relocations without the prior written approval of Owner. Contractor shall report to Engineer whenever any reference point or property monument is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points or property monuments by professionally qualified personnel Hazardous Environmental Condition at Site A. Reports and Drawings: The Supplementary Conditions identify those reports and drawings known to Owner relating to Hazardous Environmental Conditions that have been identified at the Site. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 18

124 B. Limited Reliance by Contractor on Technical Data Authorized: Contractor may rely upon the accuracy of the technical data contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such technical data is identified in the Supplementary Conditions. Except for such reliance on such technical data, Contractor may not rely upon or make any claim against Owner or Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors with respect to: 1. the completeness of such reports and drawings for Contractor s purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by Contractor and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from any technical data or any such other data, interpretations, opinions or information. C. Contractor shall not be responsible for any Hazardous Environmental Condition uncovered or revealed at the Site which was not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work. Contractor shall be responsible for a Hazardous Environmental Condition created with any materials brought to the Site by Contractor, Subcontractors, Suppliers, or anyone else for whom Contractor is responsible. D. If Contractor encounters a Hazardous Environmental Condition or if Contractor or anyone for whom Contractor is responsible creates a Hazardous Environmental Condition, Contractor shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such condition and in any area affected thereby (except in an emergency as required by Paragraph 6.16.A); and (iii) notify Owner and Engineer (and promptly thereafter confirm such notice in writing). Owner shall promptly consult with Engineer concerning the necessity for Owner to retain a qualified expert to evaluate such condition or take corrective action, if any. Promptly after consulting with Engineer, Owner shall take such actions as are necessary to permit Owner to timely obtain required permits and provide Contractor the written notice required by Paragraph 4.06.E. E. Contractor shall not be required to resume Work in connection with such condition or in any affected area until after Owner has obtained any required permits related thereto and delivered written notice to Contractor: (i) specifying that such condition and any affected area is or has been rendered safe for the resumption of Work; or (ii) specifying any special conditions under which such Work may be resumed safely. If Owner and Contractor cannot agree as to entitlement to or on the amount or extent, if any, of any adjustment in Contract Price or Contract Times, or both, as a result of such Work stoppage or such special conditions under which Work is agreed to be resumed by Contractor, either party may make a Claim therefor as provided in Paragraph EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 19

125 F. If after receipt of such written notice Contractor does not agree to resume such Work based on a reasonable belief it is unsafe, or does not agree to resume such Work under such special conditions, then Owner may order the portion of the Work that is in the area affected by such condition to be deleted from the Work. If Owner and Contractor cannot agree as to entitlement to or on the amount or extent, if any, of an adjustment in Contract Price or Contract Times as a result of deleting such portion of the Work, then either party may make a Claim therefor as provided in Paragraph Owner may have such deleted portion of the Work performed by Owner s own forces or others in accordance with Article 7. G. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold harmless Contractor, Subcontractors, and Engineer, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition, provided that such Hazardous Environmental Condition: (i) was not shown or indicated in the Drawings or Specifications or identified in the Contract Documents to be included within the scope of the Work, and (ii) was not created by Contractor or by anyone for whom Contractor is responsible. Nothing in this Paragraph 4.06.G shall obligate Owner to indemnify any individual or entity from and against the consequences of that individual s or entity s own negligence. H. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition created by Contractor or by anyone for whom Contractor is responsible. Nothing in this Paragraph 4.06.H shall obligate Contractor to indemnify any individual or entity from and against the consequences of that individual s or entity s own negligence. I. The provisions of Paragraphs 4.02, 4.03, and 4.04 do not apply to a Hazardous Environmental Condition uncovered or revealed at the Site. ARTICLE 5 BONDS AND INSURANCE 5.01 Performance, Payment, and Other Bonds A. Contractor shall furnish performance and payment bonds, each in an amount at least equal to the Contract Price as security for the faithful performance and payment of all of Contractor s obligations under the Contract Documents. These bonds shall remain in effect until one year after the date when final payment becomes due or until completion of the correction period specified in Paragraph 13.07, whichever is later, except as provided otherwise by Laws or Regulations or by the Contract Documents. Contractor shall also furnish such other bonds as are required by the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 20

126 B. All bonds shall be in the form prescribed by the Contract Documents except as provided otherwise by Laws or Regulations, and shall be executed by such sureties as are named in the list of Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies as published in Circular 570 (amended) by the Financial Management Service, Surety Bond Branch, U.S. Department of the Treasury. All bonds signed by an agent or attorney-in-fact must be accompanied by a certified copy of that individual s authority to bind the surety. The evidence of authority shall show that it is effective on the date the agent or attorney-in-fact signed each bond. C. If the surety on any bond furnished by Contractor is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Project is located or it ceases to meet the requirements of Paragraph 5.01.B, Contractor shall promptly notify Owner and Engineer and shall, within 20 days after the event giving rise to such notification, provide another bond and surety, both of which shall comply with the requirements of Paragraphs 5.01.B and Licensed Sureties and Insurers A. All bonds and insurance required by the Contract Documents to be purchased and maintained by Owner or Contractor shall be obtained from surety or insurance companies that are duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds or insurance policies for the limits and coverages so required. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Supplementary Conditions Certificates of Insurance A. Contractor shall deliver to Owner, with copies to each additional insured and loss payee identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested by Owner or any other additional insured) which Contractor is required to purchase and maintain. B. Owner shall deliver to Contractor, with copies to each additional insured and loss payee identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested by Contractor or any other additional insured) which Owner is required to purchase and maintain. C. Failure of Owner to demand such certificates or other evidence of Contractor's full compliance with these insurance requirements or failure of Owner to identify a deficiency in compliance from the evidence provided shall not be construed as a waiver of Contractor s obligation to maintain such insurance. D. Owner does not represent that insurance coverage and limits established in this Contract necessarily will be adequate to protect Contractor. E. The insurance and insurance limits required herein shall not be deemed as a limitation on Contractor s liability under the indemnities granted to Owner in the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 21

127 5.04 Contractor s Insurance A. Contractor shall purchase and maintain such insurance as is appropriate for the Work being performed and as will provide protection from claims set forth below which may arise out of or result from Contractor s performance of the Work and Contractor s other obligations under the Contract Documents, whether it is to be performed by Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable: 1. claims under workers compensation, disability benefits, and other similar employee benefit acts; 2. claims for damages because of bodily injury, occupational sickness or disease, or death of Contractor s employees; 3. claims for damages because of bodily injury, sickness or disease, or death of any person other than Contractor s employees; 4. claims for damages insured by reasonably available personal injury liability coverage which are sustained: a. by any person as a result of an offense directly or indirectly related to the employment of such person by Contractor, or b. by any other person for any other reason; 5. claims for damages, other than to the Work itself, because of injury to or destruction of tangible property wherever located, including loss of use resulting therefrom; and 6. claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle. B. The policies of insurance required by this Paragraph 5.04 shall: 1. with respect to insurance required by Paragraphs 5.04.A.3 through 5.04.A.6 inclusive, be written on an occurrence basis, include as additional insureds (subject to any customary exclusion regarding professional liability) Owner and Engineer, and any other individuals or entities identified in the Supplementary Conditions, all of whom shall be listed as additional insureds, and include coverage for the respective officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of all such additional insureds, and the insurance afforded to these additional insureds shall provide primary coverage for all claims covered thereby; 2. include at least the specific coverages and be written for not less than the limits of liability provided in the Supplementary Conditions or required by Laws or Regulations, whichever is greater; EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 22

128 3. include contractual liability insurance covering Contractor s indemnity obligations under Paragraphs 6.11 and 6.20; 4. contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least 30 days prior written notice has been given to Owner and Contractor and to each other additional insured identified in the Supplementary Conditions to whom a certificate of insurance has been issued (and the certificates of insurance furnished by the Contractor pursuant to Paragraph 5.03 will so provide); 5. remain in effect at least until final payment and at all times thereafter when Contractor may be correcting, removing, or replacing defective Work in accordance with Paragraph 13.07; and 6. include completed operations coverage: a. Such insurance shall remain in effect for two years after final payment. b. Contractor shall furnish Owner and each other additional insured identified in the Supplementary Conditions, to whom a certificate of insurance has been issued, evidence satisfactory to Owner and any such additional insured of continuation of such insurance at final payment and one year thereafter Owner s Liability Insurance A. In addition to the insurance required to be provided by Contractor under Paragraph 5.04, Owner, at Owner s option, may purchase and maintain at Owner s expense Owner s own liability insurance as will protect Owner against claims which may arise from operations under the Contract Documents Property Insurance A. Unless otherwise provided in the Supplementary Conditions, Owner shall purchase and maintain property insurance upon the Work at the Site in the amount of the full replacement cost thereof (subject to such deductible amounts as may be provided in the Supplementary Conditions or required by Laws and Regulations). This insurance shall: 1. include the interests of Owner, Contractor, Subcontractors, and Engineer, and any other individuals or entities identified in the Supplementary Conditions, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, each of whom is deemed to have an insurable interest and shall be listed as a loss payee; 2. be written on a Builder s Risk all-risk policy form that shall at least include insurance for physical loss or damage to the Work, temporary buildings, falsework, and materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire, lightning, extended coverage, theft, vandalism and malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws and EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 23

129 Regulations, water damage (other than that caused by flood), and such other perils or causes of loss as may be specifically required by the Supplementary Conditions. 3. include expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of engineers and architects); 4. cover materials and equipment stored at the Site or at another location that was agreed to in writing by Owner prior to being incorporated in the Work, provided that such materials and equipment have been included in an Application for Payment recommended by Engineer; 5. allow for partial utilization of the Work by Owner; 6. include testing and startup; and 7. be maintained in effect until final payment is made unless otherwise agreed to in writing by Owner, Contractor, and Engineer with 30 days written notice to each other loss payee to whom a certificate of insurance has been issued. B. Owner shall purchase and maintain such equipment breakdown insurance or additional property insurance as may be required by the Supplementary Conditions or Laws and Regulations which will include the interests of Owner, Contractor, Subcontractors, and Engineer, and any other individuals or entities identified in the Supplementary Conditions, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them, each of whom is deemed to have an insurable interest and shall be listed as a loss payee. C. All the policies of insurance (and the certificates or other evidence thereof) required to be purchased and maintained in accordance with this Paragraph 5.06 will contain a provision or endorsement that the coverage afforded will not be canceled or materially changed or renewal refused until at least 30 days prior written notice has been given to Owner and Contractor and to each other loss payee to whom a certificate of insurance has been issued and will contain waiver provisions in accordance with Paragraph D. Owner shall not be responsible for purchasing and maintaining any property insurance specified in this Paragraph 5.06 to protect the interests of Contractor, Subcontractors, or others in the Work to the extent of any deductible amounts that are identified in the Supplementary Conditions. The risk of loss within such identified deductible amount will be borne by Contractor, Subcontractors, or others suffering any such loss, and if any of them wishes property insurance coverage within the limits of such amounts, each may purchase and maintain it at the purchaser s own expense. E. If Contractor requests in writing that other special insurance be included in the property insurance policies provided under this Paragraph 5.06, Owner shall, if possible, include such insurance, and the cost thereof will be charged to Contractor by appropriate Change Order. Prior to commencement of the Work at the Site, Owner shall in writing advise Contractor whether or not such other insurance has been procured by Owner. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 24

130 5.07 Waiver of Rights A. Owner and Contractor intend that all policies purchased in accordance with Paragraph 5.06 will protect Owner, Contractor, Subcontractors, and Engineer, and all other individuals or entities identified in the Supplementary Conditions as loss payees (and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them) in such policies and will provide primary coverage for all losses and damages caused by the perils or causes of loss covered thereby. All such policies shall contain provisions to the effect that in the event of payment of any loss or damage the insurers will have no rights of recovery against any of the insureds or loss payees thereunder. Owner and Contractor waive all rights against each other and their respective officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them for all losses and damages caused by, arising out of or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work; and, in addition, waive all such rights against Subcontractors and Engineer, and all other individuals or entities identified in the Supplementary Conditions as loss payees (and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them) under such policies for losses and damages so caused. None of the above waivers shall extend to the rights that any party making such waiver may have to the proceeds of insurance held by Owner as trustee or otherwise payable under any policy so issued. B. Owner waives all rights against Contractor, Subcontractors, and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them for: 1. loss due to business interruption, loss of use, or other consequential loss extending beyond direct physical loss or damage to Owner s property or the Work caused by, arising out of, or resulting from fire or other perils whether or not insured by Owner; and 2. loss or damage to the completed Project or part thereof caused by, arising out of, or resulting from fire or other insured peril or cause of loss covered by any property insurance maintained on the completed Project or part thereof by Owner during partial utilization pursuant to Paragraph 14.05, after Substantial Completion pursuant to Paragraph 14.04, or after final payment pursuant to Paragraph C. Any insurance policy maintained by Owner covering any loss, damage or consequential loss referred to in Paragraph 5.07.B shall contain provisions to the effect that in the event of payment of any such loss, damage, or consequential loss, the insurers will have no rights of recovery against Contractor, Subcontractors, or Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them Receipt and Application of Insurance Proceeds A. Any insured loss under the policies of insurance required by Paragraph 5.06 will be adjusted with Owner and made payable to Owner as fiduciary for the loss payees, as their interests may appear, subject to the requirements of any applicable mortgage clause and of Paragraph EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 25

131 5.08.B. Owner shall deposit in a separate account any money so received and shall distribute it in accordance with such agreement as the parties in interest may reach. If no other special agreement is reached, the damaged Work shall be repaired or replaced, the moneys so received applied on account thereof, and the Work and the cost thereof covered by an appropriate Change Order. B. Owner as fiduciary shall have power to adjust and settle any loss with the insurers unless one of the parties in interest shall object in writing within 15 days after the occurrence of loss to Owner s exercise of this power. If such objection be made, Owner as fiduciary shall make settlement with the insurers in accordance with such agreement as the parties in interest may reach. If no such agreement among the parties in interest is reached, Owner as fiduciary shall adjust and settle the loss with the insurers and, if required in writing by any party in interest, Owner as fiduciary shall give bond for the proper performance of such duties Acceptance of Bonds and Insurance; Option to Replace A. If either Owner or Contractor has any objection to the coverage afforded by or other provisions of the bonds or insurance required to be purchased and maintained by the other party in accordance with Article 5 on the basis of non-conformance with the Contract Documents, the objecting party shall so notify the other party in writing within 10 days after receipt of the certificates (or other evidence requested) required by Paragraph 2.01.B. Owner and Contractor shall each provide to the other such additional information in respect of insurance provided as the other may reasonably request. If either party does not purchase or maintain all of the bonds and insurance required of such party by the Contract Documents, such party shall notify the other party in writing of such failure to purchase prior to the start of the Work, or of such failure to maintain prior to any change in the required coverage. Without prejudice to any other right or remedy, the other party may elect to obtain equivalent bonds or insurance to protect such other party s interests at the expense of the party who was required to provide such coverage, and a Change Order shall be issued to adjust the Contract Price accordingly Partial Utilization, Acknowledgment of Property Insurer A. If Owner finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion of all the Work as provided in Paragraph 14.05, no such use or occupancy shall commence before the insurers providing the property insurance pursuant to Paragraph 5.06 have acknowledged notice thereof and in writing effected any changes in coverage necessitated thereby. The insurers providing the property insurance shall consent by endorsement on the policy or policies, but the property insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy. ARTICLE 6 CONTRACTOR S RESPONSIBILITIES 6.01 Supervision and Superintendence A. Contractor shall supervise, inspect, and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 26

132 the Work in accordance with the Contract Documents. Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction. Contractor shall not be responsible for the negligence of Owner or Engineer in the design or specification of a specific means, method, technique, sequence, or procedure of construction which is shown or indicated in and expressly required by the Contract Documents. B. At all times during the progress of the Work, Contractor shall assign a competent resident superintendent who shall not be replaced without written notice to Owner and Engineer except under extraordinary circumstances Labor; Working Hours A. Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. Contractor shall at all times maintain good discipline and order at the Site. B. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be performed during regular working hours. Contractor will not permit the performance of Work on a Saturday, Sunday, or any legal holiday without Owner s written consent (which will not be unreasonably withheld) given after prior written notice to Engineer Services, Materials, and Equipment A. Unless otherwise specified in the Contract Documents, Contractor shall provide and assume full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for the performance, testing, start-up, and completion of the Work. B. All materials and equipment incorporated into the Work shall be as specified or, if not specified, shall be of good quality and new, except as otherwise provided in the Contract Documents. All special warranties and guarantees required by the Specifications shall expressly run to the benefit of Owner. If required by Engineer, Contractor shall furnish satisfactory evidence (including reports of required tests) as to the source, kind, and quality of materials and equipment. C. All materials and equipment shall be stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of the applicable Supplier, except as otherwise may be provided in the Contract Documents Progress Schedule A. Contractor shall adhere to the Progress Schedule established in accordance with Paragraph 2.07 as it may be adjusted from time to time as provided below. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 27

133 1. Contractor shall submit to Engineer for acceptance (to the extent indicated in Paragraph 2.07) proposed adjustments in the Progress Schedule that will not result in changing the Contract Times. Such adjustments will comply with any provisions of the General Requirements applicable thereto. 2. Proposed adjustments in the Progress Schedule that will change the Contract Times shall be submitted in accordance with the requirements of Article 12. Adjustments in Contract Times may only be made by a Change Order Substitutes and Or-Equals A. Whenever an item of material or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the specification or description is intended to establish the type, function, appearance, and quality required. Unless the specification or description contains or is followed by words reading that no like, equivalent, or or-equal item or no substitution is permitted, other items of material or equipment or material or equipment of other Suppliers may be submitted to Engineer for review under the circumstances described below. 1. Or-Equal Items: If in Engineer s sole discretion an item of material or equipment proposed by Contractor is functionally equal to that named and sufficiently similar so that no change in related Work will be required, it may be considered by Engineer as an or-equal item, in which case review and approval of the proposed item may, in Engineer s sole discretion, be accomplished without compliance with some or all of the requirements for approval of proposed substitute items. For the purposes of this Paragraph 6.05.A.1, a proposed item of material or equipment will be considered functionally equal to an item so named if: a. in the exercise of reasonable judgment Engineer determines that: 1) it is at least equal in materials of construction, quality, durability, appearance, strength, and design characteristics; 2) it will reliably perform at least equally well the function and achieve the results imposed by the design concept of the completed Project as a functioning whole; and 3) it has a proven record of performance and availability of responsive service. b. Contractor certifies that, if approved and incorporated into the Work: 1) there will be no increase in cost to the Owner or increase in Contract Times; and 2) it will conform substantially to the detailed requirements of the item named in the Contract Documents. 2. Substitute Items: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 28

134 a. If in Engineer s sole discretion an item of material or equipment proposed by Contractor does not qualify as an or-equal item under Paragraph 6.05.A.1, it will be considered a proposed substitute item. b. Contractor shall submit sufficient information as provided below to allow Engineer to determine if the item of material or equipment proposed is essentially equivalent to that named and an acceptable substitute therefor. Requests for review of proposed substitute items of material or equipment will not be accepted by Engineer from anyone other than Contractor. c. The requirements for review by Engineer will be as set forth in Paragraph 6.05.A.2.d, as supplemented by the General Requirements, and as Engineer may decide is appropriate under the circumstances. d. Contractor shall make written application to Engineer for review of a proposed substitute item of material or equipment that Contractor seeks to furnish or use. The application: 1) shall certify that the proposed substitute item will: a) perform adequately the functions and achieve the results called for by the general design, b) be similar in substance to that specified, and c) be suited to the same use as that specified; 2) will state: a) the extent, if any, to which the use of the proposed substitute item will prejudice Contractor s achievement of Substantial Completion on time, b) whether use of the proposed substitute item in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with Owner for other work on the Project) to adapt the design to the proposed substitute item, and c) whether incorporation or use of the proposed substitute item in connection with the Work is subject to payment of any license fee or royalty; 3) will identify: a) all variations of the proposed substitute item from that specified, and b) available engineering, sales, maintenance, repair, and replacement services; and EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 29

135 4) shall contain an itemized estimate of all costs or credits that will result directly or indirectly from use of such substitute item, including costs of redesign and claims of other contractors affected by any resulting change. B. Substitute Construction Methods or Procedures: If a specific means, method, technique, sequence, or procedure of construction is expressly required by the Contract Documents, Contractor may furnish or utilize a substitute means, method, technique, sequence, or procedure of construction approved by Engineer. Contractor shall submit sufficient information to allow Engineer, in Engineer s sole discretion, to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. The requirements for review by Engineer will be similar to those provided in Paragraph 6.05.A.2. C. Engineer s Evaluation: Engineer will be allowed a reasonable time within which to evaluate each proposal or submittal made pursuant to Paragraphs 6.05.A and 6.05.B. Engineer may require Contractor to furnish additional data about the proposed substitute item. Engineer will be the sole judge of acceptability. No or equal or substitute will be ordered, installed or utilized until Engineer s review is complete, which will be evidenced by a Change Order in the case of a substitute and an approved Shop Drawing for an or equal. Engineer will advise Contractor in writing of any negative determination. D. Special Guarantee: Owner may require Contractor to furnish at Contractor s expense a special performance guarantee or other surety with respect to any substitute. E. Engineer s Cost Reimbursement: Engineer will record Engineer s costs in evaluating a substitute proposed or submitted by Contractor pursuant to Paragraphs 6.05.A.2 and 6.05.B. Whether or not Engineer approves a substitute so proposed or submitted by Contractor, Contractor shall reimburse Owner for the reasonable charges of Engineer for evaluating each such proposed substitute. Contractor shall also reimburse Owner for the reasonable charges of Engineer for making changes in the Contract Documents (or in the provisions of any other direct contract with Owner) resulting from the acceptance of each proposed substitute. F. Contractor s Expense: Contractor shall provide all data in support of any proposed substitute or or-equal at Contractor s expense Concerning Subcontractors, Suppliers, and Others A. Contractor shall not employ any Subcontractor, Supplier, or other individual or entity (including those acceptable to Owner as indicated in Paragraph 6.06.B), whether initially or as a replacement, against whom Owner may have reasonable objection. Contractor shall not be required to employ any Subcontractor, Supplier, or other individual or entity to furnish or perform any of the Work against whom Contractor has reasonable objection. B. If the Supplementary Conditions require the identity of certain Subcontractors, Suppliers, or other individuals or entities to be submitted to Owner in advance for acceptance by Owner by a specified date prior to the Effective Date of the Agreement, and if Contractor has submitted a list thereof in accordance with the Supplementary Conditions, Owner s acceptance (either in writing or by failing to make written objection thereto by the date indicated for acceptance EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 30

136 or objection in the Bidding Documents or the Contract Documents) of any such Subcontractor, Supplier, or other individual or entity so identified may be revoked on the basis of reasonable objection after due investigation. Contractor shall submit an acceptable replacement for the rejected Subcontractor, Supplier, or other individual or entity, and the Contract Price will be adjusted by the difference in the cost occasioned by such replacement, and an appropriate Change Order will be issued. No acceptance by Owner of any such Subcontractor, Supplier, or other individual or entity, whether initially or as a replacement, shall constitute a waiver of any right of Owner or Engineer to reject defective Work. C. Contractor shall be fully responsible to Owner and Engineer for all acts and omissions of the Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work just as Contractor is responsible for Contractor s own acts and omissions. Nothing in the Contract Documents: 1. shall create for the benefit of any such Subcontractor, Supplier, or other individual or entity any contractual relationship between Owner or Engineer and any such Subcontractor, Supplier or other individual or entity; nor 2. shall create any obligation on the part of Owner or Engineer to pay or to see to the payment of any moneys due any such Subcontractor, Supplier, or other individual or entity except as may otherwise be required by Laws and Regulations. D. Contractor shall be solely responsible for scheduling and coordinating the Work of Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with Contractor. E. Contractor shall require all Subcontractors, Suppliers, and such other individuals or entities performing or furnishing any of the Work to communicate with Engineer through Contractor. F. The divisions and sections of the Specifications and the identifications of any Drawings shall not control Contractor in dividing the Work among Subcontractors or Suppliers or delineating the Work to be performed by any specific trade. G. All Work performed for Contractor by a Subcontractor or Supplier will be pursuant to an appropriate agreement between Contractor and the Subcontractor or Supplier which specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract Documents for the benefit of Owner and Engineer. Whenever any such agreement is with a Subcontractor or Supplier who is listed as a loss payee on the property insurance provided in Paragraph 5.06, the agreement between the Contractor and the Subcontractor or Supplier will contain provisions whereby the Subcontractor or Supplier waives all rights against Owner, Contractor, Engineer, and all other individuals or entities identified in the Supplementary Conditions to be listed as insureds or loss payees (and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them) for all losses and damages caused by, arising out of, relating to, or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work. If the insurers on any such policies require separate waiver forms to be signed by any Subcontractor or Supplier, Contractor will obtain the same. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 31

137 6.07 Patent Fees and Royalties A. Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work and if, to the actual knowledge of Owner or Engineer, its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by Owner in the Contract Documents. B. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold harmless Contractor, and its officers, directors, members, partners, employees, agents, consultants, and subcontractors from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device specified in the Contract Documents, but not identified as being subject to payment of any license fee or royalty to others required by patent rights or copyrights. C. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Contract Documents Permits A. Unless otherwise provided in the Supplementary Conditions, Contractor shall obtain and pay for all construction permits and licenses. Owner shall assist Contractor, when necessary, in obtaining such permits and licenses. Contractor shall pay all governmental charges and inspection fees necessary for the prosecution of the Work which are applicable at the time of opening of Bids, or, if there are no Bids, on the Effective Date of the Agreement. Owner shall pay all charges of utility owners for connections for providing permanent service to the Work Laws and Regulations A. Contractor shall give all notices required by and shall comply with all Laws and Regulations applicable to the performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither Owner nor Engineer shall be responsible for monitoring Contractor s compliance with any Laws or Regulations. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 32

138 6.10 Taxes B. If Contractor performs any Work knowing or having reason to know that it is contrary to Laws or Regulations, Contractor shall bear all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work. However, it shall not be Contractor s responsibility to make certain that the Specifications and Drawings are in accordance with Laws and Regulations, but this shall not relieve Contractor of Contractor s obligations under Paragraph C. Changes in Laws or Regulations not known at the time of opening of Bids (or, on the Effective Date of the Agreement if there were no Bids) having an effect on the cost or time of performance of the Work shall be the subject of an adjustment in Contract Price or Contract Times. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in Paragraph A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid by Contractor in accordance with the Laws and Regulations of the place of the Project which are applicable during the performance of the Work Use of Site and Other Areas A. Limitation on Use of Site and Other Areas: 1. Contractor shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Laws and Regulations, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof, or of any adjacent land or areas resulting from the performance of the Work. 2. Should any claim be made by any such owner or occupant because of the performance of the Work, Contractor shall promptly settle with such other party by negotiation or otherwise resolve the claim by arbitration or other dispute resolution proceeding or at law. 3. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any claim or action, legal or equitable, brought by any such owner or occupant against Owner, Engineer, or any other party indemnified hereunder to the extent caused by or based upon Contractor s performance of the Work. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 33

139 B. Removal of Debris During Performance of the Work: During the progress of the Work Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall conform to applicable Laws and Regulations. C. Cleaning: Prior to Substantial Completion of the Work Contractor shall clean the Site and the Work and make it ready for utilization by Owner. At the completion of the Work Contractor shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents. D. Loading Structures: Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it Record Documents A. Contractor shall maintain in a safe place at the Site one record copy of all Drawings, Specifications, Addenda, Change Orders, Work Change Directives, Field Orders, and written interpretations and clarifications in good order and annotated to show changes made during construction. These record documents together with all approved Samples and a counterpart of all approved Shop Drawings will be available to Engineer for reference. Upon completion of the Work, these record documents, Samples, and Shop Drawings will be delivered to Engineer for Owner Safety and Protection A. Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Such responsibility does not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with applicable safety Laws and Regulations. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 1. all persons on the Site or who may be affected by the Work; 2. all the Work and materials and equipment to be incorporated therein, whether in storage on or off the Site; and 3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities, and Underground Facilities not designated for removal, relocation, or replacement in the course of construction. B. Contractor shall comply with all applicable Laws and Regulations relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of Underground Facilities and other EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 34

140 utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property. C. Contractor shall comply with the applicable requirements of Owner s safety programs, if any. The Supplementary Conditions identify any Owner s safety programs that are applicable to the Work. D. Contractor shall inform Owner and Engineer of the specific requirements of Contractor s safety program with which Owner s and Engineer s employees and representatives must comply while at the Site. E. All damage, injury, or loss to any property referred to in Paragraph 6.13.A.2 or 6.13.A.3 caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor, Supplier, or any other individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, shall be remedied by Contractor (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of Owner or Engineer or anyone employed by any of them, or anyone for whose acts any of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of Contractor or any Subcontractor, Supplier, or other individual or entity directly or indirectly employed by any of them). F. Contractor s duties and responsibilities for safety and for protection of the Work shall continue until such time as all the Work is completed and Engineer has issued a notice to Owner and Contractor in accordance with Paragraph B that the Work is acceptable (except as otherwise expressly provided in connection with Substantial Completion) Safety Representative A. Contractor shall designate a qualified and experienced safety representative at the Site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs Hazard Communication Programs A. Contractor shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Laws or Regulations Emergencies A. In emergencies affecting the safety or protection of persons or the Work or property at the Site or adjacent thereto, Contractor is obligated to act to prevent threatened damage, injury, or loss. Contractor shall give Engineer prompt written notice if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby or are required as a result thereof. If Engineer determines that a change in the Contract Documents is required because of the action taken by Contractor in response to such an emergency, a Work Change Directive or Change Order will be issued. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 35

141 6.17 Shop Drawings and Samples A. Contractor shall submit Shop Drawings and Samples to Engineer for review and approval in accordance with the accepted Schedule of Submittals (as required by Paragraph 2.07). Each submittal will be identified as Engineer may require. 1. Shop Drawings: a. Submit number of copies specified in the General Requirements. b. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show Engineer the services, materials, and equipment Contractor proposes to provide and to enable Engineer to review the information for the limited purposes required by Paragraph 6.17.D. 2. Samples: a. Submit number of Samples specified in the Specifications. b. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as Engineer may require to enable Engineer to review the submittal for the limited purposes required by Paragraph 6.17.D. B. Where a Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to Engineer s review and approval of the pertinent submittal will be at the sole expense and responsibility of Contractor. C. Submittal Procedures: 1. Before submitting each Shop Drawing or Sample, Contractor shall have: a. reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents; b. determined and verified all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto; c. determined and verified the suitability of all materials offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work; and d. determined and verified all information relative to Contractor s responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 36

142 2. Each submittal shall bear a stamp or specific written certification that Contractor has satisfied Contractor s obligations under the Contract Documents with respect to Contractor s review and approval of that submittal. 3. With each submittal, Contractor shall give Engineer specific written notice of any variations that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawings or Sample submittal; and, in addition, by a specific notation made on each Shop Drawing or Sample submitted to Engineer for review and approval of each such variation. D. Engineer s Review: 1. Engineer will provide timely review of Shop Drawings and Samples in accordance with the Schedule of Submittals acceptable to Engineer. Engineer s review and approval will be only to determine if the items covered by the submittals will, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 2. Engineer s review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. 3. Engineer s review and approval shall not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless Contractor has complied with the requirements of Paragraph 6.17.C.3 and Engineer has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample. Engineer s review and approval shall not relieve Contractor from responsibility for complying with the requirements of Paragraph 6.17.C.1. E. Resubmittal Procedures: 1. Contractor shall make corrections required by Engineer and shall return the required number of corrected copies of Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by Engineer on previous submittals Continuing the Work A. Contractor shall carry on the Work and adhere to the Progress Schedule during all disputes or disagreements with Owner. No Work shall be delayed or postponed pending resolution of any EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 37

143 disputes or disagreements, except as permitted by Paragraph or as Owner and Contractor may otherwise agree in writing Contractor s General Warranty and Guarantee A. Contractor warrants and guarantees to Owner that all Work will be in accordance with the Contract Documents and will not be defective. Engineer and its officers, directors, members, partners, employees, agents, consultants, and subcontractors shall be entitled to rely on representation of Contractor s warranty and guarantee. B. Contractor s warranty and guarantee hereunder excludes defects or damage caused by: 1. abuse, modification, or improper maintenance or operation by persons other than Contractor, Subcontractors, Suppliers, or any other individual or entity for whom Contractor is responsible; or 2. normal wear and tear under normal usage. C. Contractor s obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. None of the following will constitute an acceptance of Work that is not in accordance with the Contract Documents or a release of Contractor s obligation to perform the Work in accordance with the Contract Documents: 1. observations by Engineer; 2. recommendation by Engineer or payment by Owner of any progress or final payment; 3. the issuance of a certificate of Substantial Completion by Engineer or any payment related thereto by Owner; 4. use or occupancy of the Work or any part thereof by Owner; 5. any review and approval of a Shop Drawing or Sample submittal or the issuance of a notice of acceptability by Engineer; 6. any inspection, test, or approval by others; or 7. any correction of defective Work by Owner Indemnification A. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to the performance of the Work, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 38

144 to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom but only to the extent caused by any negligent act or omission of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work or anyone for whose acts any of them may be liable. B. In any and all claims against Owner or Engineer or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors by any employee (or the survivor or personal representative of such employee) of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, the indemnification obligation under Paragraph 6.20.A shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for Contractor or any such Subcontractor, Supplier, or other individual or entity under workers compensation acts, disability benefit acts, or other employee benefit acts. C. The indemnification obligations of Contractor under Paragraph 6.20.A shall not extend to the liability of Engineer and Engineer s officers, directors, members, partners, employees, agents, consultants and subcontractors arising out of: 1. the preparation or approval of, or the failure to prepare or approve maps, Drawings, opinions, reports, surveys, Change Orders, designs, or Specifications; or 2. giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage Delegation of Professional Design Services A. Contractor will not be required to provide professional design services unless such services are specifically required by the Contract Documents for a portion of the Work or unless such services are required to carry out Contractor s responsibilities for construction means, methods, techniques, sequences and procedures. Contractor shall not be required to provide professional services in violation of applicable law. B. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of Contractor by the Contract Documents, Owner and Engineer will specify all performance and design criteria that such services must satisfy. Contractor shall cause such services or certifications to be provided by a properly licensed professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional s written approval when submitted to Engineer. C. Owner and Engineer shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 39

145 Owner and Engineer have specified to Contractor all performance and design criteria that such services must satisfy. D. Pursuant to this Paragraph 6.21, Engineer s review and approval of design calculations and design drawings will be only for the limited purpose of checking for conformance with performance and design criteria given and the design concept expressed in the Contract Documents. Engineer s review and approval of Shop Drawings and other submittals (except design calculations and design drawings) will be only for the purpose stated in Paragraph 6.17.D.1. E. Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. ARTICLE 7 OTHER WORK AT THE SITE 7.01 Related Work at Site A. Owner may perform other work related to the Project at the Site with Owner s employees, or through other direct contracts therefor, or have other work performed by utility owners. If such other work is not noted in the Contract Documents, then: 1. written notice thereof will be given to Contractor prior to starting any such other work; and 2. if Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times that should be allowed as a result of such other work, a Claim may be made therefor as provided in Paragraph B. Contractor shall afford each other contractor who is a party to such a direct contract, each utility owner, and Owner, if Owner is performing other work with Owner s employees, proper and safe access to the Site, provide a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work, and properly coordinate the Work with theirs. Contractor shall do all cutting, fitting, and patching of the Work that may be required to properly connect or otherwise make its several parts come together and properly integrate with such other work. Contractor shall not endanger any work of others by cutting, excavating, or otherwise altering such work; provided, however, that Contractor may cut or alter others' work with the written consent of Engineer and the others whose work will be affected. The duties and responsibilities of Contractor under this Paragraph are for the benefit of such utility owners and other contractors to the extent that there are comparable provisions for the benefit of Contractor in said direct contracts between Owner and such utility owners and other contractors. C. If the proper execution or results of any part of Contractor s Work depends upon work performed by others under this Article 7, Contractor shall inspect such other work and promptly report to Engineer in writing any delays, defects, or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of Contractor s EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 40

146 7.02 Coordination Work. Contractor s failure to so report will constitute an acceptance of such other work as fit and proper for integration with Contractor s Work except for latent defects and deficiencies in such other work. A. If Owner intends to contract with others for the performance of other work on the Project at the Site, the following will be set forth in Supplementary Conditions: 1. the individual or entity who will have authority and responsibility for coordination of the activities among the various contractors will be identified; 2. the specific matters to be covered by such authority and responsibility will be itemized; and 3. the extent of such authority and responsibilities will be provided. B. Unless otherwise provided in the Supplementary Conditions, Owner shall have sole authority and responsibility for such coordination Legal Relationships A. Paragraphs 7.01.A and 7.02 are not applicable for utilities not under the control of Owner. B. Each other direct contract of Owner under Paragraph 7.01.A shall provide that the other contractor is liable to Owner and Contractor for the reasonable direct delay and disruption costs incurred by Contractor as a result of the other contractor s wrongful actions or inactions. C. Contractor shall be liable to Owner and any other contractor under direct contract to Owner for the reasonable direct delay and disruption costs incurred by such other contractor as a result of Contractor s wrongful action or inactions. ARTICLE 8 OWNER S RESPONSIBILITIES 8.01 Communications to Contractor A. Except as otherwise provided in these General Conditions, Owner shall issue all communications to Contractor through Engineer Replacement of Engineer A. In case of termination of the employment of Engineer, Owner shall appoint an engineer to whom Contractor makes no reasonable objection, whose status under the Contract Documents shall be that of the former Engineer Furnish Data A. Owner shall promptly furnish the data required of Owner under the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 41

147 8.04 Pay When Due A. Owner shall make payments to Contractor when they are due as provided in Paragraphs C and C Lands and Easements; Reports and Tests A. Owner s duties with respect to providing lands and easements and providing engineering surveys to establish reference points are set forth in Paragraphs 4.01 and Paragraph 4.02 refers to Owner s identifying and making available to Contractor copies of reports of explorations and tests of subsurface conditions and drawings of physical conditions relating to existing surface or subsurface structures at the Site Insurance A. Owner s responsibilities, if any, with respect to purchasing and maintaining liability and property insurance are set forth in Article Change Orders A. Owner is obligated to execute Change Orders as indicated in Paragraph Inspections, Tests, and Approvals A. Owner s responsibility with respect to certain inspections, tests, and approvals is set forth in Paragraph B Limitations on Owner s Responsibilities A. The Owner shall not supervise, direct, or have control or authority over, nor be responsible for, Contractor s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Owner will not be responsible for Contractor s failure to perform the Work in accordance with the Contract Documents Undisclosed Hazardous Environmental Condition A. Owner s responsibility in respect to an undisclosed Hazardous Environmental Condition is set forth in Paragraph Evidence of Financial Arrangements A. Upon request of Contractor, Owner shall furnish Contractor reasonable evidence that financial arrangements have been made to satisfy Owner s obligations under the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 42

148 8.12 Compliance with Safety Program A. While at the Site, Owner s employees and representatives shall comply with the specific applicable requirements of Contractor s safety programs of which Owner has been informed pursuant to Paragraph 6.13.D. ARTICLE 9 ENGINEER S STATUS DURING CONSTRUCTION 9.01 Owner s Representative A. Engineer will be Owner s representative during the construction period. The duties and responsibilities and the limitations of authority of Engineer as Owner s representative during construction are set forth in the Contract Documents Visits to Site A. Engineer will make visits to the Site at intervals appropriate to the various stages of construction as Engineer deems necessary in order to observe as an experienced and qualified design professional the progress that has been made and the quality of the various aspects of Contractor s executed Work. Based on information obtained during such visits and observations, Engineer, for the benefit of Owner, will determine, in general, if the Work is proceeding in accordance with the Contract Documents. Engineer will not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work. Engineer s efforts will be directed toward providing for Owner a greater degree of confidence that the completed Work will conform generally to the Contract Documents. On the basis of such visits and observations, Engineer will keep Owner informed of the progress of the Work and will endeavor to guard Owner against defective Work. B. Engineer s visits and observations are subject to all the limitations on Engineer s authority and responsibility set forth in Paragraph Particularly, but without limitation, during or as a result of Engineer s visits or observations of Contractor s Work, Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work Project Representative A. If Owner and Engineer agree, Engineer will furnish a Resident Project Representative to assist Engineer in providing more extensive observation of the Work. The authority and responsibilities of any such Resident Project Representative and assistants will be as provided in the Supplementary Conditions, and limitations on the responsibilities thereof will be as provided in Paragraph If Owner designates another representative or agent to represent Owner at the Site who is not Engineer s consultant, agent or employee, the responsibilities and authority and limitations thereon of such other individual or entity will be as provided in the Supplementary Conditions. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 43

149 9.04 Authorized Variations in Work A. Engineer may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Times and are compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. These may be accomplished by a Field Order and will be binding on Owner and also on Contractor, who shall perform the Work involved promptly. If Owner or Contractor believes that a Field Order justifies an adjustment in the Contract Price or Contract Times, or both, and the parties are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in Paragraph Rejecting Defective Work A. Engineer will have authority to reject Work which Engineer believes to be defective, or that Engineer believes will not produce a completed Project that conforms to the Contract Documents or that will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. Engineer will also have authority to require special inspection or testing of the Work as provided in Paragraph 13.04, whether or not the Work is fabricated, installed, or completed Shop Drawings, Change Orders and Payments A. In connection with Engineer s authority, and limitations thereof, as to Shop Drawings and Samples, see Paragraph B. In connection with Engineer s authority, and limitations thereof, as to design calculations and design drawings submitted in response to a delegation of professional design services, if any, see Paragraph C. In connection with Engineer s authority as to Change Orders, see Articles 10, 11, and 12. D. In connection with Engineer s authority as to Applications for Payment, see Article Determinations for Unit Price Work A. Engineer will determine the actual quantities and classifications of Unit Price Work performed by Contractor. Engineer will review with Contractor the Engineer s preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). Engineer s written decision thereon will be final and binding (except as modified by Engineer to reflect changed factual conditions or more accurate data) upon Owner and Contractor, subject to the provisions of Paragraph Decisions on Requirements of Contract Documents and Acceptability of Work A. Engineer will be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the Work thereunder. All matters in question and other matters EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 44

150 between Owner and Contractor arising prior to the date final payment is due relating to the acceptability of the Work, and the interpretation of the requirements of the Contract Documents pertaining to the performance of the Work, will be referred initially to Engineer in writing within 30 days of the event giving rise to the question. B. Engineer will, with reasonable promptness, render a written decision on the issue referred. If Owner or Contractor believes that any such decision entitles them to an adjustment in the Contract Price or Contract Times or both, a Claim may be made under Paragraph The date of Engineer s decision shall be the date of the event giving rise to the issues referenced for the purposes of Paragraph B. C. Engineer s written decision on the issue referred will be final and binding on Owner and Contractor, subject to the provisions of Paragraph D. When functioning as interpreter and judge under this Paragraph 9.08, Engineer will not show partiality to Owner or Contractor and will not be liable in connection with any interpretation or decision rendered in good faith in such capacity Limitations on Engineer s Authority and Responsibilities A. Neither Engineer s authority or responsibility under this Article 9 or under any other provision of the Contract Documents nor any decision made by Engineer in good faith either to exercise or not exercise such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by Engineer shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by Engineer to Contractor, any Subcontractor, any Supplier, any other individual or entity, or to any surety for or employee or agent of any of them. B. Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Engineer will not be responsible for Contractor s failure to perform the Work in accordance with the Contract Documents. C. Engineer will not be responsible for the acts or omissions of Contractor or of any Subcontractor, any Supplier, or of any other individual or entity performing any of the Work. D. Engineer s review of the final Application for Payment and accompanying documentation and all maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection, tests and approvals, and other documentation required to be delivered by Paragraph A will only be to determine generally that their content complies with the requirements of, and in the case of certificates of inspections, tests, and approvals that the results certified indicate compliance with, the Contract Documents. E. The limitations upon authority and responsibility set forth in this Paragraph 9.09 shall also apply to the Resident Project Representative, if any, and assistants, if any. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 45

151 9.10 Compliance with Safety Program A. While at the Site, Engineer s employees and representatives shall comply with the specific applicable requirements of Contractor s safety programs of which Engineer has been informed pursuant to Paragraph 6.13.D. ARTICLE 10 CHANGES IN THE WORK; CLAIMS Authorized Changes in the Work A. Without invalidating the Contract and without notice to any surety, Owner may, at any time or from time to time, order additions, deletions, or revisions in the Work by a Change Order, or a Work Change Directive. Upon receipt of any such document, Contractor shall promptly proceed with the Work involved which will be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided). B. If Owner and Contractor are unable to agree on entitlement to, or on the amount or extent, if any, of an adjustment in the Contract Price or Contract Times, or both, that should be allowed as a result of a Work Change Directive, a Claim may be made therefor as provided in Paragraph Unauthorized Changes in the Work A. Contractor shall not be entitled to an increase in the Contract Price or an extension of the Contract Times with respect to any work performed that is not required by the Contract Documents as amended, modified, or supplemented as provided in Paragraph 3.04, except in the case of an emergency as provided in Paragraph 6.16 or in the case of uncovering Work as provided in Paragraph D Execution of Change Orders A. Owner and Contractor shall execute appropriate Change Orders recommended by Engineer covering: 1. changes in the Work which are: (i) ordered by Owner pursuant to Paragraph A, (ii) required because of acceptance of defective Work under Paragraph A or Owner s correction of defective Work under Paragraph 13.09, or (iii) agreed to by the parties; 2. changes in the Contract Price or Contract Times which are agreed to by the parties, including any undisputed sum or amount of time for Work actually performed in accordance with a Work Change Directive; and 3. changes in the Contract Price or Contract Times which embody the substance of any written decision rendered by Engineer pursuant to Paragraph 10.05; provided that, in lieu of executing any such Change Order, an appeal may be taken from any such decision in accordance with the provisions of the Contract Documents and applicable Laws and Regulations, but during any such appeal, Contractor shall carry on the Work and adhere to the Progress Schedule as provided in Paragraph 6.18.A. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 46

152 10.04 Notification to Surety Claims A. If the provisions of any bond require notice to be given to a surety of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Price or Contract Times), the giving of any such notice will be Contractor s responsibility. The amount of each applicable bond will be adjusted to reflect the effect of any such change. A. Engineer s Decision Required: All Claims, except those waived pursuant to Paragraph 14.09, shall be referred to the Engineer for decision. A decision by Engineer shall be required as a condition precedent to any exercise by Owner or Contractor of any rights or remedies either may otherwise have under the Contract Documents or by Laws and Regulations in respect of such Claims. B. Notice: Written notice stating the general nature of each Claim shall be delivered by the claimant to Engineer and the other party to the Contract promptly (but in no event later than 30 days) after the start of the event giving rise thereto. The responsibility to substantiate a Claim shall rest with the party making the Claim. Notice of the amount or extent of the Claim, with supporting data shall be delivered to the Engineer and the other party to the Contract within 60 days after the start of such event (unless Engineer allows additional time for claimant to submit additional or more accurate data in support of such Claim). A Claim for an adjustment in Contract Price shall be prepared in accordance with the provisions of Paragraph B. A Claim for an adjustment in Contract Times shall be prepared in accordance with the provisions of Paragraph B. Each Claim shall be accompanied by claimant s written statement that the adjustment claimed is the entire adjustment to which the claimant believes it is entitled as a result of said event. The opposing party shall submit any response to Engineer and the claimant within 30 days after receipt of the claimant s last submittal (unless Engineer allows additional time). C. Engineer s Action: Engineer will review each Claim and, within 30 days after receipt of the last submittal of the claimant or the last submittal of the opposing party, if any, take one of the following actions in writing: 1. deny the Claim in whole or in part; 2. approve the Claim; or 3. notify the parties that the Engineer is unable to resolve the Claim if, in the Engineer s sole discretion, it would be inappropriate for the Engineer to do so. For purposes of further resolution of the Claim, such notice shall be deemed a denial. D. In the event that Engineer does not take action on a Claim within said 30 days, the Claim shall be deemed denied. E. Engineer s written action under Paragraph C or denial pursuant to Paragraphs C.3 or D will be final and binding upon Owner and Contractor, unless Owner or EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 47

153 Contractor invoke the dispute resolution procedure set forth in Article 16 within 30 days of such action or denial. F. No Claim for an adjustment in Contract Price or Contract Times will be valid if not submitted in accordance with this Paragraph ARTICLE 11 COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK Cost of the Work A. Costs Included: The term Cost of the Work means the sum of all costs, except those excluded in Paragraph B, necessarily incurred and paid by Contractor in the proper performance of the Work. When the value of any Work covered by a Change Order or when a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, the costs to be reimbursed to Contractor will be only those additional or incremental costs required because of the change in the Work or because of the event giving rise to the Claim. Except as otherwise may be agreed to in writing by Owner, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall not include any of the costs itemized in Paragraph B, and shall include only the following items: 1. Payroll costs for employees in the direct employ of Contractor in the performance of the Work under schedules of job classifications agreed upon by Owner and Contractor. Such employees shall include, without limitation, superintendents, foremen, and other personnel employed full time on the Work. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on the Work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits, which shall include social security contributions, unemployment, excise, and payroll taxes, workers compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. The expenses of performing Work outside of regular working hours, on Saturday, Sunday, or legal holidays, shall be included in the above to the extent authorized by Owner. 2. Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation and storage thereof, and Suppliers field services required in connection therewith. All cash discounts shall accrue to Contractor unless Owner deposits funds with Contractor with which to make payments, in which case the cash discounts shall accrue to Owner. All trade discounts, rebates and refunds and returns from sale of surplus materials and equipment shall accrue to Owner, and Contractor shall make provisions so that they may be obtained. 3. Payments made by Contractor to Subcontractors for Work performed by Subcontractors. If required by Owner, Contractor shall obtain competitive bids from subcontractors acceptable to Owner and Contractor and shall deliver such bids to Owner, who will then determine, with the advice of Engineer, which bids, if any, will be acceptable. If any subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work plus a fee, the Subcontractor s Cost of the Work and fee shall be determined in the same manner as Contractor s Cost of the Work and fee as provided in this Paragraph EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 48

154 4. Costs of special consultants (including but not limited to engineers, architects, testing laboratories, surveyors, attorneys, and accountants) employed for services specifically related to the Work. 5. Supplemental costs including the following: a. The proportion of necessary transportation, travel, and subsistence expenses of Contractor s employees incurred in discharge of duties connected with the Work. b. Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office, and temporary facilities at the Site, and hand tools not owned by the workers, which are consumed in the performance of the Work, and cost, less market value, of such items used but not consumed which remain the property of Contractor. c. Rentals of all construction equipment and machinery, and the parts thereof whether rented from Contractor or others in accordance with rental agreements approved by Owner with the advice of Engineer, and the costs of transportation, loading, unloading, assembly, dismantling, and removal thereof. All such costs shall be in accordance with the terms of said rental agreements. The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. d. Sales, consumer, use, and other similar taxes related to the Work, and for which Contractor is liable, as imposed by Laws and Regulations. e. Deposits lost for causes other than negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty payments and fees for permits and licenses. f. Losses and damages (and related expenses) caused by damage to the Work, not compensated by insurance or otherwise, sustained by Contractor in connection with the performance of the Work (except losses and damages within the deductible amounts of property insurance established in accordance with Paragraph 5.06.D), provided such losses and damages have resulted from causes other than the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. Such losses shall include settlements made with the written consent and approval of Owner. No such losses, damages, and expenses shall be included in the Cost of the Work for the purpose of determining Contractor s fee. g. The cost of utilities, fuel, and sanitary facilities at the Site. h. Minor expenses such as telegrams, long distance telephone calls, telephone service at the Site, express and courier services, and similar petty cash items in connection with the Work. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 49

155 i. The costs of premiums for all bonds and insurance Contractor is required by the Contract Documents to purchase and maintain. B. Costs Excluded: The term Cost of the Work shall not include any of the following items: 1. Payroll costs and other compensation of Contractor s officers, executives, principals (of partnerships and sole proprietorships), general managers, safety managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel employed by Contractor, whether at the Site or in Contractor s principal or branch office for general administration of the Work and not specifically included in the agreed upon schedule of job classifications referred to in Paragraph A.1 or specifically covered by Paragraph A.4, all of which are to be considered administrative costs covered by the Contractor s fee. 2. Expenses of Contractor s principal and branch offices other than Contractor s office at the Site. 3. Any part of Contractor s capital expenses, including interest on Contractor s capital employed for the Work and charges against Contractor for delinquent payments. 4. Costs due to the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property. 5. Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Paragraphs A. C. Contractor s Fee: When all the Work is performed on the basis of cost-plus, Contractor s fee shall be determined as set forth in the Agreement. When the value of any Work covered by a Change Order or when a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, Contractor s fee shall be determined as set forth in Paragraph C. D. Documentation: Whenever the Cost of the Work for any purpose is to be determined pursuant to Paragraphs A and B, Contractor will establish and maintain records thereof in accordance with generally accepted accounting practices and submit in a form acceptable to Engineer an itemized cost breakdown together with supporting data Allowances A. It is understood that Contractor has included in the Contract Price all allowances so named in the Contract Documents and shall cause the Work so covered to be performed for such sums and by such persons or entities as may be acceptable to Owner and Engineer. B. Cash Allowances: 1. Contractor agrees that: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 50

156 11.03 Unit Price Work a. the cash allowances include the cost to Contractor (less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the Site, and all applicable taxes; and b. Contractor s costs for unloading and handling on the Site, labor, installation, overhead, profit, and other expenses contemplated for the cash allowances have been included in the Contract Price and not in the allowances, and no demand for additional payment on account of any of the foregoing will be valid. A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement. B. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Price Work performed by Contractor will be made by Engineer subject to the provisions of Paragraph C. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor s overhead and profit for each separately identified item. D. Owner or Contractor may make a Claim for an adjustment in the Contract Price in accordance with Paragraph if: 1. the quantity of any item of Unit Price Work performed by Contractor differs materially and significantly from the estimated quantity of such item indicated in the Agreement; and 2. there is no corresponding adjustment with respect to any other item of Work; and 3. Contractor believes that Contractor is entitled to an increase in Contract Price as a result of having incurred additional expense or Owner believes that Owner is entitled to a decrease in Contract Price and the parties are unable to agree as to the amount of any such increase or decrease. ARTICLE 12 TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK Notice of Defects A. Prompt notice of all defective Work of which Owner or Engineer has actual knowledge will be given to Contractor. Defective Work may be rejected, corrected, or accepted as provided in this Article 13. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 51

157 12.02 Access to Work A. Owner, Engineer, their consultants and other representatives and personnel of Owner, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Site and the Work at reasonable times for their observation, inspection, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor s safety procedures and programs so that they may comply therewith as applicable Tests and Inspections A. Contractor shall give Engineer timely notice of readiness of the Work for all required inspections, tests, or approvals and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. B. Owner shall employ and pay for the services of an independent testing laboratory to perform all inspections, tests, or approvals required by the Contract Documents except: 1. for inspections, tests, or approvals covered by Paragraphs C and D below; 2. that costs incurred in connection with tests or inspections conducted pursuant to Paragraph B shall be paid as provided in Paragraph C; and 3. as otherwise specifically provided in the Contract Documents. C. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) specifically to be inspected, tested, or approved by an employee or other representative of such public body, Contractor shall assume full responsibility for arranging and obtaining such inspections, tests, or approvals, pay all costs in connection therewith, and furnish Engineer the required certificates of inspection or approval. D. Contractor shall be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests, or approvals required for Owner s and Engineer s acceptance of materials or equipment to be incorporated in the Work; or acceptance of materials, mix designs, or equipment submitted for approval prior to Contractor s purchase thereof for incorporation in the Work. Such inspections, tests, or approvals shall be performed by organizations acceptable to Owner and Engineer. E. If any Work (or the work of others) that is to be inspected, tested, or approved is covered by Contractor without written concurrence of Engineer, Contractor shall, if requested by Engineer, uncover such Work for observation. F. Uncovering Work as provided in Paragraph E shall be at Contractor s expense unless Contractor has given Engineer timely notice of Contractor s intention to cover the same and Engineer has not acted with reasonable promptness in response to such notice. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 52

158 12.04 Uncovering Work A. If any Work is covered contrary to the written request of Engineer, it must, if requested by Engineer, be uncovered for Engineer s observation and replaced at Contractor s expense. B. If Engineer considers it necessary or advisable that covered Work be observed by Engineer or inspected or tested by others, Contractor, at Engineer s request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as Engineer may require, that portion of the Work in question, furnishing all necessary labor, material, and equipment. C. If it is found that the uncovered Work is defective, Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such uncovering, exposure, observation, inspection, and testing, and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement of work of others); and Owner shall be entitled to an appropriate decrease in the Contract Price. If the parties are unable to agree as to the amount thereof, Owner may make a Claim therefor as provided in Paragraph D. If the uncovered Work is not found to be defective, Contractor shall be allowed an increase in the Contract Price or an extension of the Contract Times, or both, directly attributable to such uncovering, exposure, observation, inspection, testing, replacement, and reconstruction. If the parties are unable to agree as to the amount or extent thereof, Contractor may make a Claim therefor as provided in Paragraph Owner May Stop the Work A. If the Work is defective, or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to perform the Work in such a way that the completed Work will conform to the Contract Documents, Owner may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of Owner to stop the Work shall not give rise to any duty on the part of Owner to exercise this right for the benefit of Contractor, any Subcontractor, any Supplier, any other individual or entity, or any surety for, or employee or agent of any of them Correction or Removal of Defective Work A. Promptly after receipt of written notice, Contractor shall correct all defective Work, whether or not fabricated, installed, or completed, or, if the Work has been rejected by Engineer, remove it from the Project and replace it with Work that is not defective. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or removal (including but not limited to all costs of repair or replacement of work of others). EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 53

159 B. When correcting defective Work under the terms of this Paragraph or Paragraph 13.07, Contractor shall take no action that would void or otherwise impair Owner s special warranty and guarantee, if any, on said Work Correction Period A. If within one year after the date of Substantial Completion (or such longer period of time as may be prescribed by the terms of any applicable special guarantee required by the Contract Documents) or by any specific provision of the Contract Documents, any Work is found to be defective, or if the repair of any damages to the land or areas made available for Contractor s use by Owner or permitted by Laws and Regulations as contemplated in Paragraph 6.11.A is found to be defective, Contractor shall promptly, without cost to Owner and in accordance with Owner s written instructions: 1. repair such defective land or areas; or 2. correct such defective Work; or 3. if the defective Work has been rejected by Owner, remove it from the Project and replace it with Work that is not defective, and 4. satisfactorily correct or repair or remove and replace any damage to other Work, to the work of others or other land or areas resulting therefrom. B. If Contractor does not promptly comply with the terms of Owner s written instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the defective Work corrected or repaired or may have the rejected Work removed and replaced. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or repair or such removal and replacement (including but not limited to all costs of repair or replacement of work of others) will be paid by Contractor. C. In special circumstances where a particular item of equipment is placed in continuous service before Substantial Completion of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Specifications. D. Where defective Work (and damage to other Work resulting therefrom) has been corrected or removed and replaced under this Paragraph 13.07, the correction period hereunder with respect to such Work will be extended for an additional period of one year after such correction or removal and replacement has been satisfactorily completed. E. Contractor s obligations under this Paragraph are in addition to any other obligation or warranty. The provisions of this Paragraph shall not be construed as a substitute for, or a waiver of, the provisions of any applicable statute of limitation or repose. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 54

160 12.08 Acceptance of Defective Work A. If, instead of requiring correction or removal and replacement of defective Work, Owner (and, prior to Engineer s recommendation of final payment, Engineer) prefers to accept it, Owner may do so. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to Owner s evaluation of and determination to accept such defective Work (such costs to be approved by Engineer as to reasonableness) and for the diminished value of the Work to the extent not otherwise paid by Contractor pursuant to this sentence. If any such acceptance occurs prior to Engineer s recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and Owner shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work so accepted. If the parties are unable to agree as to the amount thereof, Owner may make a Claim therefor as provided in Paragraph If the acceptance occurs after such recommendation, an appropriate amount will be paid by Contractor to Owner Owner May Correct Defective Work A. If Contractor fails within a reasonable time after written notice from Engineer to correct defective Work, or to remove and replace rejected Work as required by Engineer in accordance with Paragraph A, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, Owner may, after seven days written notice to Contractor, correct, or remedy any such deficiency. B. In exercising the rights and remedies under this Paragraph 13.09, Owner shall proceed expeditiously. In connection with such corrective or remedial action, Owner may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor s services related thereto, take possession of Contractor s tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Owner s representatives, agents and employees, Owner s other contractors, and Engineer and Engineer s consultants access to the Site to enable Owner to exercise the rights and remedies under this Paragraph. C. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by Owner in exercising the rights and remedies under this Paragraph will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and Owner shall be entitled to an appropriate decrease in the Contract Price. If the parties are unable to agree as to the amount of the adjustment, Owner may make a Claim therefor as provided in Paragraph Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of Contractor s defective Work. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 55

161 D. Contractor shall not be allowed an extension of the Contract Times because of any delay in the performance of the Work attributable to the exercise by Owner of Owner s rights and remedies under this Paragraph ARTICLE 14 PAYMENTS TO CONTRACTOR AND COMPLETION Schedule of Values A. The Schedule of Values established as provided in Paragraph 2.07.A will serve as the basis for progress payments and will be incorporated into a form of Application for Payment acceptable to Engineer. Progress payments on account of Unit Price Work will be based on the number of units completed Progress Payments A. Applications for Payments: 1. At least 20 days before the date established in the Agreement for each progress payment (but not more often than once a month), Contractor shall submit to Engineer for review an Application for Payment filled out and signed by Contractor covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing, the Application for Payment shall also be accompanied by a bill of sale, invoice, or other documentation warranting that Owner has received the materials and equipment free and clear of all Liens and evidence that the materials and equipment are covered by appropriate property insurance or other arrangements to protect Owner s interest therein, all of which must be satisfactory to Owner. 2. Beginning with the second Application for Payment, each Application shall include an affidavit of Contractor stating that all previous progress payments received on account of the Work have been applied on account to discharge Contractor s legitimate obligations associated with prior Applications for Payment. 3. The amount of retainage with respect to progress payments will be as stipulated in the Agreement. B. Review of Applications: 1. Engineer will, within 10 days after receipt of each Application for Payment, either indicate in writing a recommendation of payment and present the Application to Owner or return the Application to Contractor indicating in writing Engineer s reasons for refusing to recommend payment. In the latter case, Contractor may make the necessary corrections and resubmit the Application. 2. Engineer s recommendation of any payment requested in an Application for Payment will constitute a representation by Engineer to Owner, based on Engineer s observations of the EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 56

162 executed Work as an experienced and qualified design professional, and on Engineer s review of the Application for Payment and the accompanying data and schedules, that to the best of Engineer s knowledge, information and belief: a. the Work has progressed to the point indicated; b. the quality of the Work is generally in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, the results of any subsequent tests called for in the Contract Documents, a final determination of quantities and classifications for Unit Price Work under Paragraph 9.07, and any other qualifications stated in the recommendation); and c. the conditions precedent to Contractor s being entitled to such payment appear to have been fulfilled in so far as it is Engineer s responsibility to observe the Work. 3. By recommending any such payment Engineer will not thereby be deemed to have represented that: a. inspections made to check the quality or the quantity of the Work as it has been performed have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to Engineer in the Contract Documents; or b. there may not be other matters or issues between the parties that might entitle Contractor to be paid additionally by Owner or entitle Owner to withhold payment to Contractor. 4. Neither Engineer s review of Contractor s Work for the purposes of recommending payments nor Engineer s recommendation of any payment, including final payment, will impose responsibility on Engineer: a. to supervise, direct, or control the Work, or b. for the means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or c. for Contractor s failure to comply with Laws and Regulations applicable to Contractor s performance of the Work, or d. to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price, or e. to determine that title to any of the Work, materials, or equipment has passed to Owner free and clear of any Liens. 5. Engineer may refuse to recommend the whole or any part of any payment if, in Engineer s opinion, it would be incorrect to make the representations to Owner stated in Paragraph B.2. Engineer may also refuse to recommend any such payment or, EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 57

163 because of subsequently discovered evidence or the results of subsequent inspections or tests, revise or revoke any such payment recommendation previously made, to such extent as may be necessary in Engineer s opinion to protect Owner from loss because: a. the Work is defective, or completed Work has been damaged, requiring correction or replacement; b. the Contract Price has been reduced by Change Orders; c. Owner has been required to correct defective Work or complete Work in accordance with Paragraph 13.09; or d. Engineer has actual knowledge of the occurrence of any of the events enumerated in Paragraph A. C. Payment Becomes Due: 1. Ten days after presentation of the Application for Payment to Owner with Engineer s recommendation, the amount recommended will (subject to the provisions of Paragraph D) become due, and when due will be paid by Owner to Contractor. D. Reduction in Payment: 1. Owner may refuse to make payment of the full amount recommended by Engineer because: a. claims have been made against Owner on account of Contractor s performance or furnishing of the Work; b. Liens have been filed in connection with the Work, except where Contractor has delivered a specific bond satisfactory to Owner to secure the satisfaction and discharge of such Liens; c. there are other items entitling Owner to a set-off against the amount recommended; or d. Owner has actual knowledge of the occurrence of any of the events enumerated in Paragraphs B.5.a through B.5.c or Paragraph A. 2. If Owner refuses to make payment of the full amount recommended by Engineer, Owner will give Contractor immediate written notice (with a copy to Engineer) stating the reasons for such action and promptly pay Contractor any amount remaining after deduction of the amount so withheld. Owner shall promptly pay Contractor the amount so withheld, or any adjustment thereto agreed to by Owner and Contractor, when Contractor remedies the reasons for such action. 3. Upon a subsequent determination that Owner s refusal of payment was not justified, the amount wrongfully withheld shall be treated as an amount due as determined by Paragraph C.1 and subject to interest as provided in the Agreement. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 58

164 14.03 Contractor s Warranty of Title A. Contractor warrants and guarantees that title to all Work, materials, and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to Owner no later than the time of payment free and clear of all Liens Substantial Completion A. When Contractor considers the entire Work ready for its intended use Contractor shall notify Owner and Engineer in writing that the entire Work is substantially complete (except for items specifically listed by Contractor as incomplete) and request that Engineer issue a certificate of Substantial Completion. B. Promptly after Contractor s notification, Owner, Contractor, and Engineer shall make an inspection of the Work to determine the status of completion. If Engineer does not consider the Work substantially complete, Engineer will notify Contractor in writing giving the reasons therefor. C. If Engineer considers the Work substantially complete, Engineer will deliver to Owner a tentative certificate of Substantial Completion which shall fix the date of Substantial Completion. There shall be attached to the certificate a tentative list of items to be completed or corrected before final payment. Owner shall have seven days after receipt of the tentative certificate during which to make written objection to Engineer as to any provisions of the certificate or attached list. If, after considering such objections, Engineer concludes that the Work is not substantially complete, Engineer will, within 14 days after submission of the tentative certificate to Owner, notify Contractor in writing, stating the reasons therefor. If, after consideration of Owner s objections, Engineer considers the Work substantially complete, Engineer will, within said 14 days, execute and deliver to Owner and Contractor a definitive certificate of Substantial Completion (with a revised tentative list of items to be completed or corrected) reflecting such changes from the tentative certificate as Engineer believes justified after consideration of any objections from Owner. D. At the time of delivery of the tentative certificate of Substantial Completion, Engineer will deliver to Owner and Contractor a written recommendation as to division of responsibilities pending final payment between Owner and Contractor with respect to security, operation, safety, and protection of the Work, maintenance, heat, utilities, insurance, and warranties and guarantees. Unless Owner and Contractor agree otherwise in writing and so inform Engineer in writing prior to Engineer s issuing the definitive certificate of Substantial Completion, Engineer s aforesaid recommendation will be binding on Owner and Contractor until final payment. E. Owner shall have the right to exclude Contractor from the Site after the date of Substantial Completion subject to allowing Contractor reasonable access to remove its property and complete or correct items on the tentative list. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 59

165 14.05 Partial Utilization A. Prior to Substantial Completion of all the Work, Owner may use or occupy any substantially completed part of the Work which has specifically been identified in the Contract Documents, or which Owner, Engineer, and Contractor agree constitutes a separately functioning and usable part of the Work that can be used by Owner for its intended purpose without significant interference with Contractor s performance of the remainder of the Work, subject to the following conditions: 1. Owner at any time may request Contractor in writing to permit Owner to use or occupy any such part of the Work which Owner believes to be ready for its intended use and substantially complete. If and when Contractor agrees that such part of the Work is substantially complete, Contractor, Owner, and Engineer will follow the procedures of Paragraph A through D for that part of the Work. 2. Contractor at any time may notify Owner and Engineer in writing that Contractor considers any such part of the Work ready for its intended use and substantially complete and request Engineer to issue a certificate of Substantial Completion for that part of the Work. 3. Within a reasonable time after either such request, Owner, Contractor, and Engineer shall make an inspection of that part of the Work to determine its status of completion. If Engineer does not consider that part of the Work to be substantially complete, Engineer will notify Owner and Contractor in writing giving the reasons therefor. If Engineer considers that part of the Work to be substantially complete, the provisions of Paragraph will apply with respect to certification of Substantial Completion of that part of the Work and the division of responsibility in respect thereof and access thereto. 4. No use or occupancy or separate operation of part of the Work may occur prior to compliance with the requirements of Paragraph 5.10 regarding property insurance Final Inspection A. Upon written notice from Contractor that the entire Work or an agreed portion thereof is complete, Engineer will promptly make a final inspection with Owner and Contractor and will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 60

166 14.07 Final Payment A. Application for Payment: 1. After Contractor has, in the opinion of Engineer, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance, certificates of inspection, marked-up record documents (as provided in Paragraph 6.12), and other documents, Contractor may make application for final payment following the procedure for progress payments. 2. The final Application for Payment shall be accompanied (except as previously delivered) by: a. all documentation called for in the Contract Documents, including but not limited to the evidence of insurance required by Paragraph 5.04.B.6; b. consent of the surety, if any, to final payment; c. a list of all Claims against Owner that Contractor believes are unsettled; and d. complete and legally effective releases or waivers (satisfactory to Owner) of all Lien rights arising out of or Liens filed in connection with the Work. 3. In lieu of the releases or waivers of Liens specified in Paragraph A.2 and as approved by Owner, Contractor may furnish receipts or releases in full and an affidavit of Contractor that: (i) the releases and receipts include all labor, services, material, and equipment for which a Lien could be filed; and (ii) all payrolls, material and equipment bills, and other indebtedness connected with the Work for which Owner might in any way be responsible, or which might in any way result in liens or other burdens on Owner's property, have been paid or otherwise satisfied. If any Subcontractor or Supplier fails to furnish such a release or receipt in full, Contractor may furnish a bond or other collateral satisfactory to Owner to indemnify Owner against any Lien. B. Engineer s Review of Application and Acceptance: 1. If, on the basis of Engineer s observation of the Work during construction and final inspection, and Engineer s review of the final Application for Payment and accompanying documentation as required by the Contract Documents, Engineer is satisfied that the Work has been completed and Contractor s other obligations under the Contract Documents have been fulfilled, Engineer will, within ten days after receipt of the final Application for Payment, indicate in writing Engineer s recommendation of payment and present the Application for Payment to Owner for payment. At the same time Engineer will also give written notice to Owner and Contractor that the Work is acceptable subject to the provisions of Paragraph Otherwise, Engineer will return the Application for Payment to Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case Contractor shall make the necessary corrections and resubmit the Application for Payment. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 61

167 C. Payment Becomes Due: 1. Thirty days after the presentation to Owner of the Application for Payment and accompanying documentation, the amount recommended by Engineer, less any sum Owner is entitled to set off against Engineer s recommendation, including but not limited to liquidated damages, will become due and will be paid by Owner to Contractor Final Completion Delayed A. If, through no fault of Contractor, final completion of the Work is significantly delayed, and if Engineer so confirms, Owner shall, upon receipt of Contractor s final Application for Payment (for Work fully completed and accepted) and recommendation of Engineer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance to be held by Owner for Work not fully completed or corrected is less than the retainage stipulated in the Agreement, and if bonds have been furnished as required in Paragraph 5.01, the written consent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by Contractor to Engineer with the Application for such payment. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of Claims Waiver of Claims A. The making and acceptance of final payment will constitute: 1. a waiver of all Claims by Owner against Contractor, except Claims arising from unsettled Liens, from defective Work appearing after final inspection pursuant to Paragraph 14.06, from failure to comply with the Contract Documents or the terms of any special guarantees specified therein, or from Contractor s continuing obligations under the Contract Documents; and 2. a waiver of all Claims by Contractor against Owner other than those previously made in accordance with the requirements herein and expressly acknowledged by Owner in writing as still unsettled. ARTICLE 15 SUSPENSION OF WORK AND TERMINATION Owner May Suspend Work A. At any time and without cause, Owner may suspend the Work or any portion thereof for a period of not more than 90 consecutive days by notice in writing to Contractor and Engineer which will fix the date on which Work will be resumed. Contractor shall resume the Work on the date so fixed. Contractor shall be granted an adjustment in the Contract Price or an extension of the Contract Times, or both, directly attributable to any such suspension if Contractor makes a Claim therefor as provided in Paragraph EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 62

168 15.02 Owner May Terminate for Cause A. The occurrence of any one or more of the following events will justify termination for cause: 1. Contractor s persistent failure to perform the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the Progress Schedule established under Paragraph 2.07 as adjusted from time to time pursuant to Paragraph 6.04); 2. Contractor s disregard of Laws or Regulations of any public body having jurisdiction; 3. Contractor s repeated disregard of the authority of Engineer; or 4. Contractor s violation in any substantial way of any provisions of the Contract Documents. B. If one or more of the events identified in Paragraph A occur, Owner may, after giving Contractor (and surety) seven days written notice of its intent to terminate the services of Contractor: 1. exclude Contractor from the Site, and take possession of the Work and of all Contractor s tools, appliances, construction equipment, and machinery at the Site, and use the same to the full extent they could be used by Contractor (without liability to Contractor for trespass or conversion); 2. incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere; and 3. complete the Work as Owner may deem expedient. C. If Owner proceeds as provided in Paragraph B, Contractor shall not be entitled to receive any further payment until the Work is completed. If the unpaid balance of the Contract Price exceeds all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Owner arising out of or relating to completing the Work, such excess will be paid to Contractor. If such claims, costs, losses, and damages exceed such unpaid balance, Contractor shall pay the difference to Owner. Such claims, costs, losses, and damages incurred by Owner will be reviewed by Engineer as to their reasonableness and, when so approved by Engineer, incorporated in a Change Order. When exercising any rights or remedies under this Paragraph, Owner shall not be required to obtain the lowest price for the Work performed. D. Notwithstanding Paragraphs B and C, Contractor s services will not be terminated if Contractor begins within seven days of receipt of notice of intent to terminate to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt of said notice. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 63

169 E. Where Contractor s services have been so terminated by Owner, the termination will not affect any rights or remedies of Owner against Contractor then existing or which may thereafter accrue. Any retention or payment of moneys due Contractor by Owner will not release Contractor from liability. F. If and to the extent that Contractor has provided a performance bond under the provisions of Paragraph 5.01.A, the termination procedures of that bond shall supersede the provisions of Paragraphs B and C Owner May Terminate For Convenience A. Upon seven days written notice to Contractor and Engineer, Owner may, without cause and without prejudice to any other right or remedy of Owner, terminate the Contract. In such case, Contractor shall be paid for (without duplication of any items): 1. completed and acceptable Work executed in accordance with the Contract Documents prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such Work; 2. expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses; 3. all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred in settlement of terminated contracts with Subcontractors, Suppliers, and others; and 4. reasonable expenses directly attributable to termination. B. Contractor shall not be paid on account of loss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination Contractor May Stop Work or Terminate A. If, through no act or fault of Contractor, (i) the Work is suspended for more than 90 consecutive days by Owner or under an order of court or other public authority, or (ii) Engineer fails to act on any Application for Payment within 30 days after it is submitted, or (iii) Owner fails for 30 days to pay Contractor any sum finally determined to be due, then Contractor may, upon seven days written notice to Owner and Engineer, and provided Owner or Engineer do not remedy such suspension or failure within that time, terminate the Contract and recover from Owner payment on the same terms as provided in Paragraph B. In lieu of terminating the Contract and without prejudice to any other right or remedy, if Engineer has failed to act on an Application for Payment within 30 days after it is submitted, or Owner has failed for 30 days to pay Contractor any sum finally determined to be due, Contractor may, seven days after written notice to Owner and Engineer, stop the Work until EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 64

170 payment is made of all such amounts due Contractor, including interest thereon. The provisions of this Paragraph are not intended to preclude Contractor from making a Claim under Paragraph for an adjustment in Contract Price or Contract Times or otherwise for expenses or damage directly attributable to Contractor s stopping the Work as permitted by this Paragraph. ARTICLE 16 DISPUTE RESOLUTION Methods and Procedures A. Either Owner or Contractor may request mediation of any Claim submitted to Engineer for a decision under Paragraph before such decision becomes final and binding. The mediation will be governed by the Construction Industry Mediation Rules of the American Arbitration Association in effect as of the Effective Date of the Agreement. The request for mediation shall be submitted in writing to the American Arbitration Association and the other party to the Contract. Timely submission of the request shall stay the effect of Paragraph E. B. Owner and Contractor shall participate in the mediation process in good faith. The process shall be concluded within 60 days of filing of the request. The date of termination of the mediation shall be determined by application of the mediation rules referenced above. C. If the Claim is not resolved by mediation, Engineer s action under Paragraph C or a denial pursuant to Paragraphs C.3 or D shall become final and binding 30 days after termination of the mediation unless, within that time period, Owner or Contractor: 1. elects in writing to invoke any dispute resolution process provided for in the Supplementary Conditions; or 2. agrees with the other party to submit the Claim to another dispute resolution process; or 3. gives written notice to the other party of the intent to submit the Claim to a court of competent jurisdiction. ARTICLE 17 MISCELLANEOUS Giving Notice A. Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been validly given if: 1. delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended; or 2. delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 65

171 17.02 Computation of Times A. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day will be omitted from the computation Cumulative Remedies A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee, or by other provisions of the Contract Documents. The provisions of this Paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply Survival of Obligations A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor Controlling Law A. This Contract is to be governed by the law of the state in which the Project is located Headings A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 66

172 SCHEDULE O: PAYMENT SCHEDULE AND SCHEDULE OF VALUES The total energy project cost is $3,213,735. No upfront utility rebates are currently calculated for this project. Table O.1, the Project Cost Breakout, below separates out the total energy project costs for installation into the individual costs, fees, and markups allocated to the various items in the project. Table O.1: Project Cost Breakout Item Costs Actual Percent of Total Project Price Estimated Percents of Total Project Price A Subcontractor Costs (Contractor Costs to ESCO) $2,262,958 N/A N/A - - B Other Direct Purchases of Equip., Material, Supplies $9,400 N/A N/A - - C Design $51, % 2-4% of $ 3,213,735 D Project Management $95, % 4-8% of $ 3,213,735 E Permits $0 0.0% 0% of $ 3,213,735 F Performance Bond $27, % 0.5-1% of $ 3,213,735 G Commissioning $19, % % of $ 3,213,735 H Training $8, % 0.5-1% of $ 3,213,735 I Construction M&V $12, % 0.5-1% of $ 3,213,735 J Sum Direct Project Costs $2,487,635 N/A N/A K Overhead $321,400 10% 10% of $ 3,213,735 L Profit $257,200 8% 8% of $ 3,213,735 M Project Price Total w/ OH & P $3,066,235 N/A N/A N Technical Energy Audit and Solar Rewards Fees $57,500 N/A N/A - - O Contingency $90, % 3-5% of $ 3,213,735 P Total GMAX $3,213,735 N/A N/A EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 67

173 Table O.2, the Schedule of Values, will be used to request payments by the City and to track total payments due and received throughout the construction project timeline. Payment terms are net 30 days from receipt of invoice.table O.2: Schedule of Values Owed by City of Golden Schedule Of Values (FIM'S) APPLICATION NO: APPLICATION DATE: A B C D E F G H I J P Funding % of Projec FIM Funding Source Funding Amount Spent to Date Remaining Amount WORK COMPLETED 100.0% A $0 FROM PREVIOUS THIS PERIOD MATERIALS TOTAL % RETAINAGE RETENTION BALANCE $0 APPLICATION PRESENTLY COMPLETED COMPLETE PERCENTAGE HELD TO FINISH STORED AND STORED TO DATE FIM $0 $0.00 $0.00 Description of Work (NOT IN PERIOD TO: SCHEDULED (D + E) D OR E) (D+E+F) (G C) (G X I) (C - G) VALUE A Tony Grampsas Gymnasium Solar PV $257,145 $0 $ - $0 0% 5% $ - $257,145 B Splash Water Park A Tony Grampsas Gymnasium Solar PV - Structural Modification $24,177 $0 $ - B A Solar PV $990,214 $0 $ - B A Solar PV $641,221 $0 $ - $0 B A Fossil Trace Maintenance Building Solar PV $135,997 $0 $ - $0 B A Fossil Trace Maintenance Building Solar PV - Structural Modification $19,578 $0 $ - $0 B A Public Works Solar PV $160,699 $0 B A Public Works Solar PV - Structural Modification $78,839 B A South Parking Garage Solar PV $316,406 B Fire Station #4 A Fossil Trace Johnson Restroom Solar PV $48,617 $0 $ - B A B A Fossil Trace Illinois Restroom Solar PV $49,931 $0 $ - B A All PV Sites Solar Monitoring, Trending & Alarming $83,317 B A Design $65,515 $0 B A Contingency Contingency $90,000 $0 $ - $0.00 B Bond and Audit Fee Facility Location City Maintenance Shops Solar PV A Technical Energy Audit and Bond B FIM Subtotal City of Golden Phase II - Solar PV EPSC SOV Source $167,335 $84,744 $0 $ - $0 $0 $ - $ - $0 0% 5% $ - $65,515 $3,213, $0.00 $0.00 $0.00 $ % 0.00% $ - $3,213, NON-Guaranteed Cost $0.00 Sales Tax - Construction Not applicable - $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 NON-Guaranteed Cost Subtotal $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 Change Orders: Base Contract + Non-Guaranteed Costs $3,213, $0.00 $0.00 $0.00 $ % $0.00 $3,213, CO # 1 $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 CO # 2 $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 CO # 3 $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 CO # 4 $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 CO # 5 $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 CO # 6 $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 SUBTOTAL Change Orders $0.00 $0.00 $0.00 $0.00 $0.00 #DIV/0! $0.00 $0.00 GRAND TOTALS $3,213, $0.00 $0.00 $0.00 $ % $0.00 $3,213, $0 $ $ $0 $ - $0 - - $0 $0 $0 0% $0 0% $0 $0 $0 $0 $ - $0 0% 0% 0% 0% 0% 0% 0% 0.0% 5% $ 5% $ - - $24,177 5% $ - $990,214 5% $ $641,221 5% $ - $135,997 5% 5% $ - $160,699 5% $ - 5% $ - - $ - $19,578 0% 5% $ - $78,839 $316,406 $167,335 $48,617 0% 5% $ - $49,931 0% 5% $ - $83,317 0% $ - $90,000 0% $ - $84,744 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 68

174 Table O.3, the Proposed Billing Schedule, demonstrates the billing schedule anticipated for the project based on project milestones and completion targets for installation of materials provided under a separate purchase order as defined in the proposal. Payment terms are net 30 days from receipt of invoice. This billing schedule is based on timeline milestones, and the actual billing schedule may differ based on individual measures commencement and completion dates. A more detailed construction and installation timeline is provided in Schedule G. Table O.3 Proposed Billing Schedule Proposed Billing Schedule Percent Complete Estimated Value August % $482,060 September % $642,747 October % $642,747 November % $642,747 December % $642,747 January % $160,687 Total Scheduled Value 100% $3,213,735 The project costs, schedule of values, and proposed payment schedule shown above are made a part of the Agreement between the CONTRACTOR and CITY dated August 22 nd EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 69

175 SCHEDULE P: PRE-EXISTING SERVICE AGREEMENTS The OWNER has no pre-existing service agreements that will affect the scope of work in this contract. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 70

176 SCHEDULE Q: CURRENT AND KNOWN CAPITAL PROJECTS AT FACILITY There are no other projects CONTRACTOR is aware of in the OWNER S facilities which will impact or interact with the CONTRACTOR construction project detailed in this contract. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 71

177 SCHEDULE R: PROJECTED FINANCIAL PERFORMANCE Table R.1 shows the guaranteed savings in energy units with the corresponding first year* utility cost savings as well as the first year REC payments. Table R.1. Guaranteed First Year Energy Savings and Cost Avoidance *First year cost avoidance savings are calculated from Utility Rates indicated in Schedule E EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 72