Notice of Request for Proposals For Guaranteed Energy ... RFP...For Guaranteed Energy Savings Performance ... Sealed Proposals for guaranteed energy savings will be received by

Performance Contract RFP# 2015-PC Wake County Public School System, NC December 18, 2015 Page 1

Notice of Request for Proposals For Guaranteed Energy Savings Performance Contract

BID: 2015-PC TO: North Carolina Pre-Qualified ESCOs Issuer: Wake County Public Schools SUBJECT: REQUEST FOR PROPOSALS: Guaranteed Energy Savings Performance Contract DATE: December 18, 2015 Wake County Public School System desires to engage qualified Energy Service Companies (ESCO) to design and implement energy conservation measures to be financed through a guaranteed energy savings contract. Services for this project may include, but are not limited to, a preliminary audit, cost-benefit analysis, investment grade audit, design and installation of energy conservation measures, training, and identification of other utility cost-saving projects. The ESCO shall currently be pre-qualified by the NC Department of Environmental Quality. Sealed Proposals for guaranteed energy savings will be received by Wake County Public School System at Facilities Design & Construction, 1429 Rock Quarry Road, Suite 116, Raleigh, NC 27610 by February 24, 2016, at 3:00 P.M at which time they will be publicly opened. A mandatory pre-proposal meeting will be held on January 5, 2016 at 1:00 P.M. in Conference Room 102 at Facilities Design & Construction, 1429 Rock Quarry Road, Suite 116, Raleigh, NC 27610. Any questions regarding the project should be directed to Eric Allen at [email protected]. Wake County Public School System reserves the right to reject any and all proposals.


Wake County Public School

System

REQUEST FOR PROPOSAL

FOR GUARANTEED ENERGY SAVINGS

PERFORMANCE CONTRACTING

December 18, 2015

RFP # 2015-PC


REQUEST FOR PROPOSALS FOR

Wake County Public School System

STATE OF NORTH CAROLINA

GUARANTEED ENERGY SAVINGS PERFORMANCE CONTRACT

TABLE OF CONTENTS

Page PART 1 – GENERAL INFORMATION 4 PART 2 – PROPOSED PROJECT SCHEDULE 11 PART 3 – EVALUATION PROCESS AND CRITERIA 12 PART 4 – SUBMISSION OF PROPOSALS 13 SIGNATURE PAGE (to be first page of Proposal) 24 ATTACHMENT A – PRELIMINARY ECM COST / SAVINGS MATRIX - Do not submit 25 with response ATTACHMENT B – ESCO's PRELIMINARY COST PROPOSAL 26 (Using best rate ESCO can arrange) - Do not submit with response ATTACHMENT C – PRELIMINARY ANNUAL CASH FLOW ANALYSIS 28 (Using ESCO’s Rate) - Do not submit with response APPENDIX I – FACILITIES TO BE ANALYZED APPENDIX II – DESIGN REVIEW MATRIX APPENDIX III – WCPSS DESIGN GUIDELINES APPENDIX IV – MINIMUM INSURANCE REQUIREMENTS APPENDIX V – INVESTMENT GRADE AUDIT CONTRACT AND SCHEDULES APPENDIX VI – GUARANTEED ENERGY SAVINGS CONTRACT APPENDIX VII – GUIDELINES FOR MINORITY BUSINESS PARTICIPATION APPENDIX VIII – WCPSS SEX OFFENDER FORM - Do not submit with response


Wake County Public School System STANDARD REQUEST FOR PROPOSAL

GUARANTEED ENERGY SAVING PERFORMANCE CONTRACT

1. GENERAL INFORMATION

1.1. Issuing Office: This RFP is issued by Wake County Public School System (hereinafter referred to as “ISSUER”). The following Issuing Officer is the sole point of contact for this RFP: Eric Allen, Senior Project Manager, Facilities Design & Construction,1429 Rock Quarry Road, Suite 116, Raleigh, NC 27610, phone: 919-588-3553, email: [email protected] 1.2. Purpose. This Request for Proposals (RFP) contains the information provided by

ISSUER and requirements for Qualified Providers as defined in Chapter 143 Article 3B Part 2 of the General Statutes (hereinafter referred to as “ESCO”) and submit to the ISSUER a Preliminary Technical Proposal for a guaranteed energy savings contract (referred to herein as the “Guaranteed Energy Savings Contract”). The ESCO’s response to this RFP (the “Proposal”) must be based on the ESCO’s assessment of the facilities selected by the ISSUER and listed in Appendix I. The ISSUER reserves the right to consider additional energy conservation measures as that term is defined in Chapter 143 Article 3B Part 2 of the General Statutes (“ECMs”) identified during the investment grade audit for evaluation and inclusion in the project. This RFP, including any amendments, contains the only instructions governing the proposals and material to be included therein; a description of the service to be provided by the successful applicant; general evaluation criteria; and other proposal requirements.

1.3. Mandatory pre-proposal meeting: A mandatory pre-proposal Meeting will be

conducted by Wake County Public School System on January 5, 2016, at Facilities Design & Construction, 1429 Rock Quarry Road, Suite 116, Raleigh, NC 27610 in Conference Room 102 at 1:00 P.M. Any questions should be directed to Issuing Officer identified in 1.1.

Proposals from ESCOs who fail to attend the pre-proposal meeting will receive no consideration. ALL REQUIRED INFORMATION MUST BE INCLUDED IN SEALED PROPOSALS AND RECEIVED BY THE ISSUER NO LATER THAN 3:00 P.M. on February 24, 2016 at Facilities Design & Construction, 1429 Rock Quarry Road, Suite 116, Raleigh, NC 27610 at which time they will be publicly opened and read.


REQUIRED INFORMATION MUST BE SENT TO THE FOLLOWING ADDRESS: Wake County Public School System Facilities Design & Construction 1429 Rock Quarry Road, Suite 116 Raleigh, NC 27610 Attention: Eric Allen

Mark on the lower right corner of the submittal: RFP # 2015-PC

1.4. Objective: The objective of the ISSUER in issuing this RFP is to maximize energy cost

saving and related costs in order to pay for facility upgrades to the facilities listed in Appendix I and services that will be financed through a Guaranteed Energy Savings Contract at no cost to the ISSUER. The services may include but are not limited to: (1) A preliminary audit to be performed on the project sites identified in Appendix I in accordance with § 143-64.17A, (2) The highest ranked qualified provider will prepare a cost benefit analysis conducted in accordance with Attachments A, B and C on the measures identified in the preliminary audit, (3) An investment grade audit to be conducted on all project sites to identify appropriate ECMs, (4) The design, acquisition, installation, modification, commissioning and maintenance of the ECMs, (5) The training of staff in the operation of existing equipment and new ECMs, (6) Energy and operational cost savings, such as fuel switching, demand reductions, on-site generation, utility bill auditing, utility rate changes, distribution upgrades. Any stipulated energy and/or operational cost savings that may be attributed to this project will be rigorously reviewed and, if agreed to, will be limited to those that can be thoroughly documented and approved by the ISSUER.

No Guaranteed Energy Savings Contract shall exceed 20 years in duration from the date of the installation and acceptance of the project, as defined in § 143-64.17B, and must comply with all other applicable statutes, regulations, and procurement laws. Proposals for this RFP shall not exceed the term stated in section 1.7. The cost savings achieved by the installed ECMs must be sufficient to cover all project costs including maintenance and monitoring fees on an annual basis for the duration of the term of the Guaranteed Energy Savings Performance Contract. The ESCO must guarantee sufficient energy savings, as defined in § 143-64.17, to enable the ISSUER to meet its payment obligations to the ESCO and the entity financing the Guaranteed Energy Savings Performance Contract. ESCOs will be required to guarantee energy savings on an annual basis. No credit for the achievement of energy savings above and beyond the annual guarantee will be credited to satisfy performance guarantees in other years of the contract. Annual reconciliation of the achieved energy savings will be required.

1.5. Security Requirements: The Office of State Treasurer has determined that the following general types of security for the guaranteed energy savings would be acceptable, however specific instruments of security as part of a financing contract for energy conservation measures will need to be approved by the Office of the State Treasurer as per N.C.G.S. § 143-64.17B.(c) for each guaranteed energy savings performance contract. These general types are:


1.5.1. A corporate guarantee by the ESCO provided that the ESCO has a long-term

investment grade corporate rating from one or more of the national credit rating agencies. Currently, this would be a minimum rating of BBB from Standard and Poor’s, Baa from Moody’s Investors Service, or BBB from Fitch Ratings.

1.5.2. A corporate guarantee from the parent company of an ESCO which is owned as a subsidiary of the parent. The parent company would be required to maintain a long-term investment grade rating from one or more of the national credit rating agencies (see above.)

1.5.3. An irrevocable letter of credit from a financial institution which covers the entire term of the contract, without need of renewal.

1.5.4. A surety bond which covers the entire term of the contract, without need of renewal.

1.5.5. Financing by the ESCO in which the ESCO provides all financing required for the entire term of the contract. Financing may only be transferred or assigned to the extent that energy savings are realized, and State property may not be encumbered in any form as part of the financing.

All forms of security would be required to be in place at the initiation of the guaranteed

energy savings performance contract covering (100%) of the guaranteed energy savings for the term of the guaranteed energy savings performance contract. In the case of corporate guarantees, should the guarantor’s credit rating drop below long-term investment grade, the guarantor is required to inform the governmental unit, the Division of Environmental Assistance and Customer Service Utility Savings Initiative (USI), and the Local Government Commission (LGC) within 30 days and replace the corporate guarantee with one of the other forms of security acceptable to Office of the State Treasurer.

1.6. Description of the Procurement Process: The process for the procurement of these

guaranteed energy savings services will proceed as follows:

1.6.1. Solicitation of proposals. The ISSUER will issue a request for proposals that is open to all ESCOs who have been prequalified by USI. Notice of the request must be published at least 15 days in advance of the time specified for opening of the proposals in at least one newspaper of general circulation in the geographic area in which the facility or facilities are located. In addition, the ISSUER will place a notice regarding the solicitation on the USI home page with instructions on how to obtain the solicitation. If only one proposal from an ESCO is received, then the ISSUER shall re-issue this RFP unless this is the second release at which time a single response may be accepted.

1.6.2. Opening of proposals. Proposals are to be opened in accordance with the

instructions in Section 1.3. All proposals received by the specified time will be opened by a member or employee of the ISSUER at a public opening who will announce the name of the ESCO submitting the Proposal and verify the execution of the signature page by the ESCO. Unsigned proposals will be rejected.


1.6.3. Evaluation of proposals. Responding ESCOs shall conduct a preliminary audit of the facilities listed in Appendix I. This preliminary audit will form the basis of the ESCOs’ written Preliminary Proposal. The Proposals must be in substantial conformity with Part 4 (Submission of Proposals) and other conditions set forth in the RFP. The ISSUER will evaluate or cause its designated representatives to evaluate the ESCOs’ Preliminary Proposals. The proposal shall be evaluated by a Qualified Reviewer as defined in Chapter 143 Article 3B Part 2 of the General Statutes (“Qualified Reviewer”). The Qualified Reviewer may be selected from the ISSUER’s staff or a third-party engineer or architect may be engaged by the ISSUER. The evaluation shall be based on the criteria listed in Part 3 of this RFP. The Qualified Reviewer shall also review Attachments A, B, and C to determine if project scope, costs and savings are achievable.

1.6.4. Client reference checks. The ISSUER shall review and evaluate the ESCO client

references provided in the Proposal in accordance with the evaluation criteria identified in Part 3.

1.6.5. Shortlist. The ISSUER shall shortlist ESCOs on the basis of the rankings of

evaluating the written proposal and the client references using the criteria in Part 3.

1.6.6. Oral interview. Each shortlisted ESCO may be required to participate in an oral

interview. The purpose of this session is to clarify specific aspects of the technical proposal and to answer questions posed by the evaluation team. These oral interviews may be recorded. ESCO responses given in the oral interview will be part of the overall evaluation, but the ESCO will not be allowed to vary the written Proposal or improve the competitive position of the ESCO.

1.6.7. Selection of ESCO to develop the project. The ISSUER shall have the highest

ranked ESCO prepare Attachments A, B, and C for the proposed contract. Only the energy conservation measures identified in Part 4 Section 5.1 of the proposal may be included in the attachments. The ISSUER may require that the ESCO competitively bid any of the products or contractors required to implement the project. Copies of all such bids shall be sent to the ISSUER. If the ISSUER and ESCO cannot negotiate acceptable terms, pricing, savings estimates, and percentages the ISSUER or ESCO may terminate the process at which time the ISSUER may begin negotiations with the second highest ranked ESCO. Once the second highest ranked ESCO is engaged the ISSUER may not return to the highest ranked ESCO. The ISSUER’S Qualified Reviewer, shall also review Attachments A, B, and C to determine if project scope,

costs and savings are reasonable and achievable. USI shall review the selected ESCO's proposal, all Attachments, and other relevant documents prior to the ISSUER announcing the award. The ISSUER shall provide published notice of the time and place of the meeting at which it proposes to award the contract, the names of the parties to the proposed contract, and the contract's purpose. This announcement shall be published 15 days prior to award or meeting.

1.6.8. The ISSUER shall notify all responders of the ranking results.


1.7. Type of Contracts: The successful applicant will be required to enter into an Investment Grade Audit Contract (IGAC) that substantially conforms to the IGAC located in Appendix V. Where the ISSUER elects to enter into a Guaranteed Energy Savings Performance Contract after the ESCO performs an IGA, the ESCO will be required to enter into such contract in substantially the same form to that located in Appendix VI. The preferred term of the Guaranteed Energy Savings Contract is a maximum of fifteen (15) years; however, the ISSUER may accept up to twenty (20) years from the date of acceptance of the project, as defined in § 143-64.17B. During the Investment Grade Audit the ISSUER reserves the right to adjust the term based on final cost and interest rate. The ISSUER shall own all installed equipment which shall be free and clear of all liens and encumbrances upon transfer of ownership to the ISSUER.

1.8. Rejection of Proposals: The ISSUER reserves the right to reject any and all proposals

received. If the ISSUER decides to terminate this process the ISSUER shall notify all responders of such decision within 30 days.

1.9. Incurring Costs: The ISSUER is not liable for any cost or expenses incurred by ESCOs

in the preparation of their Proposals or for attendance at any conferences and meetings related to this RFP.

1.10. Amendments to the RFP: If it becomes necessary to revise any part of this RFP, an

addendum will be issued to all ESCOs who attended the mandatory pre-proposal meeting. If any ESCO has questions prior to opening the proposal, those questions must be submitted and answered in writing in accordance with the schedule listed in Part 2. A copy of all questions and answers submitted will be sent to all ESCOs that attended the mandatory pre-proposal meeting.

1.11. Error / Clarification: When a proposal contains an obvious error or otherwise where

an error is suspected, the circumstances may be investigated and then may be considered and acted upon. Any action taken shall not prejudice the rights of the public or other offering companies. Where offers are submitted substantially in accordance with this RFP but are not entirely clear as to the intent or to some particular fact where there are other ambiguities, clarification may be sought and accepted.

1.12. Restriction of Contact: From the date this RFP is issued until a determination is

made regarding the final selection of an ESCO for the Project, all contacts with the ISSUER concerning this RFP shall be made in writing through the Issuing Officer, identified in Part 1.1, only.

1.13. Debriefing: As a courtesy, the ISSUER will notify in writing ESCOs who are not

awarded within a reasonable period following the ISSUER’s selection of an ESCO pursuant to this RFP. The ESCO may request a debriefing with the ISSUER at this time which shall be granted in a reasonable time.

1.14. Proposals: To be considered, Proposals must include responses to all requests for

information in this RFP. Proposals must be straightforward, concise presentations without extraneous material. Font size may be no smaller than 10 point. The ESCO shall make no other use of the proposal. An official authorized to bind the ESCO must sign the


proposal. The proposal shall constitute a valid firm offer for 90 days after the opening of proposals submitted pursuant to this RFP. The contents of the proposal of the selected ESCO will become part of the ESCO’s contractual obligations to the extent that the proposal does not conflict with provisions of this RFP.

1.15. Site Visits: The Issuing Officer or his or her designated representative will arrange

inspection tours of the buildings to be audited. Site representatives will be available to escort ESCOs and their representatives through the facilities. Questions arising out of these tours shall be submitted in writing to the Issuing Officer. Technical information supplemental to material contained in this RFP will be made available for review and inspection onsite. Only ESCOs who were represented at the pre-bid are eligible to participate in these site visits.

1.16. Late Offers, Modifications or Withdrawals: No late offer, late modification, or late

withdrawal shall be considered unless received before Opening Date, and the offer, modification, or withdrawal would have been timely but for the action or inaction of one of the ISSUER’s employees or agents. The ESCO shall bear the sole responsibility of having its proposal delivered on time, regardless of the mode of delivery used, including the U.S. Postal Service or any other delivery services available. The time allowed for the acceptance of offers may be extended by the ISSUER.

1.17. Minority Business Participation: In accordance with N.C.G.S. § 143-128, State

agencies and universities have adopted a policy to achieve verifiable goals of participation by minority businesses in each renovation project. A copy of guidelines is included in Appendix IV. All applicants shall comply with the policy and guidelines.

1.18. ESCO Responsibility: The selected ESCO will be required to assume total

responsibility for all services and/or equipment offered in the Proposal. The selected ESCO is responsible for obtaining all applicable permits, reviews and meeting all licensing requirements. The selected ESCO will be considered the Prime Contractor and the sole point of contact with regard to the Project.

1.19. Payment and Performance Bond: The selected ESCO shall be required to provide

construction payment and performance bonds in conformance with NCGS § 44-A, Article 3 and in the amount of 100% of the total financed project cost as shown on Attachment B. The ESCO’s proposal must include the form of two payment and performance security instruments as follows:

1.) The first security instrument, a payment and construction performance bond, is

to be conditioned for the faithful performance and fulfillment of the installation of the Energy Conservation Measures and which shall be valid until the completion of the installation work, with construction approved by the ISSUER and accepted on behalf of the State

2.) The second security instrument shall be a written guarantee, which will be contained in the contract, which states that the annual energy or operational costs savings will meet or exceed the total cost of the contract, including (without limitation) financing, installed equipment costs, contract security instruments required by the Office of State Treasurer, an annual fee for a third


party engineer, and measurement and verification for the entire length of the contract period. This security instrument must be in a form and amount acceptable to the Office of State Treasurer as listed in Part 1.5.

1.20. References and Proprietary Information: Submission of a Proposal grants

permission to the ISSUER to make inquiries concerning the respondent and its officers to any persons or firms deemed appropriate by ISSUER. Any proprietary information will be treated as provided for in N.C. Public Records Act. Data or information so identified will be used by the ISSUER solely for the purpose of evaluation and contract negotiations.

1.21. North Carolina Products: Where quality and availability allow, specifications shall be

based on products manufactured by and services provided by North Carolina businesses. This special interest in North Carolina products is intended to encourage and promote their use, but shall not be exercised to the exclusion of other products or to prevent fair and open competition.

1.22. Proposal Funding: The Treasurer may reject any potential contract if the actual cost

of financing has exceeded the estimated cost of financing when the contract is submitted to the Office of the Treasurer for approval. The ESCO receiving the contract award shall submit a total contract cost option and cash flow analysis based on ESCO or third party financing at best available rate. This is the basis for Attachment “B” and Attachment “C”.

1.23. Annual Reconciliation: The energy savings shall be monitored and reported on in

accordance with the measurement and verification plan created in the IGA commencing with the date of the Certification of Final Acceptance to be signed by the ISSUER. The reconciliation report is due no more than 60 days from the anniversary of the Certification of Final Acceptance. In the event that the actual savings are less than the guaranteed savings, the ESCO shall provide cash reconciliation of the difference within thirty (30) calendar days of written demand by the ISSUER. A surplus in any one year shall not be carried forward or applied to a shortfall in any other year.

1.24. Independent Consulting Engineer: The ISSUER may engage an independent third-

party professional engineer or architect licensed in North Carolina experienced in the design, installation, and implementation of energy efficiency measures and who shall act as the ISSUER’s representative. This professional shall provide services in the review of the IGA and annual reconciliation report.

The ESCO shall include a one-time fee of $0 for the RFP and 1% of total project cost for IGA review. The ESCO shall include an annual cost of 1% of the annual savings for the consulting engineer or architect to review the reconciliation report. This cost shall be financed and paid from the savings for the contract life.


2. ANTICIPATED PROJECT SCHEDULE Activity Date Issue RFP and have posted on USI website December 18, 2015 Mandatory pre-proposal meeting January 5, 2016 Site Visits (to be arranged) January 11-22, 2016 Questions due January 28, 2016 Answers distributed February 5, 2016 Proposals Due February 24, 2016 Proposals Reviewed, Evaluated and Ranked March 4, 2016 Oral Interviews and selection of ESCO March 10, 2016 Highest ranked ESCO completes Attachments A, B and C March 22, 2016 IGA Negotiated March 29, 2016 Presentation to Stakeholders April 4, 2016 Facilities Committee Presentation April 13, 2016 Advertise award per section 1.6.7 April 17, 2016 BOE Approves & Signs IGA May 3, 2016 IGA Completed October 21, 2016 USI IGA review October 28, 2016 Request BOC Resolution November 15, 2016 Release Financial RFP November 22, 2016 Receive Financial Proposals December 15, 2016 BOC Resolution Approval December 19, 2016 Contract Approvals

BOE Approval January 3, 2017 Submit to LGC for Review January 5, 2017


LGC Approval February 7, 2017 Contract Presented and Signed February 14, 2017


3. EVALUATION PROCESS AND CRITERIA Each proposal will be reviewed for completeness and scored pursuant to the evaluation criteria as described in this section.

3.1. Completeness. Responses will be initially evaluated based on the completeness and

quality of the information provided in Part 4, ESCO Proposal: Sections 1 through 19, and when requested Attachment A ECM matrices, Attachment B preliminary cost proposal, Attachment C preliminary cash flow analysis. A Proposal will be considered complete if all requested sections are included in the proper order and properly completed. An incomplete Proposal may be disqualified.

3.2. Evaluation Criteria. The ISSUER will utilize the following criteria in its evaluation of proposals:

Proposal and ESCO Appraisal

Criterion Point Value

Clarity, organization, and level of detail in written proposal 5

Substantial conformity with RFP requirements 5

ECMs included meet ISSUER’s expectations as expressed in Appendix I 10

Qualifications of proposed project staff to be assigned 5

General reputation, experience, reliability, working relationship and performance capability of the ESCO

5

Proposed training meets ISSUER’s requirements 5

Total: 35

Technical Approach

Criterion Point Value ESCO identified additional ECMs not referenced in the RFP 5

Quality of ECMs in response 10

Quality of proposed project delivery approach 10

Implementation schedule achievable 5

Quality of proposed project-specific Commissioning Approach 5

Quality of proposed project-specific Maintenance Approach 5

Quality of proposed project-specific Measurement and Verification Approach 5

Understanding of customer’s operation, and challenges 5

Additional benefits to ISSUER identified in proposal 5

Quality of approach to use Local Contractors 10

Quality of approach to encourage HUB Contractor Participation 10

Total: 75


Oral Interview

Criterion Point Value

Quality of communication skill exhibited by ESCO representatives 5

Demonstrated clear understanding of the ISSUER’s needs 5

Answered questions in concise manner staying on topic 5

Presenters were knowledgeable and professional 5

Appropriate project specific employees participated in interview 3

Total: 23

Grand Total: 133

3.3. Review of RFP Responses

The ISSUER, or their designees, will evaluate each Proposal to this RFP pursuant to criteria listed in section 3.2 above. The evaluators will grade the Proposals on their merit and responsiveness to the needs of the ISSUER. Responses will be evaluated in light of the material and substantiating evidence presented in the Proposal. The evaluation process may include verification of references, confirmation of financial information, and may also include interviews, site visits, or other information as directed by the ISSUER. In accordance with § 143-64.17A sections (c) and (c1) the Proposals shall be evaluated by a Qualified Reviewer (to be designated by the ISSUER). The cost of this architect or engineer may be included in the total cost of the contract.

3.4. Final Selection and Notification

The ISSUER shall have USI and the qualified reviewer review the selected ESCO's proposal, cost-benefit analysis, and other relevant documents after which the ISSUER shall announce the award. The ISSUER reserves the right to reject any and all proposals received and is not required to furnish a statement of the reason why a particular proposal was not deemed to be the most advantageous. The ISSUER will reasonably notify each responder of the successful ESCO.

4. SUBMISSION OF PROPOSALS

4.1. Form of Proposal.

All Proposals shall be submitted in “8 ½ x 11" format with “11x17” folded to fit as needed (unless specifically exempted from this requirement below) that are numbered sequentially by section (example: 1-1) and use labeled tabs to separate sections. Font size must be no smaller than 10 point, utilizing the front and back of pages. Applicants must also include a Table of Contents that indicates the section and page numbers corresponding to the information included. The Applicant must submit to the ISSUER one original, two hard copies and one electronic copy in bookmarked PDF format. When requested by the ISSUER Attachments A, B, and C will be submitted electronically in MS Excel format.


4.2. Content of Proposal.

Each Applicant is required to complete all sections listed below.

Section 1: Company Profile and History. The ESCO shall comply with proper contractor licensing requirements to perform construction if selected. Indicate on page one of this section the license under which work will be performed. Include an actual template of the form of security to be provided. The security must be one of the five forms accepted by the Department of State Treasurer (see Part 1.5). (2 page limit double sided the security template may be additional pages)

Section 2: Project Summary (2 page limit double-sided) ESCO may include an anticipated percent energy unit reduction (not dollars) for the buildings in Appendix I. Section 3: Project Team including resumes

Name of Project Team Member:

Current Job Title: Job responsibilities: Number of years with ESCO: Primary Office Location:

Employment History Company Name: Primary job responsibilities: Number of years with firm:

Educational Background List all academic degrees, certifications, licenses, professional affiliations, relevant publications and technical training.

List all energy performance contracting projects this individual has been involved with during past 5 years. Include project location, type of facilities, year implemented and dollar value of installed project costs.

Describe the specific role and responsibilities this individual had for each listed project.

Provide a detailed description of the role and responsibilities this individual will have for the duration of this project.

Describe any other relevant technical experience.

Indicate the total years of relevant energy-related experience for this individual.


Section 4: Existing Conditions.

Section 5: Energy Conservation Measures.

Section 5.1: ECMs included in Proposal (limit to one double sided page for each measure). For each ECM provide data in following format: ECMs specified in this section shall be included when completing Attachments A, B and C

ECM ID _____________________

Building or Utility System ID _________________________________ IPMVP protocol typically used for this type measure _________________ Assumptions ________________________________________ Brief narrative including product recommendations (place all product specification sheets in separate binder) ________________________

Section 5.2: ECMs identified but to be investigated during the IGA.

Section 5.3: ECMs Considered but not included. Be sure to state reason for rejection. Section 5.4: Details of work that will be performed outside of the United States.

Section 6: Operational Savings: ISSUER labor savings may be considered in cost savings only if an occupied position is eliminated as a result of the Project. Operational and maintenance savings will have to be substantiated through invoices showing the expenses claimed are real. Include the number of years savings will be realized.

Section 7: Project Commissioning Approach. Provide general outline for this project. Section 8: Project M&V Approach, provide general outline. Any guaranteed energy and operational savings shall be determined by using one of the measurement and verification methodologies listed in the United States Department of Energy's "Measurement and Verification Guideline for Energy Savings Performance Contracting," the "International Performance Measurement and Verification Protocol," or "ASHRAE 14-2002." If due to existing data limitations or the nonconformance of specific project characteristics, none of the measurement and verification methodologies listed above is sufficient for measuring guaranteed savings, the ESCO shall develop an alternate method that is compatible with one of the three and mutually agreeable with the ISSUER.


Section 9: Project Maintenance Approach for proposed equipment. The plan should describe how ECMs will be maintained over the duration of the contract period. The plan should identify who is responsible for maintaining and repairing equipment installed. In particular it should address how building automation or other electronic systems will be kept updated and current.

Section 10: Hazardous Material Handling Approach - describe your firm’s plans for the disposal and recycling of any equipment or materials removed from the premises as part of an ECM. Be sure to include proper tracking of hazardous materials such as lamps and ballasts.

Section 11: Implementation Approach and Schedule - provide proposed implementation schedule with milestones. The “8 ½ x 11" sheet size limitation does not apply to this section.

Section 12: ISSUER Training - describe your approach to training both during implementation and during guarantee period. Provide details on number of participants expected, topics and location for training.

Section 13: Project Financing - provide your proposed approach to project financing and assistance.

Section 14: Other Project Impacts - provide information on positive and/or negative impacts that the installation of recommended ECMs may have on air quality emissions, waste reduction, health, occupant comfort or other items not specifically requested. This can refer to non-tangible benefits such as improvements to the learning environment, teaching opportunities, green building considerations, greenhouse gas reductions, anti-drought measures

Section 15: Open Book Pricing - describe your firm’s approach and experience in providing open-book pricing. The ESCO will fully disclose all costs, including all costs of subcontractors and sub-tier vendors. The ESCO will maintain cost accounting records on authorized work performed showing actual costs for labor and materials, or other basis requiring accounting records. The ESCO will provide access to records and preserve them for a minimum of three years and if any federal funds are used to support the Contract, for five years. The retention period runs from the date of payment for the relevant goods or services by the ISSUER or from the date of termination of the Contract, whichever is later. Retention time shall be extended when an audit is scheduled or in progress for a period reasonably necessary to complete an audit and/or to complete any litigation in any forum which may arise.

Section 16: References using the forms included, list at least 3 energy performance contracting projects in repayment by and currently under contract with your firm. Limit your Proposal to ONLY those projects that have been managed directly by the specific branch, division, office or any individual in such branch, division or office who will be specifically assigned to this project.


Attach additional sheets as necessary. Please put an asterisk by any project references involving buildings similar to the building(s) described in Appendix I. Make sure all contact information is current. All information requested is required.

Project Table:

Project Name and Location; Number of Buildings; Primary Use; Total square footage

Project Dollar Amount (installed project costs); Source of Project Financing

Primary ECMs Installed; ESCO Services Provided

Construction Start & End Dates

Contract Start & End Dates

Dollar Value and Type of Annual Operational Cost Savings (if applicable) (e.g., outside maintenance contracts, material savings, etc.)

Method(s) of Savings Measurement and Verification

Provide CURRENT and ACCURATE telephone and email address or FAX numbers of the owner(s)’ representatives with whom your firm did business on this project. You should ensure that all representatives are familiar with this project.

Describe the specific roles and responsibilities of ESCO personnel associated with the identified project. Limit your Proposal to only those personnel who will be directly involved in Customer’s project.

ESCO Notes or Comments


Annual Energy Savings Data Form (Energy Units)

Name of Project: Name of ESCO: _______________________

Projected

Guaranteed

Achieved

Comments

Year 1

Year 2

Year 3

Year 4

Year 5

KWH

KW Demand

Nat Gas Therms

Water(Gallons)

Other (Specify)

Other (Specify)

Information for each of the headings listed above MUST be completed using the above format. DO NOT provide savings data in terms of BTU’s or dollars. Data should be given in the form of fuel units which appear in the utility bills. Additional forms should be reproduced as needed.


Annual Energy Savings Data Form (Energy Dollars)

Projected

Guaranteed

Achieved

Comments

Year 1

Year 2

Year 3

Year 4

Year 5

KWH

KW Demand

Nat Gas Therms

Water(Gallons)

Other (Specify)

Other (Specify)

Information for each of the headings listed above MUST be completed using the above format. Provide savings data in terms of dollars for the units saved. Additional forms should be reproduced as needed.


Section 17: Submit SEC Form 10-K for the two most recent years in this section. If Form 10-K is not filed then submit the ESCO’s two most recent years audited financial statements. This section may be submitted in electronic form only.

Section 18: Risk responsibility matrix:

1. RESPONSIBILITY/DESCRIPTION ESCO PROPOSED APPROACH

1. Financial

a. Interest rates: Neither the ESCO nor the ISSUER has significant control over prevailing interest rates. During all phases of the project, interest rates will change with market conditions. Higher interest rates will increase project cost, financing/project term, or both. Please state your approach to mitigate fluctuating interest rates.

b. Energy prices: Clarify how future energy costs will be treated.

c. Construction costs: If, during construction, costs may overrun the fixed budget explain how the project will be brought back on target with the approved budget and cash flow.

d. M & V costs: The ISSUER assumes the financial responsibility for M & V costs directly or through the Contractor. Explain the relationship between M&V cost and savings accuracy calculations.

e. Delays: Both the Contractor and the ISSUER may cause delays. Failure to implement a viable project in a timely manner costs the ISSUER in the form of lost savings, and can add cost to the project (e.g. construction interest, re-mobilization). Clarify schedule and how delays will be handled.

f. Major changes in facility: Major changes in facility use, including closure may occur during the term of the contract. Clarify responsibilities in the event of a premature facility closure, loss of funding, or other major change.

2. Operational


a. Operating hours: The ISSUER generally has control over operating hours. Increases and decreases in operating hours can show up as increases or decreases in “savings” depending on the M&V method (e.g., operating hours multiplied by improved efficiency of equipment vs. whole-building/utility bill analysis). Clarify whether operating hours are to be measured or stipulated and what the impact will be if they change. If the operating hours are stipulated, the baseline should be carefully documented and agreed to by both parties.

b. Load: Equipment loads can change over time. The ISSUER generally has control over hours of operation, conditioned floor area, intensity of use (e.g. changes in occupancy or level of automation). Changes in load can show up as increases or decreases in “savings” depending on the M & V method. Clarify whether equipment loads are to be measured or stipulated and what the impact will be if they change. If the equipment loads are stipulated, the baseline should be carefully documented and agreed to by both parties.

c. Weather: A number of energy efficiency measures are affected by weather. Neither the Contractor nor the ISSUER has control over the weather. Changes in weather can increase or decrease “savings” depending on the M&V method (e.g. equipment run hours multiplied by efficiency improvement vs. whole-building/utility bill analysis). If weather is “normalized,” actual savings could be less than payments for a given year, but will average out over the long run. Clearly specify how weather corrections will be performed.

d. User participation: Many energy conservation measures require user participation to generate savings (e.g., control settings). The savings can be variable and the Contractor may be unwilling to invest in these measures. Clarify what degree of user participation is needed and utilize monitoring and training to mitigate risk. If performance is stipulated, document and review assumptions carefully and consider M&V to confirm the capacity to save (e.g., confirm that the controls are functioning properly).

3. Performance


a. Equipment performance: Generally the Contractor is responsible for proper installation, commissioning, and performance of equipment. Generally the Contractor has responsibility to demonstrate that the new improvements meet expected performance levels including specified equipment capacity, standards of service, and efficiency. Clarify who is responsible for initial and long-term performance, how it will be verified, and what will be done if performance does not meet expectations.

b. Operations: Responsibility for operations is negotiable, and it can impact performance. Clarify responsibility for operations, the implications of equipment control, how changes in operating procedures will be handled, and how proper operations will be assured.

c. Preventive Maintenance: Responsibility for maintenance is negotiable, and it can impact performance. Clarify how long-term preventive maintenance will be assured, especially if the party responsible for long-term performance is not responsible for maintenance (e.g., Contractor provides maintenance checklist and reporting frequency). Clarify who is responsible for long-term preventive maintenance to maintain operational performance throughout the Contract term. Clarify what will be done if inadequate preventive maintenance impacts performance.

d. Equipment Repair and Replacement: Responsibility for repair and replacement of Contractor-installed equipment is negotiable; however it is often tied to project performance. Clarify who is responsible for replacement of failed components or equipment throughout the term of the Contract. Specifically address potential impacts on performance due to equipment failure. Specify expected equipment life and warranties for all installed equipment. Discuss replacement responsibility when equipment life is shorter than the term of the Contract.


Section 19: Utilize section 19 in proposal to place attachments: A, B and C.

Instructions:

Only the highest ranked ESCO shall complete this part when requested by the ISSUER

Only measures documented in Part 4 Section 5.1 may be included in the attachments

All measures included in Part 4 Section 5.1 must be included in the attachments

The time allowed for preparation of the attachments shall be negotiated based on the scope of work presented in Part 4 Section 5.1

The terms negotiated within the attachments shall form the basis for the IGA and final project pricing

The cost and availability of all equipment, materials, and supplies associated with the performing of the services described herein have been determined and included in the proposed cost.

All labor costs, direct and indirect, have been determined and included in the proposed cost.


PROPOSAL SIGNATURE PAGE (this page should be the first page of the proposal) By submitting this proposal, the Applicant certifies the following:

This proposal is signed by an authorized representative of the firm.

It can obtain the bonds and insurance certificates as required.

The Applicant has attended the mandatory Pre-Proposal Meeting and is aware of prevailing conditions associated with performing these services.

The potential ESCO has read and understands the conditions set forth in this RFP and agrees to them with no exceptions.

The applicant has read, understands, and response complies with all revisions.

All information provided in this application has been gathered based on diligent inquiry and is true, accurate, and complete in all respects, and does not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained herein not materially misleading, to its best knowledge and belief.

Therefore, in compliance with this Request for Proposals, and subject to all conditions set forth herein, the undersigned offers and agrees. ESCO: ______________________________________________________________________ ADDRESS: ___________________________________________________________________ CITY, STATE, ZIP: _____________________________________________________________ TELEPHONE NUMBER: ______________________________ FAX: _____________________ FEDERAL EMPLOYER INDENTIFICATION NUMBER: ________________________________ E-MAIL: ______________________________________________________________________ Principal Place of Business if different from above: _____________________________________________________________________________ Will any of the work under this contract be performed outside of the United States? Yes No (If yes, describe in Part 4.2 Section 5.3) BY: __________________________ TITLE: ______________________ DATE: ___________ __________________________________________ (Signature) __________________________________________ (Typed or printed name)


ATTACHMENT A

Preliminary ECM Cost / Annual Savings Matrix

ECM Description Bldg. 1 ID Bldg. 2 ID Bldg. 3 ID TOTALS

Cost Savings Cost Savings Cost Savings Cost Savings

Lighting 25,000 5,000 55,000 12,000 15,000 3,500 SUM SUM

Lighting controls 49,000 7,000 0 0 22,000 6,000 SUM SUM

AHU VFDs

TOTALS SUM SUM

Values in dollars = ECM included in project Cell Blank = ECM not included for that building Note:

The purpose of this Matrix is to summarize the project by ECM by building.

The above is a sample. Please add columns and rows as necessary to include all buildings and measures addressed in Part 5.

The “8 ½ x 11" sheet size does not apply to this Attachment.

As in Part 4 Section 5; the Cost includes: Labor Costs, Subcontractor Costs, Cost of Materials and Equipment and Related Items. It does NOT include ESCO overhead, mark-up, or profit. The sum of all costs shall equal the Estimated Project Cost in Attachment B.

Electronic copy should be in EXCEL spreadsheet form.

Enter zero amount for ECM’s not performed.

To be completed only at the request of the ISSUER after all written responses have been evaluated and ranked


ATTACHMENT B

ESCO’s Preliminary Cost Proposal (see form next page) Attachment B is available in Excel format.

To be completed only at the request of the ISSUER after all written responses have been evaluated and ranked


AGENCY NAME: Department XYZ

BANK QUOTED INTEREST RATE: 2.400%

ESCO NAME: ESCO ABC

TOTAL PROJECT COST: $43

TOTAL FINANCED COST: $48

TOTAL GUARANTEED FIRST YEAR SAVINGS: $8

% of Total Project

Costs

Financed

Costs

Other Costs Paid

from Savings (not

financed)

Other Benefits to Owner

and Notes

Project Cost Breakdown

Total ECM material & labor and subcontracts 46.51% $20Investment Grade Audit 4.65% $2

Engineering and Design 4.65% $2General Conditions 4.65% $2Contractor's Insurance (i.e. performance bond) 4.65% $2

Project Management 4.65% $2Commissioning 4.65% $2First Year Training Fees 4.65% $2M&V set-up 4.65% $2Cost of Guarantee Security Instrument 4.65% $2Overhead (cost of running the business) 4.65% $2

ESCO net profit 4.65% $2[Other Contractor Costs - list specifics] 2.33% $1

Subtotal A (equals Schedule A Total) $43

Other costsBond Council Fees $3Loan Issuance Fees $3Third Party Engineering Fees $3 Paid by XYZ

Subtotal B (financed) $6Subtotal C (not financed) $3

Adjustments to Project CostsRebates, incentives, grants) (Will be negative number) (3)$ Other

Subtotal D -$3

Construction Period Interest $2

Annual Service Fees

% of First Year's

Savings

Dollar ($) Value of

1st Year Service

Fees

Measurement and Verification (ESCO) 0.20% $1Third Party review of reconciliation report 0.20% $1Maintenance 0.20% $1Equipment Performance Monitoring 0.20% $1Yearly Training Services 0.20% $1

Subtotal E $5

SummariesProject Cost = Subtotal A

Total Financed Costs = Subtotals A+B+D+ possibly Const. Period Int.

Owners payments made to ESCO = Subtotals A+D

1 Other fees must be explained

2 Source of incentives must be explained

$40

ESCO'S COST PROPOSAL

$48

$56

$43

Costs Covered by Energy Savings = Subtotals A+B+C+D+E+ possibly Const Period

Interest. If construction period interest is capitalized in loan, this will be zero.


ATTACHMENT C

ESCO's PRELIMINARY ANNUAL CASH FLOW ANALYSIS USING ESCO’S PROPOSED INTEREST RATE

Financed Amount: __________ Escalation Rate by Utility/Fuel

Finance Term: __________ Electric: 0.0% Annual Interest Rate: __________ Natural Gas: 0.0% Construction Months __________ Steam: 0.0% Annual Payment __________ Water: 0.0% Principal __________ other (specify): 0.0% Interest __________ Escalation Rate for Annual Fees: 0.0%

Yr.

Calculated Electric Dollar

Savings

Calculated Natural Gas

Dollar Savings

Other

Calculated purchased fuel Dollar Savings

Calculated Water Dollar

Savings

Other Please Specify

Calculated Operational

Dollar Savings

Total

Calculated Dollar Savings

Guaranteed Dollar Savings

( a )

Annual Service Fees

( b )

Financing

Cost (P&I)

( c )

Net Savings

= a-b-c

1

2

3

4

5 To be completed only at the request of the ISSUER after all written responses

have been evaluated and ranked

6

7

8

Total

NOTES: Net savings must never be negative. A surplus in one year cannot be carried forward to create positive cash flow in a subsequent year. Electronic copy should be in EXCEL spreadsheet form. See page 24.


APPENDIX I

FACILITIES TO BE ANALYZED Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 3801 Spring Forest Rd, Raleigh NC 27616 Building Name: East Millbrook Middle School Total Floors: Building Age: 40 - Built in: 1975 – Addition: 2009 - Age: 6 Number of Buildings:

Building Type: Middle School Building Total Square Footage: 170,578 sq. ft. Additions/Renovations: 1996 Classroom Add/Reno; 2009 Add/Reno Operating Schedule: Daily: 7 – 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes

Issues to be Addressed by Performance Contract Evaluate HVAC System and Controls Evaluate Building Automation Evaluate Lighting Evaluate the Building Envelope

Special Needs or Circumstances None

Ren. Net Program Net Bldg. Gross Bldg.

Sq. Ft. Net Bldg. Sq. Ft. Sq. Ft.

Sq. Ft.

A 2009 BUILDING #1 34,974 12,949 17,487 18,864

D 2009 OFFICE BUILDING #4 14,777 11,790 14,777 15,965

F 2009 CAFETERIA BUILDING #6 9,227 8,154 9,512 10,363

H 1996 CLASSROOM BLDG #8 0 14,832 19,348 21,357

I 2009 VOCATIONAL BUILDING 0 55,455 76,665 82,902

J 2009 BUILDING #7 19,500 15,945 19,500 21,127

Building Year Description


Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 2255 Herbert Akins Road, Fuquay-Varina, NC 27526 Building Name: Herbert Aikens Elementary School Building Age: 6 - Built in: 2009

Building Total Square Footage: 103,663 sq. ft. Additions/Renovations: None Describe Renovations: Operating Schedule: Daily: 7 – 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes Steam Meter for Building: No

Issues to be Addressed by Performance Contract Evaluate HVAC System & Controls Evaluate Building Automation Evaluate Lighting Evaluate the Building Envelope


Net Bldg. Gross Bldg.

Sq. Ft. Sq. Ft.

A 2009 MAIN BUILDING NEW 45,784 49,815



B 2009 FIRE PUMP HOUSE NEW 215 258

Building Year Description Type


Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 300 Arbor Greene Dr, Garner NC 27529 Building Name: Rand Road Elementary School Building Age: 25 - Built in: 1990 Number of Buildings:

Building Total Square Footage: 70,086 sq. ft. Additions/Renovations: None Describe Renovations: Operating Schedule: Daily: 7 – 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes Steam Meter for Building: No Chilled Water Meter for Building: No




Sq. Ft. Sq. Ft.




B 1990 PUMP HOUSE NEW 226 360



Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 8301 Old Lead Mine Rd, Raleigh NC 27615 Building Name: Lead Mine Elementary School Building Age: 25 - Built in: 1990

Building Type: Elementary School Building Total Square Footage: 70,646 sq. ft. Additions/Renovations: None Describe Renovations: Operating Schedule: Daily: 7 - 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes Steam Meter for Building: No Chilled Water Meter for Building: No




Sq. Ft. Sq. Ft.






Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 1420 Athens Dr, Raleigh NC 27606 Building Name: Athens Drive High School Building Age: 37 - Built in: 1978 – Addition: 2002 - Age: 13 Number of Buildings:

Building Type: High School Building Total Square Footage: 274,585 sq. ft. Additions/Renovations: 1996 Main Bldg Reno/Add; 2002 Main Bldg Reno; 2013 Main Bldg & Concession Reno/Addition. Operating Schedule: Daily: 7 – 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes Steam Meter for Building: No Chilled Water Meter for Building: No


Special Needs or Circumstances Needs full BAS Upgrade from Barber-Coleman Network 8000.



Sq. Ft.

A 2013 MAIN BUILDING 214,297 183,448 243,079 263,330

B 1996 SHOP BUILDING 2,657 3,398 6,376 6,971

C 1978 BASEBALL PRESS BOX 0 418 601 805

D 2013 CONCESSION STAND 1,072 627 1,699 2,768



Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 2001 Lorimer Road, Raleigh, NC 27606 Building Name: Combs Elementary School Building Age: 55 - Built in: 1960 – Addition: 2000 - Age: 15

Building Total Square Footage: 84,152 sq. ft. Additions/Renovations: 1962 Addition; 1968 Addition; 1990 New Multipurpose Bldg; 2000 Add/Reno Operating Schedule: Daily: 7 – 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes

Issues to be Addressed by Performance Contract Evaluate HVAC System, Controls & Building Automation Evaluate Lighting Evaluate the Building Envelope



Sq. Ft. Sq. Ft.



B 1960 CLASSROOM BUILDING NEW 6,580 7,311

A 1962 MAIN BUILDING ADD 2,281 2,544

D 1962 STORAGE BUILDING NEW 302 351


B 1968 CLASSROOM BUILDING ADD 3,733 4,034

C 1990 MULTIPURPOSE BUILDING NEW 3,973 4,578


A 2000 MAIN BUILDING REN 23,558 28,233

A 2000 MAIN BUILDING REN 493 566


A 2000 MAIN BUILDING ADD 0 1,002

B 2000 CLASSROOM BUILDING ADD 6,051 6,675

B 2000 CLASSROOM BUILDING REN 10,313 11,345



Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 638 Walnut St, Cary NC 27511 Building Name: Cary High School Building Age: 56 - Built in: 1959 – Addition: 2008 - Age: 7 Number of Buildings:

Building Total Square Footage: 322,024 sq. ft. Additions/Renovations: 1975, 1989, 1997, 2007, 2008 Describe Renovations: Operating Schedule: Daily: 7 – 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes Steam Meter for Building: No Chilled Water Meter for Building: No



Sq. Ft.

B 2008 CAFETERIA & CLASSROOM BLDG. 0 33,825 43,154 46,425

C 1989 MEDIA CTR & CLRM BLDG 0 24,396 29,137 31,837

D 1959 SHOP & BOILER BLDG. 0 4,782 8,411 9,222

H 2007 GYMNASIUM 10,976 35,227 48,221 52,023

I 1959 CONCESSION BUILDING 0 615 615 813

K 1997 CLRM & ADMIN BLDG 0 10,745 14,676 16,218

L 1959 FIELD HOUSE 0 3,734 4,224 4,762

O 2007 AUXILIARY 11,286 8,837 13,809 15,529

P 1959 PRESS BOX 0 645 645 778

R 1997 PRESS BOX 0 83 83 96

W 1997 STORAGE BUILDING 0 106 106 120

X 2007 AUDITORIUM BUILDING 0 13,364 27,719 29,462

Y 2008 CLASSROOM BUILDING 0 60,228 101,641 114,739



Issues to be Addressed by Performance Contract Evaluate HVAC System and Controls Evaluate Building Automation Evaluate Lighting Evaluate the Building Envelope Special Needs or Circumstances None


Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 723 St. Mary’s St, Raleigh, NC 27605 Building Name: Broughton High School Building Age: 86 - Built in: 1929 – Addition: 2004 - Age: 11 Number of Buildings:

Building Total Square Footage: 295,414 sq. ft. Additions/Renovations: 1980, 1989, 1999, 2003, 2004 Describe Renovations: Operating Schedule: Daily: 7 – 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes Steam Meter for Building: No Chilled Water Meter for Building: No Issues to be Addressed by Performance Contract Evaluate HVAC System and Controls Evaluate Building Automation Evaluate Lighting Evaluate the Building Envelope Special Needs or Circumstances None



Sq. Ft.

A 2004 MAIN BUILDING 264,016 125,714 189,189 217,347

B 2003 CAFETERIA BUILDING 512 14,955 17,022 18,325

C 2004 GYM BUILDING 45,868 27,009 47,183 51,333

D 1989 AUTO SHOP / CONCESSIONS 0 5,914 7,549 8,409



Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 3925 Barwell Rd, Raleigh NC 27610 Building Name: Barwell Road Elementary School Building Age: 9 - Built in: 2006 Number of Buildings:

Building Type: Elementary School Building Total Square Footage: 140,845 sq. ft. Additions/Renovations: None Describe Renovations: Operating Schedule: Daily: 7 – 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes Steam Meter for Building: No Chilled Water Meter for Building: No Issues to be Addressed by Performance Contract Evaluate HVAC System and Controls Evaluate Building Automation Evaluate Lighting Evaluate the Building Envelope Special Needs or Circumstances None


Sq. Ft. Sq. Ft.


A 2006 MAIN BUILDING NEW 0 0

A 2006 MAIN BUILDING NEW 0 0





Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 9801 Brier Creek Pkwy, Raleigh NC 27617 Building Name: Brier Creek Elementary School Building Age: 9 - Built in: 2006 Number of Buildings:

Building Total Square Footage: 114,477sq. ft. Additions/Renovations: None Operating Schedule: Daily: 7 – 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes




Sq. Ft. Sq. Ft.








Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 720 Powell Drive, Garner, NC 27529 Building Name: North Garner Middle School Total Floors: Building Age: 60 - Built in: 1955 – Addition: 1999 - Age: 16 Number of Buildings:

Building Type: Middle School Building Total Square Footage: 176,048 sq. ft. Additions/Renovations: 1974 Gym, Field House & Concession Addition; 1994 Media Center Expansion/Renovation; 1999 Admin & Classroom Reno; 2000 Mechanical & ADA Reno; 2005 Gym Reno Operating Schedule: Daily: 7 – 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes Issues to be Addressed by Performance Contract Evaluate HVAC System and Controls Evaluate Lighting Evaluate the Building Envelope Special Needs or Circumstances Needs full BAS Upgrade from Barber-Coleman Network 8000.



Sq. Ft.

A 2005 MAIN BUILDING 97,587 78,403 124,045 137,577

B 2005 SHOP BUILDING 3,598 2,344 3,778 4,354

C 1955 BOILER BUILDING 0 0 1,189 1,326

D 2004 CONCESSIONS & STORAGE BLDG. 0 1,346 2,363 2,943

H 1993 1993 MEDIA CENTER 0 8,830 9,406 10,352

J 2005 GYMNASIUM 17,374 15,918 17,677 19,496



Each building to be included in the project shall be identified and described in the following form. Date: ___________ Name of Agency or University: Wake County Public School System Contact Person: Eric Allen Title: Senior Project Manager Phone: 919-588-3553 Fax 919-856-8172 Email: [email protected] Address of Building or Complex: 100 Bryan Chalk Ln, Knightdale NC 27545 Building Name: Knightdale High School Total Floors: Building Age: 11 - Built in: 2004 Number of Buildings:

Building Type: High School Building Total Square Footage: 270,009 sq. ft. Additions/Renovations: None Operating Schedule: Daily: 7 – 5 Weekend: No Electric Meter for Building: Yes Gas Meter for Building: Yes Water Meter for Building: Yes Issues to be Addressed by Performance Contract Evaluate HVAC System and Controls Evaluate Building Automation Evaluate Lighting Evaluate the Building Envelope Special Needs or Circumstances None



Sq. Ft.

A 2004 MAIN BUILDING 0 185,445 243,179 264,031

J 2004 CONCESSIONS II 0 1,260 2,964 3,783

K 2004 PRESS BOX 0 436 476 606

L 2004 CONCESSIONS BUILDING 0 542 1,382 1,589



APPENDIX II





48 IGA-ESA Schedules Rev. 11/20/2015

APPENDIX III

Wake County Public Schools Design Standards and Guidelines Wake County Public Schools Design Standards and Guidelines are available via the following link:

http://www.wcpss.net/Page/251

http://www.wcpss.net/Page/251


APPENDIX IV

INSURANCE

CONTRACTOR’S LIABILITY INSURANCE

The Contractor shall purchase at their own expense and maintain in companies properly licensed by the Department of Insurance of the State of North Carolina and rated “A-:VIII” or better by A. M. Best Company as will protect it, the Owner, the Design Consultant and their agents, representatives, and employees from claims set forth below which may arise out of or result from the Contractor’s operations under the Contract, whether such operations be by itself or by any Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be legally liable:

Worker’s Compensation including Occupational Disease and Employer’s Liability Insurance.

Statutory Coverage as required by State of North Carolina Worker’s Compensation laws.

Employer’s Liability - At least $500,000 each accident, $500,000 Disease – Each Employee, $500,000 Disease – Policy Limit (or sufficient limits to meet the requirements of the Umbrella Insurance).

Commercial General Liability Insurance - The Contractor shall obtain and maintain during the life of this Contract such Commercial General Liability Insurance as shall protect it and any Subcontractor performing work under this Contract from claims for damages for bodily injury including accidental death, as well as from claims for property damage which may arise from operations under this Contract, whether such operations be by itself or by any Subcontractor or by anyone directly or indirectly employed by them. The Contractor shall procure insurance coverage for direct operations, sublet work, elevators, contractual liability and completed operations with limits not less than those stated below:

Bodily Injury & Property Damage Liability $1,000,000 Each Occurrence

Personal Injury & Advertising Liability $1,000,000 Each Occurrence

General Aggregate $2,000,000

Products/Completed Operations Aggregate $2,000,000

Aggregate limits shall be endorsed to apply on a “Per Project” basis as respects this Contract.

Completed Operations Liability: Continuous coverage shall be maintained in force for a period of six (6) years following the date of Final Completion of the Work;

Business Automobile Liability Insurance, including coverage for owned, non-owned and hired vehicles (Symbol 1) - with limits not less than those stated below:

Combined Single Limit for bodily injury and property damage $1,000,000 Each Accident

Excess/Umbrella Liability Insurance: Policy to “pay on behalf of the Insured” Limits of Liability: The following shall apply based on the original contract amount: Contract Amount: < $1,000,000 $1,000,000 Contract Amount: $1,000,001-$5,000,000 $2,000,000 Contract Amount: $5,000,0001 -$10,000,000 $3,000,000


Contract Amount: $10,000,001-$25,000,000 $5,000,000 Contract Amount > $25,000,000 $10,000,000

Umbrella shall schedule as underlying coverage Employer’s Liability, Business Auto Liability, and Commercial General Liability at limits required in Section 11.1.

Liability insurance may be arranged by Commercial General Liability and Business Automobile Liability policies or by combination of primary and excess/umbrella coverage for the full limits required. Contractor’s Pollution Liability: Contractor shall obtain and maintain in effect during the term of this Agreement a policy of pollution liability including mold as applicable to the specific project in the minimum amount of $1,000,000 each claim, $2,000,000 policy aggregate. This coverage may be placed via combined Contractor’s Professional and Pollution Liability policy, separate Contractor’s Pollution Liability policy or by use of the Limited Jobsite Pollution Liability endorsement to the Commercial General Liability policy. Continuous coverage shall be maintained in force for a period of six (6) years following the date of Final Completion of the Work. Contractor is responsible for any applicable deductible. Pollution liability insurance is not required for modular/mobile projects.

If the Project includes any environmental abatement or remediation work (e.g. asbestos, mold, lead paint, or UST), the Contractor shall obtain and maintain in effect during the term of this Agreement policies for pollution liability covering this specific type of work, which policies shall protect the Owner and Contractor from claims in an amount not less than $5,000,000 for each claim. Coverage may be procured directly by the Contractor or though policy placed on behalf of the environmental abatement subcontractor.

All insurance policies required in this Article, except Worker’s Compensation, shall contain an endorsement naming the Owner, Wake County and Wake County Board of Education as additional insureds. The additional insured endorsement for Commercial General Liability shall specify coverage on a primary and non-contributory basis and include completed operations. All insurance policies shall be endorsed to provide for waiver of subrogation in favor of Owner. All insurance policies shall contain an endorsement providing that coverage afforded under the policies will not be canceled until at least thirty (30) days’ prior written notice has been given to the Owner. Endorsements above may be provided on a project specific or blanket basis as required by written contract.

Certificates of Insurance acceptable to the Owner shall be filed with the Owner by the date established in the Supplementary Conditions for “Return of Owner Contractor Agreement by Contractor” and thereafter on renewal or replacement of each required policy of insurance. The Certificate of Insurance shall certify the existence of all required policies which satisfy the requirements listed in Sections 11.1 and 11.2 above. The following language shall by typed into the Section of the Certificate of Insurance labeled DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES/ SPECIAL ITEMS: “Polices certified on this certificate have been amended by specific or blanket endorsement to provide 30 days prior written notice of cancellation to Owner.” Updated certificates of insurance shall be maintained on file with Owner by Contractor throughout the term of the Work and for a period of six (6) years from the date of Final Completion of the Work.

Notwithstanding any provision above, Contractor shall provide at least five (5) business days direct prior notice to Owner of the cancellation, non-renewal (without replacement), or the material reduction of coverage or limits of any policy of insurance required by Section 11.4 above and for a term of one (1) year following the date of Final Completion of the Work.


The Contractor shall not allow any subcontractor to commence work on its subcontract until all similar insurance required of the subcontractor has been so obtained and a Certificate of Insurance has been filed with the Contractor. Contractor shall determine and approve the Excess/Umbrella Liability insurance requirements and the term for certification of Completed Operations liability (following the date of Final Completion) for all Subcontractors. Approval of the insurance by the Owner shall not relieve or decrease the liability of the Contractor hereunder. Failure of the Contractor to provide all required Certificates could delay the issuance of Notice to Proceed. Such delay shall not entitle the Contractor to an extension of any milestone or completion dates required by the Contract.

PROPERTY INSURANCE

The Contractor shall purchase and at all times maintain such insurance as will protect the Contractor, the Owner, the Owner’s representatives, agents and employees, the Design Consultant and Subcontractors from loss or damage to Work or property in the course of construction, including all machinery, materials and supplies on the premises, in storage or in transit and intended to become a part of the finished work until final payment has been made or until no person or entity other than the Owner has an insurable interest in the property to be covered by this insurance, whichever is sooner. This insurance shall be in the form of "Builders Risk" or “Installation Floater" as appropriate for the Work, insuring “risks of direct physical loss except those as specifically excluded by the policy”, or equivalent. The policy shall not exclude the perils of fire, lightning, explosion, windstorm, hail, smoke, aircraft, vehicles, vandalism, theft, malicious mischief, riot, debris removal, flood, water damage, earthquake, earth movement, testing, architect’s and engineering fees, mechanical or electrical breakdown, collapse however caused, and damage resulting from defective design, workmanship or material. Limits shall be written for the value of the contract and insure the full cost of replacement at the time of loss. Sublimits for Flood or Earthquake are subject to approval by Owner. The Contractor shall cause such policy or policies of insurance required under this Subparagraph to be endorsed so as to provide that the insurer or insurers waive any right of subrogation against the Owner Notwithstanding any deductible provision, the Contractor shall remain solely liable for the full replacement cost of any item covered by such insurance, including any applicable deductible or co-insurance penalty. Prior to commencement of the Work, Contractor shall provide to Owner a copy of the property policy obtained in compliance with Section 11.2.1.

All insurance companies providing the above insurance shall be properly licensed by the Department of Insurance of the State of North Carolina and rated “A-:VIII” or better by A.M. Best Company.

Any loss insured under Subparagraph 11.2.1 is to be adjusted with the Owner and made payable to the Owner as trustee for the insured, as their interests may appear, subject to the requirements of any applicable mortgagee clause and of Subparagraph 11.2.5. The Contractor shall pay each Subcontractor a just share of any insurance moneys received by the Contractor, and by appropriate agreement, written where legally required for validity, shall require each Subcontractor to make payments in similar manner.


The Owner and Contractor waive all rights against each other for damages caused by fire or other perils to the extent covered by insurance obtained pursuant to this Paragraph 11.2, or any other property insurance applicable to the Work, except such rights as they may have to the proceeds of such insurance held by the Owner as trustee. The Contractor shall require, by appropriate agreement, written where legally required for validity, similar waivers in favor of the Owner and the Contractor by Subcontractors. With respect to the waiver of rights of recovery, the term Owner shall be deemed to include, to the extent covered by property insurance applicable thereto, its consultants, employees, and agents and representatives. The Contractor waives as against any separate contractor described in Article 6 all rights for damages caused by fire or other perils in the same manner as is provided above as against the Owner. The Owner shall require, by appropriate agreement, written where legally required for validity, similar waivers in favor of the Contractor by any separate contractor and its subcontractors.

If required in writing by any party in interest, the Owner as trustee shall, upon the occurrence of an insured loss, give bond for the proper performance of its duties. it shall deposit in a separate account any money so received, and it shall distribute it in accordance with such agreement as the parties in interest may reach, or in accordance with a court order or award. If after such loss no other special agreement is made, replacement of damaged work shall be covered by an appropriate Change Order.

The Owner as trustee shall have power to adjust and settle any loss with the insurers unless one of the parties in interest shall object in writing within five (5) days after the occurrence of loss to the Owner’s exercise of this power, and if such objection is made, the matter shall be decided by a court of competent jurisdiction or as the parties in interest otherwise agree. The Owner as trustee shall, in that case, make settlement with the insurers in accordance with the orders of the court or as otherwise agreed by the parties in interest.

If the Owner finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion thereof, such occupancy or use shall not commence prior to a time mutually agreed to by the Owner and Contractor and to which the insurance company or companies providing the property insurance have consented by endorsement to the policy or policies. This insurance shall not be canceled or lapsed on account of such partial occupancy or use. Consent of the Contractor and of the insurance company or companies to such occupancy or use shall not be unreasonably withheld.

EFFECT OF SUBMISSION OF CERTIFICATES

The Owner shall be under no obligation to review any Certificates of Insurance provided by the Contractor or to check or verify the Contractor’s compliance with any and all requirements regarding insurance imposed by the Contract Documents. The Contractor is fully liable for the amounts and types of insurance required herein and is not excused should any policy or certificate of insurance provided by the Contractor not comply with any and all requirements regarding insurance imposed by the Contract Documents.

FAILURE OF COMPLIANCE


Should the Contractor fail to provide and maintain in force any and all insurance, or insurance coverage required by the Contract Documents or by law, or should a dispute arise between Owner and any insurance company of Contractor over policy coverage or limits of liability as required herein, the Owner shall be entitled to recover from the Contractor all amounts payable, as a matter of law, to Owner or any other parties, including but not limited to the Design Consultant, had the required insurance or insurance coverage been in force. Said recovery shall include, but is not limited to interest for the loss of use of such amounts of money, plus all attorney’s fees, costs and expenses incurred in securing such determination and any other consequential damages arising out of the failure of the Contractor or insurance company to comply with the provisions of the Contract Documents, or any policy required hereby, or any other requirements regarding insurance imposed by law. Nothing herein shall limit any damages for which Contractor is responsible as a matter of law.

OWNER’S INSURANCE

Property Insurance: The Owner, at its option, may purchase and maintain such insurance as will insure it against loss of use of its property due to fire or other hazards, however caused. The Owner waives all rights of action against the Contractor for loss of use of its property, including consequential losses due to fire or other hazards however caused, to the extent covered by insurance under this Paragraph.

Commercial General Liability Insurance: The Owner, at its option, may purchase and maintain insurance which will insure and protect it against claims involving bodily injury and property damage to the public. The Owner does not request its insurer to waive any right of Subrogation against the Contractor from claims under this coverage.


APPENDIX V


GUARANTEED ENERGY PERFORMANCE CONTRACTING PROGRAM

INVESTMENT GRADE ENERGY AUDIT AGREEMENT

This Energy Audit Agreement is entered into on__________, 20___, by and between the Insert

name of Governmental Unit (herein after called the “Issuer”)

______________________________ and _________________ (the Energy Service Company

herein after called the "ESCO"). Issuer and the ESCO are referred to herein as the "Parties".

WHEREAS, the Issuer has issued a Request For Proposals (“RFP”) to select a Qualified ESCO for a guaranteed energy savings contract; and

WHEREAS, the ESCO submitted a response to the RFP and participated in a competitive evaluation procedure designed to select a Qualified ESCO; and

WHEREAS, the Issuer has accepted the ESCO’s proposal, selected the ESCO to complete the project; and

WHEREAS, the Issuer is responsible for the operation, payment of the utilities, management and maintenance of the buildings and/or facilities as identified in the RFP, Appendix I (collectively referred to herein as “Buildings”); and

WHEREAS, a comprehensive energy use and savings analysis (the "Investment Grade Energy Audit") is required to be performed for the Buildings in order to verify the feasibility of entering into a Guaranteed Energy Savings Performance Contract to provide for the installation and implementation of energy conservation measures (ECMs) at the Buildings; and

WHEREAS, if the ECMs are verified to be feasible, and if the amount of energy savings can be reasonably ascertained and guaranteed in an amount sufficient to cover all costs associated with an energy performance contracting project at the Buildings, the Parties have contracted to negotiate a final Energy Services Agreement (ESA) under which the ESCO shall design, procure, implement, provide training, commission, offer maintenance services, monitor such energy conservation measures at the Buildings;

NOW THEREFORE, the Parties agree as follows:

ARTICLE 1

SCOPE OF INVESTMENT GRADE ENERGY AUDIT

Pursuant to G.S. §143-64.17B The ESCO will perform the Investment Grade Energy Audit and prepare a detailed engineering and economic report (herein after called the "Report") which specifically identifies the energy improvements and operational changes which are recommended to be installed or implemented at the Buildings. The Report shall contain detailed projections of energy and cost savings to be obtained at the Buildings as a result of the installation of the recommended energy conservation measures (ECMs). The savings calculations must utilize assumptions, projections and baselines which best represent the true


value of future energy or operational savings for the Buildings, including accurate marginal cost for each unit of savings at the time the audit is performed; documented material and labor costs that may be actually avoided; adjustments to the baseline to reflect current conditions at the Buildings, compared to the historic base period; calculations which account for the interactive effects of the recommended ECMs; etc. The Report shall clearly describe how utility tariffs were used to calculate savings for all ECMs. The Report shall describe in detail the ESCO’s plan for installing or implementing the measures in the Buildings, including all anticipated costs associated with such installation and implementation.

The ESCO’s required tasks in performing the Energy Audit and preparing the Report are the following:

A. Scope of Work

Include RFP response ECMs in this section. ECMs detailed in the RFP shall provide the scope of work for the IGA. Include below any additional potential ECMs either the ESCO or ISSUER wish to include for investigation during the IGA.

Additional ECMs to be investigated:

B. Collect General Information For Each Building

(This information is to be included in Schedule A of the Report).

The ESCO shall collect detailed building information such as: size, age, construction type, condition and general use of each building except as provided below. The ESCO shall also collect and summarize building utility cost and consumption data for the most recent 36-month period. If after reasonable inquiry, the ESCO can demonstrate that less than 36 months of data is available, the ESCO with the written approval of the Issuer may collect such data as is available, but in any event not less than 24 months of data. The ESCO shall evaluate the impact on utility cost and consumption for any energy measures currently being installed or currently contemplated to be installed by the Issuer in the building which will remain separate from the Energy Services Agreement throughout the duration of the ESA.

The Issuer shall furnish, or cause its energy suppliers to furnish, all available records and data concerning energy and water usage for the building for the most current 36 month period, if available, including but not necessarily limited to, utility records, occupancy information, descriptions of any changes in the structure of the building or its heating, cooling, lighting or other systems or energy requirements, descriptions of all major energy and water consuming or energy and water saving equipment used in the Facility, and description of energy management procedures presently utilized. The Issuer shall also furnish a record of any energy related improvements or modifications that have been installed during the past 3 years, or are currently being installed or are currently contemplated to be installed by Issuer in the Building separate from the ESA throughout the duration of that agreement. Issuer shall also provide copies of drawings, equipment logs and maintenance work orders to the ESCO insofar as this information is readily available. The Issuer shall make available any FCAP, IES, or other survey reports available for that building.

C. Inventory Existing Systems and Equipment.

(This information is to be included in Schedule A of the Report)

The ESCO shall compile an inventory based on a physical inspection of the major electrical and


mechanical systems at the building, that will be impacted by the ECMs to be included in the project

including:

i. Cooling systems and related equipment

ii. Heating and heat distribution systems

iii. Automatic temperature control systems and equipment

iv. Air distribution systems and equipment

v. Outdoor ventilation systems and equipment vi. Kitchen and associated dining room equipment, if applicable vii. Exhaust systems and equipment viii. Hot water systems ix. Electric motors 5 HP and above, transmission and drive systems x. Interior and exterior lighting xi. Laundry equipment, if applicable xii. Water consumption end uses, such as restroom fixtures, water fountains, irrigation, etc. xiii. Other applicable energy using systems identified in the RFP or during the performance of this audit.

The inventory shall address the following considerations:

1. The loads, proper sizing, efficiencies or hours of operation for each system (Where measurement costs, facility operating or climatic conditions necessitate, engineering estimates may be used, but for large fluctuating loads with high potential savings, appropriate measurements are required unless waived by the Issuer).

2. Current operating condition for each system.

3. Remaining useful life of each system, identifying or describing the method used to determine

that remaining useful life.

4. Feasible replacement systems.

5. Hazardous materials and other environmental concerns.

The ESCO shall use data loggers and/or other measurement and recording devices and conduct interviews with building operation and maintenance staff regarding the building’s system operation, occupancy patterns and problems with comfort levels or equipment reliability.

D. Establish Base Year Consumption and Reconcile with End Use Consumption

Estimates. (This information is to be included in Schedule C of the Report)

The ESCO shall examine the most recent 36 months of utility bills except as previously noted in Article 1 – Section A and establish Base Year consumption for electricity, fossil fuels and water by averaging; or selecting the most representative contiguous 12 months.


The ESCO shall consult with building staff and account for any unusual or anomalous utility bills which may skew Base Year consumption from a reasonable representation.

The ESCO shall estimate loading, usage and/or hours of operation for all major end uses representing more than 5% in aggregate of total Facility consumption including, but not limited to:

i. Water

ii. Lighting

iii. Heating

iv. Cooling

v. HVAC motors (fans and pumps)

vi. Plug load

vii. Kitchen equipment

viii. Other equipment

ix. Miscellaneous

Where loading or usage is highly uncertain the ESCO shall employ spot measurement and/or short term monitoring at its discretion, or at the request of Issuer. Reasonable applications of measurement typically include variable loads that are likely candidates for conservation measures, such as cooling equipment. The annual end use estimated consumption shall be reconciled with the annual Base Year consumption to within 5% for electricity (kWh), fossil fuels and water. The contribution to electric peak demand for each end use shall also be reconciled to within 5% of the annual Base Year peak. The “miscellaneous” category shall not be more than 10% and each component shall be separately set forth. The purpose of this is to place reasonable limits on potential savings.

E. Develop List of Potential Energy Conservation Measures (ECMs).

(The information generated from this list should be included in Vol. 2)

The ESCO shall:

1. Identify and propose potential ECMs for installation or implementation at the building

including cut sheets on proposed equipment. For non-standard ECMs provide information

regarding product site installations.

2. Provide an estimate of the cost, savings and life expectancy of each proposed ECM. Prepare

a Life Cycle Cost Analysis in accordance with State Construction Office guidelines as directed

by the Issuer.

3. Specify operations and maintenance procedures of the building which will be affected by the

installation/implementation of the proposed ECMs.

4. Provide analysis methodology, supporting calculations and assumptions used to derive

baselines (e.g. lighting operating hours) and estimate savings. Provide the existing and

proposed air and hot water temperatures, volume of outdoor air ventilation (CFMs) lighting

and acoustic levels. Provide copies of the utility tariffs and commodity price histories used

in savings calculations. Manual calculations should disclose essential data, assumptions,

formulas, etc. so that a reviewer may replicate the calculations based on the data provided.


5. For savings estimates using computer simulations, the ESCO shall provide access to the

program and all inputs and assumptions used, if requested by the Issuer.

6. Provide a preliminary savings Measurement and Verification plan for each proposed ECM.

7. Provide a detailed preliminary commissioning plan for the proposed ECMs.

8. Provide detailed calculations for any rate saving proposals.

9. Provide detailed supporting calculations for any proposed maintenance, material or other

operational savings. Describe annual variances in savings from year to year (e.g. lighting,

warranties).

10. Estimate any environmental costs or benefits of the proposed ECMs (e.g. disposal costs,

avoided emissions, water conservation, etc.). Provide emissions reductions data for NOX,

CO2 and SO2. Segment emissions data for direct site emissions reductions (e.g. fossil fuels)

and indirect emissions reduction data (e.g. electricity/water).

11. For all proposed ECMs, the ESCO shall comply with all applicable State, Federal and local

codes and regulations in effect at the time of this analysis.

This list shall be compiled and submitted to the Issuer within ninety (90) days of the execution of this Agreement.

F. Select Final Recommended ECMs.

The ESCO shall, in consultation with the Issuer, recommend specific ECMs from its preliminary compilation for installation and implementation at the Building and or Facility.

G. Cost and Fee Estimates.

(This information is to be included in Schedule E of the Report)

The ESCO shall provide detailed estimates of costs associated with the installation, implementation and commissioning of each of the ECMs proposed in the Audit including breakouts for labor, materials, and equipment. Open book pricing is required. ESCO will fully disclose all costs, including all costs of subcontractors and sub-tier vendors. The ESCO will maintain cost accounting records on authorized work performed showing actual costs for labor and materials, or other basis requiring accounting records. The ESCO will provide access to records and preserve them for a minimum of six years. The retention period runs from the date of payment for the relevant goods or services by the Issuer or from the date of termination of the Contract, whichever is later. Retention time shall be extended when an audit is scheduled or in progress for a period reasonably necessary to complete an audit and/or to complete any administrative and judicial litigation which may ensue. In addition, project cost data must be provided in the format included in Schedule O of the Report ESCO Cost Proposal and Cash Flow Analysis.


The ESCO shall also provide estimates of monthly costs associated with sustaining the project performance including breakouts for maintenance fees, monitoring fees, and training fees.

H. Savings Estimates.

I. (This information is to be included in Schedule E of the Report)

The Issuer has endeavored to provide the ESCO with sufficient general and specific guidance in this Article 1 to develop the savings estimates for the Report. In the event that questions arise as to the calculation of savings or whether certain items will be allowed as savings, the ESCO should seek written guidance from the Issuer. The Issuer reserves the right to reject items claimed as savings which are not in the Issuer’s utility budget line or which have been claimed contrary to the guidance given in this Agreement or contrary to written guidance given to the ESCO. The Issuer also reserves the right to reject the ESCO’s calculations of savings when it determines that there is another more suitable or preferable means of determining or calculating such savings.

For the purposes of completing the Cash Flow Analysis in Schedule M of the Report, the following items will be allowed as savings or in the development of savings:

Escalation rates of ___0___% for natural gas1

Escalation rates of ___0___% for electricity

Escalation rates of ___0___% for oil

Escalation rates of ___0___% for steam

Escalation rates of ___0___% for water

Escalation rates of ___0___% for other fuel type (specify)

Escalation rates of ______% for operation and maintenance cost

savings

Escalation rates of ______% for material/commodity cost savings

Escalation rates of ______% for allowable labor savings

It should be noted that the base value for each fuel and water unit will not devalue in the event of any rate decrease. The issuer reserves the right to impose ceiling rates for fuel escalations. The following items will not typically be credited as savings derived from a proposed ECM: Issuer’s in-house labor cost, Issuer’s deferred maintenance cost and offset of future Issuer’s capital costs. The ESCO may seek, in writing, permission to include such items from the Issuer on a case-by-case basis. However, the final determination of allowable savings in each case considered shall reside with Issuer.

J. Report Format.

The ESCO shall prepare a two volume report as follows:

Each volume should be submitted using 8 ½ " x 11" sheets of paper double sided printing and a font size no smaller than 10 point. The pages in each volume should be numbered sequentially, include a Table of Contents and tabbed with the visible titles of corresponding Schedules and Sections.


Volume 1 shall include the presentation of information in the following Schedules required for the ESA to the extent the information has been developed during the course of performing this audit. Schedules may be finalized during negotiations, prior to execution of the ESA.

1. Executive Summary: Provide an executive summary which describes the buildings,

measures evaluated, analysis methodology, results and a summary table presenting the

cost and savings estimates for each recommended measure. Include a summary of the

recommended measures and costs using the table format in Schedule E.

2. Schedules:

Schedule A Existing known conditions, systems and hazardous materials inventory

Schedule B Current and Known Future Capital Projects at the Premises

Schedule C Baseline Energy Consumption

Schedule D Standards of Comfort

Schedule E ECMs and Equipment to be installed by the ESCO

Schedule F Savings Measurement & Verification Calculation Formulae

Schedule G Baseline Adjustment Methods for Weather, Changes in Building Use or

Operating Hours

Schedule H Systems Start-Up and Commissioning; Operating Parameters of Installed

Equipment

Schedule I Construction and Installation Schedule

Schedule J ESCO and ISSUER Training Responsibilities

Schedule K Warranties (including Equipment)

Schedule L Maintenance Checklist and ISSUER & ESCO responsibilities

Schedule M Proposed Final Project Cost & Final Project Cash Flow Analysis

Schedule N Energy Savings Guarantee including form of Security

Schedule O Compensation to the ESCO

Schedule P Insurance and Bonds

Schedule Q Financing Agreement

Schedule R

Exhibits

Loan Amortization

Exhibit 1 Certificate of Acceptance—Technical Audit

Exhibit 2 Certificate of Acceptance—Installed

Equipment

Exhibit 3 Certificate of Beneficial Use and Acceptance

/ Certificate of Occupancy (issued by AHJ)

Exhibit 4 Final Project Acceptance (issued by Issuer

after Certificate of Beneficial Use and

Acceptance / Certificate of Occupancy has

been issued by AHJ)

Volume 2 shall include all of the information required in Article 1 Section E and the Sections below, and presented in the following format:


1. Measures Not Evaluated: Include a discussion of measures not evaluated in detail and

the explanation of why a detailed analysis was not performed.

2. Appendices: Provide thorough appendices which document the data relied upon to

prepare the analysis and how that data was collected.

K. Submission of the Report.

The Report shall be completed within 90 (Ninety) days of the date of selection of ECMs as referenced in Article 1 Section E. The not-to-exceed cost for the completed Energy Audit and Report will be_______________. One electronic (single CD or thumb drive) with all information in Microsoft Office Suite products format shall be delivered to the NC Energy Office.

If the results of this Audit, as described in the Report, are not: (a) within ten percent (10%) of the $___________ guaranteed savings shown in the ESCO’s proposal for the Buildings, and (b) within ten percent (10%) of the $___________ total project cost shown in the ESCO’s proposal for the Buildings, then either the Issuer or the ESCO may elect to terminate with the project. If this event occurs, the Issuer will not be obligated to pay the Energy Audit and Report Fee. However, if the Issuer terminates the project after this Audit and Report are completed and the results are within both of the ten percent (10%) ranges listed above, then the Issuer will be required to pay the ESCO this Audit and Report Fee, and the results of this Audit and Report shall become the property of the Issuer.

L. Report Review.

In the event Issuer requests an increase in the scope of the Report, ESCO and Issuer will negotiate in good faith an increase in the not-to-exceed cost of the Report.

In the event that financing or bonding costs of the project increase after the ESCO submits the Report, ESCO and Issuer will negotiate in good faith adjustments necessary in scope, costs and guaranteed savings required to provide positive cash flow for the project.

M. The report in its entirety shall be submitted to the State Construction Office for

review.

ARTICLE 2

ENERGY SERVICES AGREEMENT (ESA)

Upon the verification of the final Energy Savings under this agreement, the ESCO is obligated to execute an ESA under which the ESCO shall design, install and implement energy conservation measures that the Parties have agreed to and provide certain training, maintenance and monitoring services as agreed to by both Parties. However, nothing in this Agreement should be construed as an obligation on any of the Parties to execute such an ESA. The precise terms and provisions of such an ESA shall be set forth in a separate agreement.


ARTICLE 3

PAYMENT

Payment to the ESCO for services performed in connection with this Agreement shall be made by the Issuer only in accordance with the provisions of Article 1, Section I and Article 4 contained herein.

ARTICLE 4

TERMINATION

A. By the ESCO:

The ESCO may terminate this Agreement prior to the completion of the Energy Audit and Report or subsequent to the scheduled completion of the Energy Audit and Report if:

(i) The ESCO determines that it cannot guarantee a minimum savings in energy costs

through the implementation of an energy performance contracting project at the

Buildings and or

Facilities; or

(ii) The ESCO determines that even though it can guarantee a savings in energy costs, that

the amount would be insufficient to cover the costs associated with performing this Audit,

installing energy conservation measures and related training, maintenance and

monitoring services.

In the event the ESCO terminates the Agreement pursuant to Article 4 A (i) or (ii) the Issuer shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and Report required under this Agreement. The ESCO shall provide the Issuer with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information that was provided by the Issuer.

Termination under this article shall be effective upon the Issuer’s receipt of written notification from the ESCO stating the reason for the termination and all documents which support termination as prescribed herein.

B. By the Issuer:

The Issuer may terminate this Agreement:

(i) If the ESCO fails to complete the Energy Audit and deliver the Report to the Issuer by

the date established in Article 1 I. above; or fails to obtain a written extension of that date

from the Issuer. Termination under this subsection shall be effective upon the ESCO’s


receipt of written notification from the Issuer that the deadline for submission of the

Energy Audit and Report has past. In this event, the Issuer shall not be obligated to pay

any amount to the ESCO for services performed or expenses incurred by the ESCO in

performing the Energy Audit and preparing the Report required under this Agreement.

The ESCO will return any documents or information that was provided by the Issuer.

(ii) If, prior or subsequent to the completion of the Energy Audit or Report, the ESCO notifies

the Issuer in writing that it is unable to guarantee a sufficient level of savings pursuant

to Article 4 above, termination under this subsection shall be effective upon ESCO's

receipt of written notification of termination from the Issuer. In this event, the Issuer

shall not be obligated to pay any amount to the ESCO for services performed or

expenses incurred by the ESCO in performing the Energy Audit and preparation of the

Report required under this Agreement. The ESCO will return any documents or

information that was provided by the Issuer.

(iii) If, prior or subsequent to the completion of the Energy Audit or Report, the Issuer notifies

the ESCO in writing that it has elected to terminate this Agreement and not enter into an

ESA, the Issuer shall reimburse the ESCO for either the actual expenses incurred or the

percent of the Audit and Report completed whichever is greater but shall not exceed the

amount stated in Section I, as of the effective date of the termination, the amount being

determined as fair and equitable by the Issuer. Termination under this subsection shall

be effective upon the ESCO receipt of written notification from the Issuer.

The ESCO agrees to provide the Issuer with any records of expenses incurred and any preliminary notes, reports or analyses which have been produced or prepared prior to the effective date of the termination. Such documentation shall be used by the Issuer to determine the extent of work completed by the ESCO prior to termination and shall become the property of the Issuer.

If after completion and acceptance of the Report, the Issuer does not enter into an ESA with the ESCO within 60 (sixty) days, the Issuer shall reimburse the ESCO for the cost of the Energy Audit as detailed herein. Termination under this subsection shall be effective upon the ESCO receipt of written notification from the Issuer. The Energy Audit and Report will become the property of the Issuer.

If the Parties successfully negotiate and execute an ESA, no payment shall be due for the Energy Audit or Report under the terms of this Agreement. This Agreement shall automatically terminate upon the execution of an ESA by the ESCO and the Issuer for a guaranteed energy performance contracting project at the Building and or Facilities. It is further understood that provisions for payment for the Energy Audit shall be incorporated into the ESA.

ARTICLE 5

STANDARD TERMS AND CONDITIONS

Section 1. Agreement Term


The Agreement term shall commence on ______________ and end on ______________, unless earlier terminated pursuant to the provisions of Article 4 above. Notwithstanding, the

ESCO shall adhere to the deadlines set forth in Article 1 regarding the completion and submittal of the list of ECMs and the Report.

Section 2. Materials, Equipment, and Supplies The ESCO shall provide or cause to be provided all facilities, materials, equipment, and supplies necessary to perform the Energy Audit and prepare the Report.

Section 3. Patent, Copyright, and Trademark Responsibility The ESCO agrees that any material or design specified by the ESCO or supplied by the ESCO pursuant to this Agreement shall not knowingly infringe any patent copyright or trademark, and the ESCO shall be solely responsible for securing any necessary licenses required for patented, copyrighted, or trademarked material utilized by the ESCO in the performance of the Energy Audit and preparation of the Report.

Section 4. Customer Access to Records The Issuer shall have the right, throughout the term of this Agreement and for a minimum of ____ years following completion of the Agreement, to inspect, audit and obtain copies of all books, records, and supporting documents which the ESCO is required to maintain according to the terms of this Agreement.

Section 5. Personnel All personnel necessary for the effective performance of the Energy Audit shall be employed by the ESCO, and its designated subcontractors shall be qualified to perform the services required under this Agreement, and shall in all respects be subject to the rules and regulations of the ESCO governing staff members and employees. Neither the ESCO nor its, agents, subcontractors, or assigns shall be considered agents or employees of the Issuer.

Section 6. Compliance with Applicable Law In performance of its obligations pursuant to this Agreement, the ESCO shall comply with all applicable provisions of Federal, State, and local law. All limits or standards set forth in this Agreement to be observed in the performance required under this Agreement are minimum requirements, and shall not affect the application of more restrictive Federal, State, or local standards applied to the performance of the Agreement.

Section 7. Waivers No right of either party hereto shall be deemed to have been waived by non-exercise thereof, or otherwise, unless such waiver is reduced to writing and executed by the party entitled to exercise such right.

Section 8. Assignment This Agreement may not be assigned by the ESCO without the prior written consent of the Issuer.

Section 9. Federal Taxpayer Identification Number and Legal Status Disclosure


Under penalty of perjury, the ESCO certifies that __-_______ is the ESCO's correct Federal Taxpayer Identification Number and that the ESCO is validly registered with the NC Secretary of State Section 10. Governing Law This Agreement shall be governed by and construed only in accordance with the laws of the State of North Carolina. In the event the parties are unable to resolve any dispute relating to this Agreement, all suits, actions, claims and causes of action relating to this Agreement shall be brought in the courts of the State of North Carolina.

Section 11. Agreement The following documents are incorporated in, and made a part of, this Agreement:

Issuer RFP ESCO RFP response

NOTE: The Issuer shall include all required policy provisions, and shall also include the following attachments.

Attachment I - Drug Free Workplace Provisions Attachment II - Equal Employment Opportunity Clause

Section 12. Project Management All necessary and ordinary communications, submittals, approvals, requests, and notices related to Project work shall be issued or received by:

For Issuer: _________________ For ESCO: _________________

Section 13. Amendments This Agreement and Attachments referenced in Section 11 herein constitute the entire Agreement between the Parties. No amendment hereof shall be effective until and unless reduced to writing and executed by the Parties.

Section 14. E-Verify. As required by G.S. §143-48.5 (Session Law 2013-418), ESCO certifies that it, and each of its subcontractors performing Work under this Agreement complies with the requirements of Article 2 of Chapter 64 of the NC General Statutes, including the requirement for each employer with more than 25 employees in North Carolina to verify the work authorization of its employees through the federal E-Verify system.

Section 15. Suspension and Debarment. The ESCO certifies that with regard to:

A. DEBARMENT AND SUSPENSION - To the best of its knowledge and belief that it and its principals:

(1) are not presently debarred, suspended, proposed for debarment, declared

ineligible, or voluntarily excluded from covered transactions by any Federal,

State, or local government agency;


(2) have not within a 3-year period preceding this proposal been convicted of

or had a civil judgment rendered against them for commission of fraud or a

criminal offense in connection with obtaining, attempting to obtain, or

performing a public (Federal, State, or local) transaction or contract under a

public transaction; violation of Federal or State antitrust statutes or

commission of embezzlement, theft, forgery, bribery, falsification or

destruction of records, making false statements, or receiving stolen

property;

(3) are not presently indicted for or otherwise criminally or civilly charged by a

governmental entity (Federal, State, or local) with commission of any of the

offenses enumerated in paragraph (A)(2) of this certification; and have not

within a 3-year period preceding this application/proposal had one or more

public transactions (Federal, State, or local) terminated for cause or default.

13.3 Drug Free Workplace. ESCO certifies that it will comply by:

(1) Publishing a statement notifying employees that the unlawful

manufacture, distribution, dispensing, possession or use of a controlled

substance is prohibited in the grantee's workplace and specifying the

actions that will be taken against employees for violation of such

prohibition;

(2) Establishing a drug-free awareness program to inform employees about

- (a) The dangers of drug abuse in the workplace;

(b) The grantee's policy of maintaining a drug-free workplace;

(c) Any available drug counseling, rehabilitation, and employee assistance

programs; and

(d) The penalties that may be imposed upon employees for drug abuse

violations occurring in the workplace;

(3) Making it a requirement that each employee to be engaged in the

performance of the grant be given a copy of the statement required by

paragraph (1) above;

(4) Notifying the employee in the statement required by paragraph (1), above,

that, as a condition of employment under the grant, the employee will -

(a) Abide by the terms of the statement; and

(b) Notify the employer of any criminal drug statue conviction for a violation

occurring in the workplace no later than five days after such conviction;

(5) Notifying the agency within ten days after receiving notice under

subparagraph (4)(b), above, from an employee or otherwise receiving actual

notice of such conviction;

(6) Taking one of the following actions, within 30 days of receiving notice under

subparagraph (4)(b), above with respect to any employee who is so

convicted -


(a) Taking appropriate personnel action against such an employee, up to

and including termination; or

(b) Requiring such employee to participate satisfactorily in a drug abuse

assistance or rehabilitation program approved for such purposes by a

Federal, State, or local health, law enforcement, or other appropriate

agency;

(7) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (1), (2), (3), (4), (5), and (6), above.

[Signature page follows]


ARTICLE 6

EXECUTION

IN WITNESS WHEREOF, the parties have executed this Agreement this ______day of _________________, 20____.

Issuer _____________________________

ESCO __________________________

By: ________________________________

By: _______________________________

Title: _________________________________

Title: ______________________________

By: ________________________________

By: _______________________________

Title: _________________________________

Title: ______________________________

By: ________________________________ By: _____________________________


ESA / IGA Schedules Project Documents include the following Schedules which are incorporated herein and made a part of the IGA and ESA when approved by the ISSUER and ESCO:

Schedule A Existing known conditions, systems and hazardous materials inventory Schedule B Current and Known Future Capital Projects at the Premises Schedule C Baseline Energy Consumption Schedule D Standards of Comfort Schedule E ECMs and Equipment to be installed by the ESCO Schedule F Savings Measurement & Verification Calculation Formulae Schedule G Baseline Adjustment Methods for Weather, Changes in Building Use or

Operating Hours Schedule H Systems Start-Up and Commissioning; Operating Parameters of Installed

Equipment Schedule I Construction and Installation Schedule Schedule J ESCO and ISSUER Training Responsibilities Schedule K Warranties (including Equipment) Schedule L Maintenance Checklist and ISSUER & ESCO responsibilities Schedule M Proposed Final Project Cost & Final Project Cash Flow Analysis Schedule N Energy Savings Guarantee including form of Security Schedule O Compensation to the ESCO

Schedule P Insurance and Bonds Schedule Q Financing Agreement Schedule R Loan Amortization All text in Red Italics is sample verbiage or instructions and may to be removed from the final document.

Exhibits: Exhibit 1 Certificate of Acceptance – Investment Grade Audit Report Exhibit 2 Individual ECM Acceptance

Exhibit 3 Certificate of Beneficial Use and Acceptance / Certificate of Occupancy (issued by Authority Having Jurisdiction)

Exhibit 4 Final Project Acceptance (issued by Issuer after Certificate of Beneficial Use and Acceptance / Certificate of Occupancy is issued by AHJ)


SCHEDULE A

EXISTING KNOWN CONDITIONS, SYSTEMS AND HAZARDOUS MATERIALS INVENTORY

Include items required in IGA Article 1 Sections A, B and C. ESCO describe your firm’s plans for the disposal and recycling of any equipment or materials removed from the premises as part of an ECM. Be sure to include proper tracking of hazardous materials such as refrigerant, lamps and ballasts. ISSUER provides all hazardous material reports and inventories for ESCO use. Should ESCO discover any materials they believe may be of a hazardous nature the ESCO shal immediately request that ISSUER test the material so that any impact on the scope of work may be determined.


SCHEDULE B

Current and Known Future Capital Projects at the Premises

ISSUER to provide data from Capital Improvement Plan, Master Plan, FCAP or other audits that may impact the buildings or systems included in the project.


SCHEDULE C

Baseline Energy Consumption

ISSUER to provide a summary of all utility bills, consumption baselines and how they were established, and end use reconciliation with respect to the baselines including a discussion of any unusual characteristics and findings. The ESCO shall examine the most recent 36 months of utility bills and establish Base Period consumption for electricity, fossil fuels and water by averaging; or selecting the most representative contiguous 12 months. The ESCO shall consult with building staff and account for any unusual or anomalous utility bills which may skew Base Period consumption from a reasonable representation. The ESCO shall estimate loading, usage and/or hours of operation for all major systems impacted by Energy Conservation Measures to be included in the project. Data to be presented in accordance with provisions established in Schedule F. Where loading or usage is highly uncertain The ESCO shall employ spot measurement and/or short term monitoring at its discretion, or at the request of ISSUER. Reasonable applications of measurement typically include variable loads that are likely candidates for conservation measures, such as cooling equipment. The annual end use estimated consumption shall be reconciled with the annual Base Period consumption to within 5% for electricity (kWh), fossil fuels and water. The contribution to electric peak demand for each end use shall also be reconciled to within 5% of the annual Base Period peak. The “miscellaneous” category shall not be more than 10% and each component shall be separately set forth. The purpose of this is to place reasonable limits on potential savings. Edit section C of IGA. If HVAC modifications are anticipated IAQ requirements must be met. Will baseline be adjusted by adjusting Model to meet Actual or Adjust actual to meet Model


SCHEDULE D

Standards of Comfort

ASHRAE Standard 55-2004 Possible settings:

Week Day Weekends Holidays

Offices and Similar Spaces

Space Temp

Relative Humidity

Number or Hours

Space Temp

Relative Humidity

Number of Hours

Space Temp

Relative Humidity

Number of Hours

Summer Occupied

75°F ± 1°F 50% ± 5% 80°F ± 1°F 60% ± 5% 80°F ± 1°F 60% ± 5%

Summer Unoccupied

80°F ± 1°F 60% ± 5% 82°F ± 1°F 60% ± 5% 82°F ± 1°F 60% ± 5%

Winter Occupied

70°F ± 1°F n/a 68°F ± 1°F n/a 68°F ± 1°F n/a

Winter Unoccupied

65°F ± 1°F n/a 65°F ± 1°F n/a 65°F ± 1°F n/a


SCHEDULE E

ECMs and EQUIPMENT to be INSTALLED by ESCO

ECM Cost / Savings Matrix

ECM Description Bldg 1 ID Bldg 2 ID Bldg 3 ID TOTALS

Cost 1st Year Savings

Cost Savings Cost 1st Year Savings

Cost 1st Year Savings

Lighting 25,000 5,000 55,000 12,000 15,000 3,500 SUM SUM

Lighting controls 49,000 7,000 22,000 6,000 SUM SUM

AHU VFDs

TOTALS SUM SUM

Values in dollars = ECM included in project Cell Blank = ECM not included for that building Note:

This matrix is to be the first page in Schedule E

The purpose of this Matrix is to summarize the project by ECM by building. This is the same matrix that was submitted with the RFP.

The above is a sample. Please add columns and rows as necessary to include all buildings and measures. List the ECMs that are common with the RFP response first, in the same order they appeared in that document. All additional ECMs should follow.

The “8½ X 11" sheet size does not apply to this page.

Cost $ = The Cost includes: Labor Costs, Subcontractor Costs, Cost of Materials and Equipment and Related Items. It does NOT contain any of the financed service fees listed in Attachment B and B1 including overhead, mark-up, or profit. When all ECM costs are added together the sum will equal the ESCO’s cost proposal.

Savings $ = savings expected from measure.


For Each ECM to be Included in the Project Provide the Following Information

Provide detailed descriptions, costs and savings for each ECM including analysis method, supporting calculations, results, proposed equipment (equipment cut sheets may be included in Volume 2) and implementation issues. Provide a financial analysis for each proposed ECM ECM ID_____________________

Building_____________________ Narrative including product recommendations ________________________

ECM ID = Issuer and ESCO agreed upon identifier for ECMs

Building = building ID as provided by Issuer.

Narrative = description of ECM, product specific information and any other relevant information.

Provide summary information requested in chart and then follow with supporting documentation and calculations.


SCHEDULE F

Savings Measurement & Verification Calculation Formulae

All M&V will be based on the IPMVP Volume 1 version 9/2010 document as amended Protocol to be used for each ECM will be stated in Schedule E. Schedule F shall contain the details of execution of the plan during Guarantee Period.


SCHEDULE G

Baseline Adjustment Methods for Weather, Changes in Building Use or Operating Hours

For the most common reasons for baseline adjustments; weather, change in use, change in occupancy, change in operating hours or other material changes that will impact the ECMs performed under this contract please detail the methodology and formulas to be used to adjust original baseline calculations.


SCHEDULE H

Systems Start-Up and Commissioning; Operating Parameters of Installed

Equipment

This section is ECM dependent. At a minimum it should encompass all manufacturer requirements showing manufacturer support if required. Detail the role you wish Issuer personnel to play in startup and commissioning


SCHEDULE I

Construction and Installation Schedule

Please show details of construction schedule. The 8 ½ X 11 page size does not apply to this Schedule. Schedule should include:

Design submission deadlines

Design approval deadlines

Equipment ordering and delivery

Installation

Startup and commissioning

Final acceptance


SCHEDULE J

ESCO and ISSUER Training Responsibility

Indicate topics, number to be trained, location and costs for both construction period and post acceptance training of Issuer personnel. Stipulate who will conduct the training sessions.


SCHEDULE K

Warranties

Identify and describe all warranties provided by ESCO Include copies of warranties offered by equipment manufacturers (Full warranty details may be included in Volume 2 with manufacturer cut sheets)


SCHEDULE L

MAINTENANCE CHECKLIST AND ISSUER & ESCO RESPONSIBILITIES

Facility Maintenance Checklists / Logs

ESCO shall create or use equipment manufacturer maintenance checklists or logs for the ISSUER to use to demonstrate equipment is being properly maintained in accordance with equipment manufacturer’s recommendations. All documents shall be available for inspection by ESCO.

Issuer Maintenance Responsibilities

ISSUER may not be required to provide maintenance on any piece of equipment that exceeds the manufacturer’s recommended maintenance. Vendor specific maintenance schedules may be included with cut sheets in Volume 2.

ESCO Maintenance Responsibilities

The energy savings shall be monitored continuously, reported quarterly, and reconciled on an annual basis, commencing with the date of the Certification of Final Acceptance to be signed by the ISSUER. Periodic inspection of Issuer’s maintenance logs.


SCHEDULE M

Proposed Final Project Cost & Final Project Cash Flow Analysis

Provide the information requested on the forms included. Form is available in Excel format on request from NCDEACS


SCHEDULE M Part 1

AGENCY NAME: Department XYZBANK QUOTED INTEREST RATE: 2.400%ESCO NAME: ESCO ABC

TOTAL PROJECT COST: $43TOTAL FINANCED COST: $48TOTAL GUARANTEED FIRST YEAR SAVINGS: $8

% of Total Project

Costs

Financed

Costs

Other Costs Paid

from Savings (not

financed)

Other Benefits to Owner

and Notes

Project Cost Breakdown

Total ECM material & labor and subcontracts 46.51% $20Investment Grade Audit 4.65% $2

Engineering and Design 4.65% $2General Conditions 4.65% $2Contractor's Insurance (i.e. performance bond) 4.65% $2

Project Management 4.65% $2Commissioning 4.65% $2First Year Training Fees 4.65% $2M&V set-up 4.65% $2Cost of Guarantee Security Instrument 4.65% $2Overhead (cost of running the business) 4.65% $2

ESCO net profit 4.65% $2[Other Contractor Costs - list specifics] 2.33% $1

Subtotal A (equals Schedule A Total) $43

Other costsBond Council Fees $3Loan Issuance Fees $3Third Party Engineering Fees $3 Paid by XYZ

Subtotal B (financed) $6Subtotal C (not financed) $3

Adjustments to Project CostsRebates, incentives, grants) (Will be negative number) (3)$ Other

Subtotal D -$3

Construction Period Interest $2

Annual Service Fees

% of First Year's

Savings

Dollar ($) Value of

1st Year Service

Fees

Measurement and Verification (ESCO) 0.20% $1Third Party review of reconciliation report 0.20% $1Maintenance 0.20% $1Equipment Performance Monitoring 0.20% $1Yearly Training Services 0.20% $1

Subtotal E $5

SummariesProject Cost = Subtotal A

Total Financed Costs = Subtotals A+B+D+ possibly Const. Period Int.

Owners payments made to ESCO = Subtotals A+D

1 Other fees must be explained

2 Source of incentives must be explained

$40

ESCO'S COST PROPOSAL

$48

$56

$43

Costs Covered by Energy Savings = Subtotals A+B+C+D+E+ possibly Const Period

Interest. If construction period interest is capitalized in loan, this will be zero.

85 NC Energy Office IGA-ESA Schedules Rev. 11/2011

SCHEDULE M Part 2

ESCO's ANNUAL CASH FLOW ANALYSIS USING BANK’S PROPOSED INTEREST RATE

Financed Amount: __________ Total Interest __________ Escalation Rate by Utility/Fuel

Finance Term: __________ Electric: 0% Annual Interest Rate: __________ Natural Gas: 0% Construction Months __________ Steam: 0% 1st Annual Payment __________ Water: 0%

Principal __________ Other (specify): 0% Interest __________ Escalation Rate for Annual Fees: 0%

Yr.

Calculated Electric Dollar

Savings

Calculated Natural Gas

Dollar Savings

Other

Calculated purchased fuel Dollar Savings

Calculated Water Dollar

Savings

Other Please

Specify

Calculated Operational

Dollar Savings

Total Calculated Dollar Savings

(a)

Annual Service Fees

( b )

Financing

Cost (P&I)

( c )

Net Savings

= a-b-c

1

2

3

4

5

6

7

8

9

10

Total

NOTES: Net savings must never be negative. A surplus in one year cannot be carried forward to create positive cash flow in a subsequent year.


SCHEDULE N

ENERGY SAVINGS GUARANTEE

INCLUDING FORM OF SECURITY

ESCO shall guarantee the energy savings in accordance with the terms of this Agreement. Energy savings are based on the performance of the Work and were calculated based on ECMs, or combination of ECMs’, potential to reduce energy consumption as detailed in table below. Schedules C, F, and I contain the methodology and calculations used to determine energy reductions and energy savings achieved as a result of performing the Work, as well as the methodology that ESCO will use to measure, verify, and report on energy savings achieved annually during the term of this Agreement. Reimbursement of guaranteed energy savings not achieved by ESCO shall be made in accordance with Article 7 of this Agreement As a result of the performance of the Work and in accordance with the terms of this Agreement, annual guaranteed energy savings, beginning with the Commencement Date, are as follows:


SCHEDULE N

ENERGY SAVINGS GUARANTEE

Financed Amount: __________ Total Interest __________ Escalation Rate by Utility/Fuel

Finance Term: __________ Electric: 0% Annual Interest Rate: __________ Natural Gas: 0% Construction Months __________ Steam: 0% 1st Annual Payment __________ Water: 0%

Principal __________ Other (specify): 0% Interest __________ Escalation Rate for Annual Fees: 0%

Yr.

Guaranteed Electric Dollar

Savings

Guaranteed Natural Gas

Dollar Savings

Other

Guaranteed purchased fuel Dollar Savings

Guaranteed Water Dollar

Savings

Other Dollar

Savings Please Specify

Guaranteed Operational

Dollar Savings

Guaranteed Dollar Savings

( a )

Annual Service Fees ( b )

Financing

Cost (P&I)

( c )

Net Savings

= a-b-c

1

2

3

4

5

6

7

8

9

10

Total


SCHEDULE O

Compensation to ESCO

Please show progress payments to ESCO for duration of construction period. ESCO may only be reimbursed for work performed and materials purchased during payment period. AIA forms:

G702 Application and Certificate for Payment and

G703 Continuation Sheet May be used to request payment


SCHEDULE P

Insurance and Bonds

The first security instrument, a payment and construction performance bond, is to be conditioned for the faithful performance and fulfillment of the installation of the Energy Conservation Measures and which shall be valid until the completion of the installation work, with construction approved by the Issuer and accepted on behalf of the State

The second security instrument shall be a written guarantee, which will be contained in the contract, which states that the annual energy or operational costs savings will meet or exceed the total annual cost savings of the contract, including financing, installed equipment costs, contract security instruments required by the Office of State Treasurer, an annual fee for a third party engineer, and measurement and verification for the entire length of the contract period (up to maximum of 20 years). This security instrument must be in a form and amount acceptable to the Office of State Treasurer and may include, but is not limited to: a performance bond, a letter of credit, an insurance policy, a corporate guarantee of the ESCO, a corporate guarantee of the ESCO’s parent company, or financing of all costs for the full term of the contract. Proof of any other insurance as may be required by Issuer to work on their premises.


SCHEDULE Q

Financing Agreement

Complete this Schedule only if ESCO providing financing. Copy of final loan agreements including Issuer RFP


SCHEDULE R

Loan Amortization

Complete this Schedule only if ESCO providing financing. Insert loan amortization table from financial contract.


EXHIBIT 1 Certificate of Acceptance – Investment Grade Audit Report

Date _____________________

The Services performed pursuant to the Investment Grade Audit Agreement, dated October 1, 2008, by and between _____________________ (ISSUER) and _______________________ (ESCO), has been delivered by ESCO to the undersigned in an Investment Grade Technical Energy Audit Report (Investment Grade Audit Report), dated __________________, and has been determined to be finally complete. The Issuer, by and through the undersigned duly authorized representative, accepts the Services and the Energy Audit Report as finally complete and assumes full possession thereof. ISSUER ___________________________ Purchasing Department Address 1 City, state zip By: ___________________________________ Signature: ________________________ Date: _________ _


Exhibit 2 Individual ECM Acceptance

(Issuer is to issue one of these exhibits for each ECM as each ECM is substantially complete.) Owner: ___________________________________________________ Project Name: ______________________________________________ ESCO Project Number: _______________________________________ Date Of Substantial Completion: ________________________________ The following ECM(s) has reached Substantial Completion: We, the undersigned, hereby certify that we have this date examined the foregoing and determined that such is operational. We further agree that the warranty period for such ECM(s) commences as of the date of this Certificate of Substantial Completion by Contractor. ______________________________ (ISSUER) ______________________ (ESCO) ____________________________________ ______________________________ Signature Signature _____________________________________ _______________________________ Printed Name Printed Name Items For Correction or Completion ("Punch List"): 1. _______________________________________________________________________

2. _______________________________________________________________________

3. _______________________________________________________________________

4. _______________________________________________________________________

5. _______________________________________________________________________

6. _______________________________________________________________________


Exhibit 3

Acknowledgement of Receipt of Certificate of Beneficial Use and Acceptance or

Certificate of Occupancy Please attach the Certificate of Beneficial Use and Acceptance or Certificate of Occupancy (whichever applies to this project) and sign below. We, the undersigned, hereby certify that we have this date assured the aforementioned document has been received from the Authority Having Jurisdiction and is included herein. ______________________________ (ISSUER) ______________________ (ESCO) ____________________________________ ______________________________ Signature Signature _____________________________________ _______________________________ Printed Name Printed Name

_____________________________________ _______________________________ Date Date


Exhibit 4 Final Project Acceptance

Date ____________________

The Work performed pursuant to the Energy Services Agreement, by and between ___________________________ (ISSUER) and __________________________ (ESCO), dated _______________, has been inspected by the undersigned ISSUER, has been determined to be complete, and ISSUER accepts the same. The ESCO has delivered the following close-out documents including: _____ As-Built documents

_____ Operations and Maintenance Manuals

_____ Warranties

_____ [list other]

_____ [list other]

ISSUER, through the undersigned duly authorized representative, accepts the Work as complete and assumes full possession thereof as of the Date of Final Acceptance. ISSUER _______________________ By: ______________________________ Signature: _________________________ Date: _____________________________


APPENDIX VI


ENERGY SERVICES AGREEMENT

GUARANTEED ENERGY PERFORMANCE

This Energy Services Agreement (the "Agreement" or "ESA") is entered into on ____________,20____, the Commencement Date, by and between the ________________ (the "ISSUER") and _______________ with offices located at _________________(the "ESCO”) for the purpose of providing certain energy conservation measures (“ECMs”), consisting of services, systems and facilities designed to reduce energy consumption and costs in buildings owned and operated by the ISSUER which are described herein as the "Premises."

RECITALS WHEREAS, the ESCO was selected by the ISSUER as a qualified provider to provide certain services that will result in decreased energy consumption and costs for certain existing facilities (the “Premises”) owned and managed by the ISSUER. The services may include, but are not limited to, the following: energy use analyses; the design, delivery and installation of energy conservation measures (the “ECMs”) which consist of systems and devices for the Premises; guaranteed energy savings; training of designated ISSUER employees; maintenance and monitoring of the ECMs as provided herein; the measurement, verification and reporting of energy savings; and, if provided herein, financing of the project; and WHEREAS, pursuant to the Investment Grade Energy Audit Agreement between the Parties dated ________ (the “Energy Audit Agreement”), the ESCO conducted an investment grade energy audit (the “Energy Audit”) and prepared an energy audit report that contains specific recommendations and documentation concerning the energy conservation measures, systems and services to be provided at the Premises and is incorporated herein by reference, approved, and accepted by the ISSUER as evidenced by execution of the “Acceptance Certification-Energy Audit Report” (Attachment A); and WHEREAS, the ISSUER has found that the energy savings resulting from the performance of this Agreement will equal or exceed the total cost of the Agreement; and WHEREAS, the ESCO has agreed to guarantee a level of monetary savings to be achieved as the result of the professional and other services to be provided under this Agreement; and NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, and intending to be legally bound hereby, the ISSUER and the ESCO hereby covenant and agree as follows: This agreement shall consist of the within Agreement and its attachments, all of which are identified as:

i. Energy Savings Agreement and Schedules (“ESA”) ii. Investment Grade Energy Audit iii. Request for Proposal

These documents (“Contract Documents”) collectively constitute the entire agreement between the parties and supersede all prior oral or written statements or agreements. In the event of any conflict between the terms of the Contract Documents, the document with the highest relative precedence shall prevail. The order of precedence is established hereinabove with the first listed document having the highest precedence and the last listed document having the lowest level of precedence. In the event there are multiple Amendments to this Agreement, the most recent Amendment will have the highest level of precedence and the oldest Amendment will the lowest level of precedence.


1. TERM This Agreement shall be effective upon execution of this document, signed by both parties. In addition, the parties shall be bound the terms of this Agreement for [INSERT NUMBER OF YEARS] from the date of the start of the Guarantee Period (defined in Section 9 below), except as otherwise terminated pursuant to the terms of this Agreement.

1.1. Definitions 1.1.1. Commencement Date. The date of execution of the Energy Savings Agreement

and the beginning of the construction period 1.1.2. Final Project Acceptance Date. The date prescribed in the Certificate of Final

Project Acceptance (Exhibit 4) indicating that Work to be performed under this agreement has been inspected by the ISSUER and has determined to be complete.

1.1.3. Interim Period. The period between the Commencement Date and the Final Project Acceptance Date

1.1.4. Projected Acceptance Date. The completion date specified in Schedule I (“Construction and Installation Schedule) of the Energy Savings Agreement.

2. THE ENERGY CONSERVATION PROJECT

2.1. Project Defined. The ESCO shall design, procure, fabricate and install the ECMs specified in Schedule E and provide training, commissioning, maintenance and monitoring and all other services specified in this Agreement and the Project Documents set forth in Paragraph 2.3 at the Premises described in Schedule A (collectively referred to herein as the “Project”). The design, procurement, fabrication, installation and commissioning of the ECMs specified in Schedule E and any training services described in Schedule J, which are integral to the operation of the ECMs, are referred to as the "Work." The maintenance, monitoring, and savings measurement and verification services detailed in Schedules F and L and any Post-Acceptance Training services detailed in Schedule J shall not be designated as “Work,” but are hereinafter referred to as the “Annual Services”.

2.2. Energy Audit Report. Pursuant to the Investment Grade Audit Agreement, the ESCO prepared

the Investment Grade Audit Report, which was accepted by the ISSUER and which contains specific recommendations and documentation concerning the energy conservation measures, systems and services to be provided at the Premises. The Project Documents referenced in Paragraph 2.3 shall govern in the event of any inconsistencies between this Agreement and any provisions in the Investment Grade Audit Report.

2.3. Project Documents. The Project Documents include this Agreement, the Investment Grade Audit

Report, Submittals that are approved by the Issuer in writing, and the Certificates of Insurance and Bonds required by this Agreement. The Project Documents also include the following Schedules which are incorporated herein and made a part of this ESA upon written approval by both parties:

Schedule A Existing known conditions, systems and hazardous materials inventory Schedule B Current and Known Future Capital Projects at the Premises Schedule C Baseline Energy Consumption Schedule D Standards of Comfort Schedule E ECMs and Equipment to be installed by the ESCO Schedule F Savings Measurement & Verification Calculation Formulae Schedule G Baseline Adjustment Methods for Weather, Changes in Building Use or Operating Hours


Schedule H Systems Start-Up and Commissioning; Operating Parameters of Installed Equipment Schedule I Construction and Installation Schedule Schedule J ESCO and ISSUER Training Responsibilities Schedule K Warranties (including Equipment) Schedule L Maintenance Checklist and ISSUER & ESCO responsibilities Schedule M Proposed Final Project Cost & Final Project Cash Flow Analysis Schedule N Energy Savings Guarantee including form of Security Schedule O Compensation to the ESCO Schedule P Insurance and Bonds Schedule Q Financing Agreement Schedule R Loan Amortization Exhibits: Exhibit 1 Certificate of Acceptance – Investment Grade Audit Report Exhibit 2 Individual ECM Acceptance Exhibit 3 Certificate of Beneficial Use and Acceptance / Certificate of Occupancy (issued by Authority Having Jurisdiction) Exhibit 4 Final Project Acceptance (issued by Issuer after Certificate of Beneficial Use and Acceptance / Certificate of Occupancy issued by AHJ)

2.4. Review of Project Documents; Notification to the ISSUER; Corrections. The ESCO shall review all Project Documents, including all addenda, whether prepared by the ESCO, its subcontractors or furnished by the ISSUER, for errors, inconsistencies or omissions relative to the performance of the Project. Upon review of the Project Documents, and prior to commencement of the Project, the ESCO shall provide written notice to the ISSUER that (i) there are no inconsistencies in the Project Documents pertaining to the performance of the Project at the Premises or conflicts with existing conditions on the Project; or (ii) specifying the nature of any conflicts or inconsistencies noted from the ESCO’s review of the Project Documents. The ESCO shall notify the ISSUER of any error, inconsistency or omission that the ESCO discovers in the Project Document before the ESCO commences the Project. In the event that the ESCO fails to properly prepare or review Project Documents or commences the Project without providing notice to the ISSUER of any error or inconsistency that it discovers in the Project Documents, the ESCO shall, upon written direction from the ISSUER, remove the deficient work and re-install the ECM pursuant to the Project Documents at no additional cost to the ISSUER.

3. THE ISSUER'S RIGHTS AND RESPONSIBILITIES:

3.1. Project Administration. The ISSUER’s personnel designated in paragraph 10.14 shall be the principal point of contact between the ISSUER and the ESCO related to the performance of this Agreement. The ISSUER will attend project meetings at the ESCO’s request following reasonable notice by the ESCO and accommodation by the ESCO of the schedules of the ISSUER’S staff.

3.2. Approval of Submittals. The ISSUER will ensure that the design and installation of the ECMs

are consistent with the ECMs contemplated in the ESCO’s Energy Audit. At the request of the ISSUER, and where appropriate or required, the ESCO shall provide on-site "mock-ups" and demonstrations of the ECMs that are proposed to be installed at the Premises (hereinafter a “Submittal”) pursuant to this Agreement. The ISSUER may also request additional materials, documents, or information.

No later than _________ ( ) business days after receipt by the ISSUER of any Submittal, the ISSUER shall review the Submittal for approval, which approval shall not be unreasonably withheld or delayed.


If the ISSUER does not approve a Submittal, the ISSUER shall provide to the ESCO a written explanation as to the reason(s) for disapproval. No later than ten (10) business days following the receipt of the ISSUER’s written disapproval, the ESCO shall submit a revised Submittal to the ISSUER for the ISSUER’s review. The ESCO shall be responsible for any delays caused by rejection of incomplete or disapproved Submittals. The ESCO may not commence any of the Projects without written approval by the ISSUER. The ESCO’s responsibility for errors, omissions, deviation from existing conditions, or deviation from the Project Documents in submittals is not relieved by the ISSUER’S review and approval thereof.

3.3. Right to Reject or Stop the Project. The ISSUER may reject any sequences or procedures proposed by the ESCO in connection with the Project which might constitute or create a hazard to the Premises, or to persons or property, or which deviate from the Project Documents or will result in schedule delays or additional costs to the ISSUER. This provision shall not be construed to mean that any portion of the Project that is not rejected is therefore approved. If the ESCO fails to correct defective Work or fails to supply labor, materials or equipment in accordance with the Project Documents or to execute the Project in a workmanlike manner, the ISSUER may order the ESCO to stop work on the Project, or any portion thereof, until the cause for such order has been eliminated.

3.4. Inspections. All materials and equipment and each part of the detail of the Project shall be

subject at all times to inspection by the ISSUER or its designated representatives or consultants, and the ESCO will be held strictly to the true intent of this Agreement and the Project Documents with regard to quality of materials, workmanship, and the diligent execution of the Project.

i. The ESCO shall allow the ISSUER access to all parts of the Project, and shall furnish such

information and assistance as is required to make a complete and detailed inspection or inspections. All material and equipment installed as part of the Project must be inspected, tested and approved in accordance with the Project Documents and this Agreement prior to its use.

ii. If the ISSUER’s inspection reveals Work that is faulty, defective, or does not conform to the Project Documents, the ISSUER must provide a written notice to the ESCO describing such faulty, defective or nonconforming Work. The ESCO must correct the Work pursuant to Paragraph 4.12 below.

iii. Upon written request by the ESCO, the ISSUER shall schedule preliminary inspections of the Work as soon as reasonably practicable after notification by the ESCO that major ECMs or systems are substantially installed. If such Work is not acceptable to the ISSUER at the time of such preliminary inspections, the ESCO will be provided written notice as to the particular defects to be remedied before the Work will be accepted. The ISSUER will indicate its approval of an ECM by issuing an Individual ECM Acceptance (Exhibit 2) for the applicable ECM, the date of which will commence the warranty period for such ECM as set forth in Schedule K.

3.5. Emergencies. In case of bona fide emergencies as determined by the ISSUER involving public

health or public safety or to protect against further loss or damage to the ISSUER’s property or to prevent or minimize serious disruption of ISSUER services or to insure the integrity of ISSUER’s records, the ISSUER may take appropriate action to prevent or minimize loss or damage to the Premises without prior notice to the ESCO or its surety.

3.6. Drawings, Specifications and Surveys. The ISSUER shall provide the ESCO with any existing

surveys in the ISSUER’s possession that describe the physical characteristics, legal limitations and utility locations for the Premises. All such information furnished by the ISSUER is furnished without any representation as to the accuracy of such information. The ISSUER will make


available to the ESCO any working drawings, specifications, surveys and "As-Built" drawings concerning the Premises that are in the possession of the ISSUER and which relate to work being performed on the Premises by other companies, if any. All such information furnished by the ISSUER is furnished without any representation as to the accuracy of such information. All drawings, specifications, surveys and copies thereof furnished by the ISSUER are and shall remain ISSUER’s property.

3.7. Ownership, Dissemination and Publication of Documents. The drawings, specifications, reports,

renderings, models, electronic media and all such other documents to be prepared and furnished by the ESCO pursuant to this Agreement, shall be and remain the property of the ISSUER.

3.8. Interpretation of Agreement. The ISSUER shall have the authority to make a binding

determination of questions of fact that arise in relation to the interpretation of this Agreement and the ESCO’s performance hereunder. The ESCO shall proceed diligently with the performance of this Agreement and in accordance with the ISSUER’S decision. Continuation of the Project shall not be construed as a waiver of any other rights accruing to the ESCO.

4. INSTALLATION OF THE ENERGY CONSERVATION MEASURES

4.1. Implementation of the Work. The ESCO shall perform or cause its subcontractors to perform the Work pursuant to this Agreement. Construction and equipment installation shall proceed in accordance with the provisions contained in this Agreement and the Project Installation schedule approved by ISSUER and attached hereto as Schedule I. The ESCO shall monitor the performance of the work for compliance with this Agreement and shall ensure that the Work is accomplished in a workmanlike manner. All services requiring the exercise of professional skills or judgment shall be accomplished by professionals qualified, competent, and licensed in the applicable discipline and as may be required by State law. All Project Documents which are required to be prepared by the ESCO shall be in accord with all applicable codes, standards and regulations and shall be prepared by qualified personnel. Where required by North Carolina law, Project Documents shall bear the stamp or seal of architects or engineers licensed in the State of North Carolina. The ESCO shall remain responsible for all services performed, whether by the ESCO or its subcontractors or others on its behalf, throughout the term of this Agreement. The ESCO shall supervise and direct the performance of the Work using its best skill, attention and judgment. The ESCO shall be solely responsible for site safety and for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under this Agreement.

4.2. ECM Submittal. Within ___ days following the execution of this Agreement, the ESCO shall

prepare a document for submission to the ISSUER that contains sufficient detail to allow the ISSUER to complete the review described in Paragraph 3.2 above and includes:

i) Date (and for revisions of the Submittal, revision dates); ii) Project Number and Title; iii) Stamp or seal of the preparer of the Submittal, and the ESCO’s

certification that it has reviewed and approved the Submittal for accuracy and compliance with the provisions of this Agreement; and

iv) With respect to each ECM, drawings, plans, specifications, shop drawings, product data, and where appropriate or reasonably required, product samples.


4.3. ESCO’s Personnel. The ESCO shall furnish a competent and adequate staff as necessary for the proper administration, coordination and supervision of the Work; organize the procurement of all materials and equipment so that they will be available at the time they are needed for the Work; and ensure that an adequate force of skilled workmen are available to complete the Work in accordance with all requirements of this Agreement. The ESCO shall also employ a competent project manager who shall be responsible for the coordination of the Work, and who shall be authorized to commit the ESCO with regard to manpower, schedule, coordination and cooperation. The project manager shall not have less than two years of documented experience in responsible field supervision for projects of comparable size and complexity. The ESCO shall give the ISSUER advance written notice if it intends to remove or replace the project manager. In the event the project manager fails to perform its duties under this Agreement the ESCO shall provide a competent replacement.

4.4. Subcontracting. The ESCO shall have the right to have any of the services to be provided by

the ESCO under this Agreement accomplished by subcontractors pursuant to written subcontracts between the ESCO and such subcontractors. The ESCO shall, upon entering into any agreement with a subcontractor, furnish the ISSUER with an executed copy thereof. All subcontracts shall be subject to, consistent with, and in conformance with all applicable State and federal laws, rules, regulations and codes, and shall contain provisions that require all services to be performed in strict accordance with the requirements of this Agreement and shall provide that the subcontractors are subject to all the terms of this Agreement. Provided that such agreements do not prejudice any of the ISSUER’s rights under this Agreement, such agreements may contain different provisions than are provided herein with respect to extensions of schedule, time of completion, payments, guarantees and matters not affecting the quality of the Work.

4.5. Permits and Approvals. The ESCO shall obtain and pay for all necessary permits and approvals

for the design, installation and operation of the ECMs. The ISSUER shall exercise its best efforts to assist the ESCO in securing applicable permits and approvals. The ECMs and the operation of the ECMs by the ESCO shall at all times conform to all applicable laws, regulations, and codes. The ESCO shall furnish to the ISSUER copies of each permit or license required for performance under this Agreement before the ESCO commences that portion of Work. If the ESCO observes that any of the Project Documents are at variance with permits or licenses granted, or laws, ordinances, codes, rules or regulations of governmental authorities, the ESCO shall promptly notify the ISSUER in writing and shall make any necessary changes, subject to the approval thereof by the ISSUER in accordance with the terms of this Agreement. If the ESCO performs any Work that is contrary to any permit or license granted, or any applicable laws, ordinances, codes, rules or regulations, the ESCO shall make changes as required to comply therewith and shall bear all costs arising there from.

4.6. Coordination of the Work. The ESCO shall consult with the personnel designated by the ISSUER

in order to coordinate the Work, including installation of any ECM. The ESCO shall not permit any act that will interfere with the performance of the ISSUER’s business activities at the Premises without the prior written approval of the ISSUER. The ESCO shall consult with the ISSUER regarding the coordination of the Work with any other work being performed by other Companies at the Premises.

4.7. Changed Conditions. Should the ESCO encounter subsurface or latent physical conditions at

the Premises which differ materially from those indicated in the Project Documents or from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, the ESCO shall give written notice to the ISSUER before any such condition is disturbed or further disturbed. The ISSUER will promptly investigate and, if it is determined that the conditions materially differ from those which ESCO should reasonably have been expected to discover or anticipate, the ISSUER may approve such changes in the Project


Documents as the ISSUER deems necessary. If such changed conditions cause an increase or decrease in the ESCO’s cost or time of performance, the parties will negotiate a mutually acceptable solution.

4.8. Royalties and Patents. The ESCO shall pay all royalties and license fees due to third parties in connection with the Work.

4.9. Project Meetings. The ESCO shall provide for regularly scheduled project meetings in the Project

Installation Schedule, and shall give timely advance written notice and agenda of such meetings to the ISSUER. The ESCO shall record minutes and distribute copies of minutes of meetings to the ISSUER within five (5) business days after each meeting. The ESCO shall schedule additional project meetings if requested by the ISSUER.

4.10. Verification of Dimensions and Existing Conditions. The ESCO is responsible for becoming

knowledgeable of the conditions of the Premises relating to the performance of the Work and the conditions under which the Work is to be performed. All dimensions and existing conditions have been verified by the ESCO during the ESCO’s performance of the Energy Audit by actual measurement and observation. All discrepancies between the requirements of the Project Documents and the existing conditions or dimensions shall be reported to the ISSUER as soon as they are discovered. Failure to verify and report prior to the commencement of the Work shall constitute the ESCO’s acceptance of existing conditions as fit for the proper execution of the Work under this Agreement.

4.11. Security. In accordance with G.S. §143-64.17B, the ESCO shall provide security to the

ISSUER in a form acceptable to the Office of the State Treasurer and in an amount equal to one hundred percent (100%) of the guaranteed savings to be maintained for the entire term of this Agreement. If during the term of this Agreement, the ISSUER receives information, including but not limited, to (i) notice that the ESCO’s security will not be renewed; (ii) notice that the ESCO has filed for bankruptcy or is insolvent; (iii) notice that the ESCO is suspended or debarred from doing business within the State or (iv) any act by the ESCO as prescribed in Section 11.1.2 below, the ISSUER may call due the security to assure the ESCO’s faithful performance of the Agreement. The security shall then be deposited into an escrow account to be issued in accordance with this Agreement. If the ESCO fails to pay any shortfall due under this agreement, the ISSUER shall draw this amount from the security. Any security remaining following the term of this Agreement shall be returned to the ESCO.

4.12. Insurance. The ESCO shall purchase, maintain and provide evidence of insurance

coverage of the types, in the amounts and for the periods specified in Schedule P. Subsequent to the date of the Certificate of Project Acceptance, the ISSUER shall be responsible for providing insurance coverage on the ECMs.

The ESCO shall not commence performance of the Project until the ESCO obtains insurance that conforms to the standards in Schedule P and which is approved in writing by the ISSUER. Notwithstanding the foregoing, the failure of the ISSUER to obtain such evidence from the ESCO before permitting the ESCO to commence the Project shall not be deemed to be a waiver by the ISSUER, and the ESCO shall remain under a continuing obligation to obtain and maintain the required insurance coverage and to supply evidence of coverage in accordance with Schedule P. The ESCO’s failure to obtain or keep such insurance in force shall constitute an Event of Default and Breach under this Agreement within the meaning of Section 11 and in addition to the remedies provided therein, the ISSUER reserves the right to stop the Project until evidence of the requisite coverage is provided. The ESCO shall require all subcontractors performing any portion of the Project to carry the insurance required in Schedule P, or the ESCO may provide the required coverage for any or all


subcontractors. If the ESCO elects to provide the required insurance coverage for any of its subcontractors, the ESCO shall cause the subcontractor to be expressly named in any Certificate of Insurance required to demonstrate compliance with this Agreement. The ESCO and each of its subcontractors agree that each insurer shall waive any rights of subrogation against the ISSUER. The ESCO shall timely renew the required insurance as necessary to keep such coverage in effect for the periods specified in Schedule P and shall supply the ISSUER, not less than sixty (60) days prior to any expiration or renewal dates for such insurance policies, with evidence of all required insurance including updated replacement Certificates of Insurance and amendatory riders or endorsements that clearly evidence the continuation of all coverage in the same manner, limits of protection, and scope of coverage, as was provided by the Certificates of Insurance, amendatory riders or endorsements originally supplied. The ISSUER shall be a named additional insured in any policy of insurance required by this Agreement. The ESCO expressly understands and agrees that any insurance protection furnished by the ESCO hereunder shall in no way limit the ESCO’s responsibility to indemnify and save harmless the ISSUER under the provisions of this Agreement.

4.13. Performance and Labor and Material Payment Bonds. The ESCO shall, prior to commencing the Project, deliver to the ISSUER a Performance Bond and a Labor and Material Payment Bond that conforms to the requirements of N.C. General Statute Chapter 44-A, Article 3.

4.14. Materials, Workmanship, and Equipment. The ESCO shall ensure that all materials used

by the ESCO and its subcontractors and workmanship performed or caused to be performed by the ESCO in connection with the Work meets or exceeds all applicable codes and is performed in a workmanlike manner. Where conflicts exist between applicable codes, the more stringent provision shall apply;

i. The ESCO shall ensure that all equipment and materials to be used in the Work for which

Underwriters Laboratory labeling services is provided shall be UL labeled; ii. The ESCO shall obey the following list of codes where applicable:

1) Any applicable construction and electrical code; 2) Underwriters Laboratories (UL); 3) Insulated Power Cable Engineers Association (IPCEA); 4) National Electrical Code (NEC); 5) National Electrical Manufacturers Association (NEMA); 6) American National Standards Institute (ANSI); and 7) Institute of Electrical and Electronic Engineers (IEEE).

iii. The ESCO shall be responsible, at its sole cost, for the disposal of all equipment and materials removed or replaced through its performance of the Work in accordance with all applicable laws and regulations regarding such disposal, except those items designated by the ISSUER as non-disposable. Disposal of Hazardous Materials is solely limited to the provision of Section 4.16. The cost of disposal to be performed by the ESCO is included in the ESCO compensation for the Work set forth in Schedule O.

iv. Each party shall operate and maintain all equipment used within this Agreement in accordance

with manufacturer’s specifications throughout the entire term of this Agreement. Either party shall be liable to the other for any loss of equipment resulting from the party’s failure to operate or maintain equipment in accordance with the manufacturer’s specifications. The ESCO shall be responsible to the ISSUER for any loss of equipment occurring as a result of ESCO’s failure to


either: (i) specify the proper equipment required for use under the Agreement or (ii) supply equipment that equals or exceeds the life expectancy of the guaranteed energy savings period. Neither party shall be responsible to the other party or deemed to be in default under this agreement for loss of equipment resulting from any act prescribed in Section 10.8 of this Agreement.

4.15. Correction of the Work. If the ISSUER request, the ESCO shall remove or uncover such

portions of finished Work. After the examination, the ESCO shall restore said portion of the Work to the standard required by this Agreement and the Project Documents. If the Work thus exposed or examined proves acceptable, the expenses of uncovering or removing and the replacing of the parts removed shall be the responsibility of the ISSUER and such uncovering, removing and replacing shall be deemed to be an excusable event of delay, if a delay in completion is caused thereby. If the Work so exposed or examined has not been performed in accordance with the Project Documents, the expense of uncovering, removing and replacing any portion of the Work necessary to comply with this Agreement and the Project Documents shall be borne by the ESCO and requests for a time extension or claims for delay will not be granted.

4.16. Responsibility for Materials. The ESCO shall be responsible for the contracted quality and

standards of all materials, components or completed Work furnished by the ESCO pursuant to the terms hereof. Materials, components or completed Work which fails to comply with this Agreement and the Project Documents may be rejected by the ISSUER and shall be replaced by the ESCO at no cost to the ISSUER. The ESCO shall remove from the Premises within a reasonable time any materials or components so rejected at the entire expense of the ESCO, after written notice has been delivered by the ISSUER to the ESCO that such materials or components have been rejected. The ISSUER does not assume any responsibility for the availability of any controlled materials or other materials and equipment required for the Work. However, ISSUER reserves the right to review and approve the quality and standards for all materials.

4.17. Hazardous Materials. The ESCO acknowledges that compliance with the National Emission

Standard for Hazardous Air Pollutants as promulgated by the United States Environmental Protection Agency pursuant to Section 112 of the Clean Air Act is a continuing obligation requiring any and all demolition or renovation activity completed by or on behalf of the ISSUER to conform to the standards for such activity as set forth in 40 C.F.R § 61.145 (Standard for Demolition and Renovation). The ESCO shall observe all notification procedures established by the United States and North Carolina environmental protection agencies in the execution of the Project. In addition, the ESCO shall comply with any Asbestos Management Plan that has been developed for the Premises.

In the event that the ESCO, or any of its subcontractors, encounters any substance it believes may be hazardous or material covered by the Act in the performance of the Work, the existence of which has not previously been disclosed to the ESCO by the ISSUER the ESCO shall, before disturbing such materials, immediately notify the ISSUER of the location thereof. The ESCO shall advise the ISSUER as to whether it is feasible to re-route the Work as to avoid such materials. If such re-routing is reasonably feasible, the ESCO shall do so without additional compensation hereunder. If such re-routing or avoidance is not reasonably feasible in the judgment of the ESCO and ISSUER and such material must be disturbed or relocated to complete the Work, and if (i) removal or containment of the hazardous substance or material cannot be effectuated without a cessation of the Work; or (ii) applicable law, rule or regulation requires cessation of the Work, or (iii) continuation of the Work exposes any person to a substantial risk, the ESCO may suspend its performance of the Work without penalty until the substance or material is removed or contained by the ISSUER.


The following options are available to the ISSUER in the event that undisclosed hazardous materials are encountered in the performance of the Work by the ESCO or its subcontractors:

1. If feasible, the ISSUER may direct the ESCO to modify the scope of the Work to eliminate portions of the Work affected by the undisclosed hazardous substance or material.

2. The ISSUER may terminate this Agreement upon payment to the ESCO of the amount due for services or materials and equipment supplied by the ESCO prior to suspension of the Work, including damages caused by the delay as prescribed by the Act. Provided, however, that the ISSUER shall not be liable for damages or other costs or expenses incurred by the ESCO if the existence of the hazardous substance or material was disclosed to the ESCO by the ISSUER or, if as a result of the ESCO’s review of the Project Documents, including any Asbestos Management Plan developed for the Premises and its investigation of the Premises, the ESCO should reasonably have been expected to discover or anticipate the existence of the hazardous substance or material and the ESCO could have developed the scope of the Work in such a manner as to avoid said hazardous substance or material.

3. The ESCO and the ISSUER agree that any work relating to (i) asbestos, material containing asbestos, or the existence, use, detection, removal, containment or treatment thereof, or (ii) pollutants, hazardous wastes, hazardous materials, contaminants (collectively "Hazardous Materials") or the storage, handling, use, transportation, treatment or the disposal, discharge, leakage, detection removal or containment thereof which is not specifically provided for in this Agreement, is the responsibility of the ISSUER. Notwithstanding the foregoing, the ESCO will utilize due diligence in order to determine whether the Work will require the removal of PCB ballasts and whether asbestos is likely to be encountered in the performance of the Work. ESCO shall provide the ISSUER with an estimate for the cost of removal and disposition of PCB ballasts and asbestos it expects may be encountered in the performance of the Work and shall allow for an amount equal to the estimated cost of removal and disposal in the Guaranteed Savings detailed in Schedule N.

4.18. Systems Startup/Commissioning. The ESCO shall conduct a thorough and systematic

performance test of each element and total system of the installed ECMs in accordance with Schedule H. The ESCO shall provide advance written notice of at least ten (10) business days to the ISSUER of the scheduled test(s). The ISSUER shall have the right to designate representatives to be present at any or all such tests including representatives of the manufacturers of the ECMs. The ESCO shall demonstrate that all ECMs installed comply with the requirements of the Project Documents. The ESCO shall test all components and systems of the installed ECMs. The ESCO, or its subcontractor(s), shall correct or adjust all deficiencies in operation of the ECMs.

4.19. Cooperation with the ISSUER's Consultants. The ISSUER reserves the right to designate authorized representatives or to retain consultants at its expense, including but not limited to a licensed architect or engineer, to act on its behalf with respect to administering the performance required under this Agreement throughout its term. The ISSUER and its representatives and consultants shall at all times have access to the Premises during the ESCO’s implementation of the Project. The ESCO agrees to cooperate with any representative of, or consultant retained by, the ISSUER.


4.20. Miscellaneous. Other rights and responsibilities of the ESCO are set forth throughout this Agreement and in the Project Documents and are included under other titles, articles, sections and headings for convenience. It is the responsibility of the ESCO to familiarize itself with all provisions of this Agreement and the Project Documents in order to understand fully the entirety of its rights and responsibilities hereunder.

5. PAYMENTS TO ESCO

5.1. Compensation. ISSUER will pay ESCO no more than $ for the Work in the amounts and in accordance with Schedule O hereto (the “Work Compensation”). The ISSUER will pay ESCO no more than $ for the Annual Services in the amounts and in accordance with Schedule O hereto.

5.2. Payments for Work in Progress. The ESCO shall submit invoices for the Work, including back-

up documentation, to the ISSUER for the ISSUER’s review and approval on the schedule provided for the Work in Schedule O. No later than _______ (___) calendar days following the receipt of any invoice, the ISSUER shall inspect the Work for which the ESCO requests payment and notify the ESCO in writing of the ISSUER’s approval or disapproval. Any disapproval of the Work shall be corrected in accordance with paragraph 4.14 above. No later than __________________( ) calendar days from the ISSUER’s approval of the Work addressed in any invoice, the ISSUER shall pay, or cause to be paid to ESCO, 95% of the total costs of approved Work. Five percent (5%) of the total invoice shall be retained by the ISSUER until the issuance of the Certificate of Project Acceptance pursuant to Paragraph 6.1. The ISSUER may, upon request or at its discretion, furnish to a Subcontractor, if practicable, information regarding the percentages of completion of the Work that is the subject of any invoice and the action taken thereon by the ESCO on account of Work completed by such Subcontractor. No payment to the ESCO, nor any partial or entire use of occupancy or the Premises by the ISSUER shall constitute an acceptance of any Work that is not completed in accordance with the provisions of this Agreement.

5.3. Final Installation Payment for the Work. No later than ( ) days from the date of the

Certificate of Final Acceptance, the ISSUER shall pay or cause to be paid to ESCO the entire unpaid balance of the Work Compensation invoiced by the ESCO, less the amount of any sums which continue to be retained to satisfy the cost of performing any change in the Work which is the subject of any claim or dispute and which has not yet been satisfactorily performed by ESCO. The ISSUER shall not be responsible for any payment due to a subcontractor for any Work performed by the subcontractor under this Agreement.

5.4. Billing Procedures for the Annual Services. The ESCO shall submit invoices for the Annual

Services, including back up documentation, to the ISSUER for the ISSUER’s review and approval on the schedule provided for the Annual Services in Schedule O. No later than _______ (___) calendar days following the receipt of any invoice, the ISSUER shall inspect the Annual Services for which the ESCO requests payment and notify the ESCO in writing of the ISSUER’s approval or disapproval. Any disapproval of the Annual Services shall be addressed in accordance with paragraph 4.14 above. No later than __________________( ) calendar days from the ISSUER’s approval of the Annual Services addressed in any invoice, the ISSUER shall pay, or cause to be paid to ESCO the costs of approved Annual Services.

6. ACCEPTANCE OF THE WORK


6.1. Final Inspection by the Issuer. The ESCO shall promptly notify the ISSUER following the ESCO’s completion of the Work. Upon notification, the ISSUER will inspect the Work for compliance with this Agreement. Any corrective measures shall be made by the ESCO pursuant to Paragraph 4.14. When the ISSUER deems the Work complete, the ISSUER shall issue a Certificate of Project Acceptance as set forth in Attachment B.

6.2. Final Submittal. The ESCO shall submit the following documents to the ISSUER with notice

described above:

i. All Project Documents; ii. The ESCO shall submit lien waivers, sworn statements, guarantees, full releases or

other evidence reasonably satisfactory to the ISSUER that there are no liens, claims or stop notices pending, filed or threatened against the ISSUER, the ESCO, the Work, the Premises or the ECMs whatsoever.

iii. Certificates of compliance for all ECMs which require local government inspection; iv. Asbestos abatement compliance records, if applicable; and v. Any other documentation reasonably required by the ISSUER.

7. OPERATION, MAINTENANCE, AND TRAINING

7.1. ECM Warranties. The ESCO warrants that all ECMs designed, procured, fabricated and installed pursuant to this Agreement are new, in good and proper working condition and are of merchantable quality and fit for the particular purposes of enabling the ISSUER to reduce energy consumption and operating cost. The ESCO further warrants that the ECMs are protected by appropriate written warranties covering all parts and equipment performance for the periods specified in Schedule K and Exhibit 2. The ESCO shall deliver to the ISSUER for inspection and approval all such written warranties and shall pursue rights and remedies against the manufacturer and each prior seller of the ECMs under the warranties in the event of equipment malfunction, improper or defective function, or defects in parts, workmanship or performance. The ESCO shall be responsible for managing all warranty activity during the warranty periods set forth in Schedule K and Exhibit 2 and shall notify the ISSUER whenever defects in equipment, parts or performance occur, which give rise to such rights and remedies and that those rights and remedies are exercised by the ESCO. The cost of any damage, loss or claims by any person arising out of the use or operation of the ECMs or damage to the ECMs and their performance, including damage to other property and equipment of the ISSUER or the Premises, due to the ESCO’s failure to exercise its warranty rights shall be borne solely by the ESCO.

All warranties shall be transferable and extend to the ISSUER. The warranties shall specify that only new, and not reconditioned, parts may be used and installed when repair is necessitated by malfunction. The ESCO also warrants that all workmanship, materials, and equipment used in conjunction with the ECMs are in conformance with the Project Documents and are free from defects for the period, commencing with the date of the Individual ECM Acceptance for each ECM and continuing for the period set forth in Schedule K and Exhibit 2.

7.2. Correction of Warrantied Work.

7.2.1. Commencing with the date of the Individual ECM Acceptance for each ECM and continuing for the warranty periods set forth in Schedule K and Exhibit 2 for each ECM, or within such longer period of time as may be prescribed by law or by the terms of any applicable special warranty required by the Project Documents, the ESCO shall correct or replace all faulty, defective or nonconforming Work related to any ECM, or malfunctioning portions thereof. If the ISSUER has reason to believe


that any portion of the Work is faulty, defective, or nonconforming with the Project Documents, the ISSUER shall give the ESCO written notice as soon as reasonably practicable after the ISSUER’s discovery. Within ____ days of receipt of written notice from the ISSUER to correct such fault or defect, the ESCO shall correct the Work, unless the ISSUER has given the ESCO a written waiver of the ESCO’s responsibility for the specific fault or defect. Notice may be given by telephone only in the event of an emergency situation. The ESCO shall bear all costs of replacing or correcting such faulty, defective or nonconforming Work.

7.2.2. Nothing contained in this Section shall be construed to establish a period of limitation with respect to any other obligation which the ESCO might have under the Project Documents. The establishment of the time period in which Work must be corrected as set forth in Paragraph 7.2.1 above, relates only to the specific obligation(s) of the ESCO to correct the Work and has no relationship to the time in which its obligation to comply with the Project Documents may be enforced, nor to the time in which proceedings may be commenced to establish the ESCO’s liability with respect to its obligations, other than to specifically correct the Work. Notwithstanding the provisions of this Paragraph, the ESCO shall, on written demand made by the ISSUER, at any time within the ten (10) year period following the date of the Certificate of Project Acceptance, promptly repair or replace all defective or non-conforming Work resulting from fraudulent misrepresentation, fraudulent concealment or gross negligence by the ESCO or its subcontractors in the performance of the Work.

7.3. ESCO Maintenance and Monitoring Responsibilities for ECMs. The ESCO shall be responsible

for providing the maintenance, monitoring, repairs, and adjustments to the ECMs as set forth in Schedule L. All replacements, alterations or additions to ECMs by the ESCO shall become part of the ECMs and shall become the property of the ISSUER. Any replacements, alterations or additions made by the ESCO to the ISSUER's pre-existing equipment, or equipment acquired by the ISSUER during the term of this Agreement shall become part of said equipment and be owned by the ISSUER. The ESCO shall be compensated for such maintenance and monitoring services pursuant to Schedule O hereof. In the event of the ESCO’s failure to provide required maintenance, service, repairs and adjustments to the ECMs, as provided in Schedule L or if an Event of Default exists pursuant to Section 11, the ISSUER may withhold fees due to the ESCO for such services until such repairs or adjustments are completed or such Event of Default is cured. The ISSUER shall notify the ESCO in writing when any payments are so withheld. The withholding of fees by the ISSUER under this Paragraph 7.3 shall not release the ESCO from its obligation to provide the Energy Savings Guaranty pursuant to Section 9 and Schedule N hereof.

7.4. ISSUER Operating and Maintenance Responsibilities for ECMs. The ISSUER shall be

responsible for providing the maintenance, monitoring, service, repairs and adjustments to the ECMs as set forth in Schedule L. Except as set forth in Schedule L, the ISSUER shall not move, modify, remove, adjust, alter or change in any material way the ECMs, or any part thereof, during the term of this Agreement, without prior written approval of the ESCO, except in the event of any occurrence reasonably deemed by the ISSUER to constitute a bona fide emergency. The ISSUER acknowledges that substantial and long term deviations from the operating conditions set forth in the Schedules to this Agreement may constitute a Material Change in accordance with Paragraph 10.3 hereof. In addition to the responsibilities set forth in Schedule L, the ISSUER shall use its best efforts to maintain the Premises in good repair and to protect and preserve the ECMs in good repair and condition in accordance with applicable manufacturers' recommendations which shall be provided to the ISSUER by the ESCO and to maintain the operating conditions of all non ECM mechanical systems and energy related systems located at


the Premises. The ESCO shall notify the ISSUER of any improper maintenance or repair as soon as ESCO has notice thereof. The ISSUER acknowledges that improper repairs or maintenance of the ECMs not reasonably corrected after notice may constitute a Material Change in accordance with Paragraph 8.5, and that the provisions of Paragraph 9.5 may be applicable.

7.5. Training by the ESCO. The ESCO shall conduct the training program described in Schedule J

hereto.

7.6. ECMs Upgrades; Alterations. The ESCO shall have the right, at all times during the term of this Agreement, subject to the ISSUER's written approval, to modify or replace any of the ECMs or install additional ECMs and to revise any procedures for the operation of the ECMs or implement other procedures at the Premises provided that:

i. such actions by the ESCO do not result in modifying the standards of comfort and

service set forth in Schedule D without the express written approval of the ISSUER; ii. such modifications or additions to, or replacements of the ECMs, and any operational

changes, or new procedures are necessary to enable the ESCO to achieve the energy savings guaranteed by the ESCO at the Premises; and

iii. any costs incurred relative to such modifications, additions or replacements of the ECMs, or operational changes or new procedures shall be the responsibility of the ESCO.

All modifications, additions or replacements of the ECMs or revisions to operating or other procedures shall be described in a supplemental schedule(s) to be provided to the ISSUER for approval, which shall not be unreasonably withheld, and incorporated into this Agreement provided that any replacement ECM shall be new and have equal or better potential to reduce energy consumption at the Premises than the ECM being replaced. The ESCO shall continuously update all ECM software unless the ESCO certifies to the ISSUER that a specific update would lower the energy and cost savings that are realized from that ECM. All replacements of and alterations or additions to the ECMs shall become part of the ECMs described in Schedule E and shall become the property of the ISSUER.

7.7. Malfunction and Emergencies. The ISSUER shall use its best efforts to notify the ESCO or its designee within forty-eight (48) hours after the ISSUER's actual knowledge of the occurrence of:

i. Any material malfunction in the operation of the ECMs or any other energy related

equipment or system; ii. Any material interruption or alteration of the energy supply to the Premises; iii. Any material alteration or modification in the ECMs or their operation; and iv. Any material alteration, modification or change in the Premises or the use of the

Premises.

7.8. Responsibility for Certain ECM Malfunctions. The ESCO agrees to compensate the ISSUER for business expenses, damages to real or personal property, lost profits, lost revenues, resulting from malfunctioning ECMs due solely or in part to nonperformance or error by the ESCO.

7.9. Ownership of Certain Proprietary Property Rights. The ISSUER shall acquire no ownership

interest in any software, formulas, patterns devices, secret inventions or processes, or copyrights, patents, and other intellectual and proprietary rights or similar items of property which are or may become used in connection with the ECMs. The ESCO shall grant, or otherwise lawfully furnish, to the ISSUER a perpetual, irrevocable royalty-free license for any and all software or other intellectual property rights necessary for the ISSUER to continue to operate,


maintain, and repair the ECMs in a manner that will maximize energy consumption reductions beyond the expiration of this Agreement for at least twice the useful life of each ECM.

8. THE PREMISES

8.1. Description of the Premises. The Premises in which the ECMs are to be installed and services to be provided by the ESCO under this Agreement are described in Schedule A.

8.2. Ownership of Existing Property. The Premises and all equipment and materials existing at the

Premises at the time of execution of this Agreement shall remain the property of the ISSUER.

8.3. Location and Access. The ISSUER shall provide sufficient space at the Premises for the installation and operation of the ECMs for the term of this Agreement, including access to office space with a telephone line, if necessary to allow the ESCO to perform required maintenance, monitoring and training services. The ISSUER shall provide access to the Premises for the ESCO and its employees or subcontractors to install, adjust, inspect, maintain and repair the ECMs in accordance with the terms of this Agreement or as required by the manufacturer during regular business hours, or such other reasonable hours as may be requested by the ESCO and acceptable to the ISSUER. The ESCO’s access to correct any emergency condition shall not be unreasonably restricted by the ISSUER.

8.4. Harm to Structure of the Premises. The ESCO shall perform the Work under this Agreement

and install the ECMs in such a manner so as not to harm the structural integrity of the Premises or their operating systems, except as specifically described in the Project Documents which have been approved by the ISSUER. The ESCO shall repair and restore, to its original condition immediately preceding the performance of the Work, any area of damage caused by its performance under this Agreement which has not been so described in the Project Documents and approved by the ISSUER.

8.5. Material Change Defined. A “Material Change” shall include any change in or to the Premises,

not covered by Schedule A, whether structural, operational or otherwise in nature which reasonably could be expected, in the judgment of the ESCO to increase or decrease annual costs of energy usage. Actions by the ISSUER which constitute a Material Change include, but are not limited to, the following:

i. Changes in the manner of use of the Premises by the ISSUER; or ii. Changes in the 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 conditions set forth in Schedule D;

or iv. Changes in the occupancy of the Premises; or v. Changes in the structure of the Premises; or

vi. Changes in the types and quantities of equipment used at the Premises; or vii. Modification, renovation or construction at the Premises; or

viii. ISSUER’s failure to provide maintenance of the ECMs pursuant to Paragraph 9.5 hereof; or

ix. Any significant damage to the Premises or the ECMs caused by fire, flood, or other casualty or any condemnation affecting a significant portion of the Premises; or

x. The permanent or temporary closing of a building at the Premises.

8.6. Reporting of Material Changes; Notice by ISSUER. The ISSUER shall use its best efforts to deliver to the ESCO a written notice describing all actual or proposed Material Changes in the Premises or in the operations of the Premises no fewer than thirty (30) days before any actual or


proposed Material Change is implemented. Where Material Changes result because of a bona fide emergency or other situation which precludes advance notification, the ISSUER shall give notice as soon as reasonably possible after the event constituting the Material Change has occurred or was discovered by the ISSUER to have occurred.

8.7. Reported Material Changes; Adjustments to Baseline/Benchmarks. Any changes in energy

usage which occur as the result of a Material Change shall be timely reviewed by the ESCO and the ISSUER to determine what, if any, adjustments to the Baseline/Benchmarks set forth in Schedule C are necessitated by such changes. The ESCO and the ISSUER agree that any adjustments made to the Baseline/Benchmarks shall be in accordance with generally accepted engineering principles.

8.8. Unreported Material Changes. Upon and after the date of Certification of Final Acceptance and

in the absence of any reported Material Change(s) in the Premises or in their operations, if energy savings deviates more than ____ (__%) percent during any month from projected energy savings for that month, after adjustment for normal deviations due to climatic conditions, the ESCO shall timely review such changes to ascertain the cause of such deviation. The ESCO shall report its findings to the ISSUER in a timely manner. The ESCO and the ISSUER may determine what, if any, adjustments to the Baseline/Benchmarks set forth in Schedule C are necessary.

9. ENERGY SAVINGS GUARANTY; ANNUAL RECONCILIATION

9.1. Interim Energy Savings. Energy savings achieved on or after the Commencement Date but before the date of the Certificate of Final Acceptance shall be credited to the ISSUER.

9.2. Actual Savings. Energy Use Savings for each ECM shall begin to accrue upon the execution of the “Individual ECM Acceptance” Form (Exhibit 2) contained herein. In accordance with Schedule A of this agreement, the ESCO shall document the completed installation of each ECM. The ESCO shall notify the ISSUER in writing upon successful completion of each ECM. The ISSUER shall have access to inspect all construction related activities, equipment, documentation, and witness measurement and verification activities subject to this Agreement. Energy Use Savings for completed facilities shall be quantified in accordance with Schedule F (Savings Measurement & Verification Calculation Formulae). Upon inspection and approval by the ISSUER for each completed ECM, the ISSUER shall provide the ESCO a Certificate of Acceptance. The ESCO shall use the date of certification to calculate the accrued Interim Energy Use Savings achieved for each ECM.

The ISSUER shall keep and hold all Interim Period Energy Use Savings in a reserve account to be used in accordance with this Section. If the Final Project Acceptance Date is after the Projected Acceptance Date, the ISSUER may use Interim Period Energy Use Savings to pay any project financing debt then due and payable. If the Interim Period Energy Use Savings are insufficient to pay any portion of the project financing debt service, then due, the ESCO shall pay to the ISSUER any shortfall within fifteen (15) business days following notification of the shortfall, which shall be used to cover any due or unpaid financing debt. If completion is after the Projected Acceptance Date, the Final Project Acceptance Date shall become the guarantee period start date. All accrued Interim Period Energy Use Savings shall be credited to the overall Energy Savings Guaranty under the Agreement.

9.3. Annual Energy Savings Guaranty. The ESCO shall guarantee energy and operational savings from the date of the Certification of Final Acceptance and for ____________(__) years following such date (the “Energy Savings Guaranty”). The ESCO has formulated and guaranteed the annual level of cost savings as provided for in Schedule N. The ESCO will achieve these savings


each year as a result of the performance by ESCO of the services specified in this Agreement utilizing the Methods of Savings Measurement and Verification set forth in Schedule F.

9.4. Annual Review, Reconciliation and Reimbursement. Cost savings achieved at the Premises

shall be reported, reconciled and verified pursuant to the provisions of Schedule F. If any annual review, reconciliation and verification of energy savings reveals that the ESCO has failed to achieve the annual guaranteed energy savings and operating cost savings set forth in Schedule N, the ESCO shall pay the ISSUER or the ISSUER’S designee, as may be directed by the ISSUER, the difference between the annual amount guaranteed and the amount of actual annual cost savings achieved at the Premises. The ESCO shall remit such payments to the ISSUER not later than thirty (30) calendar days of written demand therefore by the ISSUER.

9.5. Utility Rebates. Utility rebates secured or obtained due to the installation of the ECMs at the

Premises shall belong to the ISSUER.

9.6. Monitoring, Savings Measurement and Verification and any Post-Acceptance Training Fees. Payment to the ESCO for maintenance, monitoring, savings measurement, verification and reporting, and Post-Acceptance Training services performed after the Certificate of Project Acceptance shall be made by the ISSUER pursuant to and in accordance with Schedule O.

10. GENERAL TERMS AND CONDITIONS

10.1. Independent Contractor Status. Under this Agreement, the ESCO, its employees, agents, or assigns shall be designated as an Independent Contractor and shall not represent otherwise to any person when providing its services

10.2. Compliance with Laws. The ESCO and its subcontractors shall comply with all laws, rules

regulations and codes applicable to the performance of this Agreement. Except where expressly required by applicable laws and regulation, the ISSUER shall not be responsible for monitoring the ESCO’s compliance with any laws or regulations. When the ESCO observes conflicting regulatory requirements, it shall notify the ISSUER in writing immediately. If the ESCO performs any of the Project knowing or having reason to know that the Work or services required to implement the Project are contrary to such laws, rules and regulations, the ESCO shall endure all costs arising there from.

10.3. Responsibility for Damages. The ESCO shall be responsible for all loss or damage to the

Work, the Premises, or to improvements or personal property thereon caused by the ESCO or its subcontractors.

10.4. Right to Audit. The ISSUER shall have the right to have access to and audit all of the

ESCO’s records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda and similar data related to this Agreement. In addition, the ISSUER or its authorized representative shall have access to the ESCO’s facilities and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with this Article.

10.5. Assignment. The ESCO acknowledges that the ISSUER is induced to enter into this

Agreement by, among other things, the professional qualifications of the ESCO. The ESCO agrees that neither this Agreement nor any of its right or obligation hereunder shall be assigned in whole or in part, without the prior written approval of the ISSUER.

10.6. Duty to Indemnify. The ESCO shall defend, indemnify, keep and save harmless the

ISSUER and its agents and employees against all suits, claims, damages, losses and expenses,


including attorney's fees, caused by, arising out of, or incidental to, the wrongful or negligent performance under this Agreement by the ESCO or its subcontractors to the full extent as allowed by the laws of the State of North Carolina. The ISSUER shall promptly notify the ESCO of any suits or claims related to this Agreement including the nature of the suit or claim. The ESCO, at its sole expense, shall settle or defend and control the defense of any suit based upon such claim or claims. In the event of any such injury, including death, or loss or damage, or claims therefore, the ESCO shall give prompt notice to the ISSUER. The ESCO shall cause its subcontractors to include a substantially identical indemnity and shall include the ISSUER as a named indemnitee under their subcontracts.

10.6.1. Effect of Statutory Limitations. In the event of any claim against the ISSUER or

against any of its officials or employees, in either their personal or official capacities, made by any direct or indirect employee or agent of the ESCO or of any subcontractor, the ESCO’s indemnification obligation shall not be affected by any limitation on the amount or type of damages, compensation or benefits payable to said employee or agent contained in any other type of employee benefit act.

10.6.2. Intellectual Property Claims Indemnification. The ESCO shall protect, defend,

indemnify and hold the ISSUER harmless against and from any and all claims, judgments, amounts paid in settlement, costs and expenses, including attorneys' fees relating to alleged patent, trademark or copyright infringement, misappropriation of proprietary rights, or trade secrets or similar claims, resulting from actions taken by the ESCO in connection with this Agreement.

10.7. Liability; Joint and Several Liabilities, Limitation on Liability. The ESCO shall be liable to

the ISSUER for any breach or default resulting from ESCO’s failure to comply with the terms of this Agreement. Any review, approval, acceptance or payment for any and all of the ESCO’s performance by the ISSUER shall not relieve the ESCO of its responsibility for the Project. This provision in no way limits the ISSUER’S rights and defenses against the ESCO either under this Agreement or otherwise in law or in equity.

Each party’s liability under this Agreement, whether in contract or in tort, shall be limited to two (2) times the value of contract. The preceding limitation on liability shall not apply to the payment of cost and damage awards referred to in Paragraph 10.6.2., to claims for injury to persons or damage to property caused by ESCO’s negligence or willful or wanton conduct. The limitation on liability does not apply to the receipt of court cost or attorney’s fees that might be awarded by a court in addition to damages after litigation based on this Agreement.

10.8. Force Majeure. Neither Party shall be deemed to be in default of its obligations hereunder if and so long as it is prevented from performing such obligations by any act of war, hostile foreign action, nuclear explosion, riot, strikes, civil insurrection, quarantine restrictions, delays of common carriers, earthquake, hurricane, tornado, or other catastrophic natural event or act of God.

10.9. No Waiver. The failure of ISSUER or the ESCO to insist upon the strict performance of

the terms and conditions hereof shall not constitute or be construed as a waiver or relinquishment of either Party's right to thereafter enforce the same in accordance with this Agreement in the event of a continuing or subsequent default on the part of the ISSUER or the ESCO. Every such right and power in the event of a default may be exercised from time to time and as often as may be deemed expedient.

10.10. Severability. It is agreed that the illegality or invalidity of any term or clause of this

Agreement, shall not affect the validity of the remainder of this Agreement and this Agreement


shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein, provided that the remaining portions of the Agreement shall be construed to effectuate as nearly as possible the apparent intent of the term or clause.

10.11. Complete Agreement; Amendments. This Agreement, when executed, together with all

Project Documents and Schedules referred to in Paragraph 4.3 and any other exhibits or attachments referred to in this Agreement shall constitute the entire agreement between the Parties and this Agreement may not be amended or modified except by a written agreement signed by the Parties hereto.

10.12. 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 Agreement.

10.13. Applicable Law. This Agreement and the construction and enforceability thereof shall be interpreted under the laws and solely in the courts of the State of North Carolina.

10.14. Notices. All notices required under this Agreement shall be in writing and shall be deemed

properly served if delivered in person to the individual to whom it is addressed or, three (3) days after deposit in the United States mail, if sent postage prepaid by United States registered or certified mail, return receipt requested to the persons listed as follows:

For the Issuer: For the ESCO:

10.15. Non-appropriation of Funds. If during any fiscal period, funds are insufficiently appropriated and budgeted to pay the ESCO under this Agreement, the ISSUER shall notify the ESCO in writing of such occurrence, not less than ___ days prior to end of such applicable fiscal period and this Agreement shall terminate on the last day of the fiscal period for which appropriations were made without penalty or expense to the ISSUER of any kind whatsoever, except as to the portions of payments herein agreed upon for which the ISSUER and/or other funds shall have been appropriated and budgeted or are otherwise available.

10.16. Termination for Convenience by the ISSUER. Subsequent to the date of the Certification

of Final Acceptance, this Agreement may be terminated at the sole discretion of the ISSUER in accordance with the provisions of this Paragraph 10.16. The ISSUER shall deliver written notice to the ESCO no less than 30 days from the date of termination. Until the specified date of termination of this Agreement, the ESCO’s obligation to report, reconcile and verify the energy savings achieved during the guaranty period preceding termination remains in full force and effect, as does its obligation, pursuant to Section 9 of this Agreement, to remit payment to the ISSUER in the event that the energy savings have not been achieved at the level guaranteed by the ESCO. If the end of the notice period does not coincide with the end of the annual guaranty period all calculations of payments shall be prorated.


The termination of this Agreement by the ISSUER shall release the ESCO from its obligation to provide maintenance, monitoring and training services after the effective date of termination, as well as its obligation to provide the Energy Savings Guaranty after the termination date. Termination by the ISSUER shall release it from the obligation to make any payments to the ESCO for maintenance, monitoring and training services after the termination date, provided, however, that the ISSUER is responsible for payment for maintenance, monitoring and training services performed in accordance with the terms of this Agreement prior to the termination date.

11. EVENTS OF DEFAULT OR BREACH; REMEDIES

11.1. Events of Default.

11.1.1. By the ISSUER. Each of the following events or conditions shall constitute an "Event of Default" by the ISSUER: i. any failure by the ISSUER to pay the ESCO any sum due for a service and

maintenance period of more than sixty (60) days after written notification by ESCO that ISSUER is delinquent in making payment and provided that ESCO is not in default in its performance under the terms of this Agreement;

ii. any other material failure by the ISSUER to perform or comply with the terms and conditions of this Agreement, including breach of any covenant contained herein, provided that such failure continues for sixty (60) days after notice to the ISSUER demanding that such failures to perform be cured or if such cure cannot be effected in sixty (60) days, the ISSUER shall be deemed to have cured default upon the commencement of a cure within sixty (60) days and diligent subsequent completion thereof; or

iii. any representation or warranty furnished by the ISSUER in this Agreement, which was false, or misleading in any material respect when made.

11.1.2. By the ESCO. Each of the following events or conditions shall constitute an "Event

of Default" by ESCO:

iv. the standards of comfort and service set forth in Schedule D (Standards of Comfort) are not provided due to failure of ESCO to properly design, install, maintain, repair or adjust the Equipment except that such failure, if corrected or cured within thirty (30) days after written notice by ISSUER to ESCO demanding that such failure be cured, shall be deemed cured for purposed of this Contract;

v. any representation or warranty furnished by ESCO in this Agreement is false or misleading in any material respect when made;

vi. failure to furnish and install the Equipment and make it ready for use within the time specified by this Agreement as set forth in Schedules E (ECMs and Equipment to be Installed by ESCO) and I (Construction and Installation Schedule);

vii. provided that the operation of the Premises is not adversely affected and provided that the standards of comfort in Schedule D (Standards of Comfort) are maintained, any failure by ESCO to perform or comply with the terms and conditions of this Agreement, including breach of any covenant contained herein except that such failure, if corrected or cured within thirty (30) days after written notice by the ISSUER to ESCO demanding that such failure to perform be cured, shall be deemed cured for purposes of this Contract;

viii. any lien or encumbrance is placed upon the Equipment by any subcontractor, laborer, supplier or lender of ESCO;

ix. the filing of a bankruptcy petition whether by ESCO or its creditors against ESCO 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 ESCO;

x. Any change in ownership or control of ESCO without the prior approval of the ISSUER, which shall not be unreasonably withheld; or

xi. failure by ESCO to pay any amount due Agency or perform any obligation under the terms of this Contract or the Energy Savings Guarantee as set forth in Schedule N (Energy Savings Guarantee).

11.2. Remedies upon Default.

11.2.1. Remedies upon Default by the ISSUER. In an event of default by the ISSUER, the

ESCO may exercise all remedies available at law or in equity or statute other appropriate proceedings including bringing an action or actions from time to time for recovery of amounts due and unpaid by ISSUER, and/or for damages which shall include all costs and expenses reasonably incurred in exercise of its remedy. Election of one (1) remedy is not a waiver of other available remedies.

11.2.2. Remedies upon Default by ESCO. In the Event of Default by ESCO, ISSUER may

exercise any and all remedies at law or equity or statute, or institute other proceedings, including, without limitation, bringing an action or actions from time to time for specific performance, and/or for the recovery of amounts due and unpaid and/or for damages, which shall include all costs and expenses reasonably incurred, including attorney's fees. Election of one (1) remedy is not a waiver of other available remedies. In addition, the ISSUER shall have the following rights:

11.2.2.1. Right to Terminate the ESCO’s Performance of the Work. If the ESCO fails or refuses to perform the Work with such diligence as to allow completion of the Work substantially in accordance with the Project Installation Schedule, or commits a material breach of any other provision of this Agreement or the Project Documents, and provided that such breach continues for thirty (30) days after written notice to the ESCO demanding that such breach be cured or if cure cannot be effected within thirty (30) days, or the ESCO fails to propose and commence a cure acceptable to the ISSUER within such thirty (30) days, the ISSUER may terminate the ESCO’s right to proceed with the Work as specified herein. In no event shall the ISSUER have any obligation to compensate the ESCO for delays arising pursuant to the ESCO’s failure or refusal to complete the Work and damages arising in connection therewith.

In such case, the ISSUER shall give the ESCO and its surety written notice of intention to terminate the ESCO’s right to complete the Work and the reason therefore and, unless within seven (7) business days the delay or violation shall cease or a cure acceptable to the ISSUER for correcting the situation is proposed, the ISSUER may issue a termination notice to such effect for the ESCO and its surety. Thereupon, the surety will be given the opportunity to complete the Work in accordance with the Project Documents. Such completion may include, but not be limited to, the use of a completing ESCO, satisfactory to the ISSUER, pursuant to a written takeover agreement, the payment of a sum of money required to allow the ISSUER to complete the Work, or other arrangements agreed to by the ISSUER and the surety. If within seven (7) business days following the issuance of the termination notice, the surety fails to notify the ISSUER that it intends to exercise its right to undertake the Work, the ISSUER may take over the Work, exclude the ESCO from the Premises and take possession of all of the ESCO’s tools, appliances,


equipment and machinery at the Premises and use the same to the full extent they could have been used by the ESCO (without liability for trespass or conversion), incorporate into the Work all materials and equipment stored at the Premises and finish the Work as the ISSUER may deem expedient. In the event the ISSUER terminates the ESCO’s right to complete the Work under this Paragraph 11.2.2.1, the ESCO shall not be entitled to receive further payments until a Certificate of Acceptance has been delivered pursuant to Article 8 hereof specifying the amount, if any, payable to the ESCO. If the ISSUER’s expenses in completing the Work exceed the ESCO’s Compensation for the Work, the ESCO shall pay the difference to the ISSUER upon demand therefore. A Certificate of Beneficial Use and Acceptance directing payment to the ESCO for any portion of completed Work may be issued only if the notification required pursuant to Article 7 has been delivered by the ESCO. If the ESCO is not able to deliver such notification, the ISSUER shall not execute and deliver a Certificate of Acceptance and may terminate this Agreement in accordance with Article 11 and may pursue any and all remedies provided therein.

11.2.2.2. Right to Offset. Any additional costs incurred by the ISSUER in the event of termination of this Agreement for breach or default or otherwise resulting from the ESCO’s performance or non-performance under this Agreement, and any credits due or overpayments made by the ISSUER may be offset by use of any payment due for the Work or other services completed before the termination for a breach or default or before the exercise of any remedies. If such amount offset is insufficient to cover such excess costs, the ESCO shall be liable for and promptly remit to the ISSUER the difference upon written demand therefore. This right to offset is in addition to and not a limitation of any other remedies available to the ISSUER.

12. REPRESENTATIONS AND WARRANTIES

12.1. Representations of the Parties. 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 Agreement and perform its obligations hereunder;

ii. Its execution, delivery, and performance of this Agreement has been duly authorized, executed and delivered by the signatories so authorized, and it constitutes its legal, valid, and binding obligation; and

iii. It has not received any notice, nor to the best of its knowledge is there pending or threatened any notice, of any violation of any applicable laws, ordinances, regulations, rules, decrees, awards, permits or orders which would materially and adversely affect its ability to perform hereunder.

12.2. Representations and Warranties by the Issuer. The ISSUER hereby warrants and

represents to the ESCO that:

i. It will provide throughout the term of this Agreement (or cause its energy suppliers to furnish) to the ESCO, upon its request, copies of all available records and data concerning energy usage for the Premises including but not limited to the following data: utility records and rate schedules; occupancy information; descriptions of any major changes in the structure or use of the buildings or heating, cooling, lighting or other systems or energy requirements; descriptions of all energy consuming or saving equipment used in the Premises; descriptions of energy management


procedures presently utilized; and any prior energy analyses of the Premises. The ISSUER shall make knowledgeable employees and agents available for consultations and discussions with the ESCO concerning energy usage of the Premises.

ii. The ISSUER has not entered into any leases, contracts or agreements with other persons or entities regarding the leasing of energy efficiency equipment or the provision of energy management services for the Premises or with regard to maintaining any of the energy related equipment located in the Premises.

12.3. Representations and Warranties by the ESCO. In addition to the other representations

and warranties contained in the Project Documents, the ESCO represents and warrants the following to the ISSUER as an inducement to the ISSUER to execute this Agreement, which shall survive the execution and delivery of this Agreement and the Final Completion of the Work.

i. That it is financially solvent, able to pay its debts as they mature and possessed of

sufficient working capital to complete the Work and perform its obligations under this Agreement;

ii. That it and each of its employees, agents and subcontractors of any tier are competent to perform its obligations under this Agreement;

iii. That it is able to furnish the plant, tools, materials, supplies, equipment and labor required to complete the Work and perform its obligations hereunder and has sufficient experience and competence to do so;

iv. That it is authorized to do business in the State of North Carolina and is properly licensed by all necessary governmental and public and quasi-public authorities having jurisdiction over it and over the Work and the Premises;

v. That its execution of this Agreement and its performance thereof is within its duly authorized powers; and

vi. That its duly authorized representative has visited the Premises familiarized itself with the local conditions under which the Work is to be performed and correlated its observations with the requirements of the Project Documents.

13. Miscellaneous

13.1 E-Verify. As required by G.S. §143-48.5 (Session Law 2013-418), ESCO certifies that it, and each of its subcontractors performing Work under this Agreement complies with the requirements of Article 2 of Chapter 64 of the NC General Statutes, including the requirement for each employer with more than 25 employees in North Carolina to verify the work authorization of its employees through the federal E-Verify system.

13.2 Suspension and Debarment. The ESCO certifies that with regard to:

A. DEBARMENT AND SUSPENSION - To the best of its knowledge and belief that it and its

principals:

(1) are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal, State, or local government agency;

(2) have not within a 3-year period preceding this proposal been convicted of or had

a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public


(Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;

(3) are not presently indicted for or otherwise criminally or civilly charged by a

governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (A)(2) of this certification; and have not within a 3-year period preceding this application/proposal had one or more public transactions (Federal, State, or local) terminated for cause or default.

13.3 Drug Free Workplace. ESCO certifies that it will comply by:

(1) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition;

(2) Establishing a drug-free awareness program to inform employees about -

(a) The dangers of drug abuse in the workplace; (b) The grantee's policy of maintaining a drug-free workplace; (c) Any available drug counseling, rehabilitation, and employee assistance

programs; and (d) The penalties that may be imposed upon employees for drug abuse violations

occurring in the workplace;

(3) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (1) above;

(4) Notifying the employee in the statement required by paragraph (1), above, that, as

a condition of employment under the grant, the employee will - (a) Abide by the terms of the statement; and (b) Notify the employer of any criminal drug statue conviction for a violation

occurring in the workplace no later than five days after such conviction;

(5) Notifying the agency within ten days after receiving notice under subparagraph (4)(b), above, from an employee or otherwise receiving actual notice of such conviction;

(6) Taking one of the following actions, within 30 days of receiving notice under

subparagraph (4)(b), above with respect to any employee who is so convicted - (a) Taking appropriate personnel action against such an employee, up to and

including termination; or (b) Requiring such employee to participate satisfactorily in a drug abuse

assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency;

(7) Making a good faith effort to continue to maintain a drug-free workplace through

implementation of paragraphs (1), (2), (3), (4), (5), and (6), above.


13.3 Governing Law. This Agreement is made under and shall be governed and construed in accordance with the laws of the State of North Carolina.

13.5 Public Records. This Agreement shall be governed in accordance with G.S. §132 regarding Public Records. 13.6 Records Retention. All records pertaining to this Agreement shall be maintained in accordance with the North Carolina Department of Cultural Resources, Division of Archives and Records, Government Records Section, General Schedule for State Agency Records or other applicable State law. The State Auditor and the using agency’s internal auditors shall have access to persons and records as a result of all Agreements entered into by State agencies or political subdivisions in accordance with G.S. §147-64.7 and Session Law 2010-194, Section 21 (i.e., the State Auditors and internal auditors may audit the records of the contractor during the term of the contract to ver ify accounts and data affecting fees or performance). The ESCO shall retain all records for a period of six (6) years following completion of the contract or until any audits begun during this period are completed and findings resolved, whichever is later.

IN WITNESS WHEREOF, the Parties have executed this Energy Services Agreement by their authorized signatures as of this ___ day of ________, 20___. THE ISSUER: THE ESCO: BY:____________________________ BY:________________________________ Title:_________________ Title:_________________


APPENDIX VII

MINORITY BUSINESS ENTERPRISES

MINORITY BUSINESS ENTERPRISE PARTICIPATION IN CONSTRUCTION AND PURCHASE CONTRACTS POLICY

It is the policy of the Board to provide minorities’ equal opportunity to participate in all aspects of the school system's contracting and purchasing programs, including but not limited to participation in procurement contracts for materials, supplies and equipment, and contracts for the construction, renovation or repair of school facilities and equipment. It is further the policy of the Board to prohibit discrimination against any person or business enterprise on the basis of race, color, ethnic origin, sex, handicapping condition, or religion and to conduct its contracting and purchasing programs so as to prevent such discrimination. It is the policy of the Board in concert with other local, state and federal agencies and with the assistance of minority groups and agencies, actively to seek and identify qualified minority business enterprises (MBEs) and to offer them the opportunity to participate, and to encourage them to participate, in the school system's contracting and purchasing programs. Under this policy, the Board adopts the definition of MBEs contained in N.C. Gen. Stat. § 143-128.2. It is not the policy of this Board to provide information or other opportunities to minority business enterprises that will not be available to all other business enterprises. It is the intent of this policy to establish procedures designed to assure MBEs access to information and opportunities available to other business enterprises. It is not the intent of this policy to establish procedures that will increase the cost of the school system's construction and purchasing programs. It is the intent of this policy to widen opportunities for participation, to increase competition, and to reduce costs. The Board will award public building contracts without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition, as defined in N.C. Gen. Stat. § 168A-3. The Board shall use the State’s verifiable goal of ten percent (10%) for participation by minority business in building construction.


APPENDIX VIII

Sexual Offender Registry Check Certification Form

Project Name: ______________________________ Contract: _____________________

Check the appropriate box to indicate the type of check:

Initial Supplemental Annual

I, ________________________ (insert name), ______________________ (insert title) of

_________________________________ (insert company name) hereby certify that I have performed

all of the required sexual offender registry checks required under this Agreement for all contractual

personnel (employees, agents, ownership personnel, or contractors ) who may be used to deliver goods

or provide services under this Agreement, including the North Carolina Sex Offender and Public

Protection Registration Program, the North Carolina Sexually Violent Predator Registration Program,

and the National Sex Offender Registry (Note: all of the required registry checks may be completed at

no cost by accessing the United States Department of Justice Sex Offender Public Website at

http://www.nsopw.gov/).. I further certify that none of the individuals listed below appears on any of

the above-named registries and that I will not assign any individual to deliver goods or perform

services under this Agreement if said individual appears on any of the sex offender registries. I agree

to maintain all records and documents associated with these registry checks, and that I will provide

such records and documents to the school system upon request. I specifically acknowledge that the

school system retains the right to audit these records to ensure compliance with this section at any time

in the school system’s sole discretion. I acknowledge that I am required to perform these checks and

provide this certification form before any work is performed under the Agreement (initial check), any

time additional contractual personnel may perform work under the Agreement (supplemental check),

and at each anniversary date of the Agreement (annual check).

Contractual Personnel Names Job Title

1. ________________________ ________________________

2. ________________________ ________________________

3. ________________________ ________________________

4. ________________________ ________________________

5. ________________________ ________________________

I attest that the forgoing information is true and accurate to the best of my knowledge.

________________________________ (print name)

________________________________ (signature / date)

http://www.nsopw.gov/