AND REPRESENTATIONS SET FORTH IN THIS CONTRACT MAY ONLY BE MODIFIED
OR SUPPLEMENTED IN A WRITING EXECUTED BY A DULY AUTHORIZED
SIGNATORY OF EACH PARTY.
6.2 Evaluation of Savings Achieved
ESCO shall also prepare and deliver to Customer an annual report of the savings achieved
at the Premises for each of the twelve-month periods specified in Attachment 4 - M& V Plan
in a form suitable for review and subsequent forwarding to the Customer and any consultant
or auditor designated by Customer. ESCO shall include in such report, to the extent
practicable, emissions reduction quantities or similar data attributable to or resulting from the
Work and shall advise Customer on opportunities to achieve monetary benefits from such
credits or attributes which shall be the property of Customer.
The Customer shall notify ESCO of substantive changes in the properties or the operation
or occupancy thereof which could affect energy or water use. Such substantive change shall
be agreed upon by the parties and incorporated in the determination and evaluation of
savings. The obligations under this Article are also described in Attachment 4 - M& V Plan.
ESCO shall be compensated at the rate described in Attachment 3 - Project Cost for
maintaining, monitoring and verification and reporting services.
6.3 Performance Guarantee
ESCO hereby guarantees the level of savings for the time periods and to the level described
in Attachment 4 - M & V Plan (“Performance Guarantee”). The Performance Guarantee
commencement date shall not occur and the Customer shall not be required to accept the
Work unless and until all equipment installation at the Premises and training is completed in
accordance with the terms and conditions of this Contract, including, without limitation, the
satisfaction of all claims for labor and materials. In the event that Final Acceptance occurs
after the commencement date of the Performance Guarantee (See Attachment4-M& V
Plan), then the parties will mutually agree on a modified Attachment 4 - M & V Plan to
accommodate the delay in beginning the Performance Guarantee.
The Performance Guarantee is to be achieved as a result of the Work and theECMs/OCMs
and the resulting savings, if any, shall be calculated in accordance with the procedures
described in Attachment 4 - M& V Plan. The Performance Guarantee is subject to the
satisfactory performance by Customer of all of its obligations under this Contract. In the
event that this Contract is terminated by an uncured Event of Default by Customer, the
Performance Guarantee shall be cancelled. The Performance Guarantee shall remain in
effect for a term not less than the time required to finance the Work or otherwise specified
in this document.
The Performance Guarantee shall thereafter terminate. In any event, ESCO and Customer
have structured the Energy Savings and the Performance Guarantee to be sufficient sothat
the conversion to US Dollars results in amounts sufficient to exceed any and all payments
(In whole or in part) required by Customer in connection with the acquisition of equipment
to be installed by ESCO pursuant to this Contract, the Customer’s lease or financing
obligations and any related agreements associated with the execution of this Contract or
the implementation of the Work.
ESCO shall have no liability to continue providing measurement and verification services or
19 ESCO Contract — Nashua Schools & EEI, Inc.
