to honor the Performance Guarantee with respect to any portion of the Work in the event the
Customer: (i) fails to authorize a reacceptance test or recommissioning that ESCO
reasonably deems necessary in order to prevent a savings shortfall with respect to such
portion of the Work; (ii) fails to provide access to a site were such portion of the Work was
performed as required herein, (iii) fails to service and maintain all equipment associated with
such portion of the Work in accordance with the manufacturers’ recommendations in order
to prevent a savings shortfall; or (iv) cancels or terminates the Continuing Service
Program/Contract (See Attachment 2 — Maintenance and Service Agreements).
6.4 Performance Remedies
Energy-related cost savings shall be measured and/or calculated as specified in the
measurement and verification plan provided in Attachment 4 - M& V Plan or as may be
mutually agreed upon in writing. In the event that the energy and cost savings achieved
during such twelve-month period is less than the corresponding Guaranteed Savings for the
same annual period as reflected in Attachment 4 - M & V Plan while the Performance
Guarantee is in effect, ESCO shall pay to Customer within thirty (30) days of the delivery of
such report an amount equal to the deficiency.
In the event of such deficiency, ESCO reserves the right, subject to Customer’s approval,
which shall not be unreasonably withheld, to implement additional operation improvements
or conservation measures, at no cost to Customer, that will improve energy savings in
future years of Performance Guarantee.
All costs associated with having the ECMs/OCMs repaired, replaced, adjusted or re-
engineered and re-installed shall be paid by ESCO and presentation of evidence of such
payment shall be a condition to any Customer approval of such work. If during any twelve-
month period specified in Attachment 2 - Maintenance and Service Agreement and
Attachment 4- M & V Plan the savings achieved are greater than the Guaranteed Energy
and Cost Savings, such excess shall be retained by the Customer and not applied to
ESCO’s requirement to deliver Energy Savings beyond the stated year.
6.5 Security for Performance Guarantee — Not Included
6.6 Independent Audit — Not Included
6.7 Other Performance Terms and Conditions
All actions taken under Section 6, including but not limited to correction of warranties,
remedy of performance shortfalls and maintenance of equipment by ESCO, shall conform
with sections 5.02 through 5.17 inclusive.
6.8 Contract Closeout Responsibility
At the termination of the Contract, ESCO shall perform a walk-through survey of the
properties covered by this Contract and prepare an assessment of the condition of the
equipment and materials installed as part of the Work and subsequent thereto under this
Article. This closeout report shall include but not be limited to the following, as appropriate:
1) Operating and maintenance recommendations during the remaining life of
20 ESCO Contract — Nashua Schools & EEI, Inc.
