Cities Index.
City of Cotati RFP Response - Engie

Cotati City Council
October 22, 2024

Document
City of Cotati RFP Response - Engie
Meeting
October 22, 2024
Body
Cotati City Council
Pages
2
Original file
16.8 MB
Text extracted from the city's file for reading and search. Open the original on cotaticity.primegov.com. That file is the official record.

The items included in this package are similar to last year’s from Utilityvision®. In order of inclusion:

1.) Cover Letter

2.) Sign-off sheet for acceptance

3.) Savings Summary: Monthly Dollar Savings vs. Guarantee – Year 7

4.) Cost Analysis: Energy Savings Project Performance Graph & Table – Year 7

5.) Energy Analysis – Graph & Table for Amicalola Falls Monthly kWh Savings

6.) Energy Analysis – Graph & Table for Brasstown Monthly kWh Savings

7.) Energy Analysis – Graph & Table for Brasstown Monthly Therm Savings

8.) Energy Analysis – Graph & Table for Unicoi Monthly kWh Savings

9.) Baseline Summary Sheet (for Option C Meters)
Here is a historical summary of the program to-date:

Some totals may be off slightly due to rounding.

Please sign the sign-off sheet and send back to ENGIE Services U.S. Inc. showing your acceptance of the Year 7 reports within 30 days in the envelope provided. After reviewing the reports, if you have any questions, please call me at (816) 679-3389 or contact me by e-mail at [email protected].

Sincerely,
ENGIE Services U.S. Inc.

Steve Schulte, CMVP, CEM
Report Team Manager
cc: Bill Donohue – NGMA – Buford, GA
Craig Campbell – ENGIE Services U.S. Inc. – Georgia
Option A Stipulated Total Guaranteed Total
Year $ Savings % kWh
Svgs
% Therm
Svgs
$ Savings $ Savings $ Savings $ Savings Excess
Savings
Year 0 (9m) $154,617 23.8% 24.9% $23,757 $15,053 $193,428 $0 $193,428 Year 1 (12m) $300,961 34.3% 30.6% $68,570 $161,064 $530,595 $503,111 $27,484 Year 2 (12m) $282,585 31.3% 28.9% $70,079 $154,400 $507,064 $503,972 $3,091 Year 3 (12m) $299,468 34.1% 21.6% $71,620 $147,584 $518,672 $504,847 $13,825 Year 4 (12m) $305,526 36.6% 27.4% $73,196 $140,613 $519,335 $505,735 $13,600 Year 5 (12m) $334,632 36.6% 21.9% $74,806 $133,481 $542,919 $506,637 $36,282 Year 6 (12m) $312,789 33.0% 21.6% $76,452 $126,186 $515,427 $507,551 $7,876 Year 7 (12m) $336,955 35.0% 21.9% $78,134 $118,724 $533,813 $508,479 $25,334 $2,327,534 34.4% 24.8% $536,614 $997,105 $3,861,253 $3,540,332 $320,921 Option C
Averages Yr1 - Yr 7
I have looked at and accept the reports and
calculations included with the letter copied here.

Date:

Mr. James Hamilton, Management Assistant
North Georgia Mountains Authority

Please return this signed page to:

ENGIE Services U.S. Inc.

Energy Management Group – Vicki Santoro
12980 Foster Street, Suite 400
Overland Park, KS 66213-2601
[email protected]
YEAR 7
Dollar
Savings
Electric
% (kWh)
Svgs
Propane
%
(Therms)
Svgs
Lighting &
Water
Utility Meter
Consolidation &
Wholesale
Propane
Purchasing
Electric,
Gas,
Water &
Sewer
Life Cycle
Cost
Avoidance
Savings
Operations
& Maint.

Savings
Jan-23 $29,216 33.6% 16.9% $2,235 $4,276 $5,718 $798 $3,378 $45,621 $42,373 $3,248 Feb-23 $45,324 47.3% 41.1% $2,235 $4,276 $5,718 $798 $3,378 $107,350 $84,747 $22,603 Mar-23 $29,004 36.4% 23.3% $2,235 $4,276 $5,718 $798 $3,378 $152,759 $127,120 $25,639 Apr-23 $28,910 40.7% 18.5% $2,235 $4,276 $5,718 $798 $3,378 $198,074 $169,493 $28,581 May-23 $21,948 31.8% 22.2% $2,235 $4,276 $5,718 $798 $3,378 $236,427 $211,866 $24,560 Jun-23 $23,277 34.3% -2.0% $2,235 $4,276 $5,718 $798 $3,378 $276,109 $254,240 $21,870 Jul-23 $21,537 26.1% 19.7% $2,235 $4,276 $5,718 $798 $3,378 $314,051 $296,613 $17,438 Aug-23 $23,312 27.5% 25.5% $2,235 $4,276 $5,718 $798 $3,378 $353,768 $338,986 $14,782 Sep-23 $25,853 33.8% 22.3% $2,235 $4,276 $5,718 $798 $3,378 $396,026 $381,359 $14,667 Oct-23 $34,785 43.1% 26.5% $2,235 $4,276 $5,718 $798 $3,378 $447,216 $423,733 $23,483 Nov-23 $29,121 35.3% 22.7% $2,235 $4,276 $5,718 $798 $3,378 $492,742 $466,106 $26,636 Dec-23 $24,667 29.4% 13.6% $2,235 $4,276 $5,718 $798 $3,378 $533,813 $508,479 $25,334 Totals $336,955 35.0% 21.9% $26,818 $51,316 $68,612 $9,580 $40,532 *Some totals may be off slightly due to rounding.

Measured Option C - Sites Measured Option A Stipulated
Savings
to-date
Pro-rated
Guarantee
to-date
Excess
Savings
to-date
North Georgia Mountains Authority - Savings Summary
Cost Analysis : Energy Savings Project Performance - Year 7 From: Sunday, January 1, 2023 To: Sunday, December 31, 2023 Interval 1 Month Wednesday, January 3, 2024 1 / 1
Cost Analysis : Energy Savings Project Performance - Year 7 From: Sunday, January 1, 2023 To: Sunday, December 31, 2023 From Timestamp All Sites.Life
Cycle Cost
Avoidance
Savings ($)
All
Sites.Operati
on and
Maintenance
Savings ($)
All
Sites.Option
A Lighting
Savings ($)
All
Sites.Option
A Utility
Meter
Consolidatio
n Savings ($)
All
Sites.Option
A Water
Savings ($)
All
Sites.Option
A Wholesale
Propane
Savings ($)
All
Sites.Stipulat
ed Electric
Savings ($)
All
Sites.Stipulat
ed Propane
Savings ($)
All
Sites.Stipulat
ed Water and
Sewer
Savings ($)
Amicalola
Falls State
Park and
Lodge.Electri
city Savings
($)
1/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 11,283.97 2/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 9,745.78 3/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 6,265.23 4/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 6,605.18 5/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 3,809.14 6/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 2,842.06 7/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 1,388.65 8/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 2,229.84 9/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 3,414.68 10/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 6,129.88 11/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 7,013.48 12/1/2023 12:00:00 AM 798.33 3,377.67 1,699.06 815.30 535.74 3,461.07 3,112.26 2,589.29 16.11 8,504.57 9,579.96 40,532.04 20,388.72 9,783.60 6,428.88 41,532.84 37,347.12 31,071.48 193.32 69,232.46 Wednesday, January 3, 2024 1 / 2
Brasstown
Valley
Resort.Electr
icity Savings
($)
Brasstown
Valley
Resort.Propa
ne Savings
($)
Unicoi State
Park and
Lodge.Electri
city Savings
($)
7,729.82 3,652.50 6,550.14
16,629.56 7,458.04 11,490.46
7,943.75 3,746.86 11,048.46
10,949.70 2,292.96 9,062.50
8,895.30 2,731.31 6,511.92
11,850.79 -158.52 8,743.12
12,220.96 1,813.73 6,113.73
13,645.03 2,633.26 4,804.32
16,914.33 2,353.71 3,170.52
14,560.92 3,632.93 10,460.91
10,797.79 3,716.54 7,593.45
6,827.27 2,129.53 7,205.42
138,965.22 36,002.85 92,754.95
Wednesday, January 3, 2024 2 / 2
1 Month (Month and Year) : 1/1/2023 12:00 AM - 12/31/2023 11:59 PM [ Change Interval ] Chart Data Estimated Reads Notes Investigate
Energy Analysis 
Month and Year
kWh
Amicalola Falls State Park and Lodge.Actual Electricity (kWh) Amicalola Falls State Park and Lodge.Baseline Electricity (kWh) Amicalola Falls State Park and Lodge.Electricity Savings (kWh) Jan 2023 Feb 2023 Mar 2023 Apr 2023 May 2023 Jun 2023 Jul 2023 Aug 2023 Sep 2023 Oct 2023 Nov 2023 Dec 2023 0 25k
50k
75k
100k
125k
150k
175k
200k
225k
From Timestamp Amicalola Falls State Park and Lodge.Actual Electricity (kWh) Amicalola Falls State Park and Lodge.Baseline Electricity (kWh) Amicalola Falls State Park and Lodge.Electricity Savings (kWh) January 2023 93,101.0 193,394 100,293.0
February 2023 76,909.5 163,531 86,621.5
March 2023 78,393.0 134,079 55,686.0
April 2023 68,347.5 127,055 58,707.5
May 2023 76,820.0 110,676 33,856.0
June 2023 82,769.5 108,030 25,260.5
July 2023 104,106.5 116,449 12,342.5
August 2023 96,378.0 116,197 19,819.0
September 2023 80,168.0 110,518 30,350.0
October 2023 72,996.0 127,479 54,483.0
November 2023 92,997.5 155,334 62,336.5
December 2023 108,322.5 183,912 75,589.5
1,031,309.0 1,646,654 615,345.0

1 Month (Month and Year) : 1/1/2023 12:00 AM - 12/31/2023 11:59 PM [ Change Interval ] Chart Data Estimated Reads Notes Investigate
Energy Analysis 
Month and Year
kWh
Brasstown Valley Resort.Actual Electricity (kWh) Brasstown Valley Resort.Baseline Electricity (kWh) Brasstown Valley Resort.Electricity Savings (kWh) Jan 2023 Feb 2023 Mar 2023 Apr 2023 May 2023 Jun 2023 Jul 2023 Aug 2023 Sep 2023 Oct 2023 Nov 2023 Dec 2023 0 50k
100k
150k
200k
250k
300k
From Timestamp Brasstown Valley Resort.Actual Electricity (kWh) Brasstown Valley Resort.Baseline Electricity (kWh) Brasstown Valley Resort.Electricity Savings (kWh) January 2023 169,844.7 227,920 58,075.3
February 2023 134,819.6 259,760 124,940.4
March 2023 148,877.4 208,560 59,682.6
April 2023 131,733.3 214,000 82,266.7
May 2023 142,048.3 208,880 66,831.7
June 2023 155,683.3 244,720 89,036.7
July 2023 182,742.1 274,560 91,817.9
August 2023 180,522.9 283,040 102,517.1
September 2023 151,080.1 278,160 127,079.9
October 2023 142,601.7 252,000 109,398.3
November 2023 148,474.6 229,600 81,125.4
December 2023 166,305.7 217,600 51,294.3
1,854,733.7 2,898,800 1,044,066.3

1 Month (Month and Year) : 1/1/2023 12:00 AM - 12/31/2023 11:59 PM [ Change Interval ] Chart Data Estimated Reads Notes Investigate
Energy Analysis 
Month and Year
Therm
Brasstown Valley Resort.Actual Propane (Therm) Brasstown Valley Resort.Baseline Propane (Therm) Brasstown Valley Resort.Propane Savings (Therm) Jan 2023 Feb 2023 Mar 2023 Apr 2023 May 2023 Jun 2023 Jul 2023 Aug 2023 Sep 2023 Oct 2023 Nov 2023 Dec 2023 -2k
0 2k
4k
6k
8k
10k
12k
From Timestamp Brasstown Valley Resort.Actual Propane (Therm) Brasstown Valley Resort.Baseline Propane (Therm) Brasstown Valley Resort.Propane Savings (Therm) January 2023 9,229.2 11,109 1,879.8
February 2023 5,511.6 9,350 3,838.4
March 2023 6,343.6 8,272 1,928.4
April 2023 5,184.9 6,365 1,180.1
May 2023 4,919.3 6,325 1,405.7
June 2023 4,202.6 4,121 -81.6
July 2023 3,793.5 4,727 933.5
August 2023 3,960.7 5,316 1,355.3
September 2023 4,229.6 5,441 1,211.4
October 2023 5,189.2 7,059 1,869.8
November 2023 6,515.2 8,428 1,912.8
December 2023 6,959.0 8,055 1,096.0
66,038.4 84,568 18,529.6

1 Month (Month and Year) : 1/1/2023 12:00 AM - 12/31/2023 11:59 PM [ Change Interval ] Chart Data Estimated Reads Notes Investigate
Energy Analysis 
Month and Year
kWh
Unicoi State Park and Lodge.Actual Electricity (kWh) Unicoi State Park and Lodge.Baseline Electricity (kWh) Unicoi State Park and Lodge.Electricity Savings (kWh) Jan 2023 Feb 2023 Mar 2023 Apr 2023 May 2023 Jun 2023 Jul 2023 Aug 2023 Sep 2023 Oct 2023 Nov 2023 Dec 2023 0 25k
50k
75k
100k
125k
150k
175k
200k
225k
250k
From Timestamp Unicoi State Park and Lodge.Actual Electricity (kWh) Unicoi State Park and Lodge.Baseline Electricity (kWh) Unicoi State Park and Lodge.Electricity Savings (kWh) January 2023 152,254.7 204,240 51,985.3
February 2023 125,645.9 216,840 91,194.1
March 2023 127,833.8 215,520 87,686.2
April 2023 109,635.4 181,560 71,924.6
May 2023 108,278.1 159,960 51,681.9
June 2023 114,018.1 183,408 69,389.9
July 2023 145,034.4 193,556 48,521.6
August 2023 147,160.5 185,290 38,129.5
September 2023 126,277.1 151,440 25,162.9
October 2023 110,656.9 193,680 83,023.1
November 2023 131,494.5 191,760 60,265.5
December 2023 167,814.1 225,000 57,185.9
1,566,103.5 2,302,254 736,150.5

North Georgia Mountains Authority Year 7 1/3/2024
Baseline Summary Sheet Page 1 of 1
Amicalola Falls
Electric Usage (kWh)
Previous
Baseline
Adjusted
Baseline
January 193,394 193,394.0
February 163,531 163,531.0
March 134,079 134,079.0
April 127,055 127,055.0
May 110,676 110,676.0
June 108,030 108,030.0
July 116,449 116,449.0
August 116,197 116,197.0
September 110,518 110,518.0
October 127,479 127,479.0
November 155,334 155,334.0
December 183,912 183,912.0
Totals 1,646,654 - 1,646,654.0
Brasstown Valley
Electric Usage (kWh) Propane Usage (therms)
Previous
Baseline
Adjusted
Baseline
Previous
Baseline
Adjusted
Baseline
January 227,920 227,920.0 11,109 11,109.0
February 259,760 259,760.0 9,350 9,350.0
March 208,560 208,560.0 8,272 8,272.0
April 214,000 214,000.0 6,365 6,365.0
May 208,880 208,880.0 6,325 6,325.0
June 244,720 244,720.0 4,121 4,121.0
July 274,560 274,560.0 4,727 4,727.0
August 283,040 283,040.0 5,316 5,316.0
September 278,160 278,160.0 5,441 5,441.0
October 252,000 252,000.0 7,059 7,059.0
November 229,600 229,600.0 8,428 8,428.0
December 217,600 217,600.0 8,055 8,055.0
Totals 2,898,800 - 2,898,800.0 84,568 - 84,568.0
Unicoi State Park and Lodge
Electric Usage (kWh)
Previous
Baseline
Adjusted
Baseline
January 204,240 204,240.0
February 216,840 216,840.0
March 215,520 215,520.0
April 181,560 181,560.0
May 159,960 159,960.0
June 183,408 183,408.0
July 193,556 193,556.0
August 185,290 185,290.0
September 151,440 151,440.0
October 193,680 193,680.0
November 191,760 191,760.0
December 225,000 225,000.0
Totals 2,302,254 - 2,302,254.0
There may be changes at the facilities that will affect the energy use. In order to accurately calculate the savings that have been achieved from the implementation of energy conservation measures, it is important to account for changes in use or equipment to the facility. The tables below summarize these adjustments in terms of the change in the amount of energy used at each facility, and a detailed adjustment will be included for each change to the baseline. The Adjusted Monitoring Baselines will be used in the reports to calculate energy savings.

Appendix C – Sample Performance
Energy Contract
Energy Services Contract
[Customer] and ENGIE Services U.S.

Rev. Date: _______ Page 1 of 28 ESC – CA Public
V 06/14/2022
DIR Project Registration # _ _ _ _ _ _
ENGIE Services Project #: _ _ _ _ _
ENGIE Services Contract # R _ _ _ _

ENERGY SERVICES CONTRACT
DRAFT DATED [●]
This ENERGY SERVICES CONTRACT (this “Contract”) is made and entered into as of [●] (the “Contract Effective Date”) by and between ENGIE Services U.S. Inc., a Delaware corporation, with California State Contractor’s License Number 995037 (“ENGIE Services U.S.”), and [Customer] (“[Customer]” and together with ENGIE Services U.S. the “Parties” and each of [Customer] and ENGIE Services U.S. a “Party”).

CONTRACT RECITALS
WHEREAS, [Customer] owns and/or operates certain public facilities specifically described in Attachment A (the “Facilities”) and [Customer] wishes to reduce the Facilities’ energy consumption and costs and improve the Facilities’ energy quality and reliability; and
WHEREAS, ENGIE Services U.S. is a full-service energy services company with the technical capabilities to provide services to [Customer] including identifying supply-side and/or demand-side energy conservation measures (“ECMs”), engineering, procurement, construction management, installation, construction and training; and WHEREAS, ENGIE Services U.S. has identified potential energy and operational savings opportunities at [Customer]’s Facilities and estimated program costs to implement the ECMs and presented an overall potential energy cost and consumption savings for implementing the ECMs; and WHEREAS, pursuant to California Government Code §4217.12, [Customer] held a regularly scheduled public hearing on [●], of which two weeks advance public notice was given regarding this Contract and its subject matter, and WHEREAS, [Customer] has determined that the anticipated cost to [Customer] to implement the ECMs will be less than the anticipated cost to [Customer] for thermal, electrical, and other energy, together with anticipated operational, maintenance and other costs, that would have been consumed by [Customer] in the absence of the ECMs [for 4217 projects: in compliance with California Government Code §§4217.10 through 4217.18; and WHEREAS, [Customer] has determined that entering into this energy services contract to implement the ECMs is in the best interests of [Customer] and that California Government Code §4217.10 et seq. allows [Customer] to enter into this Contract; and
WHEREAS, by adoption of Resolution No. [●] at the above-referenced meeting, [Customer] approved this Contract and authorized its execution.

NOW, THEREFORE, [Customer] and ENGIE Services U.S. hereby agree as follows:

ARTICLE 1. DEFINITIONS
For purposes of this Contract and its Attachments, defined terms will have the following meanings:
“Abnormally Severe Weather Conditions” means typhoons, hurricanes, tornadoes, lightning storms and other climatic and weather conditions that are abnormally severe for the period of time when, and the area where, such storms or conditions occur, in each case occurring at a property, the access roads to a property, or any other location where Work or Professional Services are then being performed. The term “Abnormally Severe Weather Conditions” specifically includes rain, snow or sleet in excess of one hundred fifty percent (150%) of the median level over the preceding ten (10) year period for the local geographic area and time of year in which such rain, snow or sleet accumulates.
“Act” is defined in ARTICLE 14.
“Affiliate” means any Person that directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, control of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise; ownership of fifty percent (50%) or more of the voting securities of another Person creates a rebuttable presumption that such Person controls such other Person. “Applicable Law” means any statute, law, treaty, building code, rule, regulation, ordinance, code, enactment, injunction, writ, order, decision, authorization, judgment, decree, protocol, procedure or other legal or regulatory Energy Services Contract
[Customer] and ENGIE Services U.S.

Rev. Date: _______ Page 2 of 28 ESC – CA Public
V 06/14/2022
determination or restriction by a court or Governmental Authority of competent jurisdiction, as may be in effect at the time the Work or Professional Services are undertaken.
“Applicable Permits” means all permits, approvals, inspections and certifications required to be issued by any Governmental Authority in connection with the Professional Services or the building, installation and start-up of the Work as of the Contract Effective Date.
“Application for Payment” means a monthly progress payment as described in Section 8.01 or an invoice for materials stored off-site as described in Section 8.02. “Arbitral Panel” is defined in Section 19.04(ii).
“Arbitration Rules” is defined in Section 19.04(ii).
“Attachment” means the following attachments to this Contract, each of which is an “Attachment:” Attachment A [Customer]’s Facilities and Existing Equipment Attachment B Standards of Occupancy and Control
Attachment C Scope of Work
Attachment D Scope of Monitoring Installation
Attachment E M&V Services
Attachment F Maintenance Services
Attachment G Education Services
“Beneficial Use” means when major new equipment and systems included in the Scope of Work are properly installed, inspected, operational, and are capable of being used for their intended purpose. Criteria for Beneficial Use of equipment / systems will be established as defined in Attachment C. “Business Day” means any calendar day other than a Saturday, a Sunday or a calendar day on which banking institutions in San Francisco, California, are authorized or obligated by law or executive order to be closed. “CEQA” means the California Environmental Quality Act, codified at California Public Resource Code § 21000 et seq., and the applicable state and local guidelines promulgated thereunder. “Certificate of Beneficial Use” means the certificate, issued by ENGIE Services U.S. to [Customer] and subcontractor(s), which identifies when [Customer] took Beneficial Use of the Work or any portion thereof. A Certificate of Beneficial Use may be executed for an individual subcontract, a specific building, a portion of the Work, or the entire Work.
“Certificate of Final Completion” means the certificate issued by ENGIE Services U.S. to [Customer], in accordance with Section 6.03. A Certificate of Final Completion may be executed for an individual subcontract, a specific building, a portion of the Work, or the entire Work. “Certificate of Substantial Completion” means the certificate issued by ENGIE Services U.S. to [Customer], in accordance with Section 6.02. A Certificate of Substantial Completion may be executed for an individual subcontract, a specific building, a portion of the Work, or the entire Work. “Change” means any addition to, deletion from, suspension of, or other modification to the quality, function, or intent of the Work or Professional Services.
“Change in Law” means any of the following events or circumstances occurring after the Contract Effective Date:
(i) an amendment, modification, interpretation, construction, enforcement standard, supplement or other change in or repeal of an existing Applicable Law; or (ii) an enactment or making of a new Applicable Law (excluding a change in any income or franchise tax law, worker’s compensation, payroll or withholding tax law, but including any change in law imposing new or additional tariffs or import duties). “Change Order” means a written document, signed by both ENGIE Services U.S. and [Customer], authorizing ENGIE Services U.S. to perform a Change. The Change Order modifies the Scope of Work and should identify: (i) the applicable Change; (ii) any additional compensation to be paid to ENGIE Services U.S. to perform such Change; and (iii) any extension of time to complete the Project. “Construction” means any and all Work to be performed that involves construction, alteration, repair, installation or removal of equipment, addition to, subtraction from, improving, moving, wrecking or demolishing any building, parking facility, excavation, or other structure or improvement, or any part thereof.

Energy Services Contract
[Customer] and ENGIE Services U.S.

Rev. Date: _______ Page 3 of 28 ESC – CA Public
V 06/14/2022
“Construction Documents” means the final designs, drawings, specifications and submittals that are used for Construction, and any Change Orders affecting those documents, that describe the technical requirements for the installation of all the materials and equipment pursuant to this Contract. “Construction Period” means the period beginning with the first day of the month in which material or equipment is first installed at the Facilities and continuing until the [M&V Commencement Date][date of Final Completion]. “Contract” is defined in the Preamble, and includes all Attachments hereto (all of which are incorporated herein by this reference), as well as all Change Orders, amendments, restatements, supplements and other modifications hereto.
“Contract Amount” means [●] ($[●]), which is inclusive of the mobilization payment, as set forth in Section 8.01, but exclusive of any fees for Professional Services.
“Contract Bonds” is defined in Section 12.02.
“Contract Effective Date” is defined in the Preamble.
“[Customer]” is defined in the Preamble.
“[Customer] Persons” means [Customer], its agents, employees, subcontractors, architects, general contractors, lease/leaseback contractors or other Persons acting on behalf of [Customer] or for whom [Customer] is responsible. “Delay” means any circumstances involving delay, disruption, hindrance or interference affecting the time of performance of the Work or the Professional Services.
“Dispute” is defined in Section 19.02.
“DOE Guidelines” is defined in Section 13.01.
“ECM” is defined in the Recitals.
“Education Services” (if any) are defined in Attachment G. “EMS” means an energy management system.
“Energy Delivery Point” means, for each Generating Facility, the point at which Utility meter energy is being delivered, as designated in the Interconnection Agreement. “Energy Usage Data” is defined in Section 2.05.
“ENGIE Services U.S.” is defined in the Preamble.
“ENGIE Services U.S. Warranty” is defined in Section 9.01. “Event of Default” is defined in ARTICLE 16.
“Excusable Event” means an act, event, occurrence, condition or cause beyond the control of ENGIE Services U.S., including, but not limited to, the following: (i) any act or failure to act of, or other Delay caused by any [Customer] Person; (ii) the failure to obtain, or delay in obtaining, any Interconnection Agreement, Applicable Permit, or approval of a Governmental Authority (including due to failure to make timely inspection), or Delays caused by Changes and/or modifications to the Scope of Work required by a Governmental Authority, other than a failure caused by the action or inaction of ENGIE Services U.S.; (iii) changes in the design, scope or schedule of the Work required by any Governmental Authority or [Customer] Person; (iv) undisclosed or unforeseen conditions encountered at the Project Location, including discovery or existence of Hazardous Substances; (v) the failure to obtain, or delay in obtaining, approval of any Governmental Authority for design and installation of any portion of the Work, including any further or subsequent approval required with respect to any Change, other than a failure caused by the action or inaction of ENGIE Services U.S.; (vi) information provided to ENGIE Services U.S. by any [Customer] Person or Utility is later found to be inaccurate or incomplete; (vii) any Change in Law; (viii) Delay caused by pending arbitration; (ix) acts of God; (x) acts of the public enemy or terrorist acts; (xi) relocation or construction of transmission facilities or the shutdown of such facilities for the purpose of necessary repairs; (xii) work by Utility; (xiii) flood, earthquake, tornado, storm, fire, explosions, lightning, landslide or similar cataclysmic occurrence; (xiv) sabotage, vandalism, riots or civil disobedience; (xv) labor disputes or strikes; (xvi) labor or material shortages; delay in manufacturing and deliveries of equipment; supply chain disruptions; material price increases that equal or exceed fifteen percent (15%) in a six (6) month period; (xvii) Abnormally Severe Weather Conditions; (xviii) an annual level of direct beam solar resource availability that is less than or equal to 90% of historical averages as measured by long-term weather data (minimum 5 years) collected at the applicable Facility and/or other reliable calibrated and appropriate weather station representative of such Facility; (xix) requirement by Utility that any Generating Facility discontinue operation; (xx) any action by a Governmental Authority that prevents or inhibits the Parties from carrying out their respective obligations under this Contract (including an unstayed order of a court Energy Services Contract
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or administrative agency having the effect of subjecting the sales of energy output to federal or state regulation of prices and/or services); (xxi) any Utility power outage at a Facility; or (xxii) regional epidemic or global pandemic. “Facilities” is defined in the Recitals.
“Final Completion” means the stage in the progress of the Work at which the Construction Work as identified in the Scope of Work, or a designated portion thereof, has been completed and commissioned, including completion of all Punch List items, completion of all required training, and delivery to [Customer] of the final documentation (as-built drawings, operation and maintenance manuals, warranty documentation and final submittals). “Generating Facility” means each of the photovoltaic, solar powered generating facilities located at the sites listed in Attachment E, and includes all associated photovoltaic panels, mounting assemblies, inverters, converters, metering, lighting fixtures, transformers, ballasts, disconnects, combiners, switches, wires and other equipment that may be necessary to connect the Generating Facility to the applicable Energy Delivery Point. “Governmental Authority” means any federal, state, regional, town, county, city, municipal or local government agency, department or regulatory body having jurisdiction under Applicable Law over the matter in question. “Greenhouse Gas” is defined in Section 13.01.
“Hazardous Substances” means (i) any hazardous, toxic, or dangerous wastes, substances, chemicals, constituents, contaminants, pollutants, and materials and any other carcinogenic, liquids, corrosive, ignitable, radioactive, reactive, toxic, or otherwise hazardous substances or mixtures (whether solids, liquids, gases) now or at any time subject to regulation, control, remediation, or otherwise addressed under Applicable Laws; (ii) any “hazardous substance” as defined by the Resource, Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.), as amended, and regulations promulgated thereunder; (iii) any “hazardous, toxic or dangerous waste, substance or material” specifically defined as such in 42 U.S.C. §9601 et seq.), as amended and regulations promulgated thereunder; and (iv) any hazardous, toxic or dangerous waste, substance, or material as defined in any so-called “superfund” or “superlien” law.
“Incentive Funds” is defined in Section 8.06.
“Installation” means the setting up, construction, and placement of any equipment or materials in the manner it will be operated, in accordance with the Scope of Work and in accordance with all Applicable Laws. “Instruments of Service” is defined in Section 10.01(c). “Interconnection Agreement” means the Interconnection Agreement to be entered into between [Customer] and the Utility with respect to the Generating Facilities.
“Interconnection Facilities” is defined in Section 18.02. “Interest” means interest calculated at the lesser of (i) the prime rate plus two percent (2%) or (ii) the maximum rate permitted by Applicable Law. The “prime rate” will be the “Prime Rate” of interest per annum for domestic banks as published in The Wall Street Journal in the “Money Rates” section. “Losses” is defined in Section 11.01.
“M&V Commencement Date” means the first day of the month immediately following the later of (i) ENGIE Services U.S.’s receipt of the fully signed Certificate of Final Completion, and (ii) ENGIE Services U.S.’s receipt of the full Contract Amount.
“M&V Services” (if any) are defined in Attachment E.
“Maintenance Services” (if any) are defined in Attachment F. “Measurement Period” means each one-year period following the M&V Commencement Date. “NEC” means the National Electric Code.
“Notice to Proceed” is defined in Section 2.04.
“Party” and “Parties” are defined in the Preamble.
“Person” means any natural person, corporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union, association or Governmental Authority. “Professional Services” means professional services (such as Education Services, Maintenance Services and M&V Services, if any) provided by ENGIE Services U.S. to [Customer] under this Contract. “Project” means the entirety of Work to be performed by ENGIE Services U.S. pursuant to the Scope of Work, and any Change Orders.

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“Project Location” means the area or areas where the Project materials and equipment and any other energy related equipment, as described in the Scope of Work, are installed, and the general area where the Work is performed.
“Punch List” means, with respect to any portion of the Work, a list of minor corrective items which need to be completed or corrected in order to complete such portion of the Work, but do not impair [Customer]’s ability to beneficially operate and utilize such portion of the Work. “Retained Items” is defined in Section 10.02.
“Retention” is defined in Section 8.03.
“Schedule of Values” is defined in Section 8.01.
“Scope of Work” means the Work set forth in Attachments C and D, as modified by any Change Order. “Substantial Completion” means the stage in the progress of the Work at which the Work, or a designated portion thereof, is sufficiently complete, in conformance with the Scope of Work, the Construction Documents and any Change Orders, so that [Customer] can take Beneficial Use thereof. “Surety” means the surety supplying the Contract Bonds, which must be an “admitted surety insurer,” as defined by California Code of Civil Procedure §995.120, authorized to do business in the State of California, and reasonably satisfactory to [Customer].
“Utility” is defined in Section 18.02.
“Work” means the Work to be done by ENGIE Services U.S. pursuant to the Scope of Work, subject to any Change Orders.

ARTICLE 2. TERM; PERFORMANCE OF THE WORK
Section 2.01 Contract Term. The term of this Contract commences on the Contract Effective Date and ends on the [last day of the Energy Savings Term][last day on which Professional Services are provided], unless terminated earlier as provided in this Contract.

Section 2.02 Performance of Work. The Work and Professional Services to be performed hereunder will be provided in accordance with the terms of this Contract and the applicable standard of care. ENGIE Services U.S. will perform its obligations under this Contract (i) using the degree of skill and care that is required by current, good and sound professional procedures and practices, and (ii) in conformance with (x) generally accepted professional standards prevailing at the time the Work is performed, (y) the covenants, terms and conditions of this Contract, and (z) applicable laws, codes, rules and regulations, including, without limitation, the applicable provisions of the California Building Code.

ENGIE Services U.S. represents and warrants that it is fully experienced in projects of the nature and scope of the Work and Professional Services, and that it is properly qualified, licensed and equipped to supply and perform the Work and Professional Services. The Work completed herein will be subject to [Customer]’s general right of inspection and supervision to secure the satisfactory completion thereof in accordance with this Contract.

Section 2.03 Scope of Work.
(a) The Scope of Work may not exceed that set forth in Attachments C and D, except pursuant to a Change Order. (b) The Professional Services may not exceed those set forth in Attachments E, F and G, except pursuant to a Change Order.

Section 2.04 Notice to Proceed. Within ten (10) days after [Customer] has closed the financing referenced in Section 2.07, [Customer] will issue to ENGIE Services U.S. a written Notice to Proceed (“Notice to Proceed”). ENGIE Services U.S. will begin Work within thirty (30) calendar days after ENGIE Services U.S.’s receipt of the Notice to Proceed. If [Customer] fails to issue the Notice to Proceed within twenty (20) calendar days after the financing has closed, ENGIE Services U.S. will be entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount as a result of such delay.

Section 2.05 Project Schedule. After receipt of the Notice to Proceed, ENGIE Services U.S. will develop, with input from [Customer], a master project schedule using Microsoft Project®. ENGIE Services U.S. will establish a weekly construction meeting at which time the Work of the previous week will be reviewed and a two-week look ahead will be coordinated. The project schedule will be updated monthly.

Section 2.06 [Customer]’s Energy and Operational Records and Data. If ENGIE Services U.S. requests, [Customer] will provide to ENGIE Services U.S., within thirty (30) calendar days after such request, [Customer]’s Energy Usage Data for the twelve (12) months preceding the Contract Effective Date, and will make commercially reasonable efforts to provide the Energy Usage Data for the thirty-six (36) months preceding the Contract Effective Date. “Energy Usage Data” means all of [Customer]’s records and complete data concerning energy usage, energy-related Energy Services Contract
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maintenance, and other related costs for the Facilities, and including, without limitation, utility records; occupancy information; descriptions of any past, present or anticipated changes in a building’s structure or its heating, cooling, lighting or other systems or energy requirements; descriptions of all energy consuming or saving equipment used in the Facilities; applicable building drawings, specifications, existing AutoCAD files, operation and maintenance manuals, and as-builts; bills and records relating to operation and maintenance of systems and equipment within the Facilities, and a description of operation and management procedures currently utilized. [Customer] agrees that ENGIE Services U.S. may rely on the foregoing data as being accurate in all respects. If ENGIE Services U.S. requests, [Customer] will also provide to ENGIE Services U.S., within thirty (30) calendar days after such request, any prior energy audits of the Facilities, and copies of [Customer]’s financial statements and records related to energy usage and operational costs for said time period at the Facilities, and will authorize its agents and employees to provide and freely discuss such records and to make themselves available for consultations and discussions with authorized representatives, employees, subcontractors, and agents of ENGIE Services U.S.

Section 2.07 Finance Contingency. It is acknowledged and agreed by the Parties that the continued existence of this Contract is expressly contingent upon [Customer] closing financing that will allow it to make the payments to ENGIE Services U.S. required by this Contract. [Customer] will have thirty (30) calendar days after the Contract Effective Date to close such financing. If the financing is not closed within this time, for any reason, either Party may by written notice to the other Party declare this Contract to be null and void; and the Contract will be null and void as of the other Party’s receipt of this notice; provided that [Customer] may not declare this Contract to be null and void after it has issued the Notice to Proceed. It is acknowledged and agreed that ENGIE Services U.S. will have no obligation to commence performance of the Work unless and until the financing has been closed.

Section 2.08 Proof of Financial Arrangements. Prior to the commencement of the Work, [Customer] will provide ENGIE Services U.S. proof that financial arrangements have been made to fulfill [Customer]’s obligations under this Contract. [Customer]’s requirement to furnish such proof to ENGIE Services U.S. is a condition precedent to commencement of the Work. After commencement of the Work, ENGIE Services U.S. may request such proof if (i) [Customer] fails to make payments to ENGIE Services U.S. as this Contract requires; (ii) a Change in the Work materially changes the Contract Amount; or (iii) ENGIE Services U.S. has other reasonable concerns regarding [Customer]’s ability to fulfill its payment obligations under this Contract when due. [Customer] will furnish such proof as a condition precedent to commencement or continuation of the Work or the portion of the Work affected by a material change. After [Customer] furnishes any such proof, [Customer] will not materially vary such financial arrangements without prior consent of ENGIE Services U.S. If [Customer] fails to provide ENGIE Services U.S. with such proof within ten (10) calendar days of receiving a demand from ENGIE Services U.S., ENGIE Services U.S. will be entitled to suspend its performance under this Contract until such proof is received.

ARTICLE 3. PROJECT IMPLEMENTATION - GENERAL
Section 3.01 Registrations, Permits and Approvals.
(a) Prior to issuing the Notice to Proceed, [Customer] must register the Project with the California Department of Industrial Relations, using Form PWC-100.
(b) ENGIE Services U.S. is responsible for obtaining (but not paying for) all Applicable Permits required under this Contract. [Customer] will cooperate fully with and assist ENGIE Services U.S. in obtaining Applicable Permits. (c) [Customer] is responsible for paying for all permit fees (including expedited plan check fees), inspections, and certifications costs, including any additional work that may be required by the Authority(ies) Having Jurisdiction as part of the permitting process.
(d) [Customer] is responsible for hiring and paying for all inspectors, site testing (including geotechnical observations) and laboratory testing.
(e) [Customer] is responsible for paying for all utility interconnection(s) costs, including any additional work that may be required by the Utility(ies) as part of the Interconnection Agreement(s). (f) [Customer] is responsible for obtaining and paying for any annual operating permits and approvals or exemptions required by CEQA, as applicable.

Section 3.02 Coordination. [Customer] will be responsible for coordinating the activities of ENGIE Services U.S. and ENGIE Services U.S.’s subcontractors and suppliers with those of [Customer] Persons.

Section 3.03 Project Meetings/Status Updates. During the course of the Work, ENGIE Services U.S. will periodically meet with [Customer] to report on the general status and progress of the Work. ENGIE Services U.S. may (but is not required to) make food and beverage items of nominal value available to [Customer] and [Customer]’s employees and agents at such meetings, which if offered will be deemed part of the Scope of Work and included in the Contract Amount.

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Section 3.04 Project Location Access. [Customer] hereby grants to ENGIE Services U.S., without cost to ENGIE Services U.S., all rights of ingress and egress at the Project Location, necessary for ENGIE Services U.S. to perform the Work and provide all services contemplated by this Contract. ENGIE Services U.S. will provide twenty-fourhour advance notice to [Customer] for access to any [Customer] Facilities. All persons entering the Project Location, including [Customer] and its employees and agents, must follow ENGIE Services U.S.’s safety procedures. ENGIE Services U.S. may (but is not required to) make transportation available to [Customer] and [Customer]’s employees and agents between and within Project Locations, which if offered will be deemed part of the Scope of Work and included in the Contract Amount.

Section 3.05 Consents; Cooperation. Whenever a Party’s consent, approval, satisfaction, or determination will be required or permitted under this Contract, and this Contract does not expressly state that the Party may act in its sole discretion, such consent, approval, satisfaction, or determination will not be unreasonably withheld, qualified, conditioned, or delayed, whether or not such a “reasonableness” standard is expressly stated in this Contract. Whenever a Party’s cooperation is required for the other Party to carry out its obligations hereunder, each Party agrees that it will act in good faith and reasonably in so cooperating with the other Party or its designated representatives or assignees or subcontractors. Each Party will furnish decisions, information, and approvals required by this Contract in a timely manner so as not to delay the other Party’s performance under this Contract.

Section 3.06 Independent Contractor. The Parties hereto agree that ENGIE Services U.S., and any agents and employees of ENGIE Services U.S., its subcontractors and/or consultants, is acting in an independent capacity in the performance of this Contract, and not as a public official, officer, employee, consultant, or agent of [Customer] for purposes of conflict of interest laws or any other Applicable Law.

ARTICLE 4. FINAL DESIGN PHASE – CONSTRUCTION DOCUMENTS / EQUIPMENT PROCUREMENT Section 4.01 General Provisions.
(a) After receipt of the Notice to Proceed, ENGIE Services U.S. will proceed with the preparation of any necessary designs, drawings, and specifications related to the Scope of Work. (b) After completion of the design phase and approval of the final plans and specifications by [Customer], ENGIE Services U.S. will order the equipment identified in the Scope of Work, and any other necessary materials and supplies in order to meet the project schedule.
(c) [Customer] will designate a single-point representative with whom ENGIE Services U.S. may consult on a reasonable, regular basis and who is authorized to act on [Customer]’s behalf with respect to the Project design. [Customer]’s representative will render decisions in a timely manner with regard to any documents submitted by ENGIE Services U.S. and to other requests made by ENGIE Services U.S. in order to avoid delay in the orderly and sequential progress of ENGIE Services U.S.’s design services. (d) Within ten (10) Business Days after ENGIE Services U.S.’s request, [Customer] will:
(i) furnish all surveys or other information in [Customer]’s possession that describe the physical characteristics, legal limitations, and utility locations in and around the Project Location; (ii) disclose any prior environmental review documentation and all information in its possession concerning subsurface conditions, including without limitation the existence of any known Hazardous Substances, in or around the general area of the Project Location; (iii) supply ENGIE Services U.S. with all relevant information in [Customer]’s possession, including any as-built drawings and photographs, of prior construction undertaken at the Project Location; (iv) obtain any and all easements, zoning variances, planning approvals, including any resolution of any environmental impact issues, and any other legal authorization regarding utilization of the Project Location for the execution of the Work; and
(v) obtain any and all title reports for those Project Locations reasonably requested by ENGIE Services U.S.
(e) All information furnished pursuant to this Section 4.01 will be supplied at [Customer]’s expense, and ENGIE Services U.S. will be entitled to rely upon the accuracy and completeness of all information provided. If ENGIE Services U.S. is adversely affected by any failure to provide, or delay in providing, the information specified in Section 4.01(d), ENGIE Services U.S. will be entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount.
(f) If any information disclosed under this Section 4.01 gives rise to a Change to the Work or an Excusable Event, ENGIE Services U.S. will notify [Customer]. The Parties will meet and confer with respect to those Changes, and ENGIE Services U.S. will be entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount. If the Parties, however, are unable to agree on whether [Customer]’s disclosed information Energy Services Contract
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gives rise to a Change to the Work or an Excusable Event, those disputes are to be resolved in accordance with ARTICLE 19.
(g) ENGIE Services U.S. contemplates that it will not encounter any Hazardous Substances at the Project Location, except as has been disclosed as a pre-existing condition by [Customer] prior to the Contract Effective Date.

However, any disclosure of Hazardous Substances that will affect the performance of the Work after the Contract Effective Date will constitute a valid basis for a Change Order.

Section 4.02 Review of Construction Documents. ENGIE Services U.S. will prepare and submit all drawings and specifications to [Customer] for review. [Customer] will review the documents and provide any comments in writing to ENGIE Services U.S. within ten (10) Business Days after receipt of the documents. ENGIE Services U.S. will incorporate appropriate [Customer] comments into the applicable drawings and specifications. ENGIE Services U.S. reserves the right to issue the drawings and specifications in phases to allow Construction to be performed in phases. If [Customer] fails to provide written comments within the ten (10) Business Day period, [Customer] will be deemed to have no comments regarding the documents.

Section 4.03 Permits. The respective obligations of the Parties in obtaining inspections and permits are as specified in Section 3.01. [Customer] will agree to any nonmaterial changes to the designs, drawings, and specifications required by any Governmental Authority. The Contract Amount must be increased by any additional cost incurred by ENGIE Services U.S. due to a Change required by a Governmental Authority and the time required to complete the Work must be increased by the number of additional days required to complete the Work because of a Change imposed by a Governmental Authority.

Section 4.04 Changes During Final Design Phase. If during the design phase any [Customer] Person requests Changes and/or modifications to the Work and/or an Excusable Event occurs, ENGIE Services U.S. will be entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount. Valid bases for additional compensation and/or time extension include, but are not limited to: (i) any [Customer] Person requests changes and/or modifications to the Project Scope of Work during the Project design phase; (ii) any [Customer] Person causes delays during ENGIE Services U.S.’s design work; (iii) the discovery of subsurface or other site conditions that were not reasonably anticipated or disclosed as of the Contract Effective Date; (iv) the discovery of Hazardous Substances at or impacting the Project Location; (v) changes to the Scope of Work required to obtain Applicable Permits; (vi) damage to any equipment or other Work installed by ENGIE Services U.S. caused by the act or omission of any [Customer] Person; (vii) changes and/or modifications to Scope of Work ordered by any Governmental Authority; and (viii) any other condition that would not reasonably have been anticipated by ENGIE Services U.S., that modifies and/or changes the Scope of Work, that increases the agreed-upon Contract Amount or increases the time needed to complete the Work.

ARTICLE 5. CONSTRUCTION PHASE
Section 5.01 General Provisions. Upon securing the requisite Applicable Permits pursuant to Section 3.01, and completion of Construction Documents, ENGIE Services U.S. will commence the construction of the Project in accordance with the Construction Documents. The construction will be performed in accordance with all Applicable Laws and Applicable Permits, by ENGIE Services U.S. and/or one or more licensed subcontractors qualified to perform the Work.

Section 5.02 ENGIE Services U.S.’s Responsibilities during Construction Phase. (a) As an independent contractor to [Customer], ENGIE Services U.S. will provide, or cause to be provided by its subcontractor(s), all labor, materials, equipment, tools, transportation, and other facilities and services necessary for the proper execution, construction, and completion of the Work. ENGIE Services U.S. will purchase in advance all necessary materials and supplies for the construction of the Project in order to assure the prompt and timely delivery of the completed Work pursuant to the project schedule. ENGIE Services U.S. will also be responsible for all means, methods, techniques, sequences, and procedures required by the Construction Documents.
(b) ENGIE Services U.S. will make commercially reasonable efforts to coordinate construction activities and perform the Work to minimize disruption to [Customer]’s operations at the Project Location. ENGIE Services U.S. will provide at least fifteen (15) calendar days’ written notice to [Customer] of any planned power outages that will be necessary for the construction. ENGIE Services U.S. will cooperate with [Customer] in scheduling such outages, and [Customer] agrees to provide its reasonable approval of any scheduled outage. (c) ENGIE Services U.S. will initiate and maintain a safety program in connection with its Construction of the Project. ENGIE Services U.S. will take reasonable precautions for the safety of, and will provide reasonable protection to prevent damage, injury, or loss to: (i) employees of ENGIE Services U.S. and subcontractors performing Work under this Contract; (ii) ENGIE Services U.S.’s property and other materials to be incorporated into the Project, under the care, custody, and control of ENGIE Services U.S. or its subcontractors; and (iii) other property at or adjacent to the Project Location not designated for removal, relocation, or replacement Energy Services Contract
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during the course of construction. ENGIE Services U.S. will not be responsible for [Customer]’s employees’ safety unless ENGIE Services U.S.’s negligence in the performance of its Work is the proximate cause of the employee’s injury.
(d) ENGIE Services U.S. will provide notice to [Customer] of scheduled test(s) of installed equipment, if any, and [Customer] and/or its designees will have the right to be present at any or all such tests conducted by ENGIE Services U.S., any subcontractor, and/or manufacturers of the equipment. (e) Pursuant to California Labor Code §6705, if the Work is a public work involving an estimated expenditure in excess of $25,000 and includes the excavation of any trench or trenches five (5) feet or more in depth, ENGIE Services U.S. will, in advance of excavation, submit to [Customer] and/or a registered civil or structural engineer, employed by [Customer], to whom authority to accept has been delegated, a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches, which provisions will be no less effective than the current and applicable CAL-OSHA Construction Safety Orders. No excavation of such trench or trenches may be commenced until this detailed plan has been accepted by [Customer] or by the person to whom authority to accept has been delegated by [Customer]. Pursuant to California Labor Code §6705, nothing in this Section 5.02(e) imposes tort liability on [Customer] or any of its employees. (f) Pursuant to California Public Contract Code §7104, if the Work is a public work involving digging trenches or other excavations that extend deeper than four (4) feet below the surface of the ground:
(i) ENGIE Services U.S. will promptly, and before the following conditions are disturbed, notify [Customer], in writing, of any:
1) Material that ENGIE Services U.S. believes may be material that is hazardous waste, as defined in California Health and Safety Code §25117, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; 2) Subsurface or latent physical conditions at the site differing from those indicated by information about the site made available to ENGIE Services U.S. before the Contract Effective Date;
3) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract.
(ii) [Customer] will promptly investigate the conditions and, if it finds that the conditions do materially so differ or do involve hazardous waste, and cause a decrease or increase in ENGIE Services U.S.’s cost of, or the time required for, performance of any part of the Work will issue a Change Order under the procedures described in this Contract.
(iii) If a dispute arises between [Customer] and ENGIE Services U.S., whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in ENGIE Services U.S.’s cost of, or time required for, performance of any part of the Work, ENGIE Services U.S. will not be excused from any scheduled completion date provided for by this Contract but will proceed with all Work to be performed under this Contract. ENGIE Services U.S. will retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the Parties.
(g) [Remove if not a school:] Pursuant to California Education Code §32244, no lead-based paint, lead plumbing and solders, or other potential sources of lead contamination will be utilized on this Project. [Customer] acknowledges and agrees that actions to abate existing risk factors for lead are expressly excluded from the Scope of Work and the Professional Services, and ENGIE Services U.S. will have no obligation to take any such abatement action.

Section 5.03 [Customer]’s Responsibilities during Construction Phase. (a) [Customer] will designate a single-point representative authorized to act on [Customer]’s behalf with respect to Project construction and/or equipment installation. [Customer] may from time to time change the designated representative and will provide written notice to ENGIE Services U.S. of such change. Any independent review of the construction will be undertaken at [Customer]’s sole expense, and will be performed in a timely manner so as to not unreasonably delay the orderly progress of ENGIE Services U.S.’s Work. (b) [Customer] will provide a temporary staging area for ENGIE Services U.S., or its subcontractors, to use during the construction phase to store and assemble equipment for completion of the Work, if needed. [Customer] will provide sufficient space at the Facilities for the performance of the Work and the storage, installation, and operation of any equipment and materials and will take reasonable steps to protect any such equipment and materials from harm, theft and misuse. [Customer] will provide access to the Facilities, including parking permits and identification tags, for ENGIE Services U.S. and subcontractors to perform the Work during regular Energy Services Contract
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business hours, or such other reasonable hours as may be requested by ENGIE Services U.S. and acceptable to [Customer]. [Customer] will also either provide a set or sets of keys to ENGIE Services U.S. and its subcontractors (signed out per [Customer] policy) or provide a readily available security escort to unlock and lock doors. [Customer] will not unreasonably restrict ENGIE Services U.S.’s access to Facilities to make emergency repairs or corrections as ENGIE Services U.S. may determine are needed. (c) [Customer] will maintain the portion of the Project Location that is not directly affected by ENGIE Services U.S.’s Work. [Customer] will keep the designated Project Location and staging area for the Project free of obstructions, waste, and materials within the control of [Customer].
(d) [Customer] will obtain any required environmental clearance from, and any inspections, including special inspections, or permits required by, any federal, state, and local jurisdictions, including but not limited to any clearances required under CEQA, prior to scheduled construction start date. (e) [Customer] will prepare the Project Location for construction, including, but not limited to, clearance of all above and below ground obstructions, such as vegetation, buildings, appurtenances, and utilities. Subsurface conditions and obstacles (buried pipe, utilities, etc.) that are not otherwise previously and accurately documented by [Customer] and such documentation made available to ENGIE Services U.S. are the responsibility of [Customer]. If ENGIE Services U.S. encounters such unforeseen conditions in the performance of the Work, ENGIE Services U.S. will be entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount.
(f) [Customer] will remove any Hazardous Substances either known to [Customer] prior to the commencement of the Work or encountered by ENGIE Services U.S. during the construction of the Project, if necessary in order for the Work to progress safely, that were not knowingly released or brought to the site by ENGIE Services U.S.

ENGIE Services U.S. will respond to the discovery of Hazardous Substances at or around the Project Location during the course of ENGIE Services U.S.’s construction in accordance with Section 5.06. (g) [Customer] will coordinate the Work to be performed by ENGIE Services U.S. with its own operations and with any other construction project that is ongoing at or around the Project Location, with the exception that ENGIE Services U.S. will coordinate the Interconnection Facilities work, if any, which will be performed by the local utility.
(h) [Customer] will, and will cause [Customer] Persons to, allow ENGIE Services U.S. and its subcontractors access to and reasonable use of necessary quantities of [Customer]’s water and other utilities, including electrical power, as needed for the construction of the Work, at no cost to ENGIE Services U.S. (i) [Customer] will, and will cause [Customer] Persons to, provide ENGIE Services U.S. and/or its subcontractors with reasonable access to the Project Location to perform the Work, including without limitation and at no extra cost to ENGIE Services U.S., access to perform Work on Saturdays, Sundays, legal holidays, and non-regular working hours.
(j) [Customer] will also do the following:
(i) Attend the regularly scheduled progress meetings. Participate as needed regarding scheduling of the Work.
(ii) When requested by ENGIE Services U.S., participate in the job inspection walk-through with ENGIE Services U.S. to determine Substantial Completion or Beneficial Use of major equipment, and will sign the Certificate(s) of Substantial Completion. (iii) Perform a final walk-through of the Project and, upon receipt of the operation and maintenance manuals and as-built drawings, sign the Certificate of Final Completion for the related Work. (iv) Upon the completion of the entire Scope of Work listed in Attachment C, including training, if any, and submission of close-out documents, sign a Certificate of Final Completion for the entire Project.

Section 5.04 Changes.
(a) Change Orders Generally. Changes and/or modifications to the Scope of Work will be authorized by a written Change Order. The Change Order should state the change and/or modification to the Scope of Work, any additional compensation to be paid, and any applicable extension of time. ENGIE Services U.S. may, at its election, suspend performance of that portion of the Work affected by any proposed Change until a written Change Order with respect to the Changed or modified Work has been signed by both [Customer] and ENGIE Services U.S. ENGIE Services U.S. will use its reasonable efforts to continue other portions of the Work not affected or impacted by such proposed Change until such time as the applicable Change Order is resolved. In addition, if any [Customer] Person requests a proposal from ENGIE Services U.S. for a Change and [Customer] subsequently elects to not proceed with such Change, [Customer] agrees that a Change Order will be issued to Energy Services Contract
[Customer] and ENGIE Services U.S.

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reimburse ENGIE Services U.S. for any costs reasonably incurred for estimating services, design services, and/or preparation of the proposal requested by such [Customer] Person. (b) Change Orders Requiring Additional Compensation. If during construction any [Customer] Person requests changes and/or modifications to the Work, and/or there are Excusable Events, [Customer] will pay the extra costs caused by such modifications and/or changes and/or Excusable Event and ENGIE Services U.S. will be entitled to additional compensation for the following reasons, that include, but are not limited to: (i) any [Customer] Person requests changes and/or modifications to the Scope of Work during the construction phase of the Project; (ii) any [Customer] Person causes delays during ENGIE Services U.S.’s construction work; (iii) discovery of subsurface or other site conditions that were not reasonably anticipated or disclosed prior to the commencement of the Work; (iv) discovery of Hazardous Substances at or impacting the Project Location; (v) changes and/or modifications to the Scope of Work required to obtain required permits and approvals as required by any Governmental Authority; (vi) damage to any equipment or other Work installed by ENGIE Services U.S. caused by the act or omission of any [Customer] Person; (vii) changes and/or modifications to Scope of Work ordered by any Governmental Authority; and (viii) any other condition that would not reasonably have been anticipated by ENGIE Services U.S., that modifies and/or changes the Scope of Work or the Contract Amount.
(c) Change Orders Requiring Additional Time. If during construction any [Customer] Person requests changes and/or modifications to the Scope of Work and/or an Excusable Event occurs, the Parties agree that an equitable extension of time to complete the Work may be necessary. Prior to any extension of time, ENGIE Services U.S. will use commercially reasonable efforts to make up such delays, including authorizing overtime payments; provided that [Customer] has issued a Change Order authorizing any such overtime payment and has specifically agreed to pay all costs, including administrative charges and expenses, associated therewith. (d) Method for Adjustment. An increase or decrease in the Contract Amount and/or time resulting from a Change in the Work and/or Excusable Event must be determined by one or more of the following methods:
(i) unit prices set forth in this Contract or as subsequently agreed; (ii) a mutually accepted, itemized lump sum; or
(iii) costs calculated on a basis agreed upon by [Customer] and ENGIE Services U.S. plus a fee (either a lump sum or a fee based on a percentage of cost) to which the Parties agree. (e) Disagreements. If there is a disagreement between [Customer] and ENGIE Services U.S. as to whether ENGIE Services U.S. is entitled to an equitable extension of time and/or an equitable adjustment in the Contract Amount, those disputes are to be resolved in accordance with the provisions of ARTICLE 19. Pending the resolution of any such dispute, ENGIE Services U.S. may suspend Work.

Section 5.05 Minor Changes to Scope of Work. ENGIE Services U.S. has the authority to make minor changes that do not change the total Contract Amount and are consistent with the intent of the Construction Documents, without prior notice to [Customer]. ENGIE Services U.S. will either promptly inform [Customer], in writing, of any minor changes made during the implementation of the Project, or make available to [Customer] at the site a set of as-built drawings that will be kept current to show those minor changes.

Section 5.06 Hazardous Substances.
(a) ENGIE Services U.S. will promptly provide written notice to [Customer] if ENGIE Services U.S. observes any Hazardous Substance, as defined herein, at or around the Facilities during the course of construction or installation of any equipment which have not been addressed as part of the Scope of Work. ENGIE Services U.S. will have no obligation to investigate the Facilities for the presence of Hazardous Substances prior to commencement of the Work unless otherwise specified in the Scope of Work. [Customer] will be solely responsible for investigating Hazardous Substances and determining the appropriate removal and remediation measures with respect to the Hazardous Substances. [Customer] will comply with all Applicable Laws with respect to the identification, removal and proper disposal of any Hazardous Substances known or discovered at or around the Facilities, and in such connection will execute all generator manifests with respect thereto. ENGIE Services U.S. will comply with all Applicable Laws in connection with the use, handling, and disposal of any Hazardous Substances in the performance of its Work. In connection with the foregoing, [Customer] will provide ENGIE Services U.S., within ten (10) Business Days after the Contract Effective Date, a written statement that represents and warrants (i) whether or not, to its knowledge, there are Hazardous Substances either on or within the walls, ceiling or other structural components, or otherwise located in the Project Location, including, but not limited to, asbestos-containing materials; (ii) whether or not, to its knowledge, conditions or situations exist at the Facilities which are subject to special precautions or equipment required by federal, state, or local health or safety regulations; and (iii) whether or not, to its knowledge, there are unsafe working conditions at the Facilities.

Energy Services Contract
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(b) [Customer] will indemnify, defend, and hold ENGIE Services U.S. harmless from and against any and all Losses that in any way result from, or arise under, such [Customer] owned or generated Hazardous Substances, except for liabilities to the extent due to the negligence or willful misconduct of ENGIE Services U.S., or its subcontractors, agents or representatives, in the handling, disturbance or release of Hazardous Substances.

This indemnification will survive any termination of this Contract.

Section 5.07 Pre-Existing Conditions. Certain pre-existing conditions may be present within the Facilities that (i) are non-compliant with applicable codes, (ii) may become non-compliant with applicable codes upon completion of ENGIE Services U.S.’s Work, (iii) may cause ENGIE Services U.S.’s completed Work to be non-compliant with applicable codes, (iv) may prevent [Customer] from realizing the full benefits of ENGIE Services U.S.’s Work, (v) may present a safety or equipment hazard, or (vi) are otherwise outside the scope of ENGIE Services U.S.’s Work.

Regardless of whether or not such conditions may have been readily identifiable prior to the commencement of Work, ENGIE Services U.S. will not be responsible for repairing such pre-existing conditions unless such responsibility is expressly provided for in the Scope of Work or an approved Change Order. ENGIE Services U.S., in its sole discretion, may determine whether it will bring said pre-existing conditions into compliance by agreeing to execute a Change Order with [Customer] for additional compensation and, if appropriate, an extension of time.

ARTICLE 6. PROJECT COMPLETION
Section 6.01 Occupancy or Use of Work. [Customer] may take occupancy or use of any completed or partially completed portion of the Work at any stage, whether or not such portion is Substantially Complete, provided that such occupancy or use is authorized by Governmental Authority and, provided further, that [Customer] assumes responsibility for the security of, insurance coverage for, maintenance, utilities for, and damage to or destruction of such portion of the Work. If Substantial Completion of a portion of the Construction Work is not yet achieved, occupancy or use of such portion of the Work will not commence until [Customer]’s insurance company has consented to such occupancy or use. When occupancy or use of a portion of the Work occurs before Substantial Completion of such portion, [Customer] and ENGIE Services U.S. will accept in writing the responsibilities assigned to each of them for title to materials and equipment, payments and Retention with respect to such portion.

Section 6.02 Substantial Completion. When ENGIE Services U.S. considers the Work, or any portion thereof, to be Substantially Complete, ENGIE Services U.S. will supply to [Customer] a written Certificate of Substantial Completion with respect to such portion of the Work, including a Punch List of items and the time for their completion or correction. [Customer] will within ten (10) Business Days of receipt of the Certificate of Substantial Completion, review such portion of the Work for the sole purpose of determining that it is Substantially Complete, and sign and return the Certificate of Substantial Completion to ENGIE Services U.S. acknowledging and agreeing: (i) that such portion of the Work is Substantially Complete; (ii) the date of such Substantial Completion; (iii) that from the date of Substantial Completion [Customer] will assume responsibility for the security of, insurance coverage for, maintenance, utilities for, and damage to or destruction of such portion of the Work. [Customer] agrees that approval of a Certificate of Substantial Completion will not be unreasonably withheld, delayed or conditioned.

Section 6.03 Final Completion. When ENGIE Services U.S. considers the entirety of the Work to be Finally Complete, ENGIE Services U.S. will notify [Customer] that the Work is fully complete and ready for final inspection. [Customer] will inspect the Work to verify the status of Final Completion within ten (10) Business Days after its receipt of ENGIE Services U.S.’s certification that the Work is complete. If [Customer] does not verify the Final Completion of the Work within this period, the Work will be deemed fully completed. When [Customer] agrees that the Work is fully completed, ENGIE Services U.S. will issue a Certificate of Final Completion, which [Customer] must sign. [Customer] agrees that its signing of the Certificate of Final Completion will not be unreasonably withheld, delayed or conditioned. At that time, [Customer] will pay ENGIE Services U.S. any remaining Contract Amount due and any outstanding Retention being withheld by [Customer], in accordance with Section 8.03. [Customer] may give ENGIE Services U.S. written notice of acceptance of the Work and will promptly record a notice of completion or notice of acceptance in the office of the county recorder in accordance with California Civil Code §9204.

Section 6.04 Transfer of Title; Risk of Loss. Title to all or a portion of the Project equipment, supplies and other components of the Construction Work will pass to [Customer] upon the earlier of (i) the date payment for such Project equipment, supplies or components is made by [Customer] or (ii) the date any such items are incorporated into the Project Location. ENGIE Services U.S. will retain care, custody and control and risk of loss of such Project equipment, supplies and components until the earlier of Beneficial Use or Substantial Completion. Transfer of title to [Customer] will in no way affect [Customer]’s and ENGIE Services U.S.’s rights and obligations as set forth in other provisions of this Contract. Except as provided in this Section 6.04, after the date of Substantial Completion, ENGIE Services U.S. will have no further obligations or liabilities to [Customer] arising out of or relating to this Contract, except for the obligation to complete any Punch List items, the obligation to perform any warranty service under Section 9.01, and obligations which, pursuant to their terms, survive the termination of this Contract.

Energy Services Contract
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ARTICLE 7. SUBCONTRACTORS
Section 7.01 Authority to Subcontract. ENGIE Services U.S. may delegate its duties and performance under this Contract, and has the right to enter into agreements with any subcontractors and other service or material providers as ENGIE Services U.S. may select in its discretion to perform the Work. ENGIE Services U.S. will not be required to enter into any subcontracts with parties whom ENGIE Services U.S. has not selected or subcontractors whom ENGIE Services U.S. has objection to using.

Section 7.02 Prompt Payment of Subcontractors. ENGIE Services U.S. will promptly pay, when due, all amounts payable for labor and materials furnished in the performance of this Contract and will endeavor to prevent any lien or other claim under any provision of Applicable Law from arising against any [Customer] property, against ENGIE Services U.S.’s rights to payments hereunder, or against [Customer].

Section 7.03 Relationship. Nothing in this Contract constitutes or will be deemed to constitute a contractual relationship between any of ENGIE Services U.S.’s subcontractors and [Customer], or any obligation on the part of [Customer] to pay any sums to any of ENGIE Services U.S.’s subcontractors.

Section 7.04 Prevailing Wages. To the extent required by California Labor Code §1771 or other Applicable Law, all employees of ENGIE Services U.S. and ENGIE Services U.S.’s subcontractors performing Work at the Project Location will be paid the per diem prevailing wages for the employee’s job classification in the locality in which the Work is performed. In accordance with California Labor Code §§1773 and 1773.2, [Customer] will obtain from the Director of Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work, in the locality in which the Work is to be performed, for each craft, classification or type of worker needed to execute the Work at the Project Location, and will cause copies of such determinations to be kept on file at its principal office and posted at each Project Location. [Customer] will promptly notify ENGIE Services U.S. of any changes to any such prevailing wage determination. [If CREBs, QZABs, QSCBs, QECBs, or other tax credit bonds are being used:

If a portion of the Work is subject to the federal Davis-Bacon Act and/or related acts because it is being paid for with CREBs, QZABs or other tax credit bonds, ENGIE Services U.S. will ensure that its subcontracts for such portion of the Work require the use of the labor classifications identified in the applicable federal wage determination for certified payroll records, and that all employees of ENGIE Services U.S. and ENGIE Services U.S.’s subcontractors performing such portion of the Work be paid the higher of the California or federal prevailing wage rates with respect to such portion of the Work.]
ARTICLE 8. PAYMENTS
Section 8.01 Monthly Progress Payments. Promptly after the Contract Effective Date, ENGIE Services U.S. will invoice [Customer] for a mobilization payment in the amount of [●]. These amounts must be paid to ENGIE Services U.S. within thirty (30) calendar days after [Customer]’s receipt of an invoice for those amounts. In addition, as the Work progresses, ENGIE Services U.S. will submit to [Customer] its applications for monthly payments based on the progress made on the Project through the date on which ENGIE Services U.S. submits such Application for Payment. Within twenty-one (21) calendar days from the Contract Effective Date, ENGIE Services U.S. will prepare and submit to [Customer] a schedule of values apportioned to the various divisions or phases of the Work (“Schedule of Values”). Each line item contained in the Schedule of Values will be assigned a value such that the total of all items equals the Contract Amount. All Applications for Payment will be in accordance with the Schedule of Values.

Section 8.02 Materials Stored Off-Site. In addition to the monthly progress payments specified in Section

8.01, ENGIE Services U.S. may invoice [Customer] for materials purchased in advance and not stored at the Project Location. Each such Application for Payment will be accompanied by proof of off-site material purchases, evidence that the materials have been delivered to a warehouse reasonably acceptable to [Customer] and evidence of appropriate insurance coverage. ENGIE Services U.S. will furnish to [Customer] written consent from the Surety approving the advance payment for materials stored off site. [Customer] will pre-pay one hundred percent (100%) of ENGIE Services U.S.’s Application for Payment for the materials delivered, less Retention as indicated in Section 8.03. ENGIE Services U.S. will protect stored materials from damage. Damaged materials, even though paid for, will not be incorporated into the Work.

Section 8.03 Retention. [Customer], or its designee, must approve and pay each Application for Payment, less a retention amount (“Retention”) of five percent (5%) in accordance with California Public Contract Code §7201, within thirty (30) calendar days after its receipt of the Application for Payment; provided, however, that there is to be no Retention with respect to the mobilization payment. A failure to approve and pay an Application for Payment in a timely manner is a material default by [Customer] under this Contract. [Customer] may make progress payments in full without Retention at any time after fifty percent (50%) of the Work has been completed, as permitted pursuant to California Public Contract Code §9203. Upon Substantial Completion, the Retention must be reduced to two percent (2%) of the Contract Amount, and ENGIE Services U.S. may invoice and [Customer] will pay this amount. [Customer] will pay ENGIE Services U.S. the remaining two percent (2%) Retention amount upon achieving Final Completion. In lieu of Retention being held by [Customer], ENGIE Services U.S. may request that securities be substituted or Retention be held in an escrow account pursuant to California Public Contract Code §22300.

Energy Services Contract
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Section 8.04 Final Payment. The final Application for Payment may be submitted after Final Completion.

The final payment amount must also include payment to ENGIE Services U.S. for any remaining Retention withheld by [Customer].

Section 8.05 Disputed Invoices/Late Payments. [Customer] may in good faith dispute any Application for Payment, or part thereof, within fifteen (15) calendar days after the date the Application for Payment was received by [Customer]. If [Customer] disputes all or a portion of any Application for Payment, [Customer] will pay the undisputed portion when due and provide ENGIE Services U.S. a written notice and explanation of the basis for the dispute and the amount of the Application for Payment being withheld related to the dispute. [Customer] will be deemed to have waived and released any dispute known to it with respect to an Application for Payment if such notice and written explanation is not provided within fifteen (15) calendar days after the date the Application for Payment was received by [Customer]. If any amount disputed by [Customer] is finally determined to be due to ENGIE Services U.S., either by agreement between the Parties or as a result of dispute resolution pursuant to ARTICLE 19 below, it will be paid to ENGIE Services U.S. within ten (10) Business Days after such final determination, plus Interest from the date billed or claimed until such amount is paid.

Section 8.06 Rebate Programs. ENGIE Services U.S. will assist [Customer] in the preparation and submission to the applicable agencies of applications and documentation necessary for the following energy efficiency rebate, incentive, and/or loan program(s) ________________. ENGIE Services U.S. makes no guarantee that [Customer] will receive funding from any energy efficiency rebate, incentive, and/or loan program(s), including those listed above (collectively, “Incentive Funds), or any portion thereof; ENGIE Services U.S. expressly disclaims any liability for [Customer]’s failure to receive any portion of the Incentive Funds, and [Customer] acknowledges and agrees that ENGIE Services U.S. will have no liability for any failure to receive all or any portion of the Incentive Funds. Procurement, or lack thereof, of the Incentive Funds will not alter the Contract Amount of this Contract or the payment timeline associated with payment of the Contract Amount.

ARTICLE 9. WARRANTY / LIMITATION OF LIABILITY
EXCEPT FOR THE WARRANTIES PROVIDED IN THIS ARTICLE 9, ENGIE SERVICES U.S. MAKES NO WARRANTIES

IN CONNECTION WITH THE WORK PROVIDED UNDER THIS CONTRACT, WHETHER EXPRESS OR IMPLIED IN

LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES AGAINST INTELLECTUAL PROPERTY INFRINGEMENT. [Customer] WILL HAVE NO REMEDIES AGAINST EITHER ENGIE SERVICES U.S. OR ANY ENGIE SERVICES U.S.

SUBCONTRACTOR OR VENDOR FOR ANY DEFECTIVE MATERIALS OR EQUIPMENT INSTALLED, EXCEPT FOR

THE REPAIR OR REPLACEMENT OF SUCH MATERIALS OR EQUIPMENT IN ACCORDANCE WITH THE WARRANTIES INDICATED BELOW. SPECIFICALLY, NEITHER ENGIE SERVICES U.S., NOR ENGIE SERVICES U.S.’s SUBCONTRACTORS OR VENDORS, WILL BE LIABLE TO [Customer] FOR LOSS OF PROFITS OR FOR ANY

SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY.

Section 9.01 ENGIE Services U.S. warrants to [Customer] that material and equipment furnished under this Contract will be of good quality and new, unless otherwise specifically required or permitted by this Contract. ENGIE Services U.S. further warrants that its workmanship provided hereunder, including its subcontractors’ workmanship, will be free of material defects for a period of one (1) year from the date of Substantial Completion as indicated on the executed Certificate of Substantial Completion, or the date of Beneficial Use as indicated on the executed Certificate of Beneficial Use (“ENGIE Services U.S. Warranty”). Notwithstanding the preceding sentence, the date the ENGIE Services U.S. Warranty commences with respect to a specific piece or pieces of equipment may be further defined in Attachment C.

Section 9.02 Equipment and material warranties that exceed the ENGIE Services U.S. Warranty period will be provided directly by the equipment and/or material manufacturers and such warranties will be assigned directly to [Customer], after the one (1) year period. During the ENGIE Services U.S. Warranty period, ENGIE Services U.S. will be [Customer]’s agent in working with the equipment and material manufacturers in resolving any equipment or material warranty issues. If any material defects are discovered within the ENGIE Services U.S. Warranty period, ENGIE Services U.S., or ENGIE Services U.S.’s subcontractors, will correct its defects, and/or ENGIE Services U.S. will work with the equipment or material manufacturer as [Customer]’s agent to facilitate the manufacturer’s correction of the equipment or material defect. Such warranty services will be performed in a timely manner and at the reasonable convenience of [Customer]. If a warranty issue arises on any equipment or material installed after the ENGIE Services U.S. Warranty period, and the equipment or material has a warranty period that exceeds one (1) year, [Customer] will contact the manufacturer directly to resolve such warranty issues and [Customer] acknowledges that the manufacturer will have sole responsibility for such issues.

Section 9.03 The warranties in this ARTICLE 9 expressly exclude any remedy for damage or defect caused by improper or inadequate maintenance of the installed equipment by service providers other than ENGIE Services U.S. or its subcontractors, corrosion, erosion, deterioration, abuse, modifications or repairs not performed by an authorized ENGIE Services U.S. subcontractor, improper use or operation, or normal wear and tear under normal usage. ENGIE Energy Services Contract
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Services U.S. shall not be responsible for the cost of correcting a breach of warranty or defect to the extent that the manufacturer of the equipment that is the subject of a warranty hereunder does not honor its equipment warranty as a result of its termination of operations, insolvency, liquidation, bankruptcy or similar occurrence. Unless otherwise specified, all warranties hereunder, including without limitation those for defects, whether latent or patent, in design, engineering, or construction, will terminate one (1) year from the date of Substantial Completion or Beneficial Use; and thereafter, ENGIE Services U.S. will have no liability for breach of any warranty or for any latent or patent defect of any kind pursuant to California Code of Civil Procedure §§337.1 and 337.15.

Section 9.04 [Customer] and ENGIE Services U.S. have discussed the risks and rewards associated with this Project, as well as the Contract Amount to be paid to ENGIE Services U.S. for performance of the Work. [Customer] and ENGIE Services U.S. agree to allocate certain of the risks so that, to the fullest extent permitted by Applicable Law, ENGIE Services U.S.’s total aggregate liability to [Customer] and all third parties is limited to the Contract Amount for any and all injuries, damages, claims, losses, expenses, or claim expenses (including attorney’s fees) arising out of this Contract from any cause or causes. Such causes include, but are not limited to, negligence, errors, omissions, strict liability, breach of contract, or breach of warranty.

Section 9.05 [Remove if M&V Services are included: This Contract does not contain an energy savings guarantee or solar PV system performance guarantee and [Customer] hereby waives any such guarantee to the fullest extent permitted by Applicable Law.]
ARTICLE 10. OWNERSHIP OF CERTAIN PROPERTY AND EXISTING EQUIPMENT Section 10.01 Ownership of Certain Proprietary Property Rights. (a) Ownership: Except as expressly provided in this Contract, [Customer] will not acquire, by virtue of this Contract, any rights or interest in any formulas, patterns, devices, software, inventions or processes, copyrights, patents, trade secrets, other intellectual property rights, or similar items of property which are or may be used in connection with the Work. ENGIE Services U.S. will own all inventions, improvements, technical data, models, processes, methods, and information and all other work products developed or used in connection with the Work, including all intellectual property rights therein. (b) License: Solely in connection with the Facilities, ENGIE Services U.S. grants to [Customer] a limited, perpetual, royalty-free, non-transferrable license for any ENGIE Services U.S. intellectual property rights necessary for [Customer] to operate, maintain, and repair any modifications or additions to Facilities, or equipment delivered, as a part of the Work.
(c) Ownership and Use of Instruments of Service. All data, reports, proposals, plans, specifications, flow sheets, drawings, and other products of the Work (the “Instruments of Service”) furnished directly or indirectly, in writing or otherwise, to [Customer] by ENGIE Services U.S. under this Contract will remain ENGIE Services U.S.’s property and may be used by [Customer] only for the Work. ENGIE Services U.S. will be deemed the author and owner of such Instruments of Service and will retain all common law, statutory and other reserved rights, including copyrights. The Instruments of Service may not be used by [Customer] or any [Customer] Person for future additions or alterations to the Project or for other projects, without the prior written agreement of ENGIE Services U.S. Any unauthorized use of the Instruments of Service will be at [Customer]’s sole risk and without liability to ENGIE Services U.S. If [Customer] uses the Instruments of Service for implementation purposes, including additions to or completion of the Project, without the written permission of ENGIE Services U.S., [Customer] agrees to waive and release, and indemnify and hold harmless, ENGIE Services U.S., its subcontractors, and their directors, employees, subcontractors, and agents from any and all Losses associated with or resulting from such use.

Section 10.02 Ownership of any Existing Equipment. Ownership of any equipment and materials presently existing at the Facilities on the Contract Effective Date will remain the property of [Customer] even if such equipment or materials are replaced or their operation made unnecessary by work performed by ENGIE Services U.S. If applicable, ENGIE Services U.S. will advise [Customer] in writing of all equipment and materials that will be replaced at the Facilities and [Customer] will, within five (5) Business Days of ENGIE Services U.S.’s notice, designate in writing to ENGIE Services U.S. which replaced equipment and materials should not be disposed of off-site by ENGIE Services U.S. (the “Retained Items”). [Customer] will be responsible for and designate the location and storage for the Retained Items.

ENGIE Services U.S. will be responsible for the disposal of replaced equipment and materials, except for the Retained Items. ENGIE Services U.S. will use commercially reasonable efforts to remove the Retained Items in such a manner as to avoid damage thereto, or if it is unreasonable to avoid damage altogether, to minimize the damage done. ENGIE Services U.S. will not be responsible for the removal and/or disposal of any Hazardous Substances except as required by the Scope of Work.

ARTICLE 11. INDEMNIFICATION / LIMITATION ON LIABILITY
Section 11.01 Indemnification. To the fullest extent permitted by Applicable Laws, each Party will indemnify, hold harmless, release and defend the other Party, its officers, employees, and agents from and against any and all Energy Services Contract
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actions, claims, demands, damages, disabilities, fines, penalties, losses, costs, expenses (including consultants’ and attorneys’ fees and other defense expenses) and liabilities of any nature (“Losses”) that may be asserted by any person or entity, to the extent arising out of that Party’s performance or activities hereunder, including the performance or activities of other persons employed or utilized by that Party in the performance of this Contract, excepting liabilities to the extent due to the negligence or willful misconduct of the indemnified party. This indemnification obligation will continue to bind the Parties after the termination of this Contract.

Section 11.02 Waiver of Consequential Damages and Limitation of Liability. The liability of a defaulting Party will be limited to direct, actual damages. Neither Party shall be liable to the other Party for any special, indirect, incidental or consequential damages whatsoever, whether in contract, tort (including negligence) or strict liability, including, but not limited to, operational losses in the performance of business such as lost profits or revenues or any increase in operating expense. Additionally, each Party waives any claims for negligence against the other Party to the fullest extent permitted by Applicable Law.

ARTICLE 12. INSURANCE / BONDS
Section 12.01 ENGIE Services U.S. Insurance. ENGIE Services U.S. will maintain, or cause to be maintained, for the duration of this Contract, the insurance coverage outlined in (a) through (f) below, and all such other insurance as required by Applicable Law. Evidence of coverage will be provided to [Customer] via an insurance certificate.
(a) Workers’ Compensation/Employers Liability for states in which ENGIE Services U.S. is not a qualified selfinsured. Limits as follows:
* Workers’ Compensation: Statutory
* Employers Liability: Bodily Injury by accident $1,000,000 each accident Bodily Injury by disease $1,000,000 each employee
Bodily Injury by disease $1,000,000 policy limit
(b) Commercial General Liability insurance with limits of:
* $2,000,000 each occurrence for Bodily Injury and Property Damage * $4,000,000 General Aggregate - other than Products/Completed Operations * $2,000,000 Products/Completed Operations Aggregate
* $2,000,000 Personal and Advertising Injury
* $ 100,000 Damage to premises rented to ENGIE Services U.S.

Coverage to be written on an occurrence form. Coverage to be at least as broad as ISO form CG 0001 (04/13) or its equivalent forms, without endorsements that limit the policy terms with respect to:
(1) provisions for severability of interest or (2) explosion, collapse, underground hazard. (c) Auto Liability insurance for owned, hired and non-owned vehicles with limits of $1,000,000 per accident.

Coverage to be written on an occurrence form.
(d) Professional Liability insurance with limits of:
* $1,000,000 per occurrence
* $1,000,000 aggregate
Coverage to be written on a claims-made form.
(e) Umbrella/Excess Liability Insurance. Limits as follows:
* $1,000,000 each occurrence
* $1,000,000 aggregate
Coverage terms and limits to apply excess of the per occurrence and/or aggregate limits provided for Commercial General Liability and Professional Liability written on a claims made form. Coverage terms and limits also to apply in excess of those required for Employers Liability and Auto Liability written on an occurrence form.
(f) Policy Endorsements.
* The insurance provided for Workers’ Compensation and Employers’ Liability above will contain waivers of subrogation rights against [Customer], but only to the extent of the indemnity obligations contained in this Contract.
* The insurance provided for Commercial General Liability and Auto Liability above will:

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(i) include [Customer] as an additional insured with respect to Work performed under this Contract, but only to the extent of the indemnity obligations contained in this Contract, and
(ii) provide that the insurance is primary coverage with respect to all insureds, but only to the extent of the indemnity obligations contained in this Contract.

Section 12.02 [Customer]’s Insurance. [Customer] will maintain, or cause to be maintained, for the duration of this Contract, the insurance coverage outlined below, and all such other insurance as required by Applicable Law.

Evidence of coverage will be provided to ENGIE Services U.S. via an insurance certificate. (a) Commercial General Liability insurance, written on an occurrence form, with limits of:
* $2,000,000 each occurrence for Bodily Injury and Property Damage; and * $4,000,000 General Aggregate
(b) The insurance provided for above will contain waivers of subrogation rights against ENGIE Services U.S., will include ENGIE Services U.S. as an additional insured, and will provide that the insurance is primary coverage with respect to all insureds.

Section 12.03 Waivers of Subrogation. The Parties waive all rights against each other and any of their subcontractors, sub-subcontractors, agents and employees, each of the other, for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this ARTICLE 12 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance. The Parties and their respective property damage insurers also waive all rights of subrogation against the other Party, its directors, officers, agents and employees. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.

Section 12.04 Performance and Payment Bonds. Prior to commencing Work under this Contract, ENGIE Services U.S. will furnish a performance bond, in an amount equal to one hundred percent (100%) of the Contract Amount, and a payment bond to guarantee payment of all claims for labor and materials furnished, in an amount equal to one hundred percent (100%) of the Contract Amount (collectively, the “Contract Bonds”). The Contract Bonds shall be maintained in full force and effect until Final Completion; provided that upon the achievement of Substantial Completion, the value of the Contract Bonds shall be reduced to the value of the Retainage being withheld by [Customer]. The Contract Bonds are not being furnished to cover the performance of any Professional Services, including any energy guaranty or guaranteed savings under this Contract, nor to cover any equipment and/or material manufacturer’s warranty or other third-party warranty being assigned to [Customer]. [Customer] agrees that upon Final Completion and expiration of the ENGIE Services U.S. Warranty period set forth in Article 9 herein, the Contract Bonds shall be returned to ENGIE Services U.S., and all obligations arising thereunder are terminated and the surety company that issued the bond is forever discharged from any and all liabilities of whatever nature arising in connection with the Contract Bonds.

ARTICLE 13. DOE GUIDELINES; ENERGY POLICY ACT
Section 13.01 As authorized by §1605(b) of the Energy Policy Act of 1992 (Pub. L. No. 102-486) the U.S.

Department of Energy has issued, and may issue in the future, guidelines for the voluntary reporting of Greenhouse Gas emissions (“DOE Guidelines”). “Greenhouse Gases” means those gases and other particles as defined in the DOE Guidelines. [Customer] hereby assigns and transfers to ENGIE Services U.S., and its Affiliates and assigns, any Greenhouse Gas emission reduction credits that result from the Work.

ARTICLE 14. MUNICIPAL ADVISOR
Section 14.01 THE PARTIES ACKNOWLEDGE AND AGREE THAT ENGIE SERVICES U.S. IS NOT A MUNICIPAL ADVISOR AND CANNOT GIVE ADVICE TO [Customer] WITH RESPECT TO MUNICIPAL SECURITIES OR MUNICIPAL FINANCIAL PRODUCTS ABSENT [Customer] BEING REPRESENTED BY, AND RELYING UPON THE ADVICE OF, AN INDEPENDENT REGISTERED MUNICIPAL ADVISOR. ENGIE SERVICES U.S. IS NOT SUBJECT TO A FIDUCIARY DUTY WITH REGARD TO [Customer] OR THE PROVISION OF INFORMATION TO [Customer]. [Customer] WILL CONSULT WITH AN INDEPENDENT REGISTERED MUNICIPAL ADVISOR ABOUT THE FINANCING OPTION APPROPRIATE FOR [Customer]’S SITUATION.

ARTICLE 15. TRADE SECRETS
If any materials or information provided by ENGIE Services U.S. to [Customer] under this Contract are designated by ENGIE Services U.S. as a “trade secret” or otherwise exempt from disclosure under the Public Records Act (California Government Code §6250 et seq., the “Act”) and if a third party makes a request for disclosure of the materials under the Act, as soon as practical (but not later than five (5) calendar days) after receipt of such request, [Customer] will notify ENGIE Services U.S. of such request and advise ENGIE Services U.S. whether [Customer] believes that there is a reasonable possibility that the materials may not be exempt from disclosure. Within ten (10) calendar days after a third party’s request for Energy Services Contract
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disclosure of materials under the Act, ENGIE Services U.S. will (i) authorize [Customer] to release the documents or information sought; or (ii) if ENGIE Services U.S. reasonably believes that the information is exempt from disclosure, advise [Customer] not to release the materials.

ARTICLE 16. EVENTS OF DEFAULT
Section 16.01 Events of Default by ENGIE Services U.S. Each of the following events or conditions will constitute an “Event of Default” by ENGIE Services U.S.:
(i) any substantial failure by ENGIE Services U.S. to perform or comply with this Contract, including a material breach of any covenant contained herein, and such failure continues for thirty (30) calendar days after notice to ENGIE Services U.S. demanding that such failure to perform be cured; provided that (y) such failure to perform will not be deemed a default hereunder if it is excused by a provision of this Contract, and (z) if such cure cannot be effected in thirty (30) calendar days, ENGIE Services U.S. will be deemed to have cured the default upon the commencement of a cure within thirty (30) calendar days and diligent subsequent completion thereof; or
(ii) any representation or warranty furnished by ENGIE Services U.S. in this Contract which was false or misleading in any material respect when made.

Section 16.02 Events of Default by [Customer]. Each of the following events or conditions will constitute an “Event of Default” by [Customer]:
(i) any substantial failure by [Customer] to perform or comply with this Contract, including a material breach of any covenant contained herein, and such failure continues for thirty (30) calendar days after notice to [Customer] demanding that such failure to perform be cured; provided that (y) such failure to perform will not be deemed a default hereunder if it is excused by a provision of this Contract; and (z) if such cure cannot be effected in thirty (30) calendar days, [Customer] will be deemed to have cured the default upon the commencement of a cure within thirty (30) calendar days and diligent subsequent completion thereof; or
(ii) any representation or warranty furnished by [Customer] in this Contract which was false or misleading in any material respect when made; or
(iii) any failure by [Customer] to pay any amount to ENGIE Services U.S. which is not paid within ten (10) calendar days after written notice from ENGIE Services U.S. that the amount is past due.

ARTICLE 17. REMEDIES UPON DEFAULT
Section 17.01 Termination for Cause. If there is an Event of Default by either Party under this Contract, unless such Event of Default has been cured within the applicable time periods for a cure set forth in ARTICLE 16, the non-defaulting Party may terminate this Contract by providing three (3) Business Days’ written notice to the defaulting Party in the case of a monetary default and ten (10) Business Days’ written notice to the defaulting Party in the case of a non-monetary default. Upon termination of this Contract, each Party will promptly return to the other all papers, materials, and property of the other held by such Party in connection with this Contract. Each Party will also assist the other in the orderly termination of this Contract and the transfer of all aspects hereof, tangible and intangible, as may be necessary for the orderly, non-disrupted business continuation of each Party. If this Contract is so terminated, ENGIE Services U.S. will be entitled to payment for Work satisfactorily performed, earned profit and overhead, and costs incurred in accordance with this Contract up to the date of termination.

Section 17.02 Remedies Upon Default by ENGIE Services U.S. If an Event of Default by ENGIE Services U.S. occurs, [Customer] will be entitled to obtain any available legal or equitable remedies through arbitration proceedings instituted pursuant to ARTICLE 19, including, without limitation, terminating this Contract, or recovering amounts due and unpaid by ENGIE Services U.S. and/or damages, which will include [Customer]’s reasonable, actual, direct out-of-pocket losses incurred by reason of such Event of Default and any cost of funding; loss of anticipated payment obligations; and any payment or delivery required to have been made on or before the date of the Event of Default and not made, including interest on any sums due, and losses and costs incurred as a result of terminating this Contract and all costs and expenses reasonably incurred in exercising the foregoing remedies.

Section 17.03 Remedies upon Default by [Customer]. If an Event of Default by [Customer] occurs, ENGIE Services U.S. will be entitled to obtain any available legal or equitable remedies through arbitration proceedings instituted pursuant to ARTICLE 19 including, without limitation, terminating this Contract or recovering amounts due and unpaid by [Customer], and/or damages which will include ENGIE Services U.S.’s reasonable, actual, direct out-of-pocket losses incurred by reason of such Event of Default and any cost of funding; loss of anticipated payment obligations; and any payment or delivery required to have been made on or before the date of the Event of Default and not made, including Energy Services Contract
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Interest on any sums due, and losses and costs incurred as a result of terminating this Contract and all costs and expenses reasonably incurred in exercising the foregoing remedies.

ARTICLE 18. CONDITIONS BEYOND CONTROL OF THE PARTIES
Section 18.01 Excusable Events. If any Party is delayed in, or prevented from, performing or carrying out its obligations under this Contract by reason of any Excusable Event, such circumstance will not constitute an Event of Default, and such Party will be excused from performance hereunder and will not be liable to the other Party for or on account of any loss, damage, injury or expense resulting from, or arising out of, such delay or prevention.

Notwithstanding the foregoing, no Party will be excused from any payment obligations under this Contract as a result of an Excusable Event.

Section 18.02 Utility Work. [Customer] expressly understands and agrees that Excusable Events may occur due to Interconnection Facilities work that may need to be performed by the local electric utility (“Utility”) in order for ENGIE Services U.S. to fully implement the Project. “Interconnection Facilities” means any distribution or transmission lines and other facilities that may be required to connect equipment supplied under this Contract to an electrical distribution/transmission system owned and maintained by the Utility. Any Interconnection Facilities work that may be required will be performed by the Utility under the Interconnection Agreement.

ARTICLE 19. GOVERNING LAW AND RESOLUTION OF DISPUTES
Section 19.01 Governing Law. This Contract is governed by and must be interpreted under the laws of the State where the Work is performed, without regard to the jurisdiction’s choice of law rules.

Section 19.02 Initial Dispute Resolution. If a dispute arises out of or relates to this Contract, the transaction contemplated by this Contract, or the breach of this Contract (a “Dispute”), either Party may initiate the dispute resolution process set forth in this ARTICLE 19 by giving notice to the other Party. The Parties will endeavor to settle the Dispute as follows:
(i) Field Representatives’ Meeting: Within fifteen (15) Business Days after notice of the Dispute, ENGIE Services U.S.’s senior project management personnel will meet with [Customer]’s project representative in a good faith attempt to resolve the Dispute. (ii) Management Representatives’ Meeting: If ENGIE Services U.S.’s and [Customer]’s project representatives fail to meet, or if they are unable to resolve the Dispute, senior executives for ENGIE Services U.S. and for [Customer], neither of whom have had day-to-day management responsibilities for the Project, will meet, within thirty (30) calendar days after notice of the Dispute, in an attempt to resolve the Dispute and any other identified disputes or any unresolved issues that may lead to a dispute. If the senior executives of ENGIE Services U.S. and [Customer] are unable to resolve a Dispute or if a senior management conference is not held within the time provided herein, either Party may submit the Dispute to mediation in accordance with Section

19.03. Section 19.03 Mediation. If the Dispute is not settled pursuant to Section 19.02, the Parties will endeavor to settle the Dispute by mediation under the Commercial Mediation Procedures of the American Arbitration Association.

Mediation is a condition precedent to arbitration or the institution of legal or equitable proceedings by either Party. Once one Party files a request for mediation with the other Party and with the American Arbitration Association, the Parties agree to conclude the mediation within sixty (60) calendar days after filing the request. Either Party may terminate the mediation at any time after the first session, but the decision to terminate must be delivered in person by the Party’s representative to the other Party’s representative and the mediator. If the Dispute is not resolved by mediation within sixty (60) calendar days after the date of filing of the request for mediation, then the exclusive means to resolve the Dispute is final and binding arbitration, as described in Section 19.04. Either Party may initiate arbitration proceedings by notice to the other Party and the American Arbitration Association.

Section 19.04 Arbitration Proceedings. The following provisions apply to all arbitration proceedings pursuant to this ARTICLE 19:
(i) The place of arbitration will be the American Arbitration Association office closest to where the Work was performed.
(ii) One arbitrator (or three arbitrators if the monetary value of the Dispute is more than $2,000,000) (the “Arbitral Panel”) will conduct the arbitral proceedings in accordance with the Commercial Arbitration Rules and Mediation Procedures (Excluding the Procedures for Large, Complex Commercial Disputes) of the American Arbitration Association currently in effect (“Arbitration Rules”). To the extent of any conflicts between the Arbitration Rules and the provisions of this Contract, the provisions of this Contract prevail.

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(iii) The Parties will submit true copies of all documents considered relevant with their respective statement of claim or defense, and any counterclaim or reply. In the discretion of the Arbitral Panel, the production of additional documents that are relevant and material to the determination of the Dispute may be required.
(iv) The Arbitral Panel does not have the power to award, and may not award, any punitive, indirect or consequential damages (however denominated). All arbitration fees and costs are to be shared equally by the parties, regardless of which Party prevails. Each Party will pay its own costs of legal representation and witness expenses.
(v) The award must be in the form of a reasoned award.
(vi) The Dispute will be resolved as quickly as possible. The Arbitral Panel will endeavor to issue the arbitration award within six (6) months after the date on which the arbitration proceedings were commenced.
(vii) The award will be final and binding and subject to confirmation and enforcement proceedings in any court of competent jurisdiction.

Section 19.05 Multiparty Proceeding. Either Party may join third parties whose joinder would facilitate complete resolution of the Dispute and matters arising from the resolution of the Dispute.

Section 19.06 Lien Rights. Nothing in this ARTICLE 19 limits any rights or remedies not expressly waived by ENGIE Services U.S. that ENGIE Services U.S. may have under any lien laws or stop notice laws.

ARTICLE 20. REPRESENTATIONS AND WARRANTIES
Section 20.01 Each Party warrants and represents to the other that:
(i) it has all requisite power and authority to enter into this Contract, to perform its obligations hereunder and to consummate the transactions contemplated hereby; (ii) the execution, delivery, and performance of this Contract have been duly authorized by its governing body, or are in accordance with its organizational documents, and this Contract has been duly executed and delivered for it by the signatories so authorized, and constitutes its legal, valid, and binding obligation;
(iii) the execution, delivery, and performance of this Contract will not breach or violate, or constitute a default under, its organizational documents or any contract, lease or instrument to which it is a party or by which it or its properties may be bound or affected; and (iv) 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, awards or permits which would materially and adversely affect its ability to perform hereunder.

ARTICLE 21. NOTICE
Any notice required or permitted hereunder will be deemed sufficient if given in writing and delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, or delivered to a nationally recognized express mail service, charges prepaid, receipt obtained, to the address shown below or to such other persons or addresses as are specified by similar notice.

TO ENGIE SERVICES U.S.: ENGIE Services U.S. Inc.
[Local Address]
Tel:

Attention: ______________, Project Manager
With a COPY TO: Legal Department
ENGIE Services U.S. Inc.
150 East Colorado Boulevard, Suite 360
Pasadena, CA 91105-3711
Tel: 626-377-4948
Attention: Contract Administrator
TO [Customer]: [Customer]
Street Address
City, State, Zip
Tel:

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Attention:

With a COPY TO: Office of _____________
_____________________
Street Address
City, State, Zip
Tel:

Attention:

ARTICLE 22. CONSTRUCTION OF CONTRACT
This Contract is the result of arms-length negotiations between two sophisticated parties and ambiguities or uncertainties in it will not be construed for or against either Party, but will be construed in a manner that most accurately reflects the intent of the Parties as of the Contract Effective Date. Each of the Parties acknowledges and agrees that neither Party has provided the other with any legal, accounting, regulatory, financial, or tax advice with respect to any of the transactions contemplated hereby, and each Party has consulted its own legal, accounting, regulatory, financial and tax advisors to the extent it has deemed appropriate.

ARTICLE 23. CHOICE OF LAW

THE INTERPRETATION, VALIDITY AND ENFORCEMENT OF THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.

ARTICLE 24. BINDING EFFECT
Except as otherwise provided herein, the terms and provisions of this Contract will apply to, be binding upon, and inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successors, and permitted assigns.

ARTICLE 25. NO WAIVER
The failure of ENGIE Services U.S. or [Customer] to insist upon the strict performance of this Contract will not constitute or be construed as a waiver or relinquishment of either Party’s right to thereafter enforce the same in accordance with this Contract in the event of a continuing or subsequent default on the part of ENGIE Services U.S. or [Customer].

ARTICLE 26. SEVERABILITY
If any clause or provision of this Contract or any part thereof becomes or is declared by a court of competent jurisdiction invalid, illegal, void, or unenforceable, this Contract will continue in full force and effect without said provisions; provided that no such severability will be effective if it materially changes the benefits or obligations of either Party hereunder.

ARTICLE 27. HEADINGS
Headings and subtitles used throughout this Contract are for the purpose of convenience only, and no heading or subtitle will modify or be used to interpret the text of any section.

ARTICLE 28. COUNTERPARTS; INTEGRATION
This Contract may be executed in counterparts (and by different Parties hereto in different counterparts), each of which will constitute an original, but all of which when taken together will constitute a single contract. This Contract constitutes the entire contract among the Parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Contract cannot be amended, modified, or terminated except by a written instrument, executed by both Parties hereto. Delivery of an executed counterpart of a signature page of this Contract by email will be effective as delivery of a manually executed counterpart of this Contract. [the Parties’ signatures appear on the following page]
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IN WITNESS WHEREOF, and intending to be legally bound, the Parties hereto subscribe their names to this Contract by their duly authorized officers as of the Contract Effective Date.

ENGIE SERVICES U.S.: [Customer]:

ENGIE Services U.S. Inc. [type [Customer] name here)
By: _________________________________ By: __________________________________ Name: Name:

Title: Title:

Energy Services Contract
[Customer] and ENGIE Services U.S.

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ATTACHMENT A

FACILITIES
(a) The following [Customer] Facilities are included under the Scope of Work as listed below:

Facility Address Square Feet
(insert rows as needed)
Energy Services Contract
[Customer] and ENGIE Services U.S.

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ATTACHMENT B
STANDARDS OF OCCUPANCY and CONTROL
Energy Services Contract
[Customer] and ENGIE Services U.S.

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ATTACHMENT C

SCOPE OF WORK
California State Contractor’s License Number 995037
California Public Works Contractor Registration Number 1000001498 Energy Conservation Measures to Be Implemented
ECM
# Description
(add lines when necessary)
Energy Services Contract
[Customer] and ENGIE Services U.S.

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ATTACHMENT D

MONITORING INSTALLATION SCOPE OF WORK
Energy Services Contract
[Customer] and ENGIE Services U.S.

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ATTACHMENT E

M&V SERVICES
Energy Services Contract
[Customer] and ENGIE Services U.S.

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ATTACHMENT F

MAINTENANCE SERVICES
ENGIE Services U.S.
500 12th Street, Suite 300
Oakland, CA 94607
engie-na.com
©2024 ENGIE North America

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