R2018-96 Authorizing an Amendment to the Services Agreement with Johnson Controls CP 2018-07

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specifications, surveys and "As-Built" drawings are to be returned or suitably accounted for to the CITY on request at the completion of the Work. 2.5 Ownership, Dissemination and Publication of Documents. The drawings, specifications, reports, renderings, models, electronic media and all such other documents to be prepared and furnished by the COMPANY solely and exclusively pursuant to this Agreement, shall be the property of the CITY and the CITY shall have a non-transferable license to use any copyrighted material contained in such documents as necessary for the CITY to continue to operate, maintain, and repair the EMs beyond the expiration of this Agreement. All documents listed above may be issued for informational purposes by the CITY without additional compensation to the COMPANY. 2.6 Interpretation of Agreement. The CITY shall have the authority to determine questions of fact that arise in relation to the interpretation of this Agreement and the COMPANY'S performance hereunder. However, such determinations are subject to the Alternative Dispute Resolution procedures as described in Schedule N. Unless the Parties agree otherwise, or the Work cannot be continued without a resolution of the question of fact, such determinations and Alternative Dispute Resolution procedures shall not be cause for delay of the Work. The COMPANY shall proceed diligently with the performance of this Agreement and in accordance with the CITY'S decision whether or not the COMPANY or anyone else has an active claim pending. Continuation of the Work shall not be construed as a waiver of any rights accruing to the COMPANY. ARTICLE 3: THE EFFICIENCY MEASURES PROJECT (THE "PROJECT") 3.1 Project Defined. The COMPANY shall design, procure and install the EMs specified in Schedule A and provide training, commissioning and monitoring and all other services specified in this Agreement and the Project Documents set forth in paragraph 3.5. 3.2 Energy and Water Efficiency Audit Report. The Report prepared by the COMPANY and accepted by the CITY contains specific recommendations and documentation concerning the energy conservation measures, systems and services to be provided and is incorporated herein by reference. Notwithstanding, the provisions of this Agreement and the Schedules referenced in paragraph 3.5 shall govern in the event of any inconsistencies between the Report and the provisions of this Agreement. 3.3 Annual Efficiency Improvements Guarantee. The COMPANY has formulated and guaranteed the level of efficiency improvements and increases in billable water consumption as provided for in Schedules B and B2 (the "Assured Performance Guarantee"), which will be achieved each year as a result of the performance by COMPANY of the services specified in this Agreement utilizing the Methods of Savings Measurement and Verification set forth in Schedule L. 3.4 Annual Review and Reimbursement. Efficiency improvements achieved shall be reported, reconciled and verified pursuant to the provisions of Schedule L. If said annual review, reconciliation and verification of efficiency improvements discloses that the COMPANY has failed to achieve the annual Assured Performance Guarantee, the COMPANY will pay the CITY or the CITY'S designee, as may be directed by the CITY, the difference between the annual Assured Performance Guarantee and the amount of actual annual efficiency improvements achieved, all in accordance with the provisions of Schedules B and B2. The COMPANY shall remit such payments to the CITY within thirty (30) days of written demand therefore by the CITY. 5