R2013-62 AUTHORIZING EXECUTION OF ENERGY AND WATER EFFICIENCY SERVICES AGREEMENT

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and alterations or additions to the EMs shall become part of the EMs and shall become the property of the CITY. Any replacements of and alterations or additions made by the COMPANY to the CITY's pre-existing equipment, or equipment acquired by the CITY during the term of this Agreement, shall become part of said equipment and be owned by the CITY. The COMPANY shall be compensated for such monitoring services pursuant to Schedule C hereof. In the event of the COMPANY's failure to provide monitoring to the EMs, as provided in Schedule F or if an Event of Default exists pursuant to Article 11, the CITY may withhold fees due to the COMPANY for such monitoring services until such services are completed or such Event of Default is cured. The CITY shall notify the COMPANY in writing when any payments are so withheld. The withholding of fees by the CITY under this paragraph 8.4 shall not release the COMPANY from its obligation to provide the Assured Performance Guarantee. 8.5 CITY Operating and EMs Maintenance Responsibilities. The CITY shall be responsible for providing the maintenance, monitoring, service, repairs and adjustments to the EMs. The CITY shall not move, modify, remove, adjust, alter or change in any material way the EMs, or any part thereof, during the term of this Agreement, without prior written direction or approval of the COMPANY, except in the event of an occurrence reasonably deemed by the CITY or the COMPANY to constitute a bona fide emergency. The CITY acknowledges that substantial deviations from the operating parameters set forth in the Schedules to this Agreement may constitute a material change in accordance with paragraph 9.3 hereof. In addition to the responsibilities set forth in Schedule G, the CITY shall use its best efforts to maintain the Premises in good repair and to protect and preserve the EMs in good repair and condition in accordance with applicable manufacturers' recommendations which shall be provided to the CITY by the COMPANY and to maintain the operating conditions of all mechanical systems and energy and water related systems located at the Premises. The COMPANY shall notify the CITY of any improper maintenance or repair as soon as COMPANY has notice thereof. The CITY acknowledges that improper repairs or maintenance of the EMs may constitute a Material Change in accordance with paragraph 9.3, and that the provisions of paragraph 9.5 may be applicable. 8.6 Training by the Company. The COMPANY shall conduct the training program described in Schedule I hereto. 8.7 EMs Upgrades; Alterations. The COMPANY shall have the right, at all times during the term of this Agreement, subject to the CITY's written approval, to modify or replace any of the EMs or install additional EMs and to revise any procedures for the operation of the EMs or implement other procedures at the Premises provided that: (i) such actions by the COMPANY do not result in modifying the standards of comfort and service set forth in Schedule H without the express written approval of the CITY, (ii) such modifications or additions to, or replacements of the EMs, and any operational changes, or new procedures are necessary to enable the COMPANY to achieve the Assured Performance Guarantee and (iii) any costs incurred relative to such modifications, additions or replacements of the EMs, or operational changes or new procedures shall be the responsibility of the COMPANY. All modifications, additions or replacements of the EMs or revisions to operating or other procedures shall be described in a supplemental Schedule(s) to be provided to the CITY for approval, which shall not be unreasonably withheld, and incorporated into this Agreement provided that any replacement EM shall be new and have equal or better potential to reduce energy consumption at the Premises than the EM being replaced. The COMPANY shall update any and all software to be used in connection with the EMs in accordance with the provisions of Schedule F. All replacements of and alterations or additions to the EMs shall become part of the EMs described in Schedule A and shall become the property of the CITY. The COMPANY and the CITY shall determine in accordance with the provisions of paragraph 9.5, what, if any, adjustments to the Baseline/Benchmarks set forth in Schedule E are 11