Common use of Contract Price and Payments Clause in Contracts

Contract Price and Payments. 2.1 The total of all implementation contract payments shall be a not to exceed price of $6,267,553 (the “Contract Price”). Construction progress payments shall be made to ESCO monthly based on the percentage completion of items delineated on a “Schedule of Values” completed during the prior month. The Schedule of Values will be developed by ESCO and provided to Customer at the beginning of project implementation. The Schedule of Values will be based upon the project cost less the Project Mobilization Payment. The Schedule of Values shall be prepared in such form and supported by such data to substantiate its accuracy as the Customer may require including, but not limited to, Subcontractors’ breakdown of their respective costs into a schedule of values as required by the Customer. 2.2 ESCO may submit “Payment Request Forms” and payments shall be made to ESCO on a monthly basis during construction. ESCO shall submit the Payment Request Form to the Customer requesting payment to ESCO in an amount equal to the value of services rendered since the last interim payment as shown on the most recent Schedule of Values provided during installation. The most recent Schedule of Values submitted by the ESCO shall be used as a basis for reviewing the Payment Request Forms. The Customer may reject any Payment Request Form, or any part thereof, in the event the work for which the Payment Request has been submitted has not been completed or has been rejected by the Customer. If any payment is over ten (10) days late from the due date, Customer shall pay to ESCO a 1% late penalty per month and ESCO reserves the right to terminate this Contract due to non-payment upon seven (7) days prior written notice. The Customer shall have thirty (30) days to review and process Payment Requests. Payments, minus five percent (5%) retainage, shall be made within thirty (30) days of submission of Payment Requests for all parts of each Payment Request accepted by the Customer. ESCO may request payment of amounts held as retainage at Substantial Completion. 2.3 Within thirty (30) days of the Date of Commencement, Customer shall make payment to ESCO for expenses incurred to date and project mobilization expenses, including but not limited to engineering, project start-up and mobilization, equipment and material procurement, bonds and other expenses incurred to date (“Project Mobilization Payment”) in the amount of not to exceed 10% of the implementation contract payment total of the Contract Price as provided for on the Project Mobilization Payment invoice issued once ESCO has received a notice to proceed from Customer. 2.4 For the initial one (1) year beginning at the Savings Guarantee Commencement Date, Customer shall receive the services as described in the Performance Assurance Support Services Agreement (“PASS Agreement”) at no additional cost. 2.5 Payments may be withheld on account of (1) Defective Work not remedied, (2) claims filed by third parties, (3) failure of ESCO to make payments properly to the “Subcontractor(s)” or for labor, materials or equipment, or (4) repeated failure to carry out the Work in accordance with the Contract Documents. 2.6 Final payment shall not become due until ESCO has delivered to Customer a complete release of all liens arising out of this Contract covering all labor, materials, and equipment for which a lien could be filed, or a bond satisfactory to Customer to indemnify Customer against such lien. 2.7 The making of final payment shall constitute a waiver of claims by Customer except those arising from (1) liens, claims, security interests or encumbrances arising out of the Contract and which are unsettled, (2) failure of the Work to comply with the requirements of the Contract Documents, or (3) terms of special warranties required by the Contract Documents.

Contract Price and Payments. 2.1 The total of all implementation contract payments shall be a not to exceed price of $6,267,553 1,615,506 (the “Contract Price”). Construction ESCO shall invoice Customer for construction progress payments which shall be made paid to ESCO monthly based on the percentage completion of items delineated on a “Schedule of Values” completed during the prior month. The Schedule of Values will be developed by ESCO and provided to Customer at the beginning of project implementation. The Schedule of Values will be based upon the project cost less the Project Mobilization Payment. The Schedule of Values shall be prepared in such form and supported by such data to substantiate its accuracy as the Customer may require including, but not limited to, Subcontractors’ breakdown of their respective costs into a schedule of values as required by the Customer. 2.2 ESCO may submit “Payment Request Forms” and payments shall be made to ESCO on a monthly basis during construction. ESCO shall submit the Payment Request Form to the Customer requesting payment to ESCO in an amount equal to the value of services rendered since the last interim payment as shown on the most recent Schedule of Values provided during installation. The most recent Schedule of Values submitted by the ESCO shall be used as a basis for reviewing the Payment Request Forms. The Customer may reject any Payment Request Form, or any part thereof, in the event the work for which the Payment Request has been submitted has not been completed or has been rejected by the Customer. If any payment is over ten thirty (1030) days late from the due datedate stated on the invoice, Customer shall pay to ESCO a 1% late penalty per month and ESCO reserves the right to terminate this Contract due to non-payment upon seven fifteen (715) days prior written notice. The Customer shall have thirty (30) days to review and process Payment Requests. Payments, minus five percent (5%) retainage, shall be made within thirty (30) days of submission of Payment Requests for all parts of each Payment Request accepted by the Customer. ESCO may request payment of amounts held as retainage at Substantial Completion. 2.3 2.2 Within thirty (30) days of the Date of Commencement, Customer shall make payment to ESCO for expenses incurred to date and project mobilization expenses, including but not limited to engineering, project start-up and mobilization, equipment and material procurement, bonds and other expenses incurred to date (“Project Mobilization Payment”) in the amount of not to exceed 1020% of the implementation contract payment total of the Contract Price as provided for on the Project Mobilization Payment invoice issued once ESCO has received attached hereto and made a notice to proceed from Customerpart hereof. 2.4 2.3 For the initial one (1) year beginning at the Savings Guarantee Commencement Date, Customer shall receive the services as described in the Performance Assurance Support Services Agreement (“PASS Agreement”) at no additional cost. 2.5 Payments may be withheld on account . Thereafter, the Performance Assurance Support Services Agreement shall automatically renew for a period of one (1) Defective Work not remediedyear, (2) claims filed by third partieswhereby Customer can maintain the current service, (3) failure upgrade the level of ESCO to make payments properly to the “Subcontractor(s)” or for labor, materials or equipmentservice, or (4) repeated failure to carry out terminate, as provided for in Schedule B. 2.4 Final payment for the Work in accordance with the Contract Documents. 2.6 Final payment shall not become due until ESCO has delivered to Customer a complete release of all liens arising out of this Contract covering all labor, materials, and equipment for which a lien could be filed, or a bond satisfactory to Customer to indemnify Customer against such lien. 2.7 2.5 The making of final payment shall constitute a waiver of claims by Customer except those arising from (1) liens, claims, security interests or encumbrances arising out of the Contract and which are unsettled, (2) failure of the Work to comply with the requirements of the Contract Documents, or (3) terms of special warranties required by the Contract Documents. 2.6 Notwithstanding any provision herein to the contrary, Customer is obligated only to make the payments set forth in this Contract as may lawfully be made from funds budgeted and appropriated for that purpose during the Customer’s then current fiscal year at the direction of the City of St. ▇▇▇▇▇▇. If no funds are appropriated or otherwise made legally available to make any required payments for this Contract during the next occurring fiscal year (an “Event of Non-Appropriation”), this Contract will terminate at the end of the then current fiscal year as if terminated expressly. The failure or inability of Customer to appropriate funds for this Contract in any subsequent fiscal year shall not be deemed a breach of this Contract by any party. Should Customer terminate the contract for non-appropriation, Customer must pay ESCO for all Work installed at the time of the notice of termination. Additionally, should the contract be terminated by Customer, all requirements of the Performance Guarantee would be voided.

Contract Price and Payments. 2.1 The total of all implementation contract payments shall be a not to exceed price of $6,267,553 2,176,463 (the “Contract Price”). Construction progress payments shall be made to ESCO monthly based on the percentage completion of items delineated on a “Schedule of Values” completed during the prior month. The Schedule of Values will be developed by ESCO and provided to Customer at the beginning of project implementation. The Schedule of Values will be based upon the project cost less the Project Mobilization Payment. The Schedule of Values shall be prepared in such form and supported by such data to substantiate its accuracy as the Customer may require including, but not limited to, Subcontractors’ breakdown of their respective costs into a schedule of values as required by the Customer. 2.2 ESCO may submit “Payment Request Forms” and payments shall be made to ESCO on a monthly basis during construction. ESCO shall submit the Payment Request Form to the Customer requesting payment to ESCO in an amount equal to the value of services rendered since the last interim payment as shown on the most recent Schedule of Values provided during installation. The most recent Schedule of Values submitted by the ESCO shall be used as a basis for reviewing the Payment Request Forms. The Customer may reject any Payment Request Form, or any part thereof, in the event the work for which the Payment Request has been submitted has not been completed or has been rejected by the Customer. If any payment is over ten (10) days late from the due datedate stated on the invoice, Customer shall pay to ESCO a 1% late penalty per month and ESCO reserves the right to terminate this Contract due to non-payment upon seven (7) days prior written notice. The Customer shall have thirty (30) days to review and process Payment Requests. Payments, minus five percent (5%) retainage, shall be made within thirty (30) days of submission of Payment Requests for all parts of each Payment Request accepted by the Customer. ESCO may request payment of amounts held as retainage at Substantial Completion. 2.3 Within thirty (30) days of the Date of Commencement, Customer shall make payment to ESCO for expenses incurred to date and project mobilization expenses, including but not limited to engineering, project start-up and mobilization, equipment and material procurement, bonds and other expenses incurred to date (“Project Mobilization Payment”) in the amount of not to exceed 10% of the implementation contract payment total of the Contract Price as provided for on the Project Mobilization Payment invoice issued once ESCO has received reicved a notice to proceed from Customer. 2.4 For the initial one (1) year beginning at the Savings Guarantee Commencement Date, Customer shall receive the services as described in the Performance Assurance Support Services Agreement (“PASS Agreement”) at no additional cost. 2.5 Payments may be withheld on account of (1) Defective Work not remedied, (2) claims filed by third parties, (3) failure of ESCO to make payments properly to the “Subcontractor(s)” or for labor, materials or equipment, or (4) repeated failure to carry out the Work in accordance with the Contract Documents. 2.6 Final payment shall not become due until ESCO has delivered to Customer a complete release of all liens arising out of this Contract covering all labor, materials, and equipment for which a lien could be filed, or a bond satisfactory to Customer to indemnify Customer against such lien. 2.7 The making of final payment shall constitute a waiver of claims by Customer except those arising from (1) liens, claims, security interests or encumbrances arising out of the Contract and which are unsettled, (2) failure of the Work to comply with the requirements of the Contract Documents, or (3) terms of special warranties required by the Contract Documents.