https://sleepyhollow.localarchives.org/files/original/ceacd26ebe3d86d35e0fa4604c2f97ec.pdf d3acb7980bfe257c372e6e2b27d5738d PDF Text Text Meeting Date: 1/13/2015 Resolution #: 1/01/2015 Resolution of the Board of Trustees of the Village of Sleepy Hollow Authorizing Mayor to sign Energy Efficiency Services Program Agreement with the New York Power Authority Be it Resolved, tfiat tlie Board of Trustees of the Viiiage of Sieepy Holiow liereby authorizes the Mayor to sign the attached Energy Efficiency Services Progranfi Agreement with the New York Power Authority for the purposes of conducting an energy audit. Be it Further Resolved, that the Viiiage Board approves retaining Wiiidan Energy Solutions at a cost of $12,240 to conduct the energy audit on behalf of the New York Power Authority. Moved: Trustee Rosenbloom Vote: 6-0 Seconded: Deputy Mayor Lobato-Church �ENERGY EFFICIENCY SERVICES PROGRAM AGREEMENT BETWEEN POWER AUTHORITY OF THE STATE OF NEW YORK AND VILLAGE OF SLEEPY HOLT.OW �ENERGY EFFICIENCY SERVICES PROGRAM AGREEMENT TABLE OF CONTENTS ARTICLE I - DEFINITIONS ARTICLE II. IMPLEMENTATION. ARTICLE HI - ELIGIBILITY CRITERION. ARTICLE rV - RECOVERY OF COSTS / REPAYMENT OBLIGATIONS ARTICLE V - RESPONSIBLE PARTIES ARTICLE VI - INSURANCE AND RISK OF LOSS. ARTICLE VII - ENERGY SAVINGS ARTICLE Vin - CONTRACTOR REQUIREMENTS. ARTICLE IX - TIME FOR PERFORMANCE ARTICLE X - MISCELLANEOUS SIGNATURE PAGE ,.14 ,.15 .23 ..24 .29 ,.30 ,.33 .36 .40 �ENERGY EFFICIENCY SERVICES PROGRAM AGREEMENT This Agreement ("Agreement"), dated and effective this day of , 20 , is entered into by and between POWER AUTHORITY OF THE STATE OF NEW YORK, a corporate municipal instrumentality of the State of New York with offices located at 123 Main Street, White Plains, New York 10601 (the "AUTHORITY") and Village of Sleepy Hollow . a municipality with offices located at 28 Beekman Ayenue. Sleepy Hollow. NY 10591 (the "CUSTOMER"). WHEREAS, on December 16,1997, the AUTHORITY established its Energy Services Program (also known as the Energy Efficiency Services Program) by consolidating a number of existing energy efficiency programs; and WHEREAS, on December 15, 2009, in response to new legislation, Chapter 477 of the Laws of 2009, amending the Public Authorities Law in relation to energy efficiency, clean energy and sustainable building initiatives, the AUTHORITY'S Trustees enhanced the existing Energy Services Program to specifically include, among other things, services involving construction, installation and/or operation of facilities or equipment done in connection with any Energy Services Program projects, programs or services; and WHEREAS, the parties wish to continue their participation in energy efficiency and clean energy technology projects at CUSTOMER'S facilities under the AUTHORITY'S enhanced Energy Services Program (also known as Energy Efficiency Services Program). NOW, THEREFORE, the AUTHORITY and the CUSTOMER (sometimes referred to herein collectively as the "Parties" and individually as a "Party"), in consideration of the mutual covenants and conditions contained herein, hereby agree as follows: This Agreement describes the general terms and conditions under which the CUSTOMER agrees to participate in energy efficiency services and/or clean energy technologies �projects ("Projects") to be implemented as part of the AUTHORITY'S EESP". The Projects are intended to reduce energy costs and/or to realize significant environmental benefits at certain agreed-upon institutions and facilities (each, a "Facility" and collectively, "Facilities") owned or operated by the CUSTOMER. [Article I follows] �Article I Definitions The following definitions shall apply for all purposes of this Agreement: "Authority Cost of Money" refers to the weighted average annual rate of interest paid by AUTHORITY on the applicable portion of its outstanding debt in the prior calendar year, plus associated fees. Currently, this debt consists of tax-exempt or taxable commercial paper notes. These associated fees may include actual costs incurred to secure liquidity facilities, remarketing services, purchase of an interest rate cap(s)', issuing and paying agents and other financing related costs and credit premiums, if any, in the Authority's reasonable opinion, necessary to administer the EESP. The Cost of Money will be adjusted annually on January 1 for the succeeding 12 month period or more frequently as mutually acceptable by both parties. Additional funding sources may be used at the discretion of AUTHORITY including other variable rate debt instruments as well as fixed debt instruments. To the extent fixed rate debt has been issued as a source of financing for a specific project, then the debt service necessary to meet the Authority's principal and interest payments will be applied monthly until the debt is fully retired. The sizing of the fixed rate debt issuance will include all fees necessary to bring the issue to market. "Authorized Representative" means an individual designated by AUTHORITY to coordinate a Project on behalf of AUTHORITY and to communicate with CUSTOMER concerning such Project. "Change Order" shall mean a modification to the Customer Installation Commitment, setting forth agreed-upon additions, deletions or revisions to the Work. "Contractor(sV' are firms with which AUTHORITY, acting as the contracting entity, may enter 1 Authority may purchase an interest rate cap(s) which may serve to limit the maximum interest rate applicable to a project and may be renewed periodically based upon prevailing market conditions. 2 �into agreements to provide program management and implementation services for selected Facilities. AUTHORITY reserves the right under this Agreement to act as its own Contractor; in such instances, any reference in the Agreement to the "Contractor" will mean the "AUTHORITY." The Contractor (including AUTHORITY if acting as Contractor) will receive a fee for providing these services. These fees will be detailed in each Customer Installation Commitment. "Customer Installation Commitment" or "CIC" refers to the work order signed by AUTHORITY and CUSTOMER which sets forth the terms under which a Project will proceed. The CIC is more fully discussed in Article n. Section (A)(4). "Customer's Authorized Representative" means the individual designated by the CUSTOMER to coordinate a Project on behalf of the CUSTOMER and to assist the AUTHORITY, the Contractors and Subcontractors with the implementation of the Project in the Facility. "Debris" shall mean unregulated materials removed from a Facility and unsuitable for further use. "Delivery Mechanism" means a method to design and build the Work including but will not be limited to Authority Implemented Work (e.g. Design Bid Build, Expedited Delivery, Construction Trade Management Contracting) and Customer Implemented Work (e.g. Design Bid Build, Design Build, Energy Services Performance Contracting). Descriptions of the Delivery Mechanisms including roles and responsibilities shall be included in the Project Assignment Authorization. "Design" shall include fieldwork and development necessary to produce the documents, technical specifications, and drawings required for the proper execution of the construction project. "Eligibility Criterion" shall have the meaning set forth in Article HI. Section A. 3 �"EESP" means the AUTHORITY'S Board of Trustees-authorized Energy Services Program (now known as "Energy Efficiency Services Program"), a program involving the design and installation of Projects through the services of qualified installation Contractors and Subcontractors as well as financing. "Facility" means the building, structure, or premises owned or operated by the CUSTOMER which may benefit from the CUSTOMER'S participation in the AUTHORITY'S Energy Efficiency Services Program. "Facility Audit" shall consist of the identificaUon of opportunities for implementing EESP measures. The Facility Audit shall also include an analysis of whether hazardous materials and Waste are likely to be present or generated as a result of implementing EESP measures. "Feasibility Study Report" shall include an estimate of Project costs, estimates of the potential energy savings and savings in life-cycle cost, as applicable, that CUSTOMER can expect through installation of one or more recommended energy efficiency measures. "Final Customer Installation Commitment" or "Final CIC" is a document that shall describe the Project-specific technical and financial terms for the Work completed at the Facility, CUSTOMER'S Repayment Obligation, and the final repayment terms. "EinMcing" refers to CUSTOMER'S exercise of the option for AUTHORITY to provide fiinds as set forth in the CIC to cover the CUSTOMER'S Repayment Obligation. These funds will be recovered by AUTHORITY from the CUSTOMER through the imposition of monthly bills ("Monthly Bill(s)") or in lump sum amount(s). The Monthly Bill payments are designed to amortize the CUSTOMER'S Repayment Obligation funded by AUTHORITY over a period mutually agreed to by AUTHORITY and CUSTOMER, but not to exceed twenty years. "Final Inspection Report" is a document executed by the Parties certifying the Work as defined 4 �in the CIC has been satisfactorily completed. "Hazardous Materials" is a term defined by the United States Department of Transportation ("USDDOT") in 49 CFR 105. "Interest During Construction" or "IDC" shall mean interest incurred by the Authority on the outstanding balance of principal of the project which commences at the project inception. "Pre-Existing Hazardous Materials" refers to Hazardous Materials present on the Project site prior to the start of the Project Work. "Project Assignment Authorization" refers to a formal assignment by the Customer to the Authority recognizing an initiation of a project. The agreement shall include but will not be limited to the following: facility address, facility contact information, Delivery Mechanism, and associated terms and conditions. "Repayment Obligation" refers to the Total Installed Cost of implementing Projects in CUSTOMER Facilities as identified in the CIC and the Final CIC, provided, however, that if the Project is terminated by the CUSTOMER prior to execution of the CIC, the Repayment Obligation shall be the costs to provide the Facility Audit. Feasibility Report and/or Design to the date of termination, as set forth in Article II, Section (A)(1), (2). and (3). "Subcontractor[sl" refers to the qualified installation firm(s) retained by the Contractor(s) to perform all or part of the Work. "Substantial Completion and Operation Transfer Report" refers to a document signed by the Parties signifying that the equipment installed at the Project has been inspected, tested and accepted by the CUSTOMER. 'Total Installed Cost" is the sum of all of the costs of a Project as set forth in the CIC including: 5 �(1) material cost; (2) labor cost; (3) construction contingency (usually calculated as a percent of material cost and labor cost, any unexpended portion of which will be eliminated from the calculation of the Final CIC upon Project completion); (4) material handling cost; (5) Waste removal and disposal cost; (6) Contractor fees for Facility Audit, Design, environmental air monitoring, Construction Management, and Construction Trade Management; (7) AUTHORITY program costs; (8) interest during construction at the Authority Cost of Money, adjusted on a monthly basis; (9) utility costs; (10) design and environmental testing, and (11) approved Change Orders. refers to waste PCBs (as defined by the United States Environmental Protection Agency ("USEPA") in 40 CFR Part 761) and hazardous waste (as defined by the USEPA in 40 CFR Part 261 and the New York State Department of Environmental Conservation ("NYS DEC") in 6 NYCRR Part 371) as well as other material regulated for purposes of release, reuse, disposal, or recycling (e.g. CFCs, ethylene glycol, mercury, oil, asbestos) which form a part of the equipment removed from CUSTOMER Facilities due to implementing the Work. Disposal of such Waste shall be conducted in accordance with the provisions set forth in Article H, Section (A)(6). "Work" or "EESP Work" shall mean the services performed for the CUSTOMER for a selected CUSTOMER Facility pursuant to this Agreement. The scope of Work shall be described in the CIC. [Article U follows] �Article n Implementation Each Project implemented is unique, but a set of generic steps will be followed. Each Project will have a Project Assignment Authorization, a CIC, and a Final CIC executed by the Parties, which will supplement this Agreement with Project scope including technical and financial terms. (A) Authority Implemented Work The EESP is a turn-key program involving the design and installation of Projects through the services of qualified installation Contractors or Subcontractors under the direct management of AUTHORITY or AUTHORITY'S Contractor(s). Turn-key services include a combination of the following: project Financing, Facility Audit and/or Feasibility Study Report, Design, construction management services, equipment procurement, installation, environmental services including air monitoring, removal and disposal of Waste and Debris. EESP Work is a multistage effort consisting of: (1) Facility Audit and Feasibilitv Studv Report After the CUSTOMER has identified potential Projects for the AUTHORITY'S and CUSTOMER'S consideration, AUTHORITY will contact CUSTOMER'S Authorized Representative and/or the appropriate Facility manager to schedule a Facility Audit of the Facility. The scope of the Facility Audit will be as agreed to by the AUTHORITY and the CUSTOMER. Based upon the results of the Facility Audit, AUTHORITY/Contractor will prepare a written Feasibility Study Report. If, after analysis of the Facility Audit and/or Feasibility Study Report by AUTHORITY and CUSTOMER, it is determined that the Project either (1) does not meet the Eligibility Criterion, or (2) is not appropriate at such Facility, activity there will cease. If Project activity ceases, the CUSTOMER will be obligated to pay for any costs incurred by the Authority. �(2) Design a) Should the CUSTOMER wish to proceed into the next phase (the "Design Phase"), a written request must be forwarded to the AUTHORITY. Once the CUSTOMER'S written request to proceed to the Design Phase is received, and provided that AUTHORITY concurs that the Project should go forward into this phase, AUTHORITY or Contractor shall prepare a Design. All design(s) will specify equipment approved by AUTHORITY and CUSTOMER. AUTHORITY reserves the right to modify Designs that do not meet the Eligibility Criterion. CUSTOMER will be asked to review all aspects of the Design and specifications. Where deemed appropriate by AUTHORITY and CUSTOMER, the Contractor will arrange for design and/or environmental related testing and demonstration installations (i.e., the installation of sample equipment) of selected measures in the CUSTOMER'S Facility (or Facilities). It is the CUSTOMER'S responsibility to determine that the proposed Design meets the CUSTOMER'S needs. If the CUSTOMER terminates the Project during or after the completion of the Design Phase, the CUSTOMER will be obligated to pay for any costs incurred by the AUTHORITY, including but not limited to the Facility Audit, Feasibility Report, and the Design, as of the date of termination. b) By agreement of the parties, in lieu of proceeding from the Audit to the Design Phase, the AUTHORITY may proceed directly to a CIC which shall provide for a Design. The CIC shall include, in the Total Installed Cost of the Project, the costs of the Work performed to the date of its execution. (3) Procurement After the AUTHORITY and CUSTOMER agree to the Design and specifications. �the AUTHORITY and/or the AUTHORITY'S Contractor will competitively bid the equipment procurement, material installation work, waste removal and disposal as deemed necessary which may follow the AUTHORITY'S procurement guidelines. If the CUSTOMER terminates the Project during or after the Procurement Phase, but prior to execution of the CIC, the CUSTOMER will be obligated to pay for any costs incurred by the AUTHORITY, including but not limited to the Facility Audit, Feasibility Study Report, the Design, and procurement as of the date of termination. (4) Customer Installation Commitment for ' T T P " ) If the CUSTOMER continues with the Project, and the CUSTOMER, with the AUTHORITY concurrence, determines to go forward with the Project into the implementation phase, the Parties shall proceed with a Customer Installation Commitment (CIC). AUTHORITY'S costs for the Facility Audit, Feasibility Study Report, and the Design work will be carried forward into, and become part of the Total Installed Cost of the Project, as reHected in the CIC. The resulting final Design, specifications, bid prices, and their applicable terms and conditions. Total Installed Cost (which shall also include the Work described in subsections (1), (2), and (3) above), and the CUSTOMER'S related Repayment Obligation to AUTHORITY for the Project will constitute the CIC. The CIC will be executed by the AUTHORITY and the CUSTOMER before any installation work commences. At the conclusion of the project Work, the CIC shall be superseded by the Final CIC. �(5) Installation The AUTHORITY and/or the AUTHORITY'S Contractor will retain the services of qualified Subcontractors to make all approved installations. AUTHORITY will provide the Contractor with guidelines regarding the competitive solicitation of the services of Subcontractors for the CUSTOMER'S Facilities. The services of Subcontractors and the equipment procurement will be obtained through a competitive bid process conducted by the Contractor with the AUTHORITY oversight and approval, or by the AUTHORITY directly. CUSTOMER shall provide the Contractor with such assistance as may be reasonably required for the Contractor to obtain all permits, licenses and authorizations necessary to conduct installations in accordance with all applicable State and local building, fire and electrical codes and standards applicable to the Facility. AUTHORITY will ensure that the Contractor will be required to (i) obtain approval from the AUTHORITY and the CUSTOMER of the type and manufacturer of equipment installed; (ii) manage the construction effort; and (iii) assure the quality, neatness, and completeness of the Work. AUTHORITY will require that the Contractor adheres to the Design as set forth in the CIC and minimizes any interference with the normal operations of the CUSTOMER'S Facility. (6) Hazardous Materials and Disposal nf Waste and Debris AUTHORITY shall ensure that the Contractor and/or Subcontractor(s) (as applicable) shall be responsible for environmental air monitoring and thoroughly cleaning the job site, including the removal of Waste and Debris generated as a result of a Project. Such removal may involve the management, transportation and disposal of Waste and Debris. If in the course of performing the scope of the Project Work as described in the CIC, AUTHORITY encounters existing �Hazardous Materials, including but not limited to Waste, any such materials shall be handled, transported and disposed of in accordance with applicable local. State and Federal laws and regulations, as well as the AUTHORITY'S policies and procedures. CUSTOMER acknowledges that, in accordance with USEPA and NYS DEC regulations, it is, and remains the Generator of, and holds title to. any Waste encountered during Work performed pursuant to this Agreement. Hazardous Waste "Generator Identification Numbers" (as defined in Section 3010 of Subtitle C of RCRA) may need to be obtained from the USEPA for each Facility from which the AUTHORITY removes Waste. CUSTOMER authorizes the AUTHORITY, where required by USEPA and/or NYS DEC regulations, to apply in the name of CUSTOMER for Hazardous Waste Generator Identification Numbers in order to dispose of Waste pursuant to this Agreement and to act as the contact party for such applications. To the extent that the CUSTOMER is the generator of the Waste, A duly authorized representative of the CUSTOMER must sign such applications when requested by AUTHORITY. CUSTOMER also authorizes the AUTHORITY, where required by USEPA and/or NYS DEC regulations, to prepare, in the name of CUSTOMER, any manifests or other forms required for the disposal of the Waste generated pursuant to activities under this Agreement. A duly authorized representative of the CUSTOMER shall sign any manifests or other shipping records required to ship Waste offsite for disposal. AUTHORITY shall advise the CUSTOMER (whenever possible, in advance of removal) where material determined to be Waste has been encountered which must be disposed of pursuant to USEPA and NYS DEC regulations. AUTHORITY shall keep the CUSTOMER fully informed of the AUTHORITY'S activities in its behalf and shall provide the CUSTOMER with copies of all applications and other materials provided or received in connection with actions taken pursuant to this authorization. �The direct costs of Waste disposal will be included in the Final CIC. Any costs to the AUTHORITY relating to the Project that may arise subsequent to the time the Final CIC is executed (or deemed executed) under present or future laws or regulations due to pollution, clean-up or otherwise at the site of disposal shall be borne by the CUSTOMER. If, however, such costs are due to the negligence or willful acts of the AUTHORITY'S Contractor or Subcontractor or due to the willful acts of the AUTHORITY, the CUSTOMER shall not be responsible. AUTHORITY shall use reasonable diligence in overseeing the removal and disposal of Waste, shall maintain complete and accurate records thereof, and shall make those records available to the CUSTOMER upon request. Notwithstanding the foregoing, the CUSTOMER shall have the option of disposing of Waste and Debris generated as a result of a Project at its own expense. In addition, any existing equipment determined by the CUSTOMER to be useful to the CUSTOMER may, at the CUSTOMER'S request, be retained by the CUSTOMER and shall be the sole responsibility of the CUSTOMER. To the extent permitted by law, the CUSTOMER shall, at its sole cost and expense, defend and hold harmless the AUTHORITY against any loss, liability (including, without limitation, judgments, attorney's fees, court costs, penalties or fines), or expenses of any type (including, but not limited to. required corrective actions) which the AUTHORITY incurs because of injury to. or death of any person, or on account of damage to property, or any other claim arising out of. in connection with, or as a consequence of (a) the disposition or use of retained equipment by the CUSTOMER or anyone for whose acts the CUSTOMER may be liable, and (b) any cleanup costs associated with any site where Waste and Debris are disposed of or comes to be situated traceable to such Waste and Debris including, but not limited to, response and remedial costs. (7) Changes / Change Orders Any party to the CIC may at any time by written notice to the other party request �additions, deletions or revisions to the Work ("Change(s)") described in the executed CIC. If the AUTHORITY determines that such Change affects the cost, safety, energy savings, time of performance or any other terms of the CIC, it shall provide the CUSTOMER with a written analysis of the effects of the proposed Change and the Parties shall negotiate a Change Order to the CIC. Change Orders must be approved in writing by the AUTHORITY and the CUSTOMER. Remedial work, which is required due to design or construction errors, other than errors or omissions caused by the CUSTOMER, shall be undertaken at no additional cost to the CUSTOMER. In the event of a dispute over a request for a Change, the Work may proceed in accordance with the scope of Work as set forth in the CIC (as revised by agreedupon Change Orders), or the matter may be treated under the provisions of Article X, Section A. (8) Milestone Completion or Final Inspection Report Upon completion of agreed upon milestones or completion of the Work (as applicable), the CUSTOMER and the AUTHORITY (or their duly authorized representatives) shall promptly inspect the entire Facility, or applicable portions thereof. AUTHORITY or its Contractors will certify that the Work has been satisfactorily completed according to the provisions of this Agreement, the CIC, and all State and local building, fire and electrical codes and standards applicable to the Facility. AUTHORITY and the CUSTOMER shall jointly sign the "milestone completion report", and/or the "Final Inspection Report" (whichever is applicable). The execution of such report shall not be unreasonably withheld by either Party, and the Parties shall endeavor to fully execute such report within sixty (60) days. (9) Final Customer Installation Commitment ("Final CIC"^ As soon as practicable following completion of installation and receipt of all invoices associated with the Project, the AUTHORITY will generate an updated, �or Final CIC, which will include all Change Orders agreed to by the AUTHORITY and the CUSTOMER. The Final CIC shall revise the Total Installed Cost set forth in the CIC on the basis of actual costs including interest during construction. AUTHORITY and CUSTOMER shall execute the Final CIC. If the CUSTOMER does not execute the Final CIC within ninety (90) days» the Final CIC shall be "deemed executed", unless the CUSTOMER disputes such Final CIC. in writing, within such ninety (90) day period. If the CUSTOMER disputes the Final CIC, then the Parties shall endeavor to resolve the dispute as expeditiously as possible. (10) Additional CUSTOMER OhTiffafinn. In addition to the responsibilities identified above, the CUSTOMER will cooperate with the AUTHORITY and its Contractors and Subcontractors to facilitate the installation of equipment. CUSTOMER'S Authorized Representative will accompany the AUTHORITY and its Contractors to the CUSTOMER Facilities to ensure proper access. In addition, the CUSTOMER will review equipment specifications and completed installations. CUSTOMER will review and approve, as may be required, any corrective or restoration work resulting from improper work by the Contractor. CUSTOMER will not be charged for such corrective or restorative work. CUSTOMER will also review and approve the savings and financing arrangements contained in the CIC. (B) Customer Implemented Work As an alternative to the AUTHORITY Implemented Work described in Article 11 (A), the CUSTOMER has the option of itself implementing projects that meet the AUTHORITY'S Eligibility Criteria in the CUSTOMER facilities as Customer Implemented Work. If this option is chosen, AUTHORITY will serve the role of advisor or supervisor (as applicable) over such Customer Implemented energy efficiency services project. AUTHORITY may offer full Project financing to the CUSTOMER. AUTHORITY will work with CUSTOMER from Design through construction to help CUSTOMER to make the most cost-effective equipment choices and to realize the �greatest greenhouse gas reductions. (1) Facility Audit The CUSTOMER will provide the AUTHORITY with an audit report that shall include the energy efficiency measures to be undertaken, an estimate of the Project costs, estimates of the potential energy savings. If. after analysis of the Facility Audit by the AUTHORITY and CUSTOMER, it is determined that the Project either (1) does not meet the Eligibility Criterion, or (2) is not appropriate at such Facility, activity there will cease. (2) Design AUTHORITY will review CUSTOMER'S Project design package which will be included in a CIC. CUSTOMER will provide the AUTHORITY with a complete breakdown of the Total Installed Cost of Customer Implemented Work, as well as detailed system design and equipment specifications prior to implementation of the work. AUTHORITY reserves the right to modify designs that do not meet its Eligibility Criterion. (3) Customer Installation Commitment for "CIC") The specific details of the work to be performed and financing terms will be contained in the CIC and shall be comparable to those offered for Authority Implemented Work. The CIC will also specify AUTHORITY'S program costs. AUTHORITY reserves the right to substitute a modified version of its standard CIC if appropriate for a particular Project. The CIC will be fully executed by the AUTHORITY and the CUSTOMER. CUSTOMER may be required to provide for activities including, but not limited to: Facility Audit, Customized System Audit, Customized System Design, equipment procurement, installation services, construction management, quality assurance and Waste and Debris Removal and Disposal. �(4) Installation CUSTOMER will be responsible for hiring qualified contractors or subcontractors and obtaining all necessary permits, licenses and authorizations so that installations are conducted in accordance with all applicable State or local building, fire and electrical codes and standards. CUSTOMER will require its contractors and subcontractors to obtain and maintain the same policies and limits of insurance as required of the AUTHORITY'S Contractors pursuant to Article VI, Section A of the Agreement. Such policies shall name the AUTHORITY, the CUSTOMER, and the State of New York as additional insureds. CUSTOMER shall also require its contractors to provide the same indemnity provision as provided in Article VIII, Section E. AUTHORITY will not guarantee or warrant any equipment or work performed by the CUSTOMER'S contractor(s) and will bear no responsibility for defective products. The term "Contractor" includes the CUSTOMER if acting as its own Contractor. AUTHORITY reserves the right to conduct periodic inspections of CUSTOMER Implemented Work during the construction period. Such inspections will be coordinated through the CUSTOMER. Final Inspection Report and Final Customer Installation Commitment r"Final CIC") A Final Inspection Report and Final CIC shall be jointly executed by the CUSTOMER and the AUTHORITY as described in Article 11(A)(8) and (9) except that the CUSTOMER will certify that the work has been satisfactorily completed according to the provisions of this Agreement, the CIC and all State and local building, fire and electrical codes and standards applicable to the Facility. �As appropriate, the AUTHORITY will pay the CUSTOMER progress payments against agreed upon milestones as set forth in the Project CIC. The sum of such progress payments shall equal the Total Installed Cost of the EESP Project, including the AUTHORITY program costs. AUTHORITY program costs will be detailed in each CIC agreement. CUSTOMER'S obligation to repay the AUTHORITY commences once the CIC has been executed, as further described in Article IV. [Article m follows] �Article HI Eligibility Criterion (A) Eligibility Criterion All Energy Efficiency Services Program (EESP) Projects must meet the AUTHORITY'S established Eligibility Criterion as stated below. Projects will be undertaken on an individual basis in the CUSTOMER'S Facilities as deemed feasible and advisable by the AUTHORITY and mutually agreed to by the AUTHORITY and the CUSTOMER. A Project will not proceed unless it also satisfies the AUTHORITY requirements related to reduction in overall primary energy costs, energy conservation, and/or results in significant environmental benefits. For all Projects, the following Eligibility Criterion shall apply: A Project will not be implemented unless any amounts advanced by the AUTHORITY are recovered by the AUTHORITY within twenty (20) years ("Cost Effectiveness Criterion"). AUTHORITY reserves the right to modify this Eligibility Criterion from time to time to meet the continuing requirements of its EESP. (B) Potential Protects Subject to Section A of this Article m, the types of EESP Projects and technologies are are defined under Public Authorities Law (PAL) 1005 (17). [Article IV follows] �Article IV Recovery of Costs / Repayment Qbligatinn The CUSTOMER Repayment Obligation will vary for each CUSTOMER Facility; however, the following general terms and conditions shall apply throughout the term of this Agreement: (A) Project Cost If a CIC has been executed, the AUTHORITY shall initially pay for all components of the Total Installed Cost to implement EESP measures at the selected CUSTOMER Facility. CUSTOMER'S Repayment Obligation shall be calculated based on the Total Installed Cost specified in the Final CIC, which shall reflect the final cost for the Project. (B) Billing If a CIC has been executed, repayment shall start in the next full billing period following the CUSTOMER'S signing of the Final Inspection Report. Billing will initially be set at the projected cost for the Work (as specified in the CIC, as revised by agreed-upon Change Orders). If CUSTOMER does not sign the Final Inspection Report, the Final Inspection Report shall be deemed signed for the purposes of commencement of billing sixty (60) days after its submittal to the CUSTOMER, unless the CUSTOMER disputes the Final Inspection Report in writing within this sixty (60) day period. If the CUSTOMER disputes the Final Inspection Report, then the Parties shall endeavor to resolve the dispute as expeditiously as possible. The final Monthly Bill payment or lump sum amount(s) will be recalculated in the Final CIC to reflect the final CUSTOMER Repayment Obligation based on the final Total Installed Cost for the Project. Appropriate adjustments will be made to account for payments made by the CUSTOMER based on the initial amount specified in the CIC (as revised). If the CUSTOMER disputes any amounts in the Final CIC, the AUTHORITY may bill the CUSTOMER for any undisputed amounts. �In the event the Work is terminated before completion, the AUTHORITY shall issue a Final CIC as provided in Article IX(D). Billing shall commence in the next full billing period following issuance of the Final CIC. If the Parties have not executed a CIC and the CUSTOMER is obligated to pay the AUTHORITY for the Facility Audit, Feasibility Study Report and/or Design as set forth in Article 11(A)(1) and (2), then the AUTHORITY shall submit its invoice to the CUSTOMER for services rendered as provided in such Section, and the CUSTOMER shall remit its payment to the AUTHORITY in a lump sum payment. Payment shall be made within thirty (30) days of receipt of the AUTHORITY'S invoice. Any amount due and unpaid on its due date shall be subject to a late payment charge as set forth in this Section below. CUSTOMER shall make payment to the AUTHORITY within 30 days of receipt of the Monthly Bill or the AUTHORITY'S invoice for lump sum payment, as applicable. Upon mutual agreement of the parties, the Monthly Bill payment may be paid to the AUTHORITY by use of an electronic transfer or other agreed-upon method. Any amount due and unpaid on its due date shall be subject to a late payment charge. If the CUSTOMER is an AUTHORITY electric customer, the late payment charge shall be the late payment charge applicable to the CUSTOMER'S electric bill. [CUSTOMER is referred to N.Y. Comp. Codes R. & and Regs. tit. 21, §454.6(b).] If the CUSTOMER is not an AUTHORITY electric customer, the late payment charge shall be computed daily on the unpaid amount, and compounded as of the date of submission of each subsequent bill until paid, at an annual rate equal to 12%. (C) Lump Sum or Monthlv Bill Pavment If a CIC has been executed, the CUSTOMER will repay its Repayment Obligation either by paying (1) lump sum amount(s), or (ii) Monthly Bill payment(s) to the AUTHORITY for a stipulated period not to exceed 20 years. �(1) Lump Sum Pavmentfs^ If a CIC has been executed and the CUSTOMER elects the Monthly Bill method of repayment, the CUSTOMER shall have the option to prepay any part of the outstanding principal amount of its Repayment Obligation, plus accrued interest to the time of repayment, at any time during the term of the repayment schedule without further interest on such prepaid amounts. If a CIC has not been executed, the CUSTOMER will repay its Repayment Obligation in a lump sum amount. (2) Monthly Bill Payments The Monthly Bill payment (if applicable) shall be based upon an interest rate determined in accordance with the Authority Cost of Money, which shall be applied only to the outstanding principal amount. The precise amount and term of this installment method of repayment shall be provided in the Final CIC. Any adjustment to the Monthly Bills attributable to a changed interest rate shall be determined as of January 1 for the succeeding twelve (12) month period and shall be effective starting with the regular bill for the month of January. (D) Repayment Obligation Upon Termination of Project The following incidents shall be deemed to terminate a Project: closure of the Facility for which project Work is being performed; abandonment; material damage; destruction; reduction or elimination of energy savings due to removal, by-passing or alteration of equipment or due to any unforeseen event; discovery of asbestos or other Hazardous Material in CUSTOMER'S Facility that impedes the execution of the Work. CUSTOMER'S Repayment Obligation shall continue notwithstanding the termination of a Project or termination of this Agreement and shall include interest on any outstanding �balance of principal up to the date of final repayment. Unless the AUTHORITY can establish that extended payments after Project termination would impair the tax exempt status of AUTHORITY'S debt obligations, the CUSTOMER shall have the right to meet its Repayment Obligation through a Monthly Bill payment. However, in the event that the tax exempt status of AUTHORITY'S debt obligations becomes impaired at the time of termination, the outstanding principal balance will become immediately due and payable by a lump sum payment as set forth in Article X, Section I. ("Cessation of Eligible Use"). [Article V follows] �Article V Responsible Parties (A) (B) Authorized Reoresentativefs) (1) In each Project Assignment Authorization, the CUSTOMER shall designate an Authorized Representative to coordinate each Project on behalf of the CUSTOMER and assist the AUTHORITY, the Contractors and Subcontractors, with the implementation of Projects in the selected Facilities of CUSTOMER. The CUSTOMER'S Authorized Representative shall attend, upon request of the AUTHORITY, design review and construction meetings as required. (2) In each Project Assignment Authorization and CIC, the AUTHORITY shall designate an Authorized Representative to coordinate each Project on behalf of the AUTHORITY and communicate with the CUSTOMER. (3) The Party shall notify the other Party in writing of any change to its Authorized Representative. Reporting and Inspection (1) AUTHORITY shall keep the CUSTOMER informed as to the progress of the Work and shall provide the CUSTOMER with periodic reports of the Contractors' and Subcontractors' activities at the CUSTOMER Facilities. AUTHORITY and its Contractors shall meet with the CUSTOMER'S Authorized Representatives upon reasonable notice to discuss any matters concerning the Projects. (2) CUSTOMER and its Authorized Representative may observe and inspect all Work in any of CUSTOMER'S Facilities and shall have the right to attend all Project job meetings. [Article VI follows] �Article VI Insurance and Risk of Loss (A) Contractor's Insurance Unless otherwise provided in the CIC, the AUTHORITY'S Agreements with the Contractors shall provide that the Contractor and Subcontractors shall obtain and maintain the following policies and minimum limits of insurance; (1) Workers' Compensation Insurance for statutory obligations imposed by Workers* Compensation/Occupational Disease Laws, including Employer's Liability Insurance with a minimum limit of $1,000,000. When applicable, coverage shall include The United States Longshoreman's and Harbor Workers' Compensation Act (44 U.S.Stat 1424) and the Jones Act (41 U.S. Stat 988). (2) Commercial General Liability Insurance, which includes Contractual Liability and Products/Completed Operations Liability coverages covering all operations required to complete the Work and where applicable coverage for damage caused by any explosion or collapse with minimum limits of $2,000,000 per occurrence for bodily injury and $2,000,000 per occurrence for property damage liability, AUTHORITY, the CUSTOMER and the State of New York must be named as additional insureds to the Contractor's policy and, if applicable, each Subcontractor's policy, including cross-liability coverage evidenced on the certificate(s) furnished to AUTHORITY. The insurer will have no right of recovery or subrogation against the AUTHORITY, the CUSTOMER or the State of New York. It is the intent of the parties that the insurance placed in accordance with the provisions of this paragraph will be primary insurance and will protect the Contractor, the AUTHORITY, the CUSTOMER and the State of New York for all losses arising from all operations, activities, work, services, items or performance relating to the Project Work. The Products/Completed Operations Liability coverage will be provided for a period of at least two (2) years after the completion of the Project Work. The Contractual Liability Insurance coverage will insure the performance of the contractual obligations of the Contractor contained in the Agreement between the AUTHORITY and the Contractor �(3) (4) (5) (6) (7) concerning the Project Work, including, without limitation, all contractual indemnity obligations. A Business Automobile Policy protecting the Contractor and each Subcontractor for automobile bodily injury and property damage liability, including coverage for liability arising out of owned, hired or non-owned vehicles. Such insurance will cover all vehiclesbearing, or required to bear by the motor vehicle laws of the state of registry, licenses or registration plates in limits of at least $1,000,000 each accident If the Work requires professional services, such as, but not limited to, architectural, engineering, and surveying, a standard professional liability insurance policy with a minimum limit of $1,000,000. If applicable, the policy is to be endorsed to include "fee for service" coverage, and evidence of endorsement must be furnished to the AUTHORITY. If the Work requires the use of watercraft or aircraft. Watercraft or Aircraft Liability Insurance with a minimum limit of $1,000,000 per occurrence is required. If theWork poses an environmental risk, known or suspected, Pollution Liability with minimum limits of $ 1,000,000 per occurrence is required. In lieu of Commercial General Liability Insurance, at AUTHORITY'S discretion. AUTHORITY may agree to accept an Owners and Contractors Protective Liability Policy naming the New York Power Authority, the CUSTOMER, and the State of New York as the named insureds, and with the following minimum limits: Bodily Injury Liability $2,000,000 per occurrence Property Damage Liability $2,000,000 per occurrence This policy, the cost of which will be borne by the Contractor, will cover the liability of the AUTHORITY, the CUSTOMER and the State of New York with respect to the Project Work, including omissions or supervisory acts of the AUTHORITY, if any. Such insurance will contain provisions which state that the policy will also respond to claims �or suits by employees of the Contractor or the Subcontractor against the AUTHORITy, the CUSTOMER or the State of New York or by the AUTHORITY or the CUSTOMER or the State of New York against the Contractor or the Subcontractor or any other insured thereunder. The form and sufficiency of each insurance policy required to be obtained hereunder by the Contractor or Subcontractor shall be subject to approval by the AUTHORITY. In the event of any alleged AUTHORITY liability to the CUSTOMER (other than liability arising out of any act or any failure to act where the AUTHORITY is acting as Contractor), the CUSTOMER shall first pursue and exhaust all remedies in law against the Contractors and Subcontractors and under the insurance carried by the Contractors and Subcontractors before making any claim or taking any action against the AUTHORITY. AUTHORITY shall hold all Certificates of Insurance and. if requested, a Certificate of Insurance will be submitted to the CUSTOMER along with the CIC. (B) CUSTOMER'S Responsihility With specific regard to the EESP equipment, for so long as any portion of the CUSTOMER'S Repayment Obligation remains unpaid, the CUSTOMER shall procure and maintain an all risk policy of insurance which will insure the equipment for full replacement cost value against loss while the equipment is in the CUSTOMER'S care, custody and control. The insurance policy shall name the AUTHORITY and the State of New York as additional insureds and loss payees, and shall contain a full waiver of subrogation against the AUTHORITY, its agents Contractors, Subcontractors and the State of New York. CUSTOMER shall also procure a Commercial General Liability insurance policy with minimum limits of $5,000,000 per occurrence for bodily injury and property damage naming AUTHORITY and the State of New York as additional insureds. (C) Limitation of Liability To the extent permitted by applicable law. the AUTHORITY shall not be liable to the CUSTOMER in contract, in tort or otherwise for any injury to persons or damage to, or �loss of property or equipment, arising from or related to this Agreement. Nothing in this subsection shall be constnied as limiting the liability of a Contractor or Subcontractor to the AUTHORITY or the CUSTOMER in connection with the performance of such Contractor's or Subcontractor's work on the CUSTOMER'S premises. (D) No Consequential Dama|^es To the extent permitted by applicable law. the AUTHORITY and the Contractor shall not be liable to the CUSTOMER for loss of profits or revenue, loss of use of equipment or power systems, cost of capital, cost of purchased or replacement power or temporary equipment (including additional expenses incurred in using existing facilities) or for any other indirect, incidental, or consequential damages whatsoever arising from or related to this Agreement. (E) Ownership of Installed Materials All Project materials and equipment installed in the CUSTOMER'S Facilities by the Contractor or Subcontractors shall be the property of CUSTOMER and shall be new unless otherwise stated in the CIC. As long as the CUSTOMER'S Repayment Obligation remains outstanding, (a) the CUSTOMER will keep the equipment free from any and all liens, claims, encumbrances, and the like; (b) the CUSTOMER will not grant a security interest in the equipment to any party without the prior written consent of the AUTHORITY; (c) the equipment will remain at the Facility site as designated in a CIC; (d) the CUSTOMER will not sell, offer for sale, transfer, or dispose of the equipment without notice to AUTHORITY; (e) the CUSTOMER will not use or permit any person to use the equipment in a manner prohibited by law, in violation of any policy of insurance, or in a manner which would void any manufacturer's warranty; and (f) the CUSTOMER agrees to maintain the equipment in good order and repair at all times and will not waste or destroy the equipment or any part of it. (F) Maintenance bv CUSTOMRR CUSTOMER shall be responsible for all damage to all Project materials, supplies and �equipment of every description and all Work performed at the CUSTOMER'S site unless caused by the AUTHORITY or its Contractors or Subcontractors. AUTHORITY will provide the CUSTOMER with information regarding the maintenance of EESP installations and recommendations for appropriate replacement equipment to be used in those installations to facilitate proper usage and, if applicable, energy savings at the CUSTOMER'S Facilities. After the Project installations are completed, the CUSTOMER shall use reasonable efforts to see that such maintenance and materials instructions are followed at its Facilities. While any portion of the CUSTOMER'S Repayment Obligation remains outstanding, the AUTHORITY may, upon reasonable notice to CUSTOMER, audit installations in the CUSTOMER'S Facilities to evaluate compliance with such maintenance and materials instructions. [Article Vn follows] �Article Vn Energy Savings (A) Projected Energy Savinps rApplicable tn Energy Efficiency Projects^ AUTHORITY and its Contractors shall use their best efforts to prepare accurate engineering estimates. After energy efficiency Work is completed in the CUSTOMER'S Facility, it is the intent and expectation of the parties that the CUSTOMER'S annual energy charges for that Facility shall not increase above the pre-installation level except due to changes in rates or increases in usage not related to the implementation of the EEP Work. CUSTOMER is responsible for providing the AUTHORITY with accurate information concerning hours of operation of its Facility. CUSTOMER understands that the projected energy savings are based upon such the CUSTOMER input. It is the CUSTOMER'S sole responsibility to ensure that the expected energy savings meet the CUSTOMER'S satisfaction at the time the CIC for a Project is executed. (B) Energy Performance Contracts The following provision is applicable to "agencies" or "municipalities" as defined in Section 9-102 of the New York Energy Law. "This contract shall be deemed executory only to the extent of the monies appropriated and available for the purpose of the contract, and no liability on account therefore shall be incurred beyond the amount of such monies. It is understood that neither this contract nor any representation by any public employee or officer creates any legal or moral obligation to request, appropriate or make available monies for the purpose of this contract." [Article Vin follows] �Article V m Contractor Requirements (A) Facility Access AUTHORITY'S agreements with its Contractors shall provide that the Contractors and Subcontractors comply with regulations governing access to and performance of the Work in the selected CUSTOMER Facilities and shall perform such Work in such a manner as not to unreasonably interfere with the CUSTOMER'S business there. AUTHORITY'S agreements with its Contractors shall provide that the Contractors and the Subcontractors comply with the CUSTOMER'S operational and safety requirements, which in certain instances may require substantial supervision and control over the site by the CUSTOMER. Any costs associated with such supervision and control by the CUSTOMER will be to the CUSTOMER'S account. (B) Permitting AUTHORITY'S agreements with its Contractors shall provide that the Contractors and the Subcontractors obtain, maintain and pay for all permits, licenses and authorizations required to perform the Work in the CUSTOMER'S Facilities; and that they will fully comply with all applicable local, State and Federal laws, guidelines and regulations, including applicable local. State and Federal building, fire and electrical codes and standards. (C) Contractor's Warranty Requirements AUTHORITY'S agreements with the Contractors shall provide that (a) any defective workmanship identified within one (I) year after the completion of installation at CUSTOMER'S Facility shall be prompUy replaced and/or re-performed by Contractor and/or Subcontractor at no additional expense to the CUSTOMER, and (b) Manufacturer's warranties for equipment installed at the CUSTOMER'S Facilities shall be assigned to the CUSTOMER. �(D) Labor Law Requirements All work performed on "public works" shall be in compliance with applicable provisions of Section 220 of the New York Labor Law ("Section 220"), as it may be amended from time to time. Such Section requires, with respect to public works: (a) each laborer, workman or mechanic shall be paid no less than the prevailing wages as defined in Section 220; (b) the filing of payrolls shall be made in a manner consistent with subdivision three-a (3(a)) of Section 220; this is a condition precedent to payment of any sums due and owing to any person for work done upon the project, and (c) no laborer, worker, or mechanic shall be permitted or required to work more than eight hours in any one calendar day or more than five days in any one week except in cases of extraordinary emergency including fire, flood, or danger to life or property. (E) Damage Protection (1) AUTHORITY'S agreements with its Contractor(s) shall include a provision that all damage, direct or indirect, of whatever nature resulting from the performance of the Work or resulting to the Work during its progress, from whatever cause, including omissions and supervisory acts of the AUTHORITY, the CUSTOMER and the State of New York, shall be borne by the Contractor, and all Work performed shall be solely at the Contractor's risk until the Work has been finally inspected and accepted by the AUTHORITY. The Contractor, however, shall not be responsible for damages resulting from willful acts of officials or employees of the AUTHORITY or the CUSTOMER. (2) AUTHORITY'S agreements with the Contractors shall include a provision that to the extent permitted by law. the Contractor shall assume the entire responsibility and liability for and defense of, and pay and indemnify, the AUTHORITY, the CUSTOMER, and the State of New York against any loss, damage, expense or liability and will hold each of them harmless from and pay any loss, damage, cost or expense (including without limitation, judgments, attorney's fees, and court costs) which the AUTHORITY, the CUSTOMER or the State of New York incur because of injury to or death of any person or on account of damage to property, �or any claim arising out of, in connection with, or as a consequence of, the performance of the Work and/or any act or omission of the Contractor or any of its Subcontractors, employees, agents or anyone directly or indirectly employed by die Contractor or anyone for whose acts the Contractor may be liable. [Article DC follows] �Article IX Time For Performance (A) Uncontrollable Forces No party shall be responsible for delays or failures in performance resulting from occurrences beyond its reasonable control including, but not limited to. acts of God, strikes, walkouts, acts of war, government regulations, moratoriums, fire, extreme weather circumstances, malfunctions in communication lines or computer hardware, power failures, shipping or delivery delays or other events caused by those not party to this Agreement. In the event the AUTHORITY or the Contractors or Subcontractors are unable to fulfill any obligations hereunder by reason of such uncontrollable forces, the CUSTOMER shall be notified in writing and the completion dates described in the CIC shall be extended by the amount of additional time reasonably necessary to complete the Work. (B) Unforeseen Circumstances or Conditions In the event that unknown circumstances or conditions at CUSTOMER'S Facility are discovered after the CIC is executed, which circumstances or conditions increase the Total Installed Cost of the Project installation at that Facility, Work at the Facility may upon request of the AUTHORITY be suspended until the AUTHORITY and the CUSTOMER mutually determine whether and how the Work will be completed. Upon mutual agreement, the CIC will be revised by a Change Order to incorporate necessary changes in the scope of Work and/or the Total Installed Cost. In the event that a Project is terminated pursuant to this Article IX, AUTHORITY shall issue a Final CIC as provided in this Article IX(D), and payment will commence in the next full billing period following the issuance of the Final CIC. (C) Suspension of Work CUSTOMER may direct the AUTHORITY to suspend the Work at any CUSTOMER Facility by written notice to AUTHORITY. The AUTHORITY, the Contractors and Subcontractors, shall thereupon suspend all Work at that Facility as soon as practicable and secure the site until further directed by the CUSTOMER. The CUSTOMER shall be �responsible for all increased project costs resulting from suspension, and shall assume such increased costs in full as part of its Repayment ObligaUon. A Change Order to the CIC for the Work at the CUSTOMER Facility will be executed accordingly. In the event Work is suspended by the CUSTOMER for more than ninety (90) days, the AUTHORITY may terminate Work at that the Facility and the AUTHORITY shall issue a Final CIC as provided in this Article IX(D), and payment will commence in the next full billing period following the issuance of the Final CIC. (D) Project Termination or Cancellation In the event that a Project is canceled or terminated in whole or in part subsequent to execution of a CIC but prior to completion, the AUTHORITY shall issue a Final CIC covering all project costs incurred for the terminated portion(s) of the Work (plus windup costs, if any), and payment shall commence in the next full billing period following the issuance of the Final CIC. (E) Termination of Agreement Unless otherwise provided in this Agreement, either Party may terminate this Agreement at any time upon one hundred twenty (120) days' prior written notice to the other party. Those provisions of this Agreement meant to survive termination, including, but not limited to, those provisions concerning Waste, limitations of liability and hold harmless and repayment shall survive termination. The AUTHORITY and the CUSTOMER acknowledge that the construction of a Project implemented pursuant to a CIC executed during the Term of this Agreement may extend beyond the expiration or early termination of this Agreement. Provided that the Project was commenced pursuant to a CIC that was executed during the Term of this Agreement, then this Agreement will be extended, as it applies to such CIC only and for the sole purpose of completing the Project. The Project implemented pursuant to such CIC may continue until completed or otherwise terminated earlier pursuant to the terms and conditions of this Agreement. �Article X Miscellaneous (A) Publicity (1) Public Announcements. No marketing, publicity, promotion or advertising regarding this Agreement, or any project undertaken pursuant to this Agreement, will be issued by either Party without the other Party's prior written approval, which approval will not be unreasonably withheld. Any responses to news media inquiries developed by the other Party, related to the Agreement, must be coordinated with the other Party for review and approval. Letters, speeches, news and/or press releases, articles for publication, etc. related to this Agreement, or any project undertaken pursuant to this Agreement, will be coordinated among the Parties for review and approval prior to release. Any and all communications, whether verbal or written, must be submitted to the other Party for prior review and approval. CUSTOMER agrees to abide by these terms regarding public announcements for a period of two (2) years following the later of the termination of this Agreement, or the conclusion of any project undertaken pursuant to this Agreement. (2) Signage. The Parties agree that the AUTHORITY may, at no cost to the CUSTOMER, design, install and maintain appropriate publicity signage at or in the vicinity of the project. CUSTOMER will cooperate with the AUTHORITY, and/or any third-party vendors designated by the AUTHORITY, by timely responding to any questions and/or requests regarding the design, manufacture, installation and maintenance of the signage and timely notify the AUTHORITY and/or any thirdparty vendors designated by the AUTHORITY, of any damage that may occur to the signage. The publicity signage may include the identity of the project, including a brief statement highlighting the project, any applicable AUTHORITY program. New York State program or other initiative under which the project is implemented and the identity of the parties supporting the project, including those �parties* respective logos. The publicity signage is intended to be placed in an at^a with significant public visibility within close proximity to the project. The AUTHORITY and/or any third-party vendors designated by the AUTHORITY will be responsible for removing the publicity signage within a reasonable period of time past the conclusion of a Project, or such earlier time as the AUTHORITY deems it appropriate. (B) Disputes In the event of any dispute regarding EESP Work at any CUSTOMER Facility, Work there may be suspended by mutual agreement between the AUTHORITY and the CUSTOMER until the matter is resolved to the mutual satisfaction of the Parties. In the event the parties are unable to resolve any such dispute after good faith efforts, the Work at that Facility shall terminate and AUTHORITY shall issue a Final CIC as provided in Article IX(D). Billing shall commence in the next full billing period following issuance of the Final CIC. (C) Claims Bv Third Parties No provision of this Agreement shall, directly or indirectly, create or give to any third party, including Contractors and Subcontractors, any claim or right of action against the AUTHORITY or the CUSTOMER. (D) Notices Notices hereunder to any Party shall be given by certified mail, return receipt requested, or such other method as the Parties may mutually agree upon. Such notice shall be effective upon receipt at the addresses specified below: To AUTHORITY: Vice President of Procurement New York Power Authority 123 Main Street White Plains, NY10601 To CUSTOMER: �(E) Proprietary Information (1) Unless and until CUSTOMER has fully satisfied its Repayment Obligation, the audit data, evaluations. Design and other information produced by AUTHORITY or its Contractors in connection with the Work at the CUSTOMER'S Facilities shall be the property of AUTHORITY. CUSTOMER shall have the limited right to use any such proprietary information solely for the maintenance of Project installations in its Facilities. Upon payment in full by CUSTOMER, this information shall become the property of the CUSTOMER. (2) Any information identified as confidential which is exchanged by the AUTHORITY and the CUSTOMER shall be duly protected by the recipient to the extent permitted by law. It is understood that the Public Officers Law and other statutes and regulations regarding Freedom of Information may require the disclosure of information in certain situations. (F) Nonwaiver The failure of any party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver nor deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. (G) Assignment This Agreement may not be assigned, transferred nor conveyed by CUSTOMER without the prior written consent of AUTHORITY. Any attempted assignment, transfer or conveyance without such consent shall be void. (H) Goveming Law - Venue This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of laws provision or rule that would cause the application of the laws of any jurisdiction other than New York. Any action at law, or in equity, for the enforcement of this Agreement shall be instituted only in �a court of competent jurisdiction of the State of New York located in Albany County. (D Limitation on Work in Certain Premises Without the express written consent of the AUTHORITY, no Work of any kind shall be performed in any premises of the CUSTOMER used for private business use within the meaning of Section 141(b) of the U.S. Internal Revenue Code of 1986, as amended. (J) Cessation of Eligible Use In the event that while the CUSTOMER'S Repayment Obligation for a Project in a Facility remains outstanding (a) the Facility is sold or leased to, or ownership or control of such Facility is transferred to, an entity whose ownership of, lease interest in, or control over such Facility would impair the tax exempt status of the AUTHORITY'S debt obligations, or (b) the Facility is utilized in a manner different from that contemplated by the parties at the time the Final CIC is executed or deemed executed and such new use would impair the tax exempt status of the AUTHORITY'S debt obligations, then any outstanding principal amount of the CUSTOMER'S Repayment Obligation shall immediately become due and owing by the CUSTOMER. (K) Entire Agreement This Agreement constitutes the entire agreement between AUTHORITY and CUSTOMER concerning the subject matter hereof, and supersedes all prior negotiations, representations, contracts and Agreements. This Agreement may be amended only in writing signed by AUTHORITY and CUSTOMER. Notwithstanding the foregoing, however, in the event CUSTOMER has previously executed a High Efficiency Lighting Program ("HELP") Cost Recovery Agreement with AUTHORITY, then any HELP projects undertaken at CUSTOMER facilities pursuant to such HELP agreement(s) shall be governed by those agreements and any executed CICs and/or Final CICs related thereto. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first written above. �POWER AUTHORITY OF THE STATE OF NEW YORK By: Name: Paul W. Belnick Title: Vice President Energy Efficiency Date: VILLAGE OF SLEEPY HOLLOW By: Name: Title: Date: �Meeting Date: 1/13/2015 Resolution #: 1/02/2015 Resolution of the Board of Trustees of the Village of Sleepy Hollow Setting Public Hearing to amend Village Code Section 400 BE IT RESOLVED that the Board of Trustees does hereby call for a Public Hearing on Tuesday, January 27"^ 2015 at 7:00 p.m. or soon thereafter, to hear and consider comments from members of the public regarding amending Section 400 of the Village Code, entitled "Vehicular and Traffic Law, to create a no parking zone from 7:00am to 7:00pm directly in front of the Immaculate Conception Church entrance on College Avenue. Moved: Trustee Stupel Seconded: Trustee Wompa Vote: 6-0 �Meeting Date: 1/13/2015 Resolution #: 1/03/2015 Resolution of the Board of Trustees of the Village of Sleepy Hollow Authorizing Mayor to sign IMA with the Village's of Elmsford, Hastings, Dobbs Ferry, Ardsley, Irvington and Tarrytown for Pot Hole Killer Machine Be it Resolved, that the Board of Trustees of the Village of Sleepy Hollow hereby authorizes the Mayor to execute the attached Inter-Municipal Agreement with the village of Elmsford, Hastings, Dobbs Ferry, Ardsley, Irvington and Tarrytown to lease a Pot Hole Killer Machine from Patch Management inc. Moved: Trustee Handelman Seconded: Trustee Rosenbloom Vote: 6-0 �INTERMUNICIPAL AGREEMENT THIS AGREEMENT (the "Agreement") dated the day of January, 2015 by and between the VILLAGE OF ELMSFORD (the "Village"), a Municipality duly organized and validly existing under the laws of the State of New York (the "State"), with offices located at 15 South Stone Avenue, Elmsford, New York 10523, and the VILLAGES OF ARDSLEY, HASTINGS, DOBBS FERRY IRVINGTON, SLEEPY HOLLOW AND TARRYTOWN, (the "Municipalities"), each being a municipal corporation duly organized and validly existing under the laws of the State, the Municipalities and the Village are hereinafter referred to, jointly, as the "Parties", and individually, as a "Party"). WITNESSETH: WHEREAS, pursuant to Article 8, Sections 1 and 2-a of the New York State Constitution, as effectuated by General Municipal Law §119-o, municipal corporations and districts of the State are empowered to enter into agreements for the performance among themselves or one for the other of their respective functions, powers and duties on a cooperative or contract basis; and WHEREAS, by Board of Trustees Resolution duly adopted by each of the Parties, the Parties are authorized to enter this Agreement for the purchase of the services set forth herein on a cooperative basis ("Cooperative Purchasing"), to wit, for an 80 hour pilot program with Patch Management, Inc pursuant to the August 18, 2014, proposal of Patch Management Inc. all as same may be agreed to between the Parties; and WHEREAS, the Parties have determined that it Is in their best interests to enter into this Agreement setting forth the terms, provisions, covenants and conditions with respect to the Services and Cooperative Purchasing. NOW THEREFORE, in consideration of the terms, provisions, covenants and conditions more fully set forth below, the Parties agree as follows: 1. The Services. Subject to the provisions of this Agreement, the Parties shall undertake Cooperative Purchasing In furtherance thereof, the Parties authorize the Village to enter into an agreement for services with Patch Management, Inc. ("Vendor"), for services as more particularly described in Vendor's proposal dated August 18, 2014 (the "Proposal"), a copy of which is annexed hereto, made a part hereof and incorporated herein as Schedule A. 2. Term of Agreement. (a) The term of this Agreement shall commence on the date hereof and shall expire upon the completion of the 80 hour Pilot Program provided in the Proposal. �(b) Each Party Is under no other obligation to continue with the Vendor's services at the expiration of the 80 hour Pilot Program, however, the Parties may then choose to enter Into a successor agreement for cooperative purchasing of such services. 3. Charges for Services. The Services will be paid for by the IVIunlclpalities herein In accordance with Schedule B, attached hereto and made a part hereof (the "Schedule"). 4. Status of Employees. The municipal employees whose Services shall be utilized to implement the terms of this Agreement shall for all purposes remain the employees of the individual Parties. 5. Obligation of Parties To Insure Employees. In all cases, the Parties shall ensure that each employee Is covered by workers' compensation insurance for all activities to be performed pursuant to this Agreement. 6. Policies and Procedures for Cooperative Purchasing. Execution by a duly authorized officer of the Parties of a completed Intermunlcipal Agreement and delivery of same to the Village of Elmsford hereof shall constitute execution by the Parties of a cooperative purchasing agreement pursuant to Article 5-G of the General Municipal Law and shall constitute authorization by the Village for the Village of Elmsford to move forward with the Vendor pursuant to Vendor's Proposal. 7. Right to Terminate by Notice. The Village shall have the right to terminate this Agreement by providing notice to all of the Parties by certified mall, return receipt Requested, overnight carrier or by email with a copy sent by regular first class mall. The Village shall provide at least thirty (30) days' notice. 8. No Duty of Parties to Inspect Work in Other Municipalities. The Parties agree that each Party Is entirely responsible for any Inspections conducted In their respective municipalities. 9. Parties' Obligation to Indemnify, Hold Harmless, Defend, and Cooperate. (a) To the fullest extent permitted by law, the Parties: �(i) shall be solely responsible for and shall Indemnify and hold harmless the other Parties, and their officers, employees, agents, and servants (collectively, the "Indemnitees"), from and against any and all liabilities, losses, costs, expenses (including, without limitation, attorneys' fees and disbursements), and damages (collectively, "Losses") arising out of or in connection with this Agreement, provided, however, that nothing hereunder shall obligate the Parties or the Parties' Agents to indemnify or hold harmless the Indemnitees from and against any losses arising from the negligence of the Indemnitees. (ii) shall, upon the Village of Elmsford's demand and direction, promptly and diligently defend, at the Parties sole risk and expense, any and all suits, actions, or proceedings which may be brought or instituted against one or more Indemnitees and which arise out of or in connection with Section 9 (a)(1) above, and the Village shall pay and satisfy any judgment, decree, loss, or settlement in connection therewith. (iii) shall, and shall cause any employee, servant, agent, or independent contractor of the Parties,, to cooperate with Elmsford in connection with the investigation, defense, or prosecution of any action, suit, or proceeding arising out of or in connection with Section 9 (a)(i) above. (b) The obligations of the Parties pursuant to Section 9 (a) hereof shall not be limited by reason of enumeration of any insurance coverage provided under this Agreement. 10. Governing Law; Severability. This Agreement shall be governed by the laws of the State. The provisions of this Agreement are intended to be severable. If for any reason any provision of this Agreement shall be held invalid or unenforceable in whole or in part, such provision shall be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability of the remaining provisions hereof. IN WITNESS WHEREOF, the Parties have hereto set their hands as of the day and year first above written. VILLAGE OF ELMSFORD By:. [Name and Title of Authorized Officer] VILLAGE OF ARDSLEY By: �[Name and Title of Authorized Officer] VILLAGE OF DOBBS FERRY By: [Name and Title of Authorized Officer] VILLAGE OF HASTINGS By: [Name and Title of Authorized Officer] VILLAGE OF TARRYTOWN By: [Name and Title of Authorized Officer] VILLAGE OF IRVINGTON By: [Name and Title of Authorized Officer] VILLAGE OF SLEEPY HOLLOW By: [Name and Title of Authorized Officer] �Patch Management, Inc 451 Tyburn Road Fairless Hills, PA 19030 Telephone: 215 949-9400 Fax: 215 949-3166 E-mail: crb@potholekiIlers.com TM August 18,2014 Michael Mills, Village Administrator Village of Elmsford 15 South Stone Avenue Elmsford, NY 15023 Dear Mr. Mills: Thank you for contacting Patch Management Inc, to inquire about our patented state of the art "spray injection repair program". As we discussed hereafter you will find our proposal for our 80 pilot program where we will perform the actual repairs under a contract services program with our operator, the equipment and a dedicated level of materials to complete your pilot. In response to the questions at my presentation, I have also included a proposal for a monthly leasing service where your operator will perform the actual repairs under the truck leasing program, while we supply the equipment and materials billed at a metered rate to complete your program. Contract Sen ices 80 hour pilot nrogram Scope of services; PMI will supply one PK2000 specialized spray injection patcher truck with a skilled operator and the specified materials to perform spray injection repairs where directed by your designated representative. The work schedule will begin at the time you specify and will consist of our providing a total of 80 hours of spray patching repairs with the materials to fulfil the 80 hours. The operator will work under the direction of your designated manager. Materials; PMI will provide 50 tons of aggregate to perform 80 hours of spray patching repairs; we will allocate up to 1000 gallons of the proper asphalt emulsion for this 80-hour project. Because of the unknown level of damages at your location, if the level of material consumption exceeds the allocations you will be charged at the current published values for the materials required to perform the level of repairs you have us perform. PK2000 Leasing - PK2000 Contract Services- PK2000 Sales www.fixroad.CQm Page 1 of 6 This informalion is confidenlial, and cannol be reproduced in any manner without written permission from PMI PK2000 Systems are proprietary and protected by U.S. Patent and or Patents Pending �Patch Management, Inc 451 Tybum Road Fairless Hills, PA 19030 YV' ^ J t J ^ ^ ^ g j p Telephone: 215 949-9400 215 949-3166 E-mail: crb@potholekillers.com TM Patch Management will provide the materials that are proven, successful for spray injection patching. The emulsion provided will be suitable for the weather conditions when the application is being applied. The materials used will be categorized as non-hazardous. Equipment: One PK2000 Pothole Killer truck The spray injection patcher will be a PK2000 with the Patch Management proprietary systems in place the unit will have an onboard ICC-recircuIation flush system capable of cleaning the asphalt emulsion system without the use of hazardous materials. The cleaning of the asphalt emulsion system will not incorporate the discharge of any materials outside the system. The patcher will be equipped with patch on the fly, providing the capability to perform linear patching while moving in a forward direction, The patcher will be equipped with a directional arrow board mounted on the rear of the patcher capable of providing a visual warning to pedestrians and approaching vehicles. Customer Responsibilities: Your responsibilities will be to provide any traffic control as required, a hard clean surface to place a stone supply, and a loader on site to load the materials as required for restocking the patcher. Cost structure; Contract services: Our cost to mobilize the equipment, with a skilled operator non-prevailing wage with the identified materials to support the stated work period that has been discounted to $231.00 per hour for this pilot program of 80 hours, the cost equals $18,500.00 dollars plus any additional materials that may be required if the level of material consumption exceeds the standard allocations, as follows: Aggregate 5/16 TW: Summer Emulsion: Winter Emulsion: (below 50 degrees) $55.00 per ton $5.50 per gallon $6.10 per gallon PK2000 Leasing - PK2000 Contract Services- PK2000 Sales www.fixroad.com Page 2 of 6 TKis information is confidenlial, and cannot be reproduced in any manner without writlen pennijsion f r o m PMI PK2000 Systems are proprietary and protected by U.S. Patent and o r P a i e n i s Pending �Patch Management, Inc 451 Tyburn Road Fairless Hills, PA 19030 Telephone: 215 949-9400 Fax: 215 949-3166 E-mail: crb@potholekillers.com TM Submitted by: Approved_ Date: Brian J. Preski, Director, Government Affairs Date: Authorized Representative Desired start date: PK2000 Leasing - PK2000 Contract Services- PK2000 Sales www.Fixroad.cnm Page 3 of 6 This mfofmation is confidential, and cannot be reproduced in any manner without written permission from P M l PK2000 Systems are proprietary and protected by U.S. P u e n t «nd or Patents Pending �Meeting date: 01/13/2015 Resolution: 01/04/2015 Resolution of the Mayor and Board of Trustees of the Village of Sleepy Hollow Authorizing Salary Adjustments for Non-Union Employees Whereas, the Board of Trustees has reviewed the job performance of the following non-union employees; and Whereas, It has been determined that a salary Increase Is appropriate at this time; Now, therefore, be it resolved, effective June 1, 2014 the annual salary of the following employees shall be increased by 2%: Anthony Glaccio, Gregory Camp, Paula i^cCarthy Tompkins, Sara DIGIacomo, Richard Gross, Sean i^lcCarthy, and Cindl Valentine; Moved: Deputy Mayor Lobato-Church Seconded: Trustee Wompa Vote: 6-0 �Meeting Date: 01/13/ 2015 Resolution #: 01/05/2015 Resolution of the Board of Trustees of the Village of Sleepy Hollow Appointing Water Maintenance Worker Grade II Whereas, on November 2014 the Board of Trustees authorized the Village Clerk to canvass the Civil Service list for the position of Water Maintenance Worker Grade II, and Whereas, the Village General Foreman posted the position within the Department, and Whereas, Daniel Michaud, a current employee in the Village's Water Dept., has applied for this position and placed first on the Westchester County's Water Maintenance Worker Grade II, Eligible List # 62-012 and. Whereas, Richard Gross, General Foreman has recommended Daniel Michaud for this position. Now Be It Resolved that Daniel Michaud will begin this new position as of January 19"", 2015, at an annual salary of $74,002.00, and said appointment is subject to the approval of the Westchester County Department of Human Resources and a probationary period of twelve to fifty two weeks. Moved: Trustee Campbell Seconded: Trustee Handelman Vote: 6-0 �Meeting Date: 01/13/2015 Resolution #: 01/06/2015 Resolution of the Board of Trustees of the Village of Sleepy Hollow Confirming the Actions of the Ambulance Corps Whereas, the Board of Trustees approves the actions and recommendations of the Ambulance Corps Members, as stated in the enclosed memos to the Board, Be It Resolved, that the Board of Trustees directs the Village Clerk to notify the Ambulance Chief in writing of this resolution. Moved: Trustee Wompa Second: Trustee Stupel Vote: 6-0 �Sleepy Hollow A m b u l a n c e Corps 29 A n d r e w s Lane Sleepy Hollow, NY 10591 (P) (914) 631-1962 D e c e m b e r 19, 2014 Dear M a y o r Wray, On D e c e m b e r 18, 2014 at our m o n t h l y meeting w e v o t e d in the f o l l o w i n g m e m b e r s f o r active membership; Brian Lloyd - Dobbs Ferry, NY Leslie Rjeili-Sleepy Hollow, NY M a r j o r i e Hsu-Sleepy Hollow, NY Robert J i m e n e z - T a r r y t o w n , NY Cindy Tuttle- Beacon, NY As well as the f o l l o w m e m b e r s for the Junior Corps; Uriel Hilario - Sleepy Hollow, NY Yoelvis Susana- Sleepy Hollow, NY W e are requesting y o u f o l l o w the normal course of action. Respectfully Submitted, Richard D'Alessalidro Chief of EMS Sleepy Hollow A m b u l a n c e Corps CC: A n t h o n y Giacco, Village A d m i n i s t r a t o r Board of Trustees Paula McCarthy, Village Clerk �epy^low^i^uianeMCeFps- lanuaty 4th, 2015 Richard D'Alessandro Chief of EMS To: The Mayor and Board of Trustees of the Village of Sleepy Hollow CC: Anthony Giacchio, Village Administrator Antonio Ibarra, |r. Assistant Chief of EMS |ohn Cabezas 2nd Lieutenant Paul Cappello 3rd Lieutenant Please be advised that the following member has been passed as a driver of The Sleepy Hollow Ambulancc Corps: Kayla Cappello Miguel \'alle Cliief Driver Angela Martello Treasurer Sincerely, Melissa Ojito Secretar\' D John Cabezas 2nd Lieutenant Sleepy Hollow Ambulance Corps Sleepy Hollow EMS 29 Andrews i.n. Sleepy I lollow, N^' 10591 Phono: 914-631-1962 www.sleepy hollowcms,org Mail@slecpylioll<)wems,<)rg � Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Board of Trustees Meeting Minutes & Resolutions-2015 Text A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text. Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource MINS_TRUST_2015-01-13_RES-01-06 Subject The topic of the resource Board of Trustees Minutes-2015 Date A point or period of time associated with an event in the lifecycle of the resource 2015 Rights Information about rights held in and over the resource Village of Sleepy Hollow All Rights Reserved. Type The nature or genre of the resource Text