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the utility providing service to the OWNER as in effect on the date of the COMPANY' S delivery of the respective <br /> annual Guarantee Report to the OWNER , plus all surcharges and taxes applicable thereto . The COMPANY' S <br /> calculation of the On Peak Rate Categories shall include and be based upon a calculated <br /> and imputed <br /> escalation rate set forth in the Exhibits to this Savings Guarantee , which the COMPANY and the OWNER <br /> agree to be a reasonable rate of historic increase for purposes of calculating this Savings Guarantee ( and for <br /> no other purpose) . <br /> "Operating Plan " shall mean the OWNER operation of the Equipment in accordance with the <br /> operating plan in Attachment 1 which is incorporated by reference , including but not limited to the committed <br /> level and hours of use by the OWNER of the Load Reduction Equipment and the Load Shift Equipment <br />as <br /> listed in the Operating Plan . <br /> " Owner" has the meaning in the agreement, Indian River County , Florida . <br /> "Savings Guarantee " means this Savings Guarantee and all of its terms and conditions . <br /> "Savings Guarantee Term " means the time period during which the OWNER is making regularly <br /> scheduled payments under the Agreement for the Equipment specified in this Savings Guarantee ( and not any <br /> other equipment which may be covered by the Agreement) , provided however, that notwithstanding such longer <br /> payment period under the terms of the Agreement, the Savings Guarantee Term shall not exceed ten ( <br />10 ) <br /> years from the date of final acceptance by the County . <br /> " Stipulated or Calculated Savings " means those additional savings associated with the Equipment <br /> which the OWNER and COMPANY have mutually agreed upon as being realized by the OWNER as set forth <br /> in the Operating Plan or other exhibits/attachments to this Savings Guarantee , including but not <br /> limited to <br /> Attachment 3 . Stipulated ( or calculated ) Savings do not need to be measured or monitored , and <br /> are not <br /> subject to verification in the Post Installation Measurement. By example , Calculated Savings may consist of <br /> maintenance cost savings or other savings , which are difficult to measure or monitor on an ongoing basis . <br /> " Substantial Completion " means the date that the COMPANY designates the Equipment as <br /> substantially installed and available for operation and use by the OWNER , excluding minor punch list <br />items <br /> which do not affect the use or operation of the Equipment as a whole . <br /> SECTION 3 . SAVINGS GUARANTEE <br /> Subject to all terms of this Savings Guarantee , during the Savings Guarantee Term the COMPANY <br /> guarantees that, for each annual Guarantee Report period , the Equipment shall , if operated in accordance with <br /> the Operating Plan , produce Annual Energy Cost Savings in an amount equal to or greater than <br /> Annual <br /> Guaranteed Savings for such annual period . <br /> All of the COMPANY' S obligations under this Savings Guarantee , as to each time period covered by <br /> each annual Guarantee Report , shall be deemed fully satisfied and performed (A) upon presentation to <br /> the <br /> OWNER of the annual Guarantee Report which indicates that the Annual Energy Cost Savings meets or <br /> exceeds the Annual Guaranteed Savings for such respective annual period , or ( B ) when payment is made , if <br /> required , pursuant to the sole and exclusive remedy described in Section 5 ( B ) of this Savings <br /> Guarantee . <br /> Thereafter, during any annual measurement period , the COMPANY shall not be further obligated to monitor , <br /> measure , extrapolate , or prove any Annual Energy Cost Savings for that or any prior time period . <br /> SECTION 4 . THE ANNUAL GUARANTEE REPORT PROCEDURE <br /> (A) The Annual Energy Cost Savings shall be determined by the COMPANY in an annual <br /> Guarantee Report and based upon the COMPANY' S baseline calculations as described in Attachment 6 and <br /> subject to adjustments by the COMPANY for any Changes . Within ninety ( 90 ) days following the <br /> first <br /> anniversary of the final acceptance and each anniversary thereafter during the Savings Guarantee Term , the <br /> COMPANY shall apply current data to update any necessary baseline calculations for the Changes and provide <br /> Indian River County , Florida 4 Indian River County Phase 1 <br /> Phase I Rev . 06/09 <br />