exhibits l to n

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK X

LEONARDO CUTONE, both individually and

as the principal of CUTONE & COMP ANY CONSULTANTS,

LLCA, D/B/ A LCA ASSOCIATES,

Plaintiffs,

Against

DANIEL KENNEDY, both individually and as the

sole owner and shareholder of ENERXIA, LLC.,

Defendants.

X

EXHIBITS L to N

INDEX NO. 150958/2015

PLAINTIFF LEONARDO

CUTONE'S AFFIDAVIT IN SUPPORT OF HIS

MOTION FOR

SUMMARY JUDGMENT

Exhibit L -- Enerxia Project Description for Park and Fifth Avenue elevator projects - July 21, 2014

Exhibit M --LCA's Project description for another elevator project-11-17-11

Exhibit N - NYSERDA contract with Enerxia regarding Park and Fifth Avenue elevator projects -- December 17, 2014

FILED: NEW YORK COUNTY CLERK 04/07/2017 07:19 PM INDEX NO. 150958/2015

NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 04/07/2017

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Exhibit

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Plaintiffs report template stolen by Kennedy/ Enerxia. Kennedy replaced Plaintiffs logo with his own and pawned it off as an Enerxia workproduct. Kennedy misrepresented to Clients that he was a qualified energy consultant and Enerxia was a "newly" formed company.

Detailed review of the report clearly indicates misuse of engineering equations resulting in erroneous projections, and plagiarized wording from Plaintiffs reports. In short, this report was completed by a hack who did not know what he was doing and was able to slip this submission through the scrutiny of NYSERDA and the Plaintiffs Client as a result of a perceived association with the Plaintiff. The Defendant's

actions resulted in tarnishing the reputation and good will of the Plaintiff which precluded the Plaintiff from continuing his business relationship with its Client resulting in hundreds of thousands of dollars in forfeited business income.

100 PARK AVENUE

461 FIFTH AVENUE

ELEVATOR PROJECT

CFA# 44251



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100 Park ave

Executive Summary ......................................................................................................................................................................... 3

ECM#l. Elevator Upgrade ............................................................................................................................................................. 4

Existing Conditions ......................................................................................................................... 4

Proposed Conditions ...................................................................................................................... 4

Calculations and Methodology ..................................................................................................... 5

Requested Incentive ..................................................................................................................... 6

461 Fifth ave

Executive Summary ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 7

ECM#l. Elevator Upgrade ............................................................................................................................................................. 8

Existing Conditions ......................................................................................................................... 8

Proposed Conditions ...................................................................................................................... 8


Requested Incentive ................................................................................................................................................... 10

Confidential Page 2 of 10



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Executive Summary

ECM Description kWh Project Annual Requested Simple

Savings Cost Savings Incentive Payback

1 Elevator

1,343,638 918,000 268,727 214,982 2.62 Modernization

The building at 100 Park avenue is a 36 floor building at the heart of New York City. SL

Green is the property manager for this building. This projects involves the upgrading of

eighteen (18) elevators; • Provide new solid-state microprocessor controllers designed to meet current

elevator code as modified by local jurisdictional authority.• Provide new SCR drive solid-state adjustable speed control with velocity profile in

a dual-loop feedback system based on car position and speed. The drive will be

fully regenerative.• Existing gearless traction machines shall be placed in first-class condition and

retained.




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ECM#l. Elevator Upgrade - 100 Park ave -

kWh Savings Project Cost Annual Savings Requested Simple

Incentive Payback

1,343,638 918,000 268,727 214,982 2.62

Existing Conditions - 100 Park avenue

Existing conditions contain antiquated motor-generator sets {M/G sets) and DC drives.

The 18 elevator cars are split as follows.

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Car(s) Type Floors Motor

Drive Type DC Motor Input Volts Input Amps

Serviced Type

1 to 6 Passenger (#4-B),L,

DC M/G Set (intermediate Rise} 9-17

7 to 12 Passenger (High Rise) (#7-B},L,

DC M/G Set 17 to 34

13 to 18 Passenger (Low Rise) (#13-B),L-9 DC M/G Set

There are six {6) cars in each passenger bank.

Proposed Conditions - 100 Park avenue

HP (M/G Set) (M/G Set)

65 190 237

65 190 237

42 190 131

All 18 cars will retain their DC motors, but will get new regenerative drives to replace the

M/G Sets. Savings from M/G sets from past elevator modernizations have been roughly

70% even without including AC motors in the modernizations.

Calculations and Methodology - 100 Park avenue

We will use kWh data loggers on a sampling of the equipment to log the actual energy

consumption. When the project is completed the data will be used it to true-up our

projections. For the purpose of this application, the following calculations and

methodology is used.

Confidential

kWLowRiseMotorkW == 42 HP X0.7457 == 31.32 kW

kWMidRiseMotorkW == 65 HP X0.7457 == 48.47 kW

kWHiRiseMotorkW == 65 HP X0.7457 == 48.47 kW

Page 4 of 10



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These equations are wrong!

Defendant is using 3 phase AC

equations and applying it to a

single phase DC motor .... hack!

ically ope te about 10% of their full rated AC draws in addition to the loads y their eleva r motors. The full rated draw of an M/G set at 100 Park ave is

190Vx131ampsx-v'3 Phase kWLowRiseMGsetRatedDraw =

lOOO = 43.11 kW

190Vx237ampsx-v'3 Phase kWMidRiseMGsetRatedDraw =

lOOO = 77.99 kW

l 90Vx237ampsx-v'3 Phase kWHiRiseMGsetRatedDraw =

lOOO = 77.99 kW

The building is typically busy for 18 hours a day on the weekdays, and 8 hours a day on the weekends. M/G sets shut down after extended periods of idle elevator operation, so we will assume the M/G sets are running constantly during these hours. Although the M/G sets are running constantly, they don't always draw the full rated kW. These M/G sets draw the load of the motor plus an additional 10% of the rated draw.

kWLowRiserunning = 31.32 kW+ ( 43.11 kWx10%) = 35.63 kW

kWMidRiserunning = 48.47 kW+ (77.99 kWX10%) = 56.27 kW

kWHiRiserunning = 48.47 kW+ (77.99 kWX10%) = 56.27 kW

kWPassengerTotal,Running = (35.63 + 56.27 + 56.29)X 6/ ea. type = 889.02 kW

When idle, the M/G set will still be drawing 12% of the motor kW plus 10% of the M/G set draw.

kWLowRiseidle = (31.32 kWx12%) + ( 43.11 kWx10%) = 8.07 kW

kWMidRiseidle = ( 48.47 kWx12o/o) + (77.99 kWx10%) = 13.62 kW

kWHiRiseidle = ( 48.47 kWx12o/o) + (77.99 kWxlOo/o) = 13.62 kW

kWPassengerTotal,Idle = (8.07 + 13.62 + 13.62)X 6/ ea. type = 211.86 kW

As this is an office building, we will use a. usage factor of 20% active and 80% idle during the operating times, which is 18 hours per weekday and 8 hours per weekend day (5,527 hours).




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kWhPassenger,Base = (889.02 kWx20o/o + 211.86 kWx80o/o)XS,527 hrs

= 1,919,482.88 kWh

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Regenerative drives have been documented by previous modernizations to save about 70% off the base case kWh consumption if the base case involved DC motors with M/G sets. Using that figure, we have the following.

kWhsavings == 1,919,482.88 kWhx70o/o == 1,343,638.02 kWhsavings

The projected annual savings for this elevator project is 1,343,638.02 kWh.

Cost Savings - 100 Park avenue

The average cost for electricity is estimated at $0.20/kWh. Multiplying this rate by the projected energy savings of 1,343,638 kWh/yr results in an estimated annual cost savings of $268,727.

Requested Incentive - 100 Park avenue

This measure results in kWh energy reduction and we are requesting an incentive of $214,982 to help offset the cost of this measure calculated as follows:

• 1,343,638 kWhx $0.16/kWh == $214,982




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ECM#2 - Elevator Upgrade - 461 Fifth avenue

kWh Savings Project Cost Annual Savings Requested Simple

Incentive Payback

446,269 357,000 89,243 71,403 3.2

· Existing Conditions - 461 Fifth avenue

Existing conditions contain antiquated motor-generator sets (M/G sets) and DC drives.


Car(s) Type Floors Motor

Drive Type DC Motor Input Volts Input Amps

Serviced Type HP (M/G Set) {M/G Set)

1-3 Passenger (low Rise) L-9 DC M/G Set 25 460 47

4-6 Passenger (High Rise) (#4,S)L,10-26

DC M/G Set 47 467 82 (#6) L,10-25

Freight B-25 DC M/G Set 100 335 249

There are three {3} cars in each passenger bank plus an additional freight elevator.

Proposed Conditions - 461 Fifth avenue

All 7 cars will retain their DC motors, but will get new regenerative drives to replace the

M/G Sets. Savings from M/G sets from past elevator modernizations have been roughly

70% even without including AC motors in the modernizations.

Calculations and Methodology- 461 Fifth avenue





Confidential

kWLowRiseMotorkW == 25 HP X0.7457 == 18.64 kW

kWhighRiseMotorkW == 47 HP X0.7457 == 35.05 kW

Page 8 of 10



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kWFreightMotorkW == 100 HP X0.7457 = 74.57 kW

M/G sets typically operate about 10% of their full rated AC draws in addition to the loads

demanded by their elevator motors. The full rated draw of an M/G set at 461 Fifth ave is

as follows.

460Vx47ampsx-v'3 PhasekWLowRiseMGsetRatedDraw =

lOOO = 37.45 kW

467Vx82ampsxv'3 PhasekWHiRiseMGsetRatedDraw =

lOOO = 66.33 kW

335Vx249ampsx-v'3 PhasekWFreightMGsetRatedDraw =

lOOO = 144.48 kW

The building is typically busy for 18 hours a day on the weekdays, and 8 hours a day on

the weekends. M/G sets shut down after extended periods of idle elevator operation, so

we will assume the M/G sets are running constantly during these hours. Although the

M/G sets are running constantly, they don't always draw the full rated kW. These M/G

sets draw the load of the motor plus an additional 10% of the rated draw.

kWLowRiserunning == 18.64 kW+ (37.45 kWXl0%) == 22.39 kW

kWHiRiserunning = 35.05 kW+ (66.33 kWX10%) == 41.68 kW

kWFreig0trunning = 74.57 kW+ (144.48 kWXlOo/o) == 89.09 kW

kWPassengerTotal,Running == (22.39 + 41.68)X 3/ ea. type == 192.21 kWkW FreightTotal Running= 89.09 kW

kW Tota/running== 89.09 kW+ 192.21 kW== 281.30 kW

When idle, the M/G set will still be drawing 12% of the motor kW plus 10% of the M/G set

draw.

kWLowRiseidle == (18.64 kWxl2%) + (37.45 kWxl0%) == 5.98 kW

kWHiRiseidle == (35.05 kWxl2%) + (66.33 kWx10%) == 10.84 kW

kWFreig0tRiseidle == (74.57 kWxl2%) + (144.48 kWxlOo/o) == 23.40 kW


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kWPassengerTotal,Idle == (5.98 + 10.84)X 3/ea. type== 50.46 kW

kW Freight total idle == 23.40 kW kW Total idle = 50.46 + 23.40 = 73.86 kW

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As this is an office building, we will use a usage factor of 20% active and 80% idle during the operating times, which is 18 hours per weekday and 8 hours per weekend day (5,527 hours).

kWhPassenger&freight,Base == (281.30 kWX20% + 73.86 kWX80o/o)X5,527 hrs

== 637,528.40 kWh

Regenerative drives have been documented by previous modernizations to save about 70% off the base case kWh consumption if the base case involved DC motors with M/G sets. Using that figure, we have the following.

kWhsavings = 637,528.40 kWhx70o/o = 446,269.88 kWhsavings

The projected annual savings fo.r this elevator project is 446,269.88 kWh.

Cost Savings - 461 Fifth avenue

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The average cost for electricity is estimated at $0.20/kWh. Multiplying this rate by the projected energy savings of 446,269 kWh/yr results in an estimated annual cost savings of $89,253.

Requested Incentive - 461 Fifth avenue


446,269 kWhx $0.16/kWh == $71,403




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555 8th Avenue, #1409

New York, NY 10018 212.579.4236

ELEVATOR PROJECT

SPC# - REVISION 0

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Executive Summary ................................................ . ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 3

ECM#1. Elevator Upgrade ............................................................................................................................................................. 4

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Existing Conditions .......................................................................................................................... 4

Proposed Conditions ................... ................................................................................................... 4


Requested Incentive ..................................................................................................................... 6

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555 8th Avenue, Suite 1409, New York, NY 10018 tel 212.579.4236 fax 646.349.2928

Confidential Page 2 of 6 6/29/2016



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Executive Summary

ECM Description kWh Project Annual Requested Simple

Savings Cost Savings Incentive Payback

1 Elevator

1,400,844 971,400 280,169 224,135 2.67 Modernization

The building at also with addresses and •

is a floor building at the heart of New York City's financial district.

is the property management company for this building.

This project involves the upgrading of nineteen (19) elevators from motor-generator sets

(M/G sets) and old DC drives to high efficiency Magnetek Quattro drives with regenerative ability. The DC motor traction machines will be kept as is.

555 8th Avenue, Suite 1409, New York, NV 10018 tel 212.579.4236 fax 646.349.2928




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ECM#l. Elevator Upgrade

kWh Savings Project Cost Annual Savings

1,400,844 971,400 280,169

Existing Conditions


•Car(s) .Jype Floors Motor

Drive Type • ••

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Serviced Type

Passenger·(L!iw Rise) ito 6 1 to 12 DC M/G Set

7to 12 Passenger (Mid Rise) 1, 13 to 24 DC M/G Set

13 to 18 Passenger (Hi Rise) 1, 25 to 35 DC M/G Set

19 Freight Bto 35 DC M/G Set

Requested

Incentive

224,135

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Motor HP Input Volts

(M/G Set)

39 460

62 460

75 460

75 460

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Simple

Payback

2.67

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Input Amps

(M/G Set)

45

75

90

90

There are six (6) cars in each passenger bank. The equipment for the freight car is located

in the hi-rise bank.

Proposed Conditions

All 19 cars will retain their DC motors, but will get new Magnetek Quattro regenerative

drives to replace the M/G Sets. The Quattro drive is considered the halo product in the

Magnetek elevator drive line, and savings from M/G sets have been reported to be

around 70% even without including AC motors in the modernizations.

Calculations and Methodology





kWiowRiseMotorkW = 39 HP X 0.7457 = 29.08 kW

kWMidRiseMotorkW = 62 HP X 0.7457 = 46.23 kW

kWHiRiseMotorkW == 75 HP X 0.7457 = 55.93 kW

555 8th Avenue, Suite 1409, New York, NY 10018 tel 212.579.4236 fax 646.349.2928 Confidential Page 4 of 6 6/29/2016



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M/G sets typically operate burn about 10% of their full rated AC draws in addition to the loads demanded by their elevator motors. The full rated draw of an M/G set at

·s as follows.

460V X 45amps x V3 Phase kWLowRiseMGsetRatedDraw = lOOO

= 35.85 kW

460V x 75amps x ..J3 Phase kWMidRiseMGsetRatedDraw =

lOOO = 59.76 kW

460V X 90amps X V3 Phase kWHiRiseMGsetRatedDraw =

lOOO = 71.71 kW

The building is typically busy for 18 hours a day on the weekdays, and 8 hours a day on the weekends. M/G sets shut down after extended periods of idle elevator operation, so we will assume the M/G sets are running constantly during these hours. Although the M/G sets are running constantly, they don't always draw the full rated kW. These M/G sets draw the load of the motor plus an additional 10% of the rated draw, or 24.63 kW.

kWLowRiserunning = 29.08 kW + (35.85 kW X lOo/o) = 32.67 kW

kWMidRiserunning = 46.23 kW+ (59.76 kW X 10o/o) = 52.21 kW

kWHiRiserunning = 55.93 kW+ (71.71 kW X 10o/o) = 63.10 kW

kWPassengerTotal,Running = (32.67 + 52.21 + 63.10) X 6/ea.typelZI = 887.88kW

When idle, the M/G set will still be drawing 12% of the motor kW plus 10% of the M/G set draw.

kWLowRiseidle = (29.08 kW X 12o/o) + (35.85 kW X 10%) = 7.07 kW

kWMidRiseidle = ( 46.23 kW X 12°/o) + (59.76 kW X 10o/o) = 11.52 kW

kWHiRiseidle = (55.93 kW X 12o/o) + (71.71 kW X lOo/o) = 13.88 kW

kWPassengerTotal,Idle = (7.07 + 11.52 + 13.88) X 6/ ea. type = 194.82 kW

As this is an office building, we will use a usage factor of 20% active and 80% idle during the operating times, which is 18 hours per weekday and 8 hours per weekend day (5,527 hours).

555 8th Avenue, Suite 1409, New York, NY 10018 tel 212.579.4236 fax 646.349.2928

Confidential Page S of 6 6/29/2016



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kWhPassenger,Base = (887.88 kW X 20% + 194.82 kW X 80o/o) X 5,527 hrs = 1,842,879 kWh . .

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The freight elevator will also be modernized, and its specifications are identical to those of the high-rise passenger cars. However, the freight elevator runs more frequently- we will use a usage factor of 30% active and 70% idle for this car.

kWhFreight,Base = (63.10 kW X 30% + 13.88 kW X 70o/o) X 5,527 hrs = 158,326 kWh

kWhBase = kWhPassenger,Base + kWhFreight,Base = 2,001,205 kWh

Quattro drives have been documented by previous modernizations to save about 70% off the base case kWh consumption if the base case involved DC motors with M/G sets. Using that figure, we have the following.

kWhsavings = 2,001,205 kWh X 70o/o = 1,400,844 kWhsavings

The projected annual savings for this elevator project is 1,400,844 kWh.

Cost Savings

The average cost for electricity is estimated at $0.20/kWh. Multiplying this rate by the

projected energy savings of 1,400,844 kWh/yr results in an estimated annual cost savings of $280,169.

Requested Incentive


• 1,400,844 kWh x $0.16/kWh = $224,135

555 8th Avenue, Suite 1409, New York, NV 10018 tel 212.579.4236 fax 646.349.2928




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Exhibit

[December 1 7, 2014

Enerxia LLq J 610 West 110th S� Suite 14B!

ew Y or�, }NY{ jl 0025!

ATTN: '.Daniel KennedY!

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Defendant succeeds in securing contract with NYSERDA unbeknownst to Plaintiff and his Client for $286,385.12. Plaintiffs loss of business: $286,385.12

RE: fPON1219-100 Park Ave and 461 Fifth Av�

Existing Facilities Program - Performance-Based Incentives: Incentives are payable upon the Applicant's completion of the steps listed below and described in greater detail in the Existing Facilities Program.

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• An Engineering Analysis is submitted for NYSERDA approval. The Engineering Analysis must include, butis not limited to, project description, economic evaluation, energy savings calculations, equipmentspecification sheets, and for certain projects, a Measurement and Verification (M&V) plan.

• NYSERDA, or its consultant, reviews the Engineering Analysis and conducts a pre-site inspection.NYSERDA may request revisions to the Engineering Analysis as necessary.

• Upon approval of the Engineering Analysis and pre-site inspection, NYSERDA will notify the applicant thatthey can implement the project. Applicants proceeding with installation before NYSERDA approves theEngineering Analysis and conducts a pre-site inspection do so at their own risk.

• The Applicant implements the project and notifies NYSERDA or its consultant that the project is completeand ready for a post-site inspection.

• NYSERDA or its consultant will conduct a post-site inspection and collect invoices and any other remainingdocumentation. (Demand Response projects must demonstrate participation in a demand response program;see the Existing Facilities Program for details.)

• Upon approval of all final deliverables, NYSERDA will provide payment (full payment for projects notrequiring M& V and partial payment for projects requiring M& V as described in the Existing FacilitiesProgram). Projects requiring M&V must complete it in accordance with the M&V plan in the approvedEngineering Analysis. When the M& V is completed, NYSERDA or its consultant will review the resultsand release any remaining funds (which may be adjusted, based upon the M&V results). Details involvingM&V can be found in the Existing Facilities Program.

This Agreement is for a not-to-exceed amount, based upon the applicant's estimate of savings, calculated using the Existing Facilities Incentives identified below and detailed in the enclosed purchase order. Incentives shall be paid upon receipt and approval of deliverables described in the Existing Facilities Program and subject to the limitations contained in the Existing Facilities Program and the attach,ments to this Agreement. Invoices shall provide documentation of evidence that costs have been incurred. The final amount paid by NYSERDA will be adjusted based on the terms and incentives described in the Existing Facilities Program.

NYSERDA will not make payment on an expired Agreement. Payments shall be made to the Applicant in accordance with the terms of Exhibit B, Prompt Payment Policy Statement attached hereto. Projects must be installed within two years of the date of this Agreement. This Agreement expires four years from the date of this Agreement.

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Electric Efficiency Energy Storage Natural Gas Demand Response CHP Monitoring-Based Commissioning Industrial Process

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Existing Facility Incentives

Upstate $0.12/kWh $300/kW

$15/MMBtu $100/kW

$0.10/kWh + $600/kW

$0.05/kWh $0.12/kWh

Con Edison $0.16/kWh $600/kW

$20/MMBtu $200/kW

$0.10/kWh + $750/kW

$0.05/kWh $0.16/kWh

(1,789,907.00 kWh)* ($0.16/kWh) = $286,385.12 total incentive{ TOT AL COST NOT TO EXCEED J$286,3 85 .1 �

This Agreement is governed by Exhibit A, Existing Facilities Terms and Conditions, which is incorporated herein and made a part hereof. Contractor signifies its acceptance of the Terms and Conditions of this Agreement and Exhibit B by delivery of the goods or services and by the acceptance of payment.

NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY

By: --------------------

Jeff Pitkin, Treasurer

RE: Joooooooooooooooooooos457�

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EXHIBIT A -TERMS & CONDITIONS

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1. ApprovalIncentives are not payable unless NYSERDA has approved the Engineering Analysis, conducted site visits,and approved the other activities and documentation provided by the applicant.

2. Amounts PayableThe Purchase Order is an upset amount, based on the applicants estimate of savings. The final payment will bebased on the approved savings, project cost, and M&V results, when required. NYSERDA also reserves theright to seek a refund for incentives paid if, at any time, it learns that the project was not actually and properly

installed or has subsequently been disconnected.3. Cost and Invoice Documentation

Upon completion of the post-installation inspection, and at any other time upon NYSERDA's request, theapplicant shall provide NYSERDA copies of all invoices (including all materials, labor, and equipmentdiscounts) reflecting the costs of purchasing and installing the Project. The invoices shall include a breakdownof all equipment purchased for installation under this Agreement (the application and these Terms andConditions). In addition, NYSERDA may request any other reasonable documentation or verification of thecost to the applicant of purchasing and installing the equipment.

4. Incentive PaymentsNYSERDA shall pay the incentive upon the applicants' meeting the requirements of the Existing FacilitiesProgram. This includes, but is not limited to; (1) installation of the Project in the identified building is completed, (2) all necessary documentation is provided, and (3) NYSERDA has verified installation costs and satisfactory installation of the Project, all in accordance with the specifications.

5. Inspections, Follow-up Visits and On-Site Monitoringa. NYSERDA reserves the right to make a reasonable number of pre- and post-installation visits to the facility.

Such visit(s) will be at a time convenient to the applicant and made with at least one week advance notice tothe applicant by NYSERDA.

b. Generally, the purpose of the follow-up visit(s) is to evaluate the installed Project in order to determine theactual kW reduction and energy savings for program evaluation purposes.

6. Changes in the ProgramTerms & Conditions may be changed by NYSERDA at any time without notice. Approved applications,however, will be processed to completion under the Terms & Conditions in effect at the time of applicationtoNYSERDA.

7. IndemnificationThe applicant shall protect, indemnify, and hold harmless NYSERDA and the State of New York from andagainst all liabilities, losses, claims, damages, judgments, penalties, causes of action, costs and expenses(including, without limitation, attorneys' fees and expenses) imposed upon or incurred by or asserted againstNY SERDA or the State of New York resulting from, arising out of or relating to the performance of this Agreement. The obligations of the applicant under this section shall survive any expiration or termination of this Agreement.

8. No Warrantiesa) NYSERDA does not endorse, guarantee, or warrant any particular manufacturer or product, and NYSERDA

provides no warranties, expressed or implied, for any product or services. The applicant's reliance onwarranties is limited to any warranties that may arise from, or be provided by contractors, vendors, etc.

b) The applicant acknowledges that neither NYSERDA nor any of its consultants are responsible for assuringthat the design, engineering and construction of the project is proper or complies with any particular laws,codes, or industry standards. NYSERDA does not make any representations of any kind regarding theresults to be achieved by the Project or the adequacy or safety of such measures.

9. Limit of Incentive PaymentsNYSERDA reserves the right, for any reason, to stop approving incentive applications at any time without

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notice. 10. Release by the Applicant

The acceptance by the applicant of final payment shall release NYSERDA from any and all claims and liabilitythe applicant, its representatives, and assigns might otherwise have relating to this award.

11. Title to equipmentTitle to all of the equipment purchased under this Agreement shall vest with the facility.

12. Vendor Selection



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NYSERDA has the right not to allow a vendor or contractor to participate in this program. 13. Removal of Equipment

The applicant agrees, as a condition of participation in the program, to remove and dispose of the equipmentbeing replaced by the project in accordance with all laws, rules, and regulations.

14. MiscellaneousThis Agreement (the application and these Tenns and Conditions) is the entire agreement between the partiesand supersedes all other communications and representations.

15. Audit

The applicant shall keep, maintain, and preserve for a period of five years after receipt of the incentives, full anddetailed books, accounts, and records pertaining to the performance of this Agreement. NYSERDA shall havethe right from time to time and at all reasonable times during this period to inspect and audit any and all books,accounts and records at the office or offices of the applicant where they are then being kept, maintained andpreserved. Any payment made under this Agreement shall be subject to retroactive reduction for amountsincluded therein that are found by NY SERDA on the basis of any audit of the applicant by an agency of theUnited States, State of New York or NYSERDA not to constitute an allowable change or cost hereafter.

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EXHIBIT B

PART 504

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PROMPT PAYMENT POLICY STATEMENT

Section 504.1 Purpose and applicability.

(a) The purpose of this Part is to implement section 2880 of the Public Authorities Law by detailing theauthority's policy for making payment promptly on amounts properly due and owing by the authority undercontracts. This Part constitutes the authority's prompt payment policy statement as required by that section.

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(b) This Part generally applies to payments due and owing by the authority to a person or business in the privatesector under a contract it has entered into with the authority on or after May 1, 1988. This Part does not apply topayments due and owing:

(1) under the Eminent Domain Procedure Law;

(2)as interest allowed on judgments rendered by a court pursuant to any provision of law except Section 2880 ofthe Public Authorities Law;

(3)to the Federal government; to any state agency or its instrumentalities; to any duly constituted unit of localgovernment, including but not limited to counties, cities, towns, villages, school districts, special districts or anyof their related instrumentalities; to any other public authority or public benefit corporation; or to its employeeswhen acting in, or incidental to, their public employment capacity;

( 4 )if the Authority is exercising a legally authorized set-off against all or part of the payment; or

(5)if other State or Federal law or rule or regulation specifically requires otherwise.

Section 504.2 Definitions. As used in this Part, the following terms shall have the following meanings, unless the context shall indicate another or different meaning or intent:

(a) "Authority" means the New York State Energy Research and Development Authority.

(b) "Contract" means an enforceable agreement entered into between the Authority and a contractor.

( c) "Contractor" means any person, partnership, private corporation, or association:

(!)selling materials, equipment or supplies or leasing property or equipment to the Authority pursuant to a contract;

(2)constructing, reconstructing, rehabilitating or repairing buildings, highways or other improvements for, or onbehalf of, the Authority pursuant to a contract; or

(3)rendering or providing services to the Authority pursuant to a contract.

( d) "Date of payment" means the date on which the Authority requisitions a check from its statutory fiscalagent, the Department of Taxation and Finance, to make a payment.

( e) "Designated payment office" means the Office of the Authority's Controller, located at 17 Columbia Circle,Albany, New York 12203.

(f) "Payment" means provision by the Authority of funds in an amount sufficient to satisfy a debt properly dueand owing to a contractor and payable under all applicable provisions of a contract to which this Part applies andof law, including but not limited to provisions for retained amounts or provisions which may limit the



Authority's power to pay, such as claims, liens, attachments or judgments against the contractor which have not been properly discharged, waived or released.

(g) "Prompt payment" means a payment withjn the time periods applicable pursuant to Sections 504.3 through504.5 of this Part in order for the Authority not to be liable for interest pursuant to Section 504.6.

(h) "Payment due date" means the date by which the date of payment must occur, in accordance with theprovisions of Sections 504.3 through 504.5 of this Part, in order for the Authority not to be liable for interestpursuant to Section 5.06.

(i) "Proper invoice" means a written request for a contract payment that is submitted by a contractor settingforth the description, price or cost, and quantity of goods, property or services delivered or rendered, in suchform, and supported by such other substantiating documentation, as the Authority may reasonably require,including but not limited to any requirements set forth in the contract; and addressed to the Authority'sController, marked "Attention: Accounts Payable," at the designated payment office.

G)(l) "Receipt of an invoice" means:

(i)if the payment is one for which an invoice is required, the later of:

(a)the date on which a proper invoice is actually received in the designated payment office during normalbusiness hours; or

(b )the date by which, during normal business hours, the Authority has actually received all the purchased goods, property or services covered by a proper invoice previously received in the designated payment office.

(ii)if a contract provides that a payment will be made on a specific date or at a predetermined interval, withouthaving to submit a written invoice the 30th calendar day, excluding legal holidays, before the date so specified orpredetermined.

(2) For purposes of this subdivision, if the contract requires a multifaceted, completed or working system, ordelivery of no less than a specified quantity of goods, property or services and only a portion of such systems orless than the required goods, property or services are working, completed or delivered, even though theContractor has invoiced the Authority for the portion working, completed or delivered, the Authority will not bein receipt of an invoice until the specified minimum amount of the systems, goods, property or services areworking, completed or delivered.

(k) "Set-off' means the reduction by the Authority of a payment due a contractor by an amount equal to theamount of an unpaid legally enforceable debt owed by the contractor to the Authority.

Section 504.3 Prompt payment schedule. Except as otherwise provided by law or regulation or in Sections 504.4 and 504.5 of this Part, the date of payment by the Authority of an amount properly due and owing under a contract shall be no later than 30 calendar days, excluding legal holidays, after such receipt.

Section 504.4 Payment procedures.

( a) Unless otherwise specified by a contract provision, a proper invoice submitted by the contractor to thedesignated payment office shall be required to initiate payment for goods, property or services. As soon as anyinvoice is received in the designated payment office during normal business hours, such invoice shall be datestamped. The invoice shall then promptly be reviewed by the Authority.

(b) The Authority shall notify the contractor within 15 calendar days after receipt of an invoice of:

(l)any defects in the delivered goods, property or services;

(2)any defects in the invoice; and

(3)suspected improprieties of any kind.

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( c )The existence of any defects or suspected improprieties shall prevent the commencement of the time period specified in Section 504.3 until any such defects or improprieties are corrected or otherwise resolved.

( d)If the Authority fails to notify a contractor of a defect or impropriety within the fifteen calendar day periodspecified in subdivision (b) of this section, the sole effect shall be that the number of days allowed for paymentshall be reduced by the number of days between the 15th day and the day that notification was transmitted to thecontractor. If the Authority fails to provide reasonable grounds for its contention that a defect or improprietyexists, the sole effect shall be that the payment due date shall be calculated using the original date of receipt of

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an 1nvo1ce.

(e) In the absence of any defect or suspected impropriety, or upon satisfactory correction or resolution of adefect or suspected impropriety, the Authority shall make payment, consistent with any such correction orresolution and the provisions of this Part.

Section 504.5 Exceptions and extension of payment due date. The Authority has determined that, notwithstanding the provisions of Sections 504.3 and 504.4 of this Part, any of the following facts or circumstances, which may occur concurrently or consecutively, reasonably justify extension of the payment due date:

(a)lf the case of a payment which a contract provides will be made on a specific date or at a predeterminedinterval, without having to submit a written invoice, if any documentation, supporting data, perfom1anceverification, or notice specifically required by the contract or other State or Federal mandate has not beensubmitted to the Authority on a timely basis, then the payment due date shall be extended by the number ofcalendar days from the date by which all such matter was to be submitted to the Authority and the date when theAuthority has actually received such matter.

(b )If an inspection or testing period, performance verification, audit or other review or documentation independent of the contractor is specifically required by the contract or by other State or Federal mandate, whether to be performed by or on behalf of the Authority or another entity, or is specifically permitted by the contract or by other State or Federal provision and the Authority or other entity with the right to do so elects to have such activity or documentation undertaken, then the payment due date shall be extended by the number of calendar days from the date of receipt of an invoice to the date when any such activity or documentation has been completed, the Authority has actually received the results of such activity or documentation conducted by another entity, and any deficiencies identified or issues raised as a result of such activity or documentation have been corrected or otherwise resolved.

( c )If an invoice must be examined by a State or Federal agency, or by another party contributing to the funding of the contract, prior to payment, then the payment due date shall be extended by the number of calendar days from the date of receipt of an invoice to the date when the State or Federal agency, or other contributing party to the contract, has completed the inspection, advised the Authority of the results of the inspection, and any deficiencies identified or issues raised as a result of such inspection have been corrected or otherwise resolved.

( d)If appropriated funds from which payment is to be made have not yet been appropriated or, if appropriated,not yet been made available to the Authority, then the payment due date shall be extended by the number ofcalendar days from the date of receipt of an invoice to the date when such funds are made available to theAuthority.

Section 504.6 Interest eligibility and computation. If the Authority fails to make prompt payment, the Authority shall pay interest to a contractor on the payment when such interest computed as provided herein is equal to or more than ten dollars. Interest shall be computed and accrue at the daily rate in effect on the date of payment, as set by the New York State Tax Commission for corporate taxes pursuant to Section 1096(e)(l) of the Tax Law. Interest on such a payment shall be computed for the period beginning on the day after the payment due date and ending on the date of payment.

Section 504.7 Sources of funds to pay interest. Any interest payable by the Authority pursuant to this Part shall be paid only from the same accounts, funds, or appropriations that are lawfully available to make the related contract payment.



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Section 504.8 Incorporation of prompt payment policy statement into contracts. The provisions of this Part in effect at the time of the creation of a contract shall be incorporated into and made a part of such contract and shall apply to all payments as they become due and owing pursuant to the terms and conditions of such contract, notwithstanding that the Authority may subsequently amend this Part by further rulemaking.

Section 504.9 Notice of objection. Unless a different procedure is specifically prescribed in a contract, a contractor may object to any action taken by the Authority pursuant to this Part which prevents the commencement of the time in which interest will be paid by submitting a written notice of objection to the Authority. Such notice shall be signed and dated and concisely and clearly set forth the basis for the objection and be addressed to the Vice President, New York State Energy Research and Development Authority, at the address set forth in Section 504.2( e ). The Vice President of the Authority, or his or her designee, shall review the objection for purposes of affirming or modifying the Authority's action. Within 15 working days of the receipt of the objection, the Vice President, or his or her designee, shall notify the contractor either that the Authority's action is affirmed or that it is modified or that, due to the complexity of the issue, additional time is needed to conduct the review; provided, however, in no event shall the extended review period exceed 30 working days.

Section 504.10 Judicial Review. Any determination made by the Authority pursuant to this Part which prevents the commencement of the time in which interest will be paid is subject to judicial review in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules. Such proceedings shall only be commenced upon completion of the review procedure specified in Section 504.9 of this Part or any other review procedure that may be specified in the contract or by other law, rule, or regulation.

Section 504.11 Court action or other legal processes.

(a) Notwithstanding any other law to the contrary, the liability of the Authority to make an interest payment to acontractor pursuant to this Part shall not extend beyond the date of a notice of intention to file a claim, the dateof a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occursfirst.

(b) With respect to the court action or other legal processes referred to in subdivision (a) of this section, anyinterest obligation incurred by the Authority after the date specified therein pursuant to any provision of lawother than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision oflaw, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose.

Section 504.12 Amendments. These regulations may be amended by resolution of the Authority, provided that the Chair, upon written notice to the other Members of the Authority, may from time to time promulgate nonmaterial amendments of these regulations.

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Proprietary Information

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EXHIBITC

GENERAL CONDITIONS

Careful consideration should be given before confidential information is submitted to NYSERDA as part of your proposal. Review should include whether it is critical for evaluating a proposal, and whether general, nonconfidential information, may be adequate for review purposes.

The NYS Freedom of Information Law, Public Officers Law, Article 6, provides for public access to information

NYSERDA possesses. Public Officers Law, Section 87(2)(d) provides for exceptions to disclosure for records or portions thereof that ''are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which, if disclosed, would cause substantial injury to the competitive position of the subject enterprise.'' Information submitted to NYSERDA that the proposer wishes to have treated as proprietary, and confidential trade secret information, should be identified and labeled ''Confidential'' or ''Proprietary'' on each page at the time of disclosure. This information should include a written request to exclude it from disclosure, including a written statement of the reasons why the infor1nation should be excluded. See Public Officers Law, Section 89(5) and the procedures set forth in 21 NYCRR Part 501. However, NYSERDA cannot

guarantee the confidentiality of any information submitted.

Omnibus Procurement Act of 1992

It is the policy of New York State to maximize opportunities for the participation of New York State business enterprises, including minority- and women-owned business enterprises, as bidders, subcontractors, and suppliers on its procurement Agreements.

Information on the availability ofNew York subcontractors and suppliers is available from:

Empire State Development Division For Small Business 30 South Pearl Street Albany, NY 12245

A directory of certified minority- and women-owned business enterprises is available from:

Empire State Development Minority and Women's Business Development Division 30 South Pearl Street Albany, NY 12245

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Enter the Vendor Contact Name foaniel Kenned� Enter NYSERDA Project Manager )Jennifer Dow� Enter PON# (Event ID) jPON1219-100 Park Ave and 461 Fifth Avtj Enter Contract End Date }December 17, 201 �

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Is the SEQRA Type II Sect. No. 503.3 (a) (1), (a) (2), (a) (3), (a) (4), (a) (5), (a) (6), (a) (8), (a) (10), (a) (12), (a) (13), (a) (15), (a) (16); (b); (c); (d); (f) (1), (t) (3); G); (1) and (n) or 617.5 (c) (1), (c) (2), (c) (3), (c) (7) ]Ye� Enter the Incentive Calculation](l,789,907.00 kWh)* ($0.16/kWh) = $286,385.12 total incentiv� Enter Total Not To Exceed Incentive Amount J$286,385.1� Will you attach the application, scope of work, case study, project schedule, and budget? ]Yes



exhibits l to n

Documents