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HomeMy WebLinkAbout001021 Original ContractDocuSign Envelope ID: 470016FC -C78C- 4866 - 8029- D5582C8DAE06 City of Port Angeles Record # 001021 Referral and Enrollment Fee Agreement (the "Referral Agreement ") Utility Provider City of Port Angeles ( "Utility ") EnerNOC, Inc. ( "EnerNOC" or "Provider ") 321 E 5`h Street One Marina Park Drive, Suite 400 Port Angeles, WA 98362 Boston, MA 02210 USA Email: gking@cityofpa.us Email: contractmanagement@enernoc.com Referral Agreement Details Effective Date August 20, 2015 Expiration Date Aril 30, 2017 Referral and Enrollment. EnerNOC and Utility desire to cooperate in enrolling commercial and industrial customers ( "Customers ") in Bonneville Power Administration's demand response program ( "BPA DR Program "). In furtherance of that goal, Utility agrees to perform the following tasks: 1. Utility shall work with EnerNOC to determine Customers that could be a potential fit for the BPA DR Program, including Customers that have 150kW of peak demand or greater . If necessary, EnerNOC may request information for the agreed upon Customers from the Utility that may include Customer name, contact information for Utility account manager managing the Customer (if any), Customer contact information (email, phone number and service address), monthly peak electric usage data (when available), and if available, industry code associated with each Customer facility (the "Site "). 2. If available, Utility shall provide EnerNOC access to interval data, in a format agreed upon by Utility and EnerNOC, for Customers that EnerNOC has approached to participate in the BPA DR Program and for which EnerNOC has submitted a signed letter of authorization from the Customer. Utility will email files directly from the Utility to EnerNOC within seven (7) days of EnerNOC's request. Utility shall provide interval data at each Site, for as long as is available and at least one year, for each Customer that EnerNOC desires to enroll in the BPA DR Program. 3. If a Customer signs up for the BPA DR Program, EnerNOC may request that Utility install a kyz pulse at the Site at no cost to Utility. Within thirty (30) days of EnerNOC's request, Utility shall install a kyz pulse meter at each Site for each Customer participating in the BPA DR Program in accordance with Utility's standard protocol. If requested by Utility, EnerNOC will provide Utility with a signed authorization from the Customer. Utility shall provide EnerNOC with the pulse meter multiplier value. If Utility and EnerNOC determine that the pulse meter multiplier value is incorrect at a certain Site or that the KYZ pulse meter needs to be replaced at a Site, EnerNOC and Utility agree to work together to rectify the issue within thirty (30) days. 4. If EnerNOC determines that a Site requires further verification after installation of equipment at the Site, Utility agrees to provide EnerNOC with access to the interval data for the Site either by granting access to the Utility data system or providing the interval data itself, within seven (7) days of request from EnerNOC to ensure that EnerNOC is able to successfully enable the Site for enrollment in the BPA DR Program. Referral and Enrollment Fee. EnerNOC shall pay to Utility a one -time fee equal to five thousand dollars ($5000.00) (the "Referral and Enrollment Fee ") per MW of curtailment initially committed to be provided by Customer that EnerNOC nominates into the BPA DR Program and for which Utility has provided interval data as requested and installed kyz pulse meters as requested and described above. EnerNOC shall pay Utility the Referral and Enrollment Fee within forty -five (45) days of the end of a calendar quarter in which EnerNOC nominates the Customer into the BPA DR Program resulting from Customer's initial nomination in the BPA DR Program. Data Processing Fee. In order for EnerNOC to measure the performance of Customers enrolled in the BPA DR Program, ensure accurate baselines and obtain additional event visibility, Utility shall provide interval data to EnerNOC, in a format agreed upon by Utility and EnerNOC, when requested by EnerNOC for Sites enrolled in the BPA DR Program. Utility will allow EnerNOC direct access to the Utility data system so that EnerNOC can retrieve the data or, if direct access is not possible, then Utility will email files directly from the Utility to EnerNOC. Utility shall provide the requested data and an invoice to EnerNOC within seven (7) days of EnerNOC's request for data. EnerNOC shall pay to Utility a fee of one hundred dollars ($100.00) ( "Data Processing Fee ") per data request within thirty (30) days of receipt of invoice. Miscellaneous. EnerNOC and Utility agree to work together to approach Customers and encourage participation in the BPA DR Program by engaging in such activities including inviting Utility account managers to Customer meetings. If requested by the Utility, EnerNOC agrees to 1) incorporate the Utility's logo into program marketing materials and 2) provide regular sales activity reports to Utility. EnerNOC, Inc. I Version 1.1 — 1012014 DocuSign Envelope ID: 470016FC- C78C- 48B6- 8029- D5582C8DAE06 #ENEFRNoc By signing this Referral Agreement, EnerNOC and Utility acknowledge and agree that they have each received and will be legally bound by the attached Terms and Conditions, which govern and are incorporated by reference into this Referral Agreement as of the Effective Date written above. Utility Name: Dan McKeen Title: City Manager Signature: L�1� EnerNOC, Inc. I Version 1.1 — 10/2014 EnerNOC Name: Michael Berdik Title: Deputy General counsel DocuSigned by: / Signature: F c2142csse7s442o... DocuSign Envelope ID: 470016FC- C78C- 48B6- 8029- D5582C8DAE06 Terms and Conditions 1. Services. These Terms and Conditions (these "Terms and Conditions ") govern the Referral Agreement attached hereto (the "Referral Agreement" and together with these Terms and Conditions, collectively the "Agreement ") by and between the provider identified in the Agreement ( "Provider") and the Utility identified in the Agreement ( "Utility "). Provider and Utility are referred to herein collectively as the "Parties" and each individually as a "Party" to the Agreement. Utility will provide Provider with the services identified in the Referral Agreement ( "Services "), 2. Term. The Agreement shall commence on the effective date indicated on the Referral Agreement ( "Effective Date ") and continue until the expiration date indicated on the Referral Agreement, unless earlier terminated in accordance with the terms herein (the "Term "). 3. Confidentiality. a. Nondisclosure to Third Parties. In performing its obligations under the Agreement, each Party may receive non - public information of the other Party ( "Confidential Information "). Each Party, on behalf of itself and its employees, contractors and agents (collectively, "Representatives "), agrees not to, except as set forth in Section 3(b) or as required by applicable law or regulation, use or disclose Confidential Information during or after the Term without the prior written consent of the other Party. To protect Confidential Information, each Party agrees to: (i) limit dissemination of Confidential Information to only those Representatives having a "need to know "; (ii) advise each Representative who receives Confidential Information of the confidential nature of such information; and (iii) have appropriate agreements, policies and /or procedures in place with such Representatives sufficient to enable compliance with the confidentiality obligations contained herein. b. Use of Confidential Information. Utility acknowledges that Provider may receive Confidential Information of Utility from the applicable independent system /grid operator and /or Utility, through data collected through the Services or otherwise, which may be used or disclosed by Provider as necessary for the performance of the Agreement. Utility authorizes Provider to disclose Utility's Confidential Information to Bonneville Power Administration. 4. Indemnification. Each Party (the "Indemnifying Party ") agrees to defend and indemnify (subject to the terms of this Section) for any third party claim against the other Party, its parent corporation, affiliates, directors, employees and agents (collectively, the "Indemnified Party ") that arise due to the negligent acts or omissions of Indemnifying Party or its employees in the performance of the Agreement. The Indemnifying Party will pay reasonable legal fees as incurred and such damages or costs as are finally awarded against Indemnified Party or agreed to in settlement for such claim provided that Indemnified Party gives Indemnifying Party (i) prompt written notice of any such claim or threatened claim; (ii) sole control of the defense, negotiations and settlement of such claim; and (iii) full cooperation in any defense or settlement of the claim. The foregoing indemnification obligations shall not apply to the extent that any such claims or damages result from goods or services provided by a party other than Indemnifying Party, or are the fault of or caused by the sole acts or omissions of Indemnified Party. 5. Limitation on Liability. Except for breaches of confidentiality and claims involving the indemnification obligations contained herein, Provider's and Utility's liability hereunder is limited to direct actual damages as the sole and exclusive remedy, and total damages under the Agreement shall not exceed $100,000. In no event shall either Party, its officers, directors, partners, shareholders, employees or affiliates, or any contractor or subcontractor or its employees or affiliates, be liable to the other Party for special, indirect, exemplary, punitive, incidental or consequential damages of any nature whatsoever connected with or resulting from the Services or from performance or non - performance of obligations under the Agreement, including without limitation, damages or claims in the nature of lost revenue, income or profits, loss of use, or cost of capital, irrespective of whether such damages are reasonably foreseeable and irrespective of whether such claims are based upon negligence, strict liability contract, operation of law or otherwise. 6. Warranty Limitations. EXCEPT AS PROVIDED HEREIN, THE SERVICES ARE PROVIDED AS IS WITHOUT ANY WARRANTY OF ANY KIND. ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. 7. Choice of Law. The Agreement shall be governed by and construed and enforced in accordance with the laws of the state of the Utility's principal place of business, without giving effect to choice of law rules. 8. Miscellaneous. Utility may not assign any of its rights or delegate any of its performance obligations hereunder without the prior written consent of Provider; except that Utility may assign the Agreement to its successor or any entity acquiring all or substantially all of the assets of Utility by providing Provider with written notice promptly following the acquisition date. The Agreement, including any addenda, exhibits and attachments, constitutes the entire agreement between Provider and Utility with respect to Provider's provision of the Services, and may only be amended in writing signed by each of the Parties. In the event of any conflict between these Terms and Conditions and the Referral Agreement, these Terms and Conditions shall control. If any of its provisions shall be held invalid or unenforceable, the Agreement shall be construed as if not containing those provisions and the rights and obligations of the Parties hereto shall be construed and enforced accordingly. The Agreement shall be binding upon the Parties together with their successors and permitted assigns. Each Party shall be responsible for its Representatives' compliance with the Agreement. 9. Termination. Either Party may terminate the Agreement (i) in the event of the other Party's material breach, provided that the breaching Party fails to cure the specific breach within thirty (30) days following date of written notice from the non - breaching Party specifying the purported breach; or (ii) immediately upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the other Party's debts. 10. Notices. Any notices required or permitted to be given hereunder by either Party to the other Party shall be given in writing by: (i) personal delivery; (ii) bonded courier or nationally recognized overnight delivery company; or (iii) electronic mail. If notice is given by personal delivery, bonded courier or nationally recognized overnight delivery company, such notice shall be addressed to the Parties as follows (or to such other addresses as the Parties may request in writing by notice given pursuant to this Section): to Provider at EnerNOC, Inc., Attn: Legal Department, One Marina Park Drive, Suite 400, Boston, MA 02210; and to Utility at the Utility address indicated on the Referral Agreement. If notice is sent by electronic mail, such notice shall be sent to Provider at contractmanagement @enernoc.com; and /or to Utility at the email address indicated on the Referral Agreement.