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Home My WebLink About5.925 Original Contract 5,q~5 Department of Energy Bonneville Power Administration 909 First Avenue, Suite 380 Seattle, W A 98104-3636 POWER SERVICES In reply refer to: PSW-Seattle Contract No. 09ES-10937 CONSENT AGREEMENT January 12, 2009 Glenn A. Cutler Director of Public Works and Utilities City of Port Angeles P.O. Box 1150 Port Angeles, W A 98362 Dear Mr. Cutler: This Consent Agreement (Agreement) between the United States of America, Department of Energy, municipal utility organized under the laws ofthe State of Washington, provides the City of Port Angeles' (Port Angeles) consent for BPA's hired contractor(s) (Contractor) to Green Motor Rewinding oversight in Port Angeles' service area. BP A and Port Angeles are referred to individually as "Party" and jointly as "Parties." The Parties agree as follows: 1. TERM OF AGREEMENT (a) This Agreement becomes effective at 2400 hours on the date of execution by both Parties (Effective Date), and shall remain in effect until 2400 hours on September 30, 2009, unless terminated earlier as provided in section 5. All liabilities shall remain until satisfied. (b) At the end of this Agreement, Port Angeles may send a written request (per section 14) to BPA for an extension to this Agreement. IfBPA decides to extend this Agreement, BP A shall send a revised Agreement to Port Angeles within 30 days of receiving request. 2 2. DEFINITIONS (a) "Actual Energy Savings" means the verified energy saved, in kilowatt- hours (kWh), attributable to energy conservation work performed under this Agreement. (b) "Contract Closeout Report" means a report delivered to Port Angeles summarizing work performed and signifying that energy conservation work has been completed. (c) "Contractor" means the person and/or company hired by BPA to perform the energy conservation work under this Agreement. (d) "Green Motor Rewinding" means the rewinding of motors as to retain the motors' original nominal efficiency. (e) "Green Motors Incentive Application Form" means a form participating service centers fill out to apply for green motor rewinding incentive payments. (D "Port Angeles' Service Area" means the geographical region surrounding the persons and businesses that purchase power from Port Angeles. 3. GENERAL REQUIREMENTS (a) Port Angeles consents to allow BPA's hired Contractor to perform energy conservation work in Port Angeles' Service Area. (b) The energy conservation work will include the rewinding of National Electrical Manufacturers Association standard horsepower-rated motors between 15 and 5000 horsepower. If Port Angeles would like to extend the type of work to be performed, it shall send such a request to BPA (per section 14). IfBPA agrees to extend the type of work, it shall send a revised Agreement to Port Angeles within 30 days of receiving request. (c) Port Angeles shall be given the option of participating in the marketing of the work to be performed under this Agreement. Such opportunities will be limited to promoting motor rewinding to end users by using marketing templates provided by BPA via email or CD. (d) BPA or Contractor shall update Port Angeles in writing by email between the 10th and 15th day of each month on: (1) the information collected from the Green Motors Incentive Application Form (downloadable from www.greenmotors.org); (2) actual energy savings achieved to date; and (3) actual costs to date. 09ES-10937, Port Angeles 3 (e) BPA disclaims any and all warranties associated with Contractor's performance and does not in any way guarantee energy savings as a result of the completed conservation projects. (D Conservation savings will be included in Port Angeles' Contract High Water Mark calculation pursuant to the rules outlined in BPA's Tiered Rate Methodology and its Record of Decision, as well as BPA's July 2007 Long- Term Regional Dialogue Policy. 4. CONTRACT CLOSEOUT REPORT (a) A Contract Closeout Report is required to be delivered to Port Angeles by BPA or Contractor (per section 14) at the completion of all energy conservation work under this Agreement. (b) The report shall be delivered to Port Angeles within 30 days of completing energy conservation work. 5. TERMINATION (a) Either Party may terminate this Agreement if it gives 30 days written notice of such termination per section 14. (b) If Port Angeles terminates this Agreement after BPA has hired a Contractor, it must allow BPA up to one year from receipt of notice of termination to complete any projects for which the Contractor was hired. 6. GOVERNING LAW AND DISPUTE RESOLUTION The governing law and dispute resolution provisions of Port Angeles' BPA Subscription Power Sales contract apply. 7. AMENDMENTS Except where this Agreement explicitly allows one Party to unilaterally amend a provision or exhibit, no amendment of this Agreement shall be of any force or effect unless set forth in a written instrument signed by authorized representatives of each Party. 8. INTERPRETATIONS BPA's Contracting Officer may issue interpretations, determinations, and findings related to this Agreement that are binding on the Parties. Such decisions shall be provided to Port Angeles in writing (per section 14). In administering this Agreement, only the written statements of BP A officials acting within the scope of their authority shall be considered to be official BPA statements. 09ES-10937, Port Angeles 4 9. ASSIGNMENT This Agreement is binding on any successors and assigns ofthe Parties. BPA may assign this Agreement to another federal agency to which BPA's statutory duties have been transferred without Customer's consent. Otherwise, neither Party may transfer or assign this Agreement, in whole or in part, without the other Party's written consent. Such consent shall not be unreasonably withheld. BPA shall consider any request for assignment consistent with applicable BPA statutes. 10. ENTIRE AGREEMENT This Agreement, including documents expressly incorporated by reference, constitutes the entire agreement between the Parties. It supersedes all previous communications, representations or contracts, either written or oral, which purport to describe or embody the subject matter of this Agreement. 11. WAIVERS No waiver of any provision or breach of this Agreement shall be effective unless such waiver is in writing and signed by the waiving Party, and any such waiver shall not be deemed a waiver of any other provision of this Agreement or any other breach of this Agreement. 12. SEVERABILITY If any term of this Agreement is found to be invalid by a court of competent jurisdiction, then such term shall remain in force to the maximum extent permitted by law. All other terms shall remain in force unless that term is determined not to be severable from all other provisions of this Agreement by such court. 13. UNCONTROLLABLE FORCES The Parties shall not be in breach of their respective obligations to the extent the failure to fulfill any obligation is due to an Uncontrollable Force. "Uncontrollable Force" means an event beyond the reasonable control of, and without the fault or negligence of, the Party claiming the Uncontrollable Force, that prevents that Party from performing its contractual obligations under this Agreement and which, by exercise of that Party's reasonable care, diligence and foresight, such Party was unable to avoid. Uncontrollable Forces include, but are not limited to: (a) strikes or work stoppage; (b) floods, earthquakes, or other natural disasters; terrorist acts; and (c) final orders or injunctions issued by a court or regulatory body having competent subject matter jurisdiction which the Party claiming the Uncontrollable Force, after diligent efforts, was unable to have stayed, suspended, or set aside pending review by a court of competent subject matter jurisdiction. 09ES-I0937, Port Angeles 5 Neither the unavailability of funds or financing, nor conditions of national or local economies or markets shall be considered an Uncontrollable Force. The economic hardship of either Party shall not constitute an Uncontrollable Force. Nothing contained in this provision shall be construed to require either Party to settle any strike or labor dispute in which it may be involved. If an Uncontrollable Force prevents a Party from performing any of its obligations under this Agreement, such Party shall: (1) immediately notify the other Party of such Uncontrollable Force by any means practicable and confirm such notice in writing as soon as reasonably practicable; (2) use its best efforts to mitigate the effects of such Uncontrollable Force, remedy its inability to perform, and resume full performance of its obligation hereunder as soon as reasonably practicable; (3) keep the other Party apprised of such efforts on an ongoing basis; and (4) provide written notice of the resumption of performance. Written notices sent under this section must comply with section 14, Notices and Contact Information. 14. NOTICES AND CONTACT INFORMATION Any notice required under this Agreement that requires such notice to be provided under the terms of this section shall be provided in writing to the other Party in one of the following ways: (a) delivered in person; (b) by a nationally recognized delivery service with proof of receipt; (c) by United States Certified Mail with return receipt requested; (d) electronically, ifboth Parties have means to verify the electronic notice's origin, date, time of transmittal and receipt; or (e) by another method agreed to by the Parties. Notices are effective when received. Either Party may change the name or address for delivery of notice by providing notice of such change or other mutually agreed method. The Parties shall deliver notices to the following person and address: If to BP A: If to Port Angeles: Bonneville Power Administration 707 W. Main, Suite 500 Spokane, WA 99201 Attn: Mr. Erin Hope Mechanical Engineer Phone: (509) 625-1362 Fax: (509) 625-1395 E-Mail: ethope@bpa.gov City of Port Angeles P.O. Box 1150 Port Angeles, WA 98362-0217 Attn: Larry Dunbar Deputy Director of Power Systems Phone: 360-417-4710 FAX: 360-417-4709 E-Mail: ldunbar@cityofpa.us 09ES-10937, Port Angeles 6 15. LIABILITY (a) BPA is solely responsible for paying Contractor for work performed. (b) BPA and Port Angeles agree that BPA may direct Contractors to proceed on any conservation work under this agre,ement. (c) Nothing in this Agreement shall establish, or be construed as establishing, a contractual relationship between BPA and any contractor or subcontractor hired by Port Angeles to participate in the Agreement's implementation. Nor shall this Agreement be construed as establishing a contractual relationship between Port Angeles and any Contractor hired by BP A. (d) Each Party assumes all liability for injury or damage to persons or property arising from the act or negligence of its own employees, agents, or members of governing bodies. Each Party shall indemnify and hold the other party harmless from any liability arising from such negligence. BP A is not responsible for the actions of BPA's Contractor or Contractor's agent or representative and disclaims any liabilities that may be the result of any such actions. 16. SIGNATURES If the foregoing terms are acceptable, please sign both originals and return one original of this Agreement to BP A. The remaining original is for your files. CITY OF PORT ANGELES Sincerely, By v1tL A ~K&~ Director of Public Works and Utilities Shannon K. Greene Account Executive Name Glenn A. Cutler 11-1/<1/ Date S: \ PM \ CDST_SKG \PORT ANGELES \EE_2009_Consent_10937 \PA_I0937 _20090112_Contract]inal.docbcc: 09ES-I0937, Port Angeles