HomeMy WebLinkAbout000479 Original ContractPecr
UTILITY PARTICIPATION AGREEMENT
OVERVIEW
City of Port Angeles
Record #000479
THIS UTILITY PARTICIPATION AGREEMENT (this "Agreement is dateci�)(414— Jo 2012 (the
"Effective Date between Portland Energy Conservation, Inc., an Oregon nonprofit corporation "PECI
and The City of Port Angeles, a municipal utility "Utility
A. PECI and the Bonneville Power Administration "BPA have entered into an agreement dated
October 21, 2011 (the "BPA Agreement under which PECI is implementing and managing the
EnergySmart Grocer Program (the "Program throughout various territories in the Northwest
on behalf of BPA.
B. The Program encourages improvements in energy efficiency by evaluating and executing energy
saving initiatives. Customers (defined in Section 2 below) that participate in the Program may
qualify for incentives funded by Utility. PECI and Utility are entering into this Agreement so that
PECI may carry out its obligations under the BPA Agreement and Utility can avail itself and its
customers to the services offered by PECI.
C. By signing this Agreement, Utility affirms and agrees to the terms and conditions contained in
this Agreement. As an additional requirement for participation in the Program, Utility must
provide PECI with the Energy Smart Grocer Program Sign -up Form (the "Form provided by BPA
to be attached to this Agreement as Exhibit A. Utility affirms and agrees that the information
provided by Utility in the Form (including the final incentive budget) is accurate and
acknowledges that such information will be relied upon by both PECI and BPA. Utility will
provide PECI with sixty (60) days notice prior to changing any funding amounts or program
scopes.
AGREEMENT
1. TERM. This Agreement is effective from the Effective Date and will continue until September
30, 2013 renewing automatically for successive two (2) year periods, unless terminated in
accordance with the provisions in this Agreement. Prior to the expiration of the preceding
Term, Utility will provide PECI and BPA with an updated Form in the format set forth in Exhibit A.
2. PROGRAM ELIGIBLITY. "Customers" under the Program means Utility customers that have
commercial refrigeration load, including for example, supermarkets, restaurants, institutional
kitchens, and other commercial refrigeration sites (each, a "Facility
3. INSURANCE. PECI and any subcontractor engaged by PECI in its performance of this Agreement,
shall carry and maintain fully paid commercial general liability, automobile liability and workers
compensation insurance. All policies shall be written only by insurers admitted to do business in
Washington and having a rating of at least "A" and a financial rating of at least "VIII" on the
most current edition of the Best's Key Rating Guide or comparable rating by another generally
recognized rating agency. All policies shall be endorsed to (a) specify the City of Port Angeles as
an additional insured to the full extent of its right to indemnification under this Agreement, and
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(b) provide that the City shall be given no less than thirty (30) days advance written notice of
cancellation or material change in coverage. Certificates of Insurance shall be sent to the City
before work begins.
4. PECI shall obtain the following minimum insurance coverage "Required Insurance prior to the
Effective Date, at its expense, and keep the Required Insurances in effect during the term
except with respect to Professional Liability Insurance, when they shall be kept in effect for a
period of the Term plus two years):
a. Workers' Compensation Insurance in compliance with the statutory requirements;
b. Commercial General Liability Insurance (including contractual liability), on an occurrence
basis, with not less than $1,000,000, per occurrence for bodily injury and property
damage liability, with an annual aggregate limit of $2,000,000;
c. Professional Liability Insurance, including errors and omissions coverage, with a per
occurrence and aggregate limit of not Tess than $1,000,000, to protect against all loss
suffered by the City of Port Angeles or third parties, including financial and
consequential loss, cause by error, omission, or negligent acts related to provision of the
Services;
d. Commercial Automobile Liability Insurance, with a combined single limits, or the
equivalent of not less than $1,000,000 per occurrence, for bodily injury and property
damage with respect to PECI's vehicles, whether owned, hired, or non owned, assigned
to, or used by PECI in connection with the Services; and
e. Umbrella coverage in excess of the Workers' Compensation Coverage B (Employers'
Liability), Commercial General Liability, and Commercial Automobile Liability insurances
specified above of not less than $5, 000,000.
5. PECI PROGRAM SERVICES.
a. Customer Contact. Utility authorizes PECI to contact Customers by phone, mail, email
or in person for the purpose of informing them about the Program and its processes.
b. Audits. PECI will work with Customers to schedule audits of their Facilities (each, an
"Audit Utility may elect to attend an Audit following notice to PECI. Audits will be
conducted in accordance with Subsection (h) below. PECI may elect to conduct site
assessments in addition to or in lieu of Audits.
c. Direct Installs. PECI or PECI's field energy analyst may, with the Customers' approval
and in their sole discretion, decide to install some "quick payback" items on their first
visit to a Facility. Quick payback installations may include, but are not limited to,
beverage merchandise controls or compact fluorescent lamps. The cost of the install
will be borne by the Customer and not the Utility.
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d. Recruiting and Managing Trade Allies. PECI may assist Customers in selecting general
contractors to perform work under the Program (each, a "Contractor"). PECI will assist
Customers with their selected Contractor by providing training on the Program and
support to the Contractor that PECI deems necessary in its sole discretion. PECI shall
not be liable for Contractor conduct, misrepresentations or negligence.
e. Technical Design Review. PECI will obtain a technical design review of a potential
measure(s) for a Customer upon Customer's request.
f. Determining kWh Savings. In addition to regionally deemed savings methods, PECI will
use its proprietary modeling software to determine energy savings by measure a
Customer installs in a Facility. The energy savings are based on DOE -2 parametric runs
and engineering calculations which account for many variables including the Facility's
particular climate zone, compressor configuration, condenser type, condenser
degradation factors, and hours of operation. PECI's software estimates are site and
climate specific. PECI will use these savings calculations when submitting savings
measurements to Utility. PECI will also derive prescriptive energy savings for measures
that do not require an onsite audit. These measures are not climate or system specific.
Lighting savings will be estimated using the BPA Commercial /Industrial Lighting Offer
procedures.
g. Post Installation Inspections. PECI performs post installation inspections through site
inspection or verification of documentation controls.
h. Service Levels. PECI will conduct audits with in accordance with the schedule below
based upon committed incentive funds.
Service Level I ($50,000 and above in committed incentive funds for FY2012- 2013):
Utilities in the Service Level I category will receive a minimum of two (2) field visits
annually, audit requests fulfilled within sixty (60) days, and offered deemed and
calculated measures. PECI will provide post installation inspections for all projects with
total project costs over $10,000.
Service Level II (less than $50,000 in committed incentive funds for FY2012- 2013): If
Utility falls into Service Level II category, PECI may elect to perform a field visit at its sole
discretion. As a standard offering, PECI will offer deemed Measures only. Audits,
calculated measures, and post installation inspections will be offered on a case by case
basis and at PECI's sole discretion. PECI will also offer outreach training for Utility staff
(at Utility's request). Utilities in Service Level II will be required to commit a minimum
of $25,000 of incentive funding or be subject to PECI approval for participation in the
Program.
i. Rebate Processing and Reporting. PECI will review and approve all Customer rebate
applications and invoices for completeness and provide the information necessary to
substantiate energy savings and Customer rebate eligibility. For Utilities that elect the
BPA Turnkey Option, PECI will submit all rebates applications to BPA for its review and
approval. All rebates are subject to BPA's approval. PECI will not pay rebates that are
rejected by BPA. For Utilities that elect the Self- funded Turnkey Option, PECI will submit
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Program Component
BPA Turnkey Option
Responsible Party
Self- funded Turnkey
Option Responsible
Party
Rebate check issuance
PECI
PECI
Post Installation
verification
PECI
PECI
Management of
required back -up
documentation
PECI
PECI
Review and acceptance
of PECI- submitted data
to BPA
BPA
Utility
Reimbursement to PECI
for incentives paid to
Customers
BPA
Utility
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all rebates applications to the Utility for its review and approval. PECI shall not be
responsible for any claims rejected by the Utility for any reason. PECI reserves the right
to subcontract rebate or check processing and similar functions. The chart below
designates the responsible party for each Program component depending on which
funding option is elected in the Form.
Rebate Payments. With'n ten (10) business days of BPA's or Utility approval of
submitted rebates, PECI will mail checks to Customers or Customer designated rebate
payees. Checks will be accompanied with a letter including Utility's logo in accordance
with Section 5 below, thanking the Customer for their participation in the Program.
k. Program Reports. PECI will provide Utility with limited access to its online portal,
Salesforce Sprocket or Sprocket Dashboard, which Utility may use for the sole purpose
of viewing completed Audits, dates of any re- visits, rebate activity, rebate savings, to
obtain copies of completed audit reports, view pipeline projects and associated kWh
savings.
I. Targeted Facilities. Utility would like PECI to target all eligible facilities. More
specifically, for Program initiatives around refrigeration PECI will target:
i. Grocers and national accounts;
ii. Convenience stores;
iii. Restaurants; and
iv. Other commercial refrigeration sites.
6. ACCEPTANCE. Utility's acceptance of the terms and conditions set forth in this Agreement is
required for participation in the Program. Utility acknowledges that the terms and conditions of
the Program are subject to change at PECI's sole discretion.
7. USE OF UTILITY MARKS. During the term of this Agreement, Utility grants to PECI a
nonexclusive, royalty free right to use its trademarks, service marks, trade names, logos, or
similar markings (each a "Mark subject to the limitations contained in this Agreement. PECI
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may use the Marks on its website, in its advertising and other promotional activities related to
the Program as well as on checks and other mailings to Customers or Contractors. Utility
represents and warrants that it owns title to all Marks and agrees to indemnify PECI for any third
party claims against PECI for misuse or infringement of the Marks or any claims by any third
party pursuant to the exercise of PECI's rights under this Agreement.
8. TERMINATION. The parties may terminate this Agreement for cause in the event of any default
by the other party following written notice of any default and commercially reasonable
opportunity for the defaulting party to cure such default. PECI reserves the right to terminate
the Program, this Agreement or any part of this Agreement at the direction of BPA for any
reason or for no reason in its sole discretion. In the event of such termination, the Utility shall
at the election of PECI: (a) immediately cease participation in the Program, including but not
limited to, any applicable use of Program materials, logos or other advertising tools, equipment,
and incentive forms; or (b) finalize Program projects in progress at the time of termination as
directed by PECI. PECI and BPA will not pay Utility for post- termination activity after receipt of
notice of termination unless such PECI elects for Utility to finalize such projects pursuant to
Section 6 (b) above.
9. CONFIDENTIAL INFORMATION. The parties will not use any Confidential Information for any
purpose other than as needed to perform their respective obligations under this Agreement.
Each party agrees to hold all Confidential Information in strict confidence and not disclose any
Confidential Information to any person other than to its employees and independent
contractors who (a) have a "need to know (b) have been advised of the confidential and
proprietary nature of the Confidential Information and (c) have signed a written agreement that
is as protective of the Confidential Information as that set forth in this Section. When the
parties have fully performed their respective obligations under this Agreement, or at any other
time upon request from the party disclosing the Confidential Information, the party in receipt of
the Confidential Information will return or destroy all Confidential Information in tangible form
that is in their possession. The term "Confidential Information" means all information and
materials relating to Utility or PECI's business, in whatever form or medium, disclosed to or
received by the receiving party, whether visually, by perception, orally or in writing, whether
disclosed before or after the Effective Date, and whether or not specifically marked or otherwise
identified as "Confidential" or "Proprietary," including all summaries and notes prepared by or
on behalf of the other party, except that "Confidential Information" does not include any
information that the receiving party demonstrates: (x) has become generally available to the
public without breach of this Agreement; (y) was later received from another person who did
not violate any duty of confidentiality; or (z) that was developed without use of any Confidential
Information by persons who were not exposed to the Confidential Information. Utility
acknowledges the Program handles Customer information such as pricing, invoices,
Customer addresses, rebate information, utility account numbers and tax identification
numbers. If Utility receives a public records request for information that includes
Customer information, Utility shall notify PECI and the Customer of the request and
postpone the release of information for ten business days to allow the Customer to file
a lawsuit seeking an injunction preventing the release of the documents pursuant to
RCW 42.546.540. Unless the Customer obtains and serves an injunction upon the Utility
before the close of business on the tenth business day after the date of the notification,
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the Utility may release the documents. It is the Customer's discretionary decision
whether to file the lawsuit. For purposes of this Agreement, any information related to
pricing, invoices, Customer addresses, rebate information, utility account numbers and
tax identification numbers to the Utility by PECI shall at all times be considered
confidential and proprietary.
10. PROGRAM CHANGES PECI reserves the right to make changes to the Program. PECI will notify
Utility of such changes by email or another nationally recognized mail carrier.
11. MISCELLANEOUS.
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(a) Indemnity. Utility will indemnify, hold harmless, and defend BPA, PECI and, their
respective officers, employees, agents, representatives, and affiliates against any and all
losses, liabilities, damages, claims, suits, proceedings, judgments, assessments, costs,
and expenses (including interest and penalties), and including reasonable attorney fees
and expenses, incurred by BPA and PECI arising from (i) negligent or wrongful acts or
omissions of the Utility or of its officers, employees, agents, representatives, or
subcontractors, affiliates, or (ii) breach by Utility or its officers, employees, agents,
representatives, subcontractors, or affiliates of this Agreement.
PECI shall defend, indemnify and hold harmless Utility, and its respective employees,
agents, officers and directors, from and against any losses, liabilities, damages, claims,
damages, proceedings, judgments, assessments, costs and expenses (including interest
and penalties), and including reasonable attorney fees and expenses arising out of, or
resulting from any act or omission of PECI relating to, or arising out of, performance or
nonperformance of this Agreement by PECI, except to the extent such act or omission is
due to the negligence of Utility or its subcontractors or any other third party.
The parties specifically agree that the provisions of this Section also apply to any claim
of injury or damage to the persons or property of the Utility's employees. Utility
acknowledges and agrees that, as to such claims, Utility, with respect to PECI waives any
right of immunity which Utility may have under any applicable law. This waiver was
specifically negotiated by the Parties, is solely for the benefit of the Parties and their
successors and assigns, and is not intended as a waiver of Utility's right of immunity
under said industrial insurance for any other purpose.
(b) Attorney's Fees. In the event an action is brought to enforce any provision of or
declare a breach of this Agreement, the prevailing party shall be entitled to recover, in
addition to any other amounts awarded, reasonable legal costs including attorney's fees
incurred.
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(c) Notices. Except as otherwise provided in the Agreement, all notices or other
communications under this Agreement must be in writing and delivered to the
addresses, including e-mail addresses, below the signatures to this Agreement. Such
addresses may be changed by notice given by such party to the other pursuant to this
section or by other form of notice agreed to by the parties.
(d) Assignment. Neither party may assign, voluntarily, or by operation of law, or
otherwise, any rights or delegate any duties under this Agreement without the other
Party's prior written consent. Any attempt to do so without that consent will be void.
(e) Entire Agreement; Counterparts. This Agreement contains the entire agreement of
the parties regarding the subject matter described of the Agreement, and all other
promises, representations, understandings, arrangements and prior agreements related
to this Agreement are merged and superseded by this Agreement. The provisions of
this Agreement may not be amended, except by an agreement in writing signed by the
party against whom enforcement of any amendment is sought. This Agreement may be
executed in two (2) or more counterparts, all of which will constitute but one and the
same instrument.
(f) Governing Law; Jurisdiction and Venue. This Agreement will be interpreted under,
and any disputes arising out of this Agreement will be governed by, the laws of the State
of Washington, without reference to its conflicts of law principles. Exclusive venue in
case legal suit or action is instituted to enforce compliance with any terms, covenants,
or conditions of this agreement shall lie in Clallam County, Washington. Both parties
agree to submit to the personal jurisdiction of any court of competent subject matter
jurisdiction in Clallam County, Washington. In the event legal suit or action, including
any appeals there from, brought by either party against the other to enforce any
obligations hereunder or arising out of any dispute concerning the terms and conditions
hereby created, the losing party shall reimburse the prevailing party for its reasonable
attorney fees and cost occurred in the suit or action including investigation costs, expert
witness fees and all cost of depositions. If any part of this agreement is found to be in
conflict with applicable laws, such parts shall be inoperative, null and void so far as it is
in conflict with said laws, but the remainder of this agreement shall be In full force and
effect.
(f) Severability. Should any provision of this Agreement be held by a tribunal of
competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement
will remain in full force and effect.
(g) Waiver of Breach. The failure of either party to enforce strict performance by the
other of any provision of this Agreement, or to exercise any right available to the party
under this Agreement, shall not be construed as a waiver of such party's right to enforce
strict performance in the same or any other instance.
(h) Representation on Authority of Signatory. The individual signing this Agreement
represents and warrants that he or she is duly authorized and has the legal capacity to
execute and deliver this Agreement on behalf of Utility. Utility represents and warrants
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PECI
By:
Dan McDo d
Associate Director
Notice Address:
100 SW Main St., Suite 1600
Portland, OR 97204
Attention: Dan McDonald
Phone: (503) 575 -4179
Email: dmcdonald @peci.org
With a copy to:
100 SW Main St., Suite 1500
Portland, OR 97204
Attention: Joe Mattoon
Phone: (503) 248 -4636
Email: jmattoon @peci.org
P e c r
that the execution and delivery of this Agreement and Recipient's obligations under this
Agreement have been duly authorized and that the Agreement is a valid and legal
agreement binding on Utility and enforceable in accordance with its terms.
(i) Disclaimer. PECI'S REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR
MAINTENANCE OF INSTALLATIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS
TO THE ECONOMIC OR TECHNICAL FEASIBLITY, OPERATIONAL CAPABLITY OR RELIABLITY
OF THE INSTALLATIONS. CUSTOMERS AND CONTRACTORS ARE SOLEY RESPONSIBLE FOR
THE ECONOMIC AND TECHNICAL FEASIBLITY, OPERATIONAL CAPABLITY AND RELIABLITY
OF ALL INSTALLATIONS. PECI SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO, LOSS OF ANTICIPATED REVENUE, PROFITS, OR
GOODWILL, WHETHER ARISING IN NEGLIGENCE, BREACH OF CONTRACT, OR UNDER
STATUTE OR RULE.
The parties, by their respective duly authorized representatives, have executed this Agreement on the
date shown below. This Agreement shall not bind either party until executed by both parties.
Portland Energy Conservation, Inc.
Utility
By:
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Dan McKeen
Acting City Manager:
Work: (360) 417 -4718
Notice Address:
321 E 5 Street
Port Angeles, WA 98362
E- mail:conservation @cityofpa.us
Peel°
EXHIBIT A
Energy Smart Grocer Program Sign -up Form
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Energy Smart Grocer Program Sign -up Form FY2012- FY2013
Date: Is this a revision? Yes No
Email completed form to your EER and COTR. Upon COTR written acknowledgement of your completed
form, your information will be forwarded to PECI.
1. Customer Information
Customer: City of Port Angeles
Authorized Representative Name: Dan McKeen
Contact Person: Bob Kajfasz Phone: 360 417 -4718 Email: rkajfasz(acityofpa.us
2. Option Election
Select one option below. Under all options, PECI is responsible for rebate processing and check issuance, post
installation checks as required, management of required back -up documentation and uploading project data to EE
Central.
BPA Turnkey Option (funded by the Energy Conservation Agreement Implementation Budget)
The COTR will make a reduction to the customer's Energy Conservation Agreement Implementation Budget,
Exhibit A, in an amount equal to elected funding. BPA will reimburse PECI for incentives paid to end users in
the customer's service territory and will review PECI submissions in EE Central for acceptability.
Self funded Turnkey Option (funded by the customer's own funds)
Customers will use their own funds to reimburse PECI for incentives paid to end users in their service territory
and will review PECI submissions in EE Central for acceptability.
Combined BPA Turnkey Option and Self- funded Turnkey Option
Customers will initially be enrolled in the BPA Turnkey Option, and when the BPA Turnkey Option funding is
depleted, they will be automatically transitioned into the Self funded Turnkey Option. Customers electing this
option must complete funding amounts in section 3 for both the BPA Turnkey Option and the Self funded
Turnkey Option.
3. Funding Amount (FY2012 FY2013)
Provide the funding amount(s) (below) for the program option selected above. Customers must commit a
minimum of $25,000 or be approved for participation by PECI. Approved customers will receive a service
agreement from PECI. Non approved customers will be notified by BPA, and BPA engineers will help customers
deliver deemed refrigeration measures outside the Energy Smart Grocer Program.
BPA Turnkey Amount (ECA):
Self- Funded Turnkey Amount:
Total Funding:
$25000
$25000
TotalFund glLevel'
$50,000.00 and above
$49,999.99 and under
t er y cel Desc ipti on
PECI will (1) perform a minimum of two visits per fiscal year (to contractors
and /or end users) in customer's service territory, (2) perform requested audits
within 60 days of request, (3) provide deemed and calculated measures and (4)
provide inspections for projects with total costs over $10,000.00.
PECI may perform one visit (to a contractor /end user) in customer's service
territory and will provide (1) a minimum of one end -user outreach training for
customer staff (at customer's request), (2) deemed measures only, and (3)
audits, calculated measures and post installation inspections on a case -by -case
basis at PECI's discretion.
4. Program Scope
Program scope automatically includes core refrigeration energy efficiency measures, including lighting
in refrigerated spaces, in all potential end -user types (e.g., grocery/convenience stores, restaurants,
schools, and other commercial refrigeration equipped facilities). Select additional program components
by checking the boxes below.
Interior and exterior lighting in other areas if a refrigeration project is completed or pursued
New construction (only in buildings equipped with refrigeration)
Existing building commissioning (only in buildings equipped with refrigeration)
HVAC (only in buildings equipped with refrigeration)
MEMO
PUBLIC WORKS
UTILITIES
DEPARTMENT
Glenn A Cutler
Director [4801
Linda Gunderson
Administrative Assistant
[4800]
Sondya Wray
Administrative Assistant
[4700]
Randall Brackett
Deputy Director [4802]
Mike Puntenney
Deputy Director
and
City Engineer [4803]
Larry Dunbar
Deputy Director [4710]
Terry Dahlquest
Electrical Engineenng Mgr
[4702]
Kathryn J, Neal
Engineering Mgr
[4821]
Philip Lusk
Power Resources Mgr
[4703]
Ernie Klimek
Water, Wastewater
Collection Supenntendent
[4855]
Dennis McBride
Equipment Services
Superintendent
[4835]
Jim Klarr
Light Operations Manager
[4731]
Jeff D Young
Treat Plant Superintendent
[4845]
Tom McCabe
Solid Waste
Superintendent [4872]
Eric Wheatley
Street Maintenance
Supervisor [4825]
WASHINGTON, U S A
DATE: June 25, 2012
TO: Dan McKeen, City Manager
FROM: Bob Kajfasz, Commercial Energy Analyst
RE: Energy Smart Grocer Agreement
Attached for your review and signature are two originals of the Energy Smart
Utility Participation Agreement between Portland Energy Conservation,
incorporated and the City.
Also attached is a copy of the June 5, 2012 City Council Agenda that includes the
agreement in the Consent Agenda.
Please sign the two originals and return to me for further distribution.
I am available at extension 4718 if you should have questions.
Thanks
Bob