HomeMy WebLinkAbout1995-115 Agrmt - BPA/OMECAExhibit J, Page 1 of 2
Contract No. DE-MS79-94BP94498
Procurement No. 56865
OMECA
Effective at 2400 hours on the
Effective Date
AUTHENTICATED
OMECA
Member Utility Conservation Contracts
to be Terminated or Modified
UTILITY J CONTRACT# ] PROGRAM [ AREA I EXPIRES
CITY OF ASHLAND
DE-MS79-92BP93796 Commercial
DE-MS79-91BP93533 RCA
DE-MS79-96BP92907 Weatherization
L 6/30/2001
L 6/30/2001
L 6/30/2001
FOREST GROVE
MCMINNVILLE
MILTON-FREEWATER
MONMOUTH
DE-MS79-92BP93806 Commercial
DE-MS79-91BP93537 RCA
DE-MS79-96BP92922 Weatherization
DE-MS79-92BP93807 Commercial
DE-MS79-91BP93549 RCA
DE-MS79-96BP92924 Weatherization
DE-MS79-92BP93853
DE-MS79-91BP93569
DE-MS79-90BP92970
DE-MS79-92BP93799
DE-MS79-91BP93535
DE-MS79-96BP92925
L 6/30/2001
L 6/30/2001
L 6/30/2001
L 6/30/2001
L 6/30/2001
L 6/30/2001
Commercial W 6/30/2001
RCA W 6/30/2001
Weatherization W 6/30/2001
Commercial L 6/30/2001
RCA L 6/30/2001
Weatherization L 6/30/2001
SPRINGFIELD UTILITY DE-MS79-92BP93803 Commercial L
BOARD DE-MS79-91BP93554 RCA L
DE-MS79~93BP93976 Industrial L
DE-MS79-96BP92928 Weatherization I_
6/30/2001
6/30/2001
6/30/2001
6/30/2001
Revision No. 2 ~
Contract No. DE-MS79-94BP94498
Procurement No. 56865
OMECA
Effective at 2400 hours on the
Effective Date
Page 2 of 2
PLEASE NOTE:
Canby Utility Board has been removed from this contract at Canby and
OMECA's request:
By: /S/PAUL J. O'NEAL
Name: Paul J O'Neal
Title: Customer Account Executive
Date: 9/15/95
OREGON MUNICIPAL ENERGY AND
CONSERVATION AGENCY
By: /S/ROBERT J. SCHM1TT
Name: Robert J. Schmitt
Title: Chairman
Date. 10/30/95
AUTHENTICATED
Amendment No. 001 ·
Contract No. DE-MS79-94BP94498
Procurement No. 56865
OMECA
Effective at 2400 hours on the
Effective Date
CONSERVATION PROJECT AGREEMENT
executed by the
UNITED STATES OF AMERICA
DEPARTMENT OF ENERGY
acting by and through the
BONNEVILLE POWER ADMINISTRATION
and
OREGON MUNICIPAL ENERGY AND CONSERVATION AGENCY
Index to Sections
Section
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
Page
Term of Agreement .......................................................................................... 4
Definitions ......................................................................................................... 4
Exhibits ........................................................................................................... 9
Debt Service and Trustee Cost Payment .............................................................. 9
OMECA Duties ................................................................................................ 9
Procedures for Addition or Revision of Program Exhibits ................................... 11
Project Implementation Period Duration and Bond Funding Levels .................... 12
Performance Review .......................................................................................... 12
Direct Funding by Bonneville .............................................................................. 13
Project Financing By OMECA ........................................................................... 14
Budget ............................................................................................................... 16
Invoicing and Payment ....................................................................................... 17
Records and Audits ............................................................................................ 19
Bonneville Oversight .......................................................................................... 20
Default and Cure Provisions ............................................................................... 22
Evaluation .......................................................................................................... 23
Transition .......................................................................................................... 23
Failure to Place Load on Bonneville .................................................................. 24
Close Out .......................................................................................................... 25
Post Close Out Budget and Payment of Costs .................................................... 25
Authorized Representatives ................................................................................ 26
Notices and Communications ............................................................................ 26
Third Party Conservation in OMECA'S Service Area ........................................ 27
Entire Agreement .............................................................................................. 27
Uncontrollable Force ......................................................................................... 27
Index to Sections
Section
26.
27.
28.
29.
30.
31.
3Z
33.
34.
35.
36.
37.
Page
Dispute Resolution ............................................................................................. 27
Assignment ........................................................................................................ 28
Governing Law .................................................................................................. 28
Hold Harmless ................................................................................................... 28
Waivers ............................................................................................................. 28
Invalid Provision ................................................................................................ 29
No Unspecified Party Beneficiaries ..................................................................... .:2.9
Amendment of Agreement ................................................................................. 29
Agreement of The Parties .................................................................................. 29
Conflicting Provisions ............................................................................ -. .......... 29
Other Provisions ................................................................................................ 29
Signature Clause ................................................................................................ 30
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Exhibit L
Provisions Required by Statute or Executive Order .................. 9
Implementation Budget ........................................................... 9
Long-Term Super Good Cents Program .................................... 9
Appliance Efficiency Program ............................................... 9
Residential Weatherization Conservation Acquisition .......... 9
Energy Smart Design 9
Energy Savings Program ................................................... 9
Reports ............................................................................. 9
Invoice ................................................................................. 9
Terminated or Modified Member Utility
Conservation Contracts ........................................................ 9
Levelized Cost Methodology ..................................................... 9
Bonneville's October 1993 Energy Conservation
Policies, and Bonneville's November 1993 Energy
Conservation Guidebook ..................................................... 9
This CONSERVATION PROJECT AGREEMENT (this Agreement), between UNITED
STATES OF AMERICA, Department of Energy, acting by and through the Administrator of the
BONNEVILLE POWER ADMINISTRATION(Bonneville) and OREGON MUNICIPAL ENERGY
AND CONSERVATION AGENCY (OMECA), an intergovernmental entity organized and existing
under
the laws of the State of Oregon, known hereinafter as Party or Parties.
WITNESSETH:
WHEREAS Bonneville is autho,r, ized by the Pacific Northwest Electric Power Planning and
Conservation Act, Public Law 96-501 ( Northwest Power Act"), to meet the actual or planned load
growth
of its customers in significant part through the acquisition of cost-effective Conservation; and
WHEREAS Bonneville is directed by the Northwest Power Act to make maximum practicable
use of its utility customers and local entities when implementing Conservation measures which require
direct arrangement with Consumers; and
WHEREAS under this Agreement Bonneville intends to acquire and OMECA intends to
provide Conservation resources which are cost effective and reliable and shall reduce Bonneville's firm
load obligations; and
WHEREAS the method of funding Conservation set forth in this Agreement is expected to
reduce Bonneville's borrowing from the United States Treasury, to provide OMECA's Member
Utilities with greater stability of Conservation funding and to increase the acquisition of Conservation
resources in the region at lower cost; and
WHEREAS Bonneville's obligation hereunder is not, nor shall it be construed to be a general
obligation of the United States, nor is it intended to be or is it secured by the full faith and credit of the
United States; and
WHEREAS as provided in this Agreement, Bonneville intends to Direct Fund the of the
Project prior to receiving a Northwest Power Act section 9(f) ruling and OMECA intends to
reimburse Bonneville for all Direct Funding from bond proceeds as soon as possible once bonds are
sold; and
WHEREAS the Parties intend that, subject to the terms and conditions of this Agreement,
OMECA will issue Bonds, the interest of which is excluded from gross income under the Code and
secured solely by this Agreement to fund the implementation of the Project; and
WHEREAS the Energy Savings proposed to be provided to Bonneville under this Agreement
will be realized from Measures and Units implemented solely in service .areas of the Member Utilities
of OMECA; and
WHEREAS the Measures and Units expected to be installed under this Agreement in the respective
service territories of the Member Utilities of OMECA are expected to achieve Energy Savings by Fiscal
Year 1996 as follows: (1) approximately 0.34 average megawatts of Energy Savings in the service territory
of the City of Ashland;; (2) approximately 0.45 average megawatts of Energy Savings in the service
territory of the City of Forest Grove; (3) approximately 0.34 average megawatts of Energy Savings in the
service territory of the City of McMinnville, (4) approximately 0.25 average megawatts of Energy Savings
in the service territory of the City of Milton-Freewater; (5) approximately 0.10 average megawatts of
Energy Savings in the service territory of the City of Monmouth; and (6) approximately 2.52 average
megawatts of Energy Savings in the service territory of the Springfield Utility Board; and
WHEREAS to the extent Measures and Units are installed under this Agreement in each of the
service territories of the Member Utilities of OMECA, each such Member Utility shall constitute a
"utility that.., sponsors a resource" within the meaning of the Procedure
and Methodology for Effecting the Certifications and Determinations Prescribed in section 9(f) of the
Northwest Power Act, approved and transmitted by the Secretary of the Treasury to Bonneville on
February 26, 1985, as amended;
NOW, THEREFORE, the Parties hereto mutually agree as follows:
TERM OF AGREEMENT
This Agreement, shall become effective on the Effective date, and shall remain in effect until
the later of: (a) the end of the Close Out Period; or (b) such time as there are no Bonds
Outstanding. All obligations incurred hereunder shall be preserved until satisfied.
DEFINITIONS
The following terms shall be defined as follows:
(a)
"Actual Implementation Costs" means the sum of: (1) Implementation Costs which
have been invoiced to Bonneville or the Trustee; and (2) Obligated Implementation
Costs.
(b)
"Bond Financing Costs" means the costs and expenses necessary and appropriate for
the authorization, issuance, and sale of Bonds pursuant to the Indenture. Such costs
include but are not limited to bond discounts, bond insurance premiums, letter of credit
fees, the costs of compliance with disclosure or other similar requirements, and fees for
bond counsel and other legal counsel, independent auditors, bond and other printing,
financial advisor, bond registrar, and Trustee Costs.
(c) "Bond Fund" means such fund and its accounts designated in the Indenture.
(d)
"Bond Proceeds" means, with regard to an issuance of Bonds, the funds from the
issuance and sale of such Bonds.
(e)
"Bonds" means the Project revenue bonds, notes, or other debt obligations of OMECA,
including, but not limited to, reimbursement obligations, derivative securities and junior
lien debt, authorized to be issued pursuant to and under the authority of and for the
purposes provided in the Indenture, including but not limited to Project
implementation, completion of the Project, refunding Bonds or any other lawful
purpose of OMECA related to the Project.
(f) "Bonds Outstanding" means the Bonds that are outstanding as defined in the Indenture.
(g)
(h)
"Close Out Period" means the period commencing with the end of the Project
Implementation Period, and ending on the earlier of 2 years from such date or the date
all Work in Progress is completed.
"Code" means the Internal Revenue Code of 1986, as amended, and any regulations
issued thereunder.
4
(i)
O)
(k)
(1)
"Completed Unit" means a Measure or Unit which has satisfied the completion
requirements set forth in the Program Exhibits.
"Conservation" means an increase in the efficiency of electric use, production or
distribution, expected to result in load reduction.
"Consumer" means any end-user of electric energy in a Member Utility's service area.
"Contracting Officer" means the person designated in writing by Bonneville who has
the authority to enter into, administer, or modify this Agreement, and to make related
determinations and findings. The Contracting Officer may bind Bonneville only to the
extent of the delegated authority.
(m) "Debt Service" means the amount required to be paid when due under the Indenture, as
follows:
(n)
(o)
(1) . the interest on all Outstanding Bonds, excluding interest paid from Bond
Proceeds;
(2)
the principal of all Outstanding Bonds, whether at scheduled maturity or by
reason of redemption, including sinking fund installments required to amortize
the Bonds that are term bonds, if any;
(3) premiums for redeeming Bonds prior to their scheduled maturity;
(4)
any regularly scheduled payments required to be made by O1VIECA pursuant to
a derivative product adjusted by any regularly scheduled payments to be made
by another Party to the derivative product; and
(5)
amounts required to restore funds and accounts established under the Indenture
to the levels required to be maintained therein by the Indenture.
For purposes of this definition, the principal and interest portions of capital
appreciation Bonds and deferred income Bonds becoming due at maturity or by virtue
of a sinking fund installment shall be included in the calculations of accrued interest or
principal and any variable rate Bonds shall be calculated in such manner as specified in
the Indenture.
"Direct Funding" or "Direct Fund" means the provision by Bonneville of funds to
OMECA for Implementation Costs on an invoice basis.
"Effective Date" means the date of execution when both Parties have signed this
Agreement and OMECA and the Member Utilities have signed the conservation project
implementation agreement.
(P)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
"Energy Savings" means the estimated, deemed, or verified Conservation measured in
average annual megawatts (aMW) attributable to Completed units or Measures, as
determined pursuant to the Program Exhibits.
"Energy Savings Achieved" means the sum of: (1) the Energy Savings for Completed
Units or Measures as set forth in the Program Exhibits; and (2) for Obligated Units,
the expected Energy Savings derived from the engineering model or other analytical
tool used to estimate the expected Energy Savings for such Obligated Unit, as set forth
in the Program Exhibits.
"Energy Savings Target" means the amount of Energy Savings in aMW which the
Project is expected to achieve as set forth in any Implementation Budget.
"Evaluation Costs" means those costs incurred by OMECA and its Member Utilities for
evaluations conducted by Bonneville pursuant to section 16.
"Fiscal Year" means any consecutive twelve (12)-month period commencing October 1
and ending on the following September 30.
"Forecast Implementation Costs" means the original estimate of Implementation Costs
contained in Exhibit B.
"Implementation Budget" means a budget proposed by OMECA and approved by
Bonneville as set forth in Exhibit B
"Implementation Costs" means costs for the installation of Measures and Units
pursuant to the Program Exhibits;, Member Utility Implementation Costs pursuant to
the Program Exhibits, and OMECA Administrative and Operating (A&O) costs.
"Implementation Fund" means a fund established in accordance with the Indenture, for
the deposit of certain Bond Proceeds to pay for Implementation Costs and such other
costs as may be prov ded in the Indenture.
"Incentive Payment" means an amount due pursuant to section 8(d).
"Indenture" means that certain trust indenture for the Bonds between OMECA and the
Trustee and all indentures supplementing or amending such Indenture.
"Levelized Project Cost" means the discounted present value of total Project costs,
divided by the discounted present value of Energy Savings Achieved through
implementation of Units or Measures. The calculation of Levelized Project Cost shall
be consistent with the methodology shown in Exhibit K and shall be expressed in 1993
dollars.
(bb) "Levelized Project Cost Target" means that Levelized Project Cost estimate prepared
and shown in Exhibit K, that is based on the Implementation Budget.
(cc) "Measure" means materials or equipment installed, or activities undertaken, to achieve
Conservation, as set forth in theProgram Exhibits, and any additions or deletions
thereto pursuant to section 6 hereof
6
(rd)
(ce)
(fO
(gg)
(hh)
(ii)
"Member Utility" means a utility that is a member of OMECA, and that has a contract
with OMECA to implement the Project.
"Member Utility Implementation Costs" means those A&O expenses of Member
Utilities relating to Project implementation which are properly chargeable to the Project
pursuant to the Program Exhibits.
"Monthly Report" means the report(s) prepared pursuant to section 5(b)(1) hereof in
the format shown in Exhibit H.
"Obligated Implementation Costs" means the estimated costs of completing Obligated
Units.
"Obligated Unit" means a Unit or Measure for which a Member Utility and a Consumer
have executed an installation contract for Conservation that reduces that consumers'
load and conforms to the applicable Program Exhibits, but which Unit or Measure has
not been completed.
"OMECA Administrative and Operating Costs" or "OMECA A&O Costs" means those
administrative and operating expenses of OMECA relating to the Project incurred in
accordance with this Agreement after the Effective Date, and shall include, rents;
administrative and general expenses; consultants' fees and expenses; engineering
expenses; legal fees; ongoing Trustee Costs; letter of credit fees and financial advisor
fees, if any; labor costs and associated taxes and benefits; insurance premiums; any
amounts required to be paid as rebate or penalties to the U.S. Government pursuant to
the Code; and any taxes, assessments, payments in lieu of taxes or other lawful
governmental charges, all to the extent properly allocable to the Project under generally
accepted accounting principles. Evaluation costs shall not be included in OMECA
A&O Costs.
"Other Requirements" means a restriction on any type of Conservation measure that is
substantially similar to any Measure, which restriction is the result of a directive or
order of any court or regulatory agency of competent jurisdiction, or the final record of
decision of any process conducted by Bonneville pursuant to the National
Environmental Policy Act.
(kk) "Power Sales Contract" means any existing amended or new Northwest Power Act
firm power sales contract between a Member Uti ty and Bonnev lie.
(11) "Program Exhibits" means Exhibits C, D, E F and G, and any additional exhibit that
prowdes for the insta fat on of Measures as may be added pursuant to sect on 6 hereof
(mm) "Project" means Measures and Units completed by the end of the Close Out Period.
(nn) "Project Implementation Period" means the period from the Effective Date through
September 30, 1997, unless shortened or extended pursuant to this Agreement.
(PP)
(qq)
(rr)
(ss)
(tt)
(uu)
(w)
(ww)
"Project Report" means the reports prepared pursuant to sec.tion 8(c) in the format
shov3n in Exhibit K
"Quarterly Report" means a report prepared by OMECA and submitted to Bonneville
pursuant to section 5(b)(2) hereof, in the format shown in Exhibit H.
"Rebate" means an amount to be paid for items acquired by a Consumer, as set forth in
the Program Exhibits.
"Region" means: (1) the area consisting of the States of Oregon, Washington, and
Idaho, the portion of the State of Montana west of the Continental Divide, and' such
portions of the States of Nevada, Utah, and Wyoming as are within the Columbia River
drainage basin; and (2) any contiguous areas, not in excess of 75 air miles from the area
referred to in (1) above, which are a part of the service area of a rural electric
cooperative customer served by Bonneville on the effective date of the Northwest
Power Act which has a distribution system from which it serves both within and
without such region.
"Sector" means a subset of Consumers, including, but not limited to, industrial,
commercial, residential or irrigation Consumers, or a Member Utility's distribution
system.
"Trustee" means an entity or entities appointed in accordance with the Indenture for
purposes of discharging specified responsibilities under that Indenture, including paying
Debt Service to bond holders.
"Trustee Costs" means the fees, costs, and expenses incurred by the Trustee and any
paying agent and registrar in discharging their respective obligations under the
Indenture.
"Uncontrollable Force" means an act or event beyond the reasonable control ora Party,
and which by exercise of due diligence and foresight such Party could not reasonably
have been expected to avoid or remove, which impairs the ability of the Party to
perform, and includes, but is not limited to, failure of or threat of failure of facilities,
flood, earthquake, storm, accident, fire, lightning and other natural catastrophes;
epidemic, war, labor or material shortage, strike or labor dispute, or sabotage; and also
includes restraint by an order of a court of competent jurisdiction or by regulatory
authorities against any action taken or not taken by a Party, after a good faith effort by
the appropriate Party to obtain: (1) relief from such order; or (2) any necessary
authorizations or approvals from any governmental agency or regulatory authority.
"Unit" means a grouping of one or more Measures, as described in the Program
Exhibits.
8
"Work in Progress" means work for which OMECA or a Member Utility has
contracted with a Consumer to install Measure(s) but which Measure(s) have not been
completed during the Project Implementation Period.
EXHIBITS
Provisions Required by Statute or Executive Order (Exhibit A), Implementation Budget
(Exhibit B), Long-Term Super Good Cents Program (Exhibit C), Appliance Efficiency
Program (Exhibit D), Residential Weatherization Conservation Acquisition Program (Exhibit
E), Energy Smart Design Program (Exhibit F), Energy Savings Plan (Exhibit G), Reports
(Exhibit H), Invoices (Exhibit I), Terminated or Modified Member Utility Conservation
Contracts (Exhibit J); Levelized Cost Methodology (Exhibit K); and Bonneville's October
1993 Energy Conservation Policies, and Bonneville's November 1993 Energy Conservation
Guidebook (Exhibit L) are hereby made a part of this Agreement, as such Exhibits may be
revised. Sections 1-12 of Exhibit A have no force or effect.
DEBT SERVICE AND TRUSTEE COST PAYMENT
Bonneville shall pay Debt Service, Trustee Costs, and any amounts required to be paid as
rebate or penalty to the U.S. Government pursuant to the Code, throughout the term of this
Agreement, without right of offset, whether or not the Project or any portion thereof has been
completed, terminated, is operating or operable, or its installation, use, or Energy Savings have
been suspended, interrupted, interfered with, reduced, or curtailed or terminated in whole or in
part, and such payments shall not be conditioned upon the performance or nonperformance of
any Party to any agreement for any cause whatever. Debt Service and Trustee Costs shaI1 be
paid directly to the Trustee by Bonneville in the manner set forth in the Indenture.
OMECA DUTIES
(a) Installation of Measures and Units
(1) OMECA shall make a good faith effort to cause to be installed Completed and
Obligated Units that will achieve the Energy Savings Target set forthin the
Implementation Budget at a Levelized Project Cost equa[to or less than the
Levelized Project Cost Target set forth in Exhibit K
(2) OMECA shall cause to be installed only Measures and Units set forth in the
Program Exhibits, as the same may be modified in accordance with this
Agreement.
(3)
OMECA shall install or cause to be installed Measures and Units in accordance
with applicable regulations issued by Federal, State, or local agencies related to
the environment and health and safety.
(b) Submission of Reports to Bonneville
(1)
Monthly Reports
Monthly, beginning on October 31, 1994, for the month or portion thereof
ending September 30, 1994, OMECA shall submit to Bonneville a Monthly
Report in the format shown in Exhibit H.
9
(c)
(d)
This Monthly Report shall describe the payment for Completed Units invoiced
as well as Obligated Units, the estimated Energy Savings and the estimated
costs of those Obligated Units. The requirement to report on Obligated Units
ends when Bond proceeds are available.
(2)
Quarterly Reports
Quarterly, beginning on October 31, 1994, for the quarter or portion thereof
ending September 30, 1994, OMECA shall submit to Bonneville a Quarterly
Report which includes information shown in Exhibit H.
Contracts with Member Utilities
(1)
OMECA shall require by contract with each Member Utility that in the event
that Bonneville notifies OMECA of a failure to comply with environmental
requirements pursuant to the Program Exhibits, or the technical, or
recordkeeping requirements under this Agreement, that said Member Utility
shall correct the deficiency promptly at its own expense or forfeit access to
additional funds under this Agreement, in accordance with section 14.
(2)
Further, OMECA shall include in each contract with a Member Utility the
implementation in their Agreement(s) of provisions to the following effect:
(A)
The Member Utility shall indemnify OMECA and hold OMECA
harmless from all claims, damages, losses, liability, and expenses arising
from the negligent or other tortuous acts or omissions of the Member
Utility or its employees, agents, or contractors arising hereunder.
(B)
OMECA shall indemnify the Member Utility and hold the Member
Utility harmless from all claims, damages, losses, liability, and expenses
arising from the negligent or other tortuous acts or omissions of
OMECA, its employees, agents, or contractors arising hereunder
(C) Bonneville is an intended third party beneficiary of such Agreement.
Insurance
OMECA shall obtain general liability insurance with respect to the Project in the
amount
of coverage, with the deductible, and upon such other terms and conditions as
Bonneville may from time to time request in writing Upon the approval by Bonneville
of such insurance, the cost associated with the premiums for the insurance shall,
notwithstanding any other provisions of this Agreement, constitute an OMECA A&O
Cost payable by Bonneville under the applicable budget. OMECA shall promptly
inform Bonneville of any substantial developments relating to such insurance, including
10
without limitation, proposed policy changes by the insurer and the occurrence of claims
that may be payable thereunder.
(e)
Consumer Loans
OMECA shall not use any portion of the amount available under an Implementation
Budget or from the Implementation Fund for loans by OMECA or its Member Utilities
to Consumers.
(g)
OMECA shall use any amounts received in connection with the Project (other than the
Incentive Payment) to pay costs of the Project.
PROCEDURES FOR ADDITION OR REVISION OF PROGRAM EXHIBITS
(a)
Addition of Measures
Whenever Bonneville offers a new Conservation Measure for installation through the
regionwide Bonneville Conservation programs, such Conservation Measure shall be
added to the Program Exhibits, if requested by OMECA. OMECA may at any time, in
writing, request that Bonneville approve revision to the Program Exhibits or add a new
Program Exhibit. Bonneville shall approve such revision or addition if it finds that the
revision or addition is consistent with Bonneville's October 1993 Energy Conservation
Policies, and Bonneville's November 1993 Energy Conservation Guidebook.
(b)
Removal of Measures
Bonneville may unilaterally remove any Measure from the Program Exhibits, or any
Conservation measure added under 6(a) when such removal is necessitated by Other
Requirements.
11
7. PROJECT IMPLEMENTATION PERIOD DURATION AND BOND FUNDING
LEVELS
(a)
Duration
The Project Implementation Period shall begin on the Effective Date of this Agreement
and shall continue until September 30, 1997, unless the Project Implementation Period
is terminated earlier pursuant to this Agreement. The Project Implementation Period
may be extended, by mutual agreement of the Parties. Ifa favorable ruling from the
Internal Revenue Service under section 9(0 of the Northwest Power Act is not
received by August I, 1995, the Project Implementation Period shall terminate on
September 30, 1995, unless otherwise agreed to by the Parties.
Bond Funding
Except as provided herein during the Project Implementation Period the funds
contained in the Implementation Fund shall be available to, and shall be used by
OMECA solely to pay for the implementation of the Project and Bond Financing Costs
consistent with the Indenture.
PERFORMANCE REVIEW
(a)
OMECA shall submit an initial Project Report to Bonneville forty-five (45) calendar
days following the end of the first complete year of this Agreement, or forty-five (45)
days following the end of a quarter if required pursuant to section 8(c) below in the
format shown in Exhibit J. The Implementation Budget in Exhibit B represents the
objectives of both Parties for each Sector. Bonneville will use this budget and the
Project Report to assess contract performance.
(b)
The Project Report shall consist of the following:
(1) Costs of Completed Units and Measures, and Obligated Units and Measures
installed;
(2) Amount of Energy Savings Achieved from Units and Measures installed and in
total;
(3) A Levelized Project Cost, as in Exhibit K;
(c)
(4) A comparison of Energy Savings Achieved to the Energy Savings Target found
in Exh~it B by Sector.
If, based on any Project Report:
(1) The Levelized Project Cost is between 115 percent and 130 percent of the
Levelized Project Cost Target shown in Exhibit K, OMECA shall prepare and
submit to Bonneville a Project Report every n nety (90) days thereafter;
(2) The Levelized Project Cost is more than 130 percent of the Levelized Project
Cost Target shown in Exhibit K then Bonnewlle may at its sole discretion,
terminate the Project Implementation Period on thirty (30) days notice or revise
the Implementation Budget. If Bonneville revises the Implementation Budget,
12
o
10.
(d)
then, notwithstanding any other p~:ovisions of this Agre,ement OMECA shall
cause to be instal ed Measures and Units consistent w tn the rev sed
Implementation Budget, and shall prepare and submit to Bonneville Project
Reports every ninety (90) days therea~er;
(3)
If Energy Savings Achieved are less than 85 percent but greater than 70 percent
of the Energy Savings Target for the period covered by the Project Report as
set forth in Exhibit B, OMECA shall prepare and submit to Bonneville a Project
Report every ninety (90) days thereafter; and
(4)
If Energy Savings Achieved are less than 70 percent of the Energy Savings
Target for the period covered by the Project Report as set forth in Exhibit B,
Bonneville may, at its sole discretion, terminate on thirty (30) days notice the
Project Implementation Period or revise the Implementation Budget. If
Bonneville revises the Implementation Budget, then notwithstanding any other
provisions of this Agreement, OMECA shall cause to be installed Measures and
Units consistent with the revised Implementation Budget, and shall prepare and
submit to Bonneville Project Reports every ninety (90) days thereafter.
Incentive Payment
The Incentive Payment will be calculated by OMECA using the methodology set forth
in Exhibit K, following completion of the Project Implementation Period. If such
calculation indicates that an Incentive Payment is due to OMECA from Bonneville,
then OMECA shall prepare and submit to Bonneville a copy of the Incentive Payment
calculation and invoice(s) for the amount of the Incentive Payment, as provided in
Exhibit K. Bonneville will pay such invoice(s) no later than forty-five (45) days after
receipt and acceptance of such invoice(s) by Bonneville. Except for the payment due
date specified herein, payment by Bonneville of such invoice(s) shall be made pursuant
to the procedures of section 12.
DIRECT FUNDING BY BONNEVILLE
Commencing with the Effective Date, Bonneville shall pay to OIv[ECA by invoice pursuant to
section 12 all Implementation Costs incurred during the Project Implementation Period
(including Obligated Units obligated during the ProJect Implementation Period) to the extent
that amounts, i£any, in the Implementation Fund are unavailable to pay such Implementation
Costs when due to be paid, provided that such Implementation Costs do not exceed the
amounts provided in the applicable Implementation Budget. Bonneville shall pay by invoice
pursuant to section 12, all Bonneville approved Bond Financing Costs not paid from Bond
Proceeds. OMECA shall not incur Implementation Costs in a Fiscal Year tn excess of the
amount approved by Bonneville in thelmplementation Budget for such Fiscal Year until the
earlier of the date init al Bond Proceeds are deposited nto the Imp ementat on Fund, or the
date the Close Out Period ends.
PROJECT FINANCING BY OMECA
(a)
Notwithstanding the end of the Project Implementation Period, and as allowed by
Federal tax law when and as requested by Bonneville, OMECA shall use its best efforts
to issue Bonds in an amount sufficient to fund the Implementation Budget, as described
in Exhibit B and Bond Financing Costs approved by Bonneville. Nothing in this
Agreement sha requ re OMECA to ssue taxab e Bonds.
13
(c)
(d)
(e)
(0
(g)
(h)
Not later than 120 days from the Effective Date, Bonneville shall file a request with
the Internal Revenue Service for a ruling under section 9(0 of the Northwest Power
Act to the effect that Bonneville's acquisition of the Conservation from the Project will
not adversely affect the exemption of interest on all or a designated portion of the
Bonds from gross income as provided in Section 103 of the Code.
OMECA shall include in all offerings and promotional material for the sale of such
Bonds or other obligations the following statement:
"Such obligations are not, nor shall they be construed to be, general obligations of the
United States, nor are such obligations intended to be or are they secured by the full
faith and credit of the United States."
Commencing with the Effective Date of this Agreement, Bonneville shall review and
approve or disapprove in a timely manner the following items prior to OMECA taking
action on them, or incurring any obligation under them:
(1)
All terms and conditions of any Bonds, the Indenture, and the bond purchase
agreement, and the schedule setting for the time for issuance of Bonds and the
budget for Bond Financing Costs;
(2)
Terms and conditions of agreements with and selection of any bond counsel,
financial advisors, underwriters, remarketing agents, if any, or any Trustee as
may be retained during the term of this Agreement to facilitate or perform
Project financing subsequent to the Effective Date; provided, however, that this
section does not apply to existing agreements or selections made by OMECA
prior to the Effective Date, relative to the first Bond issue; and
(3)
The contents of all official documents both preliminary and final, including any
amendments or supplements thereto prepared for use in the issuance and sale of
any Bonds, including but not limited to, official statements, press releases,
financing plans, and modifications or revisions thereto.
When and as requested by Bonneville, OMECA shall direct the Trustee to purchase
Bonds on the open market in accordance with the Indenture.
When and as requested by Bonneville, OMECA shall provide that the Trustee will
invest or cause to be invested amounts in the Implementation Fund and Bond Fund as
directed by Bonneville.
OMECA agrees to perform all of its duties, covenants, or other obligations contained
in the Indenture.
On the date that Bond Proceeds are made available to OMECA, and as provided
for in the Indenture, OMECA shall cause the Trustee to reimburse Bonneville from the
14
(i)
(k)
Implementation Fund for the Implementation Costs and Bond Financing Costs
theretofore paid by Bonneville but solely from the Implementation Fund.
Bonneville Requests for Refinancing
(1)
When and as requested by Bonneville, OMECA shall use its best efforts to issue
Bonds to refinance all or a portion of the Bonds.
(2)
Bonneville shall compensate OMECA for all Bond Financing Costs not
reimbursed from Bond Proceeds in undertaking any refinancing effort requested
by Bonneville, whether such effort is completed or not.
(3)
Bonneville shall withdraw any request to OMECA for refinancing when and if
OMECA demonstrates that compliance with such request would reasonably be
expected to have a material adverse impact on the costs or the credit rating of
OMECA or that of any Member Utility.
Disposition of Excess Funds ....
If, after the end of the Close Out Period (the Completion Date ), amounts remain in
the Implementation Fund or other fund or account of the Project (other than the Bond
Fund), Bonneville shall notify the Trustee of the completion date and direct t,he Trustee
to transfer any remaining amounts in the Implementation Fund, at Bonneville s election,
to the Bond Fund, or to OMECA to pay OMECA A&O Costs, or to pay Trustee
Costs. OMECA shall direct the Trustee to cause to be paid to Bonneville any amounts
in the Bond Fund, Implementation Fund, or any other ffind or account under the
Indenture (except any rebate fund or account required by the Code) that are unspent at
the time all Bonds are no longer Bonds Outstanding pursuant to the Indenture.
Tax Covenant
In the event that OMECA issues Bonds, the interest of which is excluded from gros. s
income for Federal tax purposes neither OMECA nor Bonneville shall take any action
or fail to take an action that would adversely affect such exclus on.
15
11.
BUDGET
(a) Procedure
(1)
The execution by Bonneville of this Agreement shall constitute its approval of
the proposed Implementation Budget for the period from the Effective Date of
this Agreement to the end of the Close Out Period.
(2)
For any Fiscal Year or any portion thereof, beginning after Fiscal Year 1997,
upon request by Bonneville, OMECA shall submit to Bonneville a proposed
Implementation Budget for the period requested by Bonneville. Bonneville
shall make such request, if at all, not less than ninety (90) days before the
expiration of the preceding Implementation Budget. If Bonneville does not
request OMECA to submit a proposed Implementation Budget within such
period, the Project Implementation Period shall terminate with expiration of the
Implementation Budget then in effect. Bonneville is under no obligation to
request an Implementation Budget proposal.
(3)
Bonneville shall within forty-five (45) days of the receipt of a proposed
Implementation Budget requested by Bonneville pursuant to section 11 (a)(2)
above by written notice, approve or disapprove ali or part of such proposal. If
Bonneville does not provide written notice of approval within forty-five
(45) days of the receipt of the proposal, the proposal shall be deemed
disapproved. Bonneville is under no obligation to approve any Implementation
Budget proposal.
(4)
If Bonneville approves the proposal in whole or part, the proposal shall
constitute the Implementation Budget for the period approved, provided,
however, that upon receipt of Bonneville's approval of a proposal, OMECA
may elect to proceed with the Implementation Budget to the extent approved
by Bonneville or may terminate the Implementation Period at the end of the
Fiscal Year in which the proposal was submitted to Bonneville.
(5)
OMECA may at any time and in any manner amend an Implementation Budget
without the approval of Bonneville subject to the following limitations:
(A) OMECA may not increase the total amount provided in an
Implementatmn Budget, or extend the effective period of the
Implementation Budget, or increase the amount approved for OMECA
A&O Costs unless such action is approved by Bonneville;
(B) Until the date on which Bond Proceeds are first deposited in the
implementation Fund OMECA may not increase tl~e amount provided
in an Implementation Budget for a F scal Year; and
(C) OMECA may not amend an Implementation Budget that has been
revised by Bonneville pursuant to section 8(c)
16
12.
Nothing in this section affects OMECA's obligations during the Close
Out Period pursuant to section 19.
Co)
Content
Implementation Budget proposals submitted by OMECA at the request of Bonneville
after Fiscal Year 1997 shall propose: (1) the effective period of such budget;
(2) OMECA A&O costs for the Project Implementation Period and Close Out Period;
(3) OMECA's good faith estimate of the Cost and number of Units and Measures to be
installed in each Sector; (4) the Energy Savings Target for each Sector; and (5) in
Member Utility Implementation Costs. The form of the Implementation Budget shall
be as provided in Exhibit B.
(c) Effect
(1)
Except with respect to Debt Service, Trustee Costs, and Evaluation Costs,
OMECA shall not incur costs in excess of the total amount approved in the
applicable Implementation Budget. In any Fiscal Year before Bond Proceeds
are first deposited in the Implementation Fund, OMECA shall not incur costs
that exceed the amounts approved for that Fiscal Year in the Implementation
Budget shown in Exhibit B.
(2)
In the event that the Project Implementation Period is ended by Bonneville prior
to September 30, 1997, such action shall not prejudice or adversely affect a
subsequent determination by Bonneville to fund Conservation activities through
the Member Utilities in their respective service territories, in an equitable
manner consistent with other utilities having similar Bonneville-utility Power
Sales Contracts, and consistent with Bonneville's statutory obligations
INVOICING AND PAYMENT
(a)
Bonneville Invoice and Payment
No more frequently than once a month, OMECA shall submit to Bonneville invoices in
the format shown in Exhibit I for costs to be paid by Bonneville pursuant to this
Agreement.
17
(b)
(c)
(d)
(e)
¢)
(g)
(h)
Trustee Invoice for Payment the Implementation Fund ~
Following issuance of the Bonds, OMECA shall prepare and submit an invoice in the
format shown in Exhibit I to the Trustee, with a copy together with a Monthly Report
to Bonneville simultaneously.
Payment to the Trustee for Debt Service and Trustee Costs
Bonneville shall pay Debt Service and Trustee Costs to the Trustee as set forth in the
Indenture.
Invoice Transmittal
Send all written correspondence to this address until otherwise directed in writing:
Bonneville Power Administration
Southwest District Office
703 Broadway, Suite 510
Vancouver, WA 98660
ATTN: Terry Regan - MEV
(360) 418-8649
Method of Payment
(1) Bonneville shall pay amount(s) invoiced pursu, ant to section 12(a) by electronic
transfer of funds from Bonneville to OMECA s bank account, unless otherwise
agreed. Payment by Bonneville shall be made no later than the close of business
on the 20th calendar day following the initial date of receipt and acceptance of
an invoice by Bonneville. Shouldthe 20th day be a day other than a workday,
then the payment shall be due the following business day.
(2) OMECA shall pay the amount due, if any, as a result of actions as described by
Bonneville under sections 5, 10, 13, 14, and 15 as directed.
Adjustments
Mutually agreed upon adjustments to correct for errors in the invoice shall be promptly
incoyporated in a revised invoice where practicable and shall clearly be noted in the
invoice as an adjustment. Both Parties shall make reasonable best efforts to make an
.adju.stment to an invoice as soon as possible after Bonneville's receipt of the erroneous
1BVOlCe.
Review
Bonneville shall retain the right to review all Project costs that have been invoiced
under this section, and to perform a standard audit on any invoice, pursuant to
section 13(b).
Late Payment
Pursuant to the Prompt Payment Act (31 U.SC 3901-3906), Bonneville shall make all
payments due OMECA in a timely fashion. In the event Bonneville has not paid the
amount due on or before close of business on the due date, interest shall accrue on the
amount due from the scheduled due date to the date paid at the higher of the
18
13.
Department of Treasury's current value of funds rate or the Bonneville cost of
borrowing rate.
RECORDS AND AUDITS
(a)
Records
OMECA shall comply with, and by agreement shall require each Member Utility to
comply with, the following documents and records requirements:
O)
Project records shall be established and maintained in accordance with generally
accepted accounting, technical, or engineering principles consistently applied,
and in conformance with applicable laws and Federal regulations, including the
provisions of the Privacy Act of 1974. If appropriate, a summary of the system
of records developed by Bonneville to comply with the Privacy Act shall be
supplied by Bonneville.
(b)
(2)
(3)
(4)
All records that are applicable to this Agreement shall be separately identifiable
from records pertaining either to other Bonneville Conservation Programs or to
other conservation programs or projects in which OMECA or Member Utilities
may be involved.
Upon reasonable notice b[( Bonneville, OMECA or a Member Utility, shall
make available to Bonnevdle all or any portion of the records prepared and
maintained pursuant to this section, consistent with Consumer confidentiality
requirements of applicable State laws.
Records shall be prepared and maintained in accordance with the Program
Exhibits.
(5)
Records required by this Agreement shall be kept until the earlier of three
(3) years atSer the date of a final invoice for each Completed Unit to which
records pertain or notification of completion of a Program evaluation and
financial audit of such records by Bonneville. OMECA and Member Utilities
shall offer records to Bonneville prior to destruction.
Audits
Bonneville may, upon reasonable notice, conduct audits of OMECA's implementation
of the Project. The number, timing, and' extent of such audits shall be at the discretion
of Bonneville and may be conducted by Bonneville or its designee. Such audits shall
occur at Bonneville's expense and shallbe conducted in accordance with the audit
standards established by the Comptroller General of the United States. Bonneville may
obtain, audit, examine or inspect Project records and accounts maintained by OMECA
or its agents at Bonneville's expense.
19
14.
BONNEVILLE OVERSIGHT
OMECA shall comply with the followinj~ oversight requirements and shall .require by contract
that the Member Utiht es comply with tiae activiues Bonneville may initiate listed in this
section.
(a)
Inspection
(1) Upon reasonable notice to OMECA, or to a Member Utility, as the case may
be, Bonneville or its designee may, at Bonneville's expense:
(A) conduct inspections of Completed Units installed pursuant to this
Agreement, subject to the limits set forth in this section; and
review OMECA and Member Utility procedures employed to implement
Measures and Units under this Agreement.
(2)
Bonneville shall provide thirty (30) calendar days written notice to OMECA or
to a Member Utility, as the case may be, indicating the number and type of
Completed Units Bonneville wishes to inspect, the types of procedures that
Bonneville wishes to review or observe and the general set of or specific
records that Bonneville wishes to review.
(3)
Upon receipt of such written notice, OMECA or the Member Utility, shall make
reasonable efforts to arrange for the requested inspection of Completed Units,
installation procedures, technical documents, or records. Member Utility
contracts with Consumers shall provide that Bonneville may: (I) make site
visits to Completed Units and (2) evaluate or verify savings of Completed
Units. Inspection of Completed Units will be done only with the permission of
the Consumer, and at the convenience of the Consumer
(b) Suspension Due to Failure to Comply with Exhibits and Other Requirements
If Bonneville determines that OMECA or any Member Utility is implementing
or has implemented any Measure or Unit in a manner which is not in
compliance with the Program Exhibits, including Environmental Requirements,
Bonneville may provide OMECA with written notice stating the following:
(A) The Measures or Units which are not in compliance;
(2)
(B) The nature of the noncompliance;
(C) The Member Utility which is not in compliance; and
(D) Recommended remedy for such noncompliance.
OMECA shall have ninety (90) days from receipt of notice, pursuant to
section 14(b)(1), to take such actions as may be necessary to insure
conformance w~th the requirements of'the Program Exhibits for the future
implementation of the Measure or Unit set forth in such notice.
20
(c)
(d)
(3)
When Bonneville determines that OMECA has taker~ such actions as may be
necessary to ensure conformance with the requirements of the Program
Exhibits, for the future implementation of the Measure or Unit n. ot~ced pursuant
to section 14(b)(1), Bonneville shall notify OMECA in writing that the directive
issued pursuant to section 14(d) is no longer in effect, and that OMECA may
commence forwarding to the Trustee and/or Bonneville invoices for the
reimbursement of Implementation Costs incurred by a Member Utility to
implement the Measure or Unit, all as set forth in the notices issued pursuant to
section 14(b) or (c).
Suspension Due to Other Requirements
If Bonneville identifies Other Requirements related to a Measure or Unit installation
that pose an immediate significant environmental, health, or safety threat, and the
Measure or Unit has not been unilaterally removed by Bonneville pursuant to section 6,
Bonneville shall provide written notice to OMECA describing such significant
environmental, health, or safety threat and the references upon which Bonneville bases
its determination. Within thirty (30) days of receipt of such written notice, OMECA
shall initiate actions to:
(1)
remedy such environmental, health, or safety threat to Consumers from
completed Measures and Units; and/or
(2)
apply remedial steps to prospective installations to alleviate such environmental,
health or safety threat; or
(3) implement such other actions as the Parties agree to
Effect on Payments and Costs
(1)
If OMECA fails to take the actions described in either section 14(b) or 14(c)
above, then in that event Bonneville may in writing direct OMECA to cease
forwarding to the Trustee and/or Bonneville invoices for the reimbursement of
Implementation Costs incurred by OMECA to implement a Measure or Unit,
all as set forth in the notices issued pursuant to section 14(b) and (c) above.
(2)
(3)
After suspension imposed under section 14(b) is lifted Bonneville shall pay for
all Implementation Costs that are in substantial compliance with the
reftuirements of this Agreement, including Implementation Costs associated
with work performed during the previous suspension of payment.
Actions taken by OMECA and Member Utilities pursuant to section 14(c) shall
be treated as Implementation Costs for purposes of this Agreement.
21
15. DEFAULT AND CURE PROVISIONS
(a)
Notice of Breach or Default
If either Party is in material breach or in default under this Agreement (Defaulting
Party), the other Party (Nondefaulting Party) may notify theDefault Party in writing
that ~t is in breach or default. Such notice shall be effective upon its receipt by the
Defaulting Party. Only the following breaches or defaults are subject to the cure
provisions contained in this section.
(1) insolvency; i.e., a Party is unable to meet its obligations as they become due;
(2) general assignment of substantially all of a Party's assets for the benefit of its
creditors, filing a petition for bankruptcy or reorganization, or seeking other
relief under any applicable insolvency laws;
(3)
a petition for bankruptcy, reorganization, or other relief under any applicable
insolvency law is filed against a Party and such petition is not dismissed within
sixty (60) calendar days after it is filed; or
(4)
use of any portion of the Implementation Fund or any amount provided by
Bonneville, in a manner that is inconsistent with this Agreement.
(b) Defaulting Party's Right to Cure
(1)
The Defaulting Party shall have the right to cure the breach or default pursuant
to this section within sixty (60) calendar days of the receipt of notification of
the breach or default.
(2)
In the case of a breach or default which may not reasonably be cured within
sixty (60) calendar days, the Defaulting Party shall have the right to provide the
Nondefaulting Party with a plan for the appropriate actions to cure the breach
or default. Within this sixty (60)-day period, the Defaulting Party, using due
diligence, shall pursue appropriate action under the plan to cure the default.
(c)
Right to Terminate Implementation Period
If the Defaulting Party fails to cure under section 15(b), then the Nondefaulting Party
has the fight to terminate the Implementation Period by giving the Defaulting Party
thirty (30) calendar days' written notice of termination.
22
16.
EVALUA~ON
(a)
During the term of this Agreement, Bonneville may conduct evaluations to assess the
amount, cost effectiveness and reliability of the Energy Savings being acquired
pursuant to this Agreement. Th~ timing, frequency, and type of evaluation to be
conducted shall be at Bonneville s discretion; provided, however, that Bonneville shall
make a good faith effort to minimize the number of evaluations conducted, and to
minimize the administrative burden and disruption of such evaluations to OMECA and
Member Utilities.
Co)
All evaluations shall be conducted pursuant to an evaluation plan, which shall be
formulated by Bonneville. The evaluation plan in draft form shall be submitted to
OMECA in xTvfiting not later than ninety (90) days prior to the start of the evaluation.
OMECA shall have thirty (30) days to submit written comments to Bonneville on the
draft evaluation plan. Bonneville will in good faith consider such comments and, to the
extent practical shall, incorporate into the evaluation plan any modifications suggested
by OMECA provided such modifications will not impede the evaluation by Bonneville
at reasonable cost.
(c)
Not later than fifteen (15) daysprior to the start of the evaluation process Bonneville
shall submit in writing to OMECA the final evaluat on plan which will govern the
evaluation to be conducted.
(d)
All evaluations will be conducted at Bonneville's expense. In addition, Bonneville shall
reimburse OMECA and Member Utilities for all direct expenses they reasonably
incurred
as a result of such evaluation, including but not limited to document reproduction and
staff compensation.
17. TRANSITION
(a)
Notwithstanding any termination provision to the contrary contained in any of the
Bonneville-Member Utility contracts listed in Exhibit J, OMECA shall require by
contract with the Member Utilities that such contracts referenced in Exhibit J shall
terminate on or before the Effective Date.
Co)
OMECA shall require by contract with each Member Utility that it cease initiating new
work under the contracts listed in Exhibit J on or before the Effective Date.
(c)
To the extent that the installation of any measure has been paid or will be paid for
under any other Bonneville or Federal agreement or financial assistance instrument shall
not be eligible for reimbursement under this Agreement.
(d)
Any Energy Savings attributable under any contract listed in Exhibit J shall not
constitute Energy Savings under this Agreement.
23
18.
FAILURE TO PLACE LOAD ON BONNEVILLE
(a)
Upon receipt of written notice from Bonneville, OMECA shall within ten (10) days
notify a Member Utility in writing that it will not forward invoices to the Trustee for
Implementation Costs by any such Member Utility and that such Member Utility must
immediately terminate the installation of Measures and Units, if such Member Utility
either: (1) gives notice that it will stop placing firm load on Bonneville pursuant to any
Power Sales Contract for a period of at least one (1) year; or (2) gives notice of its
intent to terminate, or terminates, any Power Sales Contract.
(b)
OMECA shall contract with its Member Utilities to provide that if the Member Utility
gives notice pursuant to section 18(a) above, such Member Utility shall reimburse
Bonneville from utility revenues for the excess prepayment by Bonneville for accrued
Energy Savings in accordance with the following:
R=P x ((T- A) FlY)
R = Reimbursement to Bonneville
P = Bonneville payments made to OMECA for Implementation Costs and partial payments made to date
under this Agreement;
A = Total Ener~' Savings Achieved through the date of termination of OMECA's Power
Sales Contract or the date at which OMECA ceases to place firm load on Bonneville;
and
T = Total estimated Energy. Savings for the life of all Completed Units/Measures installed to date.
The estimated Energy Savings and Measure life values for the Completed Units shall be
consistent with Bonneville's Energy Conservation Guidebook dated November 1993
(1)
Bonneville shall present a bill to OMECA for payment calculated pursuant to
this section.
(2)
(3)
OMECA shall require that such Member Utility reimburse Bonneville by either:
(A) making a lump-sum payment within three (3) months of termination of
the Project Implementation Period pursuant to section 12(e)(2); or
(B) making no more than twelve (12) consecutive equal monthly installment
payments commencing on the first business day of the month following
the month in wh ch term nat on of the Project Imp ementation Per od
pursuant to section 12(e)(2) occurs.
If reimbursement is accomplished by installments as provided in
section 18(b)(2) above, interest shall be charged on the outstanding balance at
Bonneville's average Treasury borrowing interest rate for the period of time
between the date of the first payment made to OMECA and the date of the last
payment made to OMECA for which reimbursement to Bonneville is being
made in accordance with this section.
24
19. CLOSE OUT
20.
(a)
Close Out Activities
Commencing with the beginning of the Close Out period:
(0
OMECA shall not and shall provide that Member Utilities shall not enter into
any new agreements for Completed Units or Obligated Units;
(2)
OMECA shall require that each Member Utility complete or cancel Obligated
Units on or before the end of the Close Out Period;
(3)
OMECA shall, by the end of the Close Out Period, liquidate in a reasonable
manner any equipment, materials, contract rights, or other assets acquired under
this Agreement, provided that such assets are no longer useful under this
Agreement. OMECA shall apply the proceeds of any such liquidation of the
Project as directed by Bonneville.
Co)
Close Out Plan
Within sixty (60) calendar days following the beginning of the Close Out period,
OMECA shall submit a schedule of their Close Out activities for the remainder of the
Fiscal Years.
The Close Out Plan shall include a listing of any Completed Units to be paid for, the
remaining Obligated Units, and an estimated completion schedule.
POST CLOSE OUT BUDGET AND PAYMENT OF COSTS
Not less than thirty (30) days prior to the end of Close Out, and not less than thirty (30) days
prior to the end of each Fiscal Year commencing after the end of the Close Out Period,
OMECA shall submit to Bonneville for its approval, a proposed budget describing in
reasonable detail OMECA A&O Costs expected to be incurred in the Fiscal Year for which the
budget is proposed and the source of funds to be used to pay such costs. Bonneville shall
approve or disapprove all or any portion of such budget within twenty (20) days of receipt of
the budget proposal. OMECA shall not incur obligations in excess of or in advance of such
budgets approved therefore by Bonneville.
Upon approval Bonneville shall pay to OMECA, as invoiced by OMECA in accordance with
section 12, any costs in conformance with such budget to the extent that other Project funds
(including without limitation available amounts in the Implementation Fund), are not sufficient
to meet the costs when due.
5
21. AUTHORIZED REPRESENTATIVES
22.
(a)
Designation
Each Party shall designate an authorized representative and an alternate. Each Party
shall notify the other Party in writing within thirty (30) calendar days after execution of
this Agreement of the authorized representative and alternate, and shall promptly notify
the other Party of any subsequent changes in such designations.
(b)
Implementation Procedures
The authorized representatives may establish written procedures, as required, for
implementing certain provisions of this Agreement. Such procedures shall be adopted
by mutual agreement. Authorized representatives may delegate authority to act on a
particular matter.
(c) Authority
Except as otherwise provided in this Agreement, authorized representatives and
alternates shall not have authority to modify any of the provisions of this
Agreement.
(2)
Only Bonneville's Contracting Officer, or the Contracting Officer's designee,
specified in writing, may issue interpretation of the body of this Agreement
which are binding on Bonneville. Such interpretations shall be provided to
OMECA in writing
(3)
In administering this Agreement, only the written statements of Bonneville
officials acting within the scope of their authority shall be considered to be
official Bonneville statements.
NOTICES AND COMMUNICATIONS
Except as may be expressly provided otherwise in this Agreement, any notice, request~
authorization, direction, or other communication under this Agreement shall be given ~n
writing and delivered in person, or by facsimile, or by first-class U.S Mail, or by private or
Federal overnight mail service properly addressed and stamped with the required postage to
the intended rec pient as follows:
If to Bonneville: Terry L. Regan
Cathy Higgins
If to OMECA:
If to the Trustee:
OMECA shall provide Bonneville the name, address and phone number of?ny initial Trustee
OMECA.and any successor Trustee within a reasonable time following such Trustee s appointment by
Either party may change or supplement such address, or specified person by giving the other
Party written notice of such change.
26
23.
24.
THIRD PARTY CONSERVATION IN OMECA'S SERVICE AREA
During the Project Implementation Period, Bonneville agrees not to execute any Conservation
agreement with a Party other than OMECA, for the installation or implementation of measures
or units in the service areas of a Member Utility without its written consent,
ENTIRE AGREEMENT
This Agreement sets.forth the entire Agreement of the Parties and supersedes any and all prior
Agreements with respect to the subject matter of this Agreement. The rights and obligations
of the Parties hereunder shall be subject to and governed by this Agreement. The headings
used herein are for convenient reference only and shall not affect the interpretation of this
Agreement.
25. UNCONTROLLABLEFORCE
26.
(a)
Obligation of the Parties
Any obligation of a Party to perform under this Agreement, except an obligation to pay
amounts due under this Agreement, shall be excused when failure to perform such
obligations is due to an UncontroIlable Force. In the event that either Party is unable to
perform due to an Uncontrollable Force, such Party shall exercise due diligence to
remove such inability with reasonable dispatch, Nothing in this section shall be
construed to require either Party to settle any strike or labor dispute in which it may be
involved.
(b)
Notice
Each Party shall notify the other as soon as practicable of any Uncontrollable Force
which may impair performance under this Agreement. Failure to give such notice
within a reasonable period shall be deemed a waiver of such Uncontrollable Force.
DISPUTE RESOLUTION
(a) Any dispute which arises under this Agreement may be resolved as follows:
(2)
The Parties may consult on the matter in dispute, and resolve the disputed
matter by mutual agreement; or
(2)
The Parties may mutually agree, to the extent permitted by law, to submit the
disputed matter to a consultant selected by the Parties on the basis of an agreed
upon work plan, and may further agree, to the extent permitted by law, to be
bound by the decision of the consultant.
(b)
The Parties agree that any dispute arising out of the Indenture may not be the subject of
binding dispute resolution.
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27. ASSIGNMENT
(a)
Each Party agrees that it shall not sell, assign, or transfer its interests, rights, or
obligations under this Agreement except as follows:
(1)
To the United States or any instrumentality thereof or to any corporation or
other entity required or permitted under the Indenture, including but not limited
to the Trustee; or
(2)
So long as no Bonds are Outstanding, to any corporation or other entity with
the written consent of the other Party, which consent shall not be unreasonably
withheld.
(b)
In the event of any such assignment, or transfer, the Party making the assignment shall
provide the other Party with notice of the assignment or transfer, together with a true
copy of the instrument of assignment or transfer not less than sixty (60) days prior to
the intended date of execution.
(c)
This Agreement shall inure to the benefit of and shall be binding upon the Parties, their
respective legal representatives, assigns, and successors.
28.
GOVERNING LAW
This Agreement shall be interpreted and construed under the laws of the State of Oregon and
shall be governed by Federal laws.
29. HOLD HARMLESS
(a)
OMECA's Obligation to Hold Bonneville Harmless
OMECA shall indemnify and hold Bonneville harmless from all claims, damages, losses,
liability, and expenses arising from the negligent or other tortuous acts or omissions of
OMECA or a Member Utility, and OMECA's or a Member Utility's employees, agents,
or contractors arising under this Agreement.
(b)
Bonneville Obligation to Hold OMECA Harmless
Bonneville shall indemnify and hold OMECA and a Member Utility harmless from all
claims, damages, losses, liability, and expenses arising from the negligent or other
tortuous acts or omissions of Bonneville, its employees, agents, or contractors arising
under this Agreement.
30.
WAIVERS
Except as otherwise provided herein or as agreed by the Parties, no provision of this
Agreement may be waived except as documented or confirmed in writing. Any waiver at any
time by a Party of its right with respect to a default under this Agreement, or with any other
matter arising in connection therewith, shall not be deemed a waiver with respect to any
subsequent default or matter. Either Party may waive any notice or agree to accept a shorter
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notice than specified in this Agreement. Such waiver of notice or acceptance of shorter notice
by a Party at any time regarding a notice shall not be considered a waiver with respect to any
subsequent notice required under this Agreement.
31.
INVALID PROVISION
The invalidity or unenforceability of any provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all respects as if Such invalid or
unenforceable provision were omitted.
32.
NO UNSPECIFIED THIRD PARTY BENEFICIARIES
The Trustee is hereby designated a specified third party beneficiary of this Agreement for
purposes of enforcing the payment of Debt Service and Trustee Cost obligations of Bonneville
under section 4 of this Agreement. There are no unspecified ttfird party beneficiaries of this
Agreement. Nothing contained in this Agreement is intended to confer any right or interest on
anyone other than the Parties, their respective successors, assigns, and legal representatives.
33.
AMENDMENT OF AGREEMENT
No change, amendment or modification of any provision of this Agreement shall be valid
unless set forth in a written amendment to this Agreement signed by both Parties. This
Agreement shall not be amended, modified, or otherwise altered in any manner which will
reduce payments pledged as security for the bonds or extend the time of such payments
provided herein or which will in any manner materially impair or adversely affect the rights of
the holders from time to time of the Bonds.
34.
AGREEMENT OF THE PARTIES
The Parties agree that both Parties drafted this Agreement, and that if any ambiguities arise in
the interpretation of this Agreement, such ambiguities shall not be construed against either
Party as the sole drafter of this Agreement.
35.
CONFLICTING PROVISIONS
If there is a conflict between the Exhibits and the body of this Agreement, the provisions of this
Agreement shall control. If there is a conflict between or among this Agreement, the Exhibits
to this Agreement or the Indenture, the Indenture shall control.
36.
OTHER PROVISIONS
OMECA shall require by contract that the Member Utilities comply with all applicable terms
and conditions contained in Exhibit A.
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37. SIGNATURE CLAUSE
Each Party hereto represents that it has the authority to execute and deliver this Agreement
and that it has been duly authorized to enter into this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement.
UNITED STATES OF AMERICA
Department of Energy
Bonneville Power Administration
By /S/ VICTORIA P. ENGLISH
Name Victoria P. English
(Print/Type)
Date Sept 9~ 1994
OREGON MUNICIPAL ENERGY
AND CONSERVATION AGENCY
By IS/ ROBERT J. SCHMITT
Name Robert J. Schmitt
(Print/Type)
Title OMECA Board Chairman
Date 9-13-94
(PMLAN-PMCE-W:'xPMC\CT\CONSERV~94498\94498 .DOC)
3O
Amendment No. 001 ~
Contract No. DE-MS79-94BP94498
Procurement No. 56865
OMECA
Effective at 2400 hours on the
Effective Date
Page 31 of 31
PLEASE NOTE:
Canby Utility Board has been removed from this contract at Canby and
OMECA's request, The Implementation period has been extended one year.
The Close-out period has been shortened from three years to two years.
By: /S/PAUL J. O'NEAL
Name: Paul J. O'NeaI
Title: Customer Account Executive
Date: 9/15/95
OREGON MUNICIPAL ENERGY AND
CONSERVATION AGENCY
By: /S/ ROBERT J. SCHMITT
Name: Robert J. Schmitt
Title: Chairman
Date: 10/30/95
31