HomeMy WebLinkAbout2009-147 Agrmt - BPA Energy Conservation
Contract No. 09ES-ll041
ENERGY CONSERVATION AGREEMENT
executed by the
BONNEVILLE POWER ADMINISTRATION
and
CITY OF ASHLAND
Table of Contents
Section
l.
2,
3.
4.
5.
6.
7.
8.
9.
10.
11.
Page
Term........................................................:........................................................ 2
Definitions ...................................................................................................... 2
Purchase of Energy Savings ........................................,.............................. 3
Implementation Budget ............................................................................... 4
Project Implementation............................................................................... 4
Termination....,...............................................................................................5
Standard Provisions ..................................................................................... 7
Governing Law and Dispute Resolution .................................................. 8
Uncontrollable Forces.......,..... .......... ................. ...... ......... .....,.......... 10
Notices and Contact Infonnation .............................................................. 10
Signatures ..................................................................,.................................... II
Exhibit A Implementation Budget
This ENERGY CONSERVATION AGREEMENT (Agreement) is executed by the
UNITED STATES OF AMERICA, Department of Energy, acting by and through the
BONNEVILLE POWER ADMINISTRATION (BPA), and the CITY OF ASHLAND,
(Ashland), a municipal corporation organized under the laws of the State of Oregon, and
may be referred to individually as "Party" or collectively as "Parties."
RECITALS
BPA is required by the Pacific Northwest Electric Power Planning and Conservation
Act, 16 U.S.C. ~~ 839-839h (Northwest Power Act), to meet the net firm power load
requirements of its customers in the Pacific Northwest.
BPA is authorized to acquire Conservation to reduce the firm power load
requirements of its customers in the Pacific Northwest.
BPA offers a portfolio of initiatives and infrastructure support activities to ensure
the conservation targets established in the Northwest Power and Conservation Council's
Sixth Power Plan are achieved.
Beginning October 1, 2009, BPA will transition to two-year rate periods.
Understanding that conservation projects can extend beyond two years, BPA offers this
Agreement to provide long-term certainty to customers implementing Conservation projects
and programs.
This Agreement is an overarching agreement that incorporates the requirements of
the Conservation Rate Credit and Conservation Acquisition Agreement Implementation
Manual (Implementation Manual), or its successor. This Agreement includes an
Implementation Budget intended to satisfY BPA's obligations during the term of this
Agreement, including obligations during rate periods where a conservation rate credit may
not be available. Assurance of funding through this Agreement is intended to encourage
BPA's customers to continue implementation of their conservation programs and projects.
Ashland intends to install cost-effective Measures within its service area, producing
a quantity of cost-effective Energy Savings, and report such achievements in the Planning,
Reporting and Tracking (PTR) system, or its successor.
The Parties agree as follows:
1. TERM
(a) This Agreement takes effect on the date signed by both Parties (Effective
Date), and expires on September 30, 2014, unless terminated earlier as
provided in section 6, Termination. Except as provided for in section 3(c), all
liabilities shall remain until satisfied.
(b) The Parties agree that on the Effective Date, this Agreement shall replace
Conservation Acquisition Agreement No. 06ES-I0738 and transfer all Work
in Progress initiated under the requirements of the Implementation Manual,
or its successor, to this Agreement. Ashland agrees that no other invoices
shall be paid by BPA for Completed Units delivered under Conservation
Acquisition Agreement No. 06ES-I0738.
2. DEFINITIONS
AIl capitalized terms used in this Agreement shall have the following meaning:
(a) "Completed Unit" means a Unit that is properly installed, operating and,
when applicable, commissioned in accordance with the manufacturer's
requirements and specifications for normal operations and, as applicable, has
met specifications and requirements set forth in the Implementation Manual,
or its successor, and the PTR system.
(b) "Conservation" means any reduction in electric energy consumption resulting
from an increase in the efficiency of electric energy use, production or
distribution.
(c) "Consumer" means any end user of electric energy in Ashland's service area
that contributes to Ashland's total retail load.
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(d) "Energy Savings" means the ascribed, deemed, calculated, estimated,
evaluated, or verified Conservation, in first year kilowatt-hours (kWh)
attributable to Completed Units.
(e) "Fiscal Year" means the period beginning each October 1 and ending the
following September 30.
(I) "Implementation Budget" means the amount of money BPA shall make
available to Ashland, included in Exhibit A, to expend on Implementation
Costs during the Implementation Period.
(g) "Implementation Costs" means the sum of all or part of the actual total costs
to install or implement Measures that result in Completed Units.
(h) "Implementation Period" means the period of time from the Effective Date
through September 30, 2014.
(i) "Measure(s)" means materials or equipment installed, or activities
implemented, to achieve Conservation.
(j) "Other Requirements" means any revision, restriction, or alteration, which
BPA may impose on any Measure as a result of any directive or order of any
court or regulatory agency of competent jurisdiction, or the result of a final
record of decision of any process conducted by BPA pursuant to the National
Environmental Policy Act.
(k) "Unit" means any Measure or combination of Measures that achieve
Conservation.
(I) "Work in Progress" means Units committed to by Ashland, the installation of
which has not been completed to make such Units Completed Units.
3. PURCHASE OF ENERGY SAVINGS
(a) BPA agrees to provide reimbursement and, if available, accept claims toward
a conservation rate credit provided for the purchase of Energy Savings.
Ashland agrees to sell to BPA the Energy Savings from Completed Units
installed in accordance with this Agreement.
(b) Ashland may request additional Implementation Budget at any time during
the term of this Agreement. IfBPA approves the request, BPA shall send a
revised Exhibit A to Ashland.
(c) Unless otherwise agreed to in writing by BPA, BPA shall not be obligated to
pay for Energy Savings from Completed Units delivered after the
Implementation Period.
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(d) In the event a conservation rate credit is not available during the term of this
Agreement, Ashland may report Completed Units and BPA shall provide
reimbursement from the Implementation Budget in Exhibit A.
4. IMPLEMENTATION BUDGET
(a) On the Effective Date of this Agreement Ashland is authorized by BPA to
incur Implementation Costs in an amount equal to the Implementation
Budget in Exhibit A.
(b) The Implementation Budget provided by BPA in Exhibit A shall be available
to Ashland for the term of this Agreement, except as provided in section 3(c)
and section 6, Termination.
(c) Unless otherwise agreed to in writing by BPA, BPA shall not be obligated to
pay Implementation Costs in excess ofthe Implementation Budget in
Exhibit A.
(d) BPA may, but is under no obligation to, supplement the Implementation
Budget in Exhibit A.
(e) Unless otherwise specified in this Agreement, Ashland shall release BPA of
its obligation for the balance of any Implementation Budget remaining upon
conclusion of the Implementation Period in Exhibit A.
5. PROJECT IMPLEMENTATION
(a) The Implementation Manual, or its successor, and any changes made to the
Implementation Manual or its successor are incorporated by reference into
this Agreement.
(b) Ashland shall:
(1) install Units in accordance with the requirements of the
Implementation Manual or its successor;
(2) report Completed Units in accordance with the requirements of the
Implementation Manual or its successor;
(3) submit invoices no more often than monthly; and
(4) implement this Agreement in accordance with all applicable law(s).
(c) Ashland may subcontract to provide Completed Units under this Agreement.
If Ashland does so, Ashland shall, by such subcontract, require that the
entity comply with the terms and conditions of the Implementation Manual
or its successor and all applicable laws.
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6. TERMINATION
(a) Either Party may terminate this Agreement upon thirty days' written notice.
Ashland shall have one year from the Effective Date of termination pursuant
to this section to complete Work in Progress.
(b) BPA may terminate this Agreement upon thirty days' written notice if
Ashland:
(1) has failed to comply with the environmental, technical, or record-
keeping requirements;
(2) has failed to use any portion ofthe Implementation Budget in a
manner consistent with this Agreement;
(3) gives notice to BPA that it will stop placing firm load on BPA pursuant
to its existing firm power sales contract, or its successor, for a period of
at least one year;
(4) gives notice to BPA of its intent to terminate, or terminates such
existing or successor firm power sales contract with BPA; or
(5) BPA stops serving Ashland's loads because Ashland becomes
insolvent, files a petition for bankruptcy or reorganization, or assigns
substantially all assets to creditors.
(c) Ashland shall not be allowed a completion period for Work in Progress
Measures beyond the Effective Date ofa notice of termination for a
termination under section 6(b).
Cd) If this Agreement is terminated in accordance with section 6Cb), Ashland
shall be liable for all payments for Work in Progress to Consumers and shall
pay a reimbursement charge to BPA. The reimbursement charge shall be
calculated by BPA using the following formula:
R = P*CT-A).;, T
Where:
R = Reimbursement to BPA;
P = Total BPA payments to Ashland for Implementation Costs to
the termination date of this Agreement;
A = Sum of the Energy Savings from all Completed Units for the
full Measure life from the date of BPA's payment; and
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T = Sum of the Energy Savings from all Completed Units from the
date of termination of this Agreement through the remaining
life of the Completed Units.
The following conditions apply to the reimbursement charge:
(1) Energy Savings shall be consistent with the Measure life in the PTR
system.
(2) BPA shall present an invoice to Ashland for payment calculated
pursuant to section 6(d).
(3) Ashland may reimburse BPA by either:
(A) making a lump sum payment within 30 calendar days of the
date of BPA's invoice; or
(B) making no more than three consecutive equal monthly
payments, with the first payment due within 30 days of the
date ofBPA's invoice and each successive payment is due 30
days after the last due date.
(C) If Ashland reimburses BPA by installments, pursuant to 6(d)
(3)(B), then BPA shall charge interest at the prime rate (as
listed in the Money Rates section of the Wall Street Journal) on
the date of BPA's notice of termination under section 6(b). BPA
shall calculate interest for the period of time between the date
of the first payment made by BPA to Ashland and the date of
the last reimbursement payment made by Ashland to BPA
pursuant to section 6(d)(3)(B).
7. STANDARD PROVISIONS
(a) Amendments
Except where this Agreement explicitly allows one party to unilaterally
amend a provision or revise an exhibit, no amendment or exhibit revision to
this Agreement shall be of any force or effect unless set forth in a written
instrument signed by authorized representatives of each Party.
(b) Interpretations
BPA may issue interpretations, determinations, and findings related to this
Agreement that are binding on the Parties. Such decisions shall be provided
to Ashland in writing. In administering this Agreement, only the written
statements ofBPA officials acting within the scope of their authority shall be
considered to be official BPA statements.
(c) Assignment
This Agreement is binding on any successors and assigns ofthe Parties. BPA
may assign this Agreement to another Federal agency to which BPA's
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statutory duties have been transferred. Neither Party may otherwise
transfer or assign this Agreement, in whole or in part, without the other
Party's written consent. Such consent shall not be unreasonably withheld.
BPA shall consider any request for assignment consistent with applicable
BPA statutes.
(d) Entire Agreement
This Agreement, including documents expressly incorporated by reference,
constitutes the entire Agreement between the Parties. It supersedes all
previous communications, representations, or contracts, either written or
oral, which purport to describe or embody the subject matter of this
Agreement.
(e) Order of Precedence
In the event of conflict, the body of this Agreement shall prevail over the
Exhibit of this Agreement.
CD No Third Party Beneficiaries
This Agreement is made and entered into for the sole benefit of the Parties,
and the Parties intend that no other person or entity shall be a direct or
indirect beneficiary of this Agreement.
(g) Severability
If any term ofthis Agreement is found to be invalid by a court of competent
jurisdiction, then such term shall remain in force to the maximum extent
permitted by law. AIl other terms shall remain in force unless that term is
determined not to be severable from all other provisions of this Agreement by
such court.
(h) Waivers
No waiver of any provision or breach of this Agreement shall be effective
unless such waiver is in writing and signed by the waiving party, and any
such waiver shall not be deemed a waiver of any other provision of this
Agreement or any other breach of this Agreement.
8. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be interpreted consistent with and governed by federal law.
Ashland and BPA shall identify issue(s) in dispute arising out of this Agreement and
make a good faith effort to negotiate a resolution of such disputes before either may
initiate litigation or arbitration. Such good faith effort shall include discussions or
negotiations between the Parties' executives or managers. Pending resolution of a
contract dispute or contract issue between the Parties or through formal dispute
resolution ofa contract dispute arising out of this Agreement, the Parties shall
continue performance under this Agreement unless to do so would be impossible or
impracticable. Unless the Parties engage in binding arbitration as provided for in
this section, the Parties reserve their rights to individually seek judicial resolution
of any dispute arising under this Agreement.
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(a) Judicial Resolution
Final actions subject to section 9(e) of the Northwest Power Act are not
subject to arbitration under this Agreement and shall remain within the
exclusive jurisdiction of the United States Court of Appeals for the Ninth
Circuit. Such final actions include, but are not limited to, the establishment
and the implementation of rates and rate methodologies. Any dispute
regarding any rights or obligations of Ashland or BPA under any rate or rate
methodology, or BPA policy, including the implementation of such policy,
shall not be subject to arbitration under this Agreement. For purposes ofthis
section, BPA policy means any written document adopted by BPA as a final
action in a decision record or record of decision that establishes a policy of
general application or makes a determination under an applicable statute or
regulation. IfBPA determines that a dispute is excluded from arbitration
under this section, then Ashland may apply to the federal court having
jurisdiction for an order determining whether such dispute is subject to
nonbinding arbitration under this section.
(b) Arbitration
Any contract dispute or contractissue between the Parties arising out of this
Agreement, which is not excluded by section 8(a) above, shall be subject to
arbitration, as set forth below.
(I) Ashland may request that BPA engage in binding arbitration to
resolve any dispute. If Ashland requests such binding arbitration and
BPA determines in its sole discretion that binding arbitration of the
dispute is appropriate under BPA's Binding Arbitration Policy or its
'successor, then BPA shall engage in such binding arbitration,
provided that the remaining requirements of this section 8 are met.
BPA may request that Ashland engage in binding arbitration to
resolve any dispute. In response to BPA's request, Ashland may agree
to binding arbitration of such dispute, provided that the remaining
requirements ofthis section 8 are met. Before initiating binding
arbitration, the Parties shall draft and sign an agreement to engage in
binding arbitration, which shall set forth the precise issue in dispute,
the amount in controversy and the maximum monetary award
allowed, pursuant to BPA's Binding Arbitration Policy or its successor.
(2) Nonbinding arbitration shall be used to resolve any dispute arising
out of this contract that is not excluded by section 8(a) above and is
not resolved via binding arbitration, unless Ashland notifies BPA that
it does not wish to proceed with non-binding arbitration.
(c) Arbitration Procedure
Any arbitration shall take place in Portland, Oregon, unless the Parties agree
otherwise. The Parties agree that a fundamental purpose for arbitration is
the expedient resolution of disputes; therefore, the Parties shall make best
efforts to resolve an arbitral dispute within one year of initiating arbitration.
The rules for arbitration shall be agreed to by the Parties.
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(d) Arbitration Remedies
The payment of monies shall be the exclusive remedy available in any
arbitration proceeding pursuant to this section. This shall not be interpreted
to preclude the Parties from agreeing to limit the object of arbitration to the
determination of facts. Under no circumstances shall specific performance be
an available remedy against BPA.
(e) Finality
(1) In binding arbitration, the arbitration award shall be final and
binding on the Parties, except that either Party may seek judicial
review based upon any of the grounds referred to in the Federal
Arbitration Act, 9 U.S.C. *1-16 (1988). Judgment upon the award
rendered by the arbitrator(s) may be entered by any court having
jurisdiction thereof.
(2) In non-binding arbitration, the arbitration award is not binding on the
Parties. Each Party shall notify the other Party within 30 calendar
days, or such other time as the Parties otherwise agreed to, whether it
accepts or rejects the arbitration award. Subsequent to non-binding
arbitration, if either Party rejects the arbitration award, either Party
may seek judicial resolution of the dispute, provided that such suit is
brought no later than 365 calendar days after the date the arbitration
award was issued.
(D Arbitration Costs
Each Party shall be responsible for its own costs of arbitration, including
legal fees. Unless otherwise agreed to by the Parties, the arbitrator(s) may
apportion all other costs of arbitration between the Parties in such manner as
the arbitrator(s) deem reasonable taking into account the circumstances of
the case, the conduct of the Parties during the proceeding, and the result of
the arbitration.
9. UNCONTROLLABLE FORCES
The parties shall not be in breach of their respective obligations to the extent the
failure to fulfill any obligation is due to an Uncontrollable Force. "Uncontrollable
Force" means an event beyond the reasonable control of, and without the fault or
negligence of, the party claiming the Uncontrollable Force, that prevents that Party
from performing its contractual obligations under this Agreement and which, by
exercise of that Party's reasonable care, diligence and foresight, such party was
unable to avoid. Uncontrollable Forces include, but are not limited to:
(a) strikes or work stoppage;
(b) floods, earthquakes, or other natural disasters; terrorist acts; and
(c) final orders or injunctions issued by a court or regulatory body having
competent subject matter jurisdiction which the party claiming the
Uncontrollable Force, after diligent efforts, was unable to have stayed,
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suspended, or set aside pending review by a court of competent subject
matter jurisdiction.
Neither the unavailability of funds or financing, nor conditions of national or local
economies or markets shall be considered an Uncontrollable Force. The economic
hardship of either Party shall not constitute an Uncontrollable Force. Nothing
contained in this provision shall be construed to require either Party to settle any
strike or labor dispute in which it may be involved.
If an Uncontrollable Force prevents a Party from performing any of its obligations
under this Agreement, such party shall: (1) immediately notify the other Party of
such Uncontrollable Force by any means practicable and confirm such notice in
writing as soon as reasonably practicable; (2) use its best efforts to mitigate the
effects of such Uncontrollable Force, remedy its inability to perform, and resume full
performance of its obligation hereunder as soon as reasonably practicable; (3) keep
the other Party apprised of such efforts on an ongoing basis; and (4) provide written
notice of the resumption of performance. Written notices sent under this section
must comply with section 10, Notices and Contact Information.
10. NOTICES AND CONTACT INFORMATION
Any notice required under this Agreement that requires such notice to be provided
under the terms of this section shall be provided in writing to the other Party in one
of the following ways:
(a) delivered in person;
(b) by a nationally recognized delivery service with proof of receipt;
(c) by United States Certified Mail with return receipt requested;
(d) electronically, if both Parties have the means to verifY the electronic notice's
origin, date, time of transmittal and receipt; or
(e) by another method agreed to by the Parties.
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Notices are effective when received. Either Party may change the name or address
for delivery of notice by providing notice of such change consistent with this section.
Parties shall deliver notices to the following person and address:
If to Ashland:
City of Ashland
90 N. Mountain Avenue
Ashland, OR 97520
Attn: Dan Cunningham
Conservation AnalysUlnspector
(541) 552-2063
(541) 552-2050
cunningd@ashland.or.us
Phone:
Fax:
E-Mail:
If to BPA:
Bonneville Power Administration
P.O. Box 3621 - KLK-l
905 N.E. llth Avenue
Portland, OR 97208
Attn: Sheila Gardner
COTR
(503) 230-5991 ~
(503) 230-3380
sdgardner@bpa.gov
Phone:
Fax:
E-Mail:
11. SIGNATURES
The signatories represent that they are authorized to enter into this Agreement on
behalf ofthe Party for which they sign.
UNITED STATES OF AMERICA
Department of Energy
Bonneville Power Administration
CITY OF ASHLAND
By
By
A1~ tL Cr-
,
Name artha Bennett
(Print/Type)
Name Scott A. Coe
(Print / Type)
Title City Administrator
Title Manager, Western Power Business Area
Date
rl/#J!
Date
(H Q50 1- KLK-l-S: \ AshlandECAdoc) 6/29/2009
09ES-11041, Ashland
110fl1
Exhibit A
IMPLEMENTATION BUDGET
Effective on the Date Executed by Both Parties
1. IMPLEMENTATION BUDGET
(a) Implementation Budget Amount
BPA shall provide 158,788 dollars (the Implementation Budget) for the
implementation of Conservation Measures. Ashland may invoice BPA up to
this total Implementation Budget for Completed Units installed.
(b) Implementation Budget Review
BPA shall periodically review Ashland's activities. In consultation with
Ashland and after providing three months' written notice, BPA may reduce
the Implementation Budget. BPA shall take into account factors that
Ashland believes will affect future rates of expenditure. IfBPA reduces the
Implementation Budget, BPA shall revise this Exhibit and send the revised
Exhibit to Ashland. However, if requested by BPA, Ashland shall provide a
list of potential deemed Measures and custom projects to BPA. Upon receipt
of such a list, BPA shall not reduce the Implementation Budget below the
level needed to:
(I) meet all the estimated costs of deemed Measures and custom projects
either approved by BPA, or custom project Proposals that are under
review by BPA; and
(2) cover the estimated cost associated with all deemed Measures and
custom project proposals that have been presented to Ashland by any
Consumer, and that, in the opinion of Ashland have a high likelihood
of gaining Ashland and BPA approvaL
(HQ501- KLK-l-S: IAshlandECABdgt,doc) 6/29/2009
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