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HomeMy WebLinkAbout2014-319 Agrmt - CLEAResult w/BPA-Energy Smart Grocer CLEAResu It UTILITY PARTICIPATION AGREEMENT THIS UTILITY PARTICIPATION AGREEMENT (this "Agreement") is dated Otc 2 , 201y(the "Effective Date") between CLEAResult Consulting, Inc., CLEAResult a Texas corporation and/or an affiliate thereof ("CLEAResult") andCik J4/a„~ ("Utility"). OVERVIEW A. CLEAResult and the Bonneville Power Administration ("BPA") have entered into an agreement dated October 21, 2011 (the "BPA Agreement") under which CLEAResult is implementing and managing the EnergySmart Grocer Program (the "Program") throughout various territories in the Northwest on behalf of BPA. B. The Program encourages improvements in energy efficiency by evaluating and executing energy saving initiatives. Customers (defined in Section 2 below) that participate in the Program may qualify for incentives funded by Utility. CLEAResult and Utility are entering into this Agreement so that CLEAResult may carry out its obligations under the BPA Agreement and Utility can avail itself and its customers to the services offered by CLEAResult. C. By signing this Agreement, Utility affirms and agrees to the terms and conditions contained in this Agreement. As an additional requirement for participation in the Program, Utility must provide CLEAResult with the Energy Smart Grocer Program Sign-up Form (the "Form") provided by BPA to be attached to this Agreement as Exhibit A. Utility affirms and agrees that the information provided by Utility in the Form (including the final incentive budget) is accurate and acknowledges that such information will be relied upon by both CLEAResult and BPA. Utility will provide CLEAResult with sixty (60) days notice prior to changing any funding amounts or program scopes. AGREEMENT 1. TERM. This Agreement is effective from the Effective Date and will continue until September 30, 2015 renewing automatically for successive two (2) year periods, unless terminated in accordance with the provisions in this Agreement. Prior to the expiration of the preceding Term, Utility will provide CLEAResult and BPA with an updated Form in the format set forth in Exhibit A. 2. PROGRAM ELIGIBLITY. "Customers" under the Program means Utility customers that have commercial refrigeration load, including for example, supermarkets, restaurants, institutional kitchens, and other commercial refrigeration sites (each, a "Facility"). 3. CLEAResult PROGRAM SERVICES. a. Customer Contact. Utility authorizes CLEAResult to contact Customers by phone, mail, email or in person for the purpose of informing them about the Program and its processes. Page 1 of 8 CLEAResu It b. Audits. CLEAResult will work with Customers to schedule audits of their Facilities (each, an "Audit"). Utility may elect to attend an Audit following notice to CLEAResult. Audits will be conducted in accordance with Subsection (h) below. CLEAResult may elect to conduct site assessments in addition to or in lieu of Audits. c. Direct Installs. CLEAResult or CLEAResult's field energy analyst may, with the Customers' approval and in their sole discretion, decide to install some "quick payback" items on their first visit to a Facility. Quick payback installations may include, but are not limited to, beverage merchandise controls or compact fluorescent lamps. The cost of the install will be borne by the Customer and not the Utility. d. Recruiting and Managing Trade Allies. CLEAResult may assist Customers in selecting general contractors to perform work under the Program (each, a "Contractor"). CLEAResult will assist Customers with their selected Contractor by providing training on the Program and support to the Contractor that CLEAResult deems necessary in its sole discretion. CLEAResult is not responsible for Contractor conduct and Utility holds CLEAResult harmless from any third party claims against Contractor (including Customer claims), Contractor misrepresentations, or misconduct occurring in connection with the Program. e. Technical Design Review. CLEAResult will obtain a technical design review of a potential measure(s) for a Customer upon Customer's request. f. Determining kWh Savings. In addition to regionally deemed savings methods, CLEAResult will use its proprietary modeling software to determine energy savings by measure a Customer installs in a Facility. The energy savings are based on DOE-2 parametric runs and engineering calculations which account for many variables including the Facility's particular climate zone, compressor configuration, condenser type, condenser degradation factors, and hours of operation. CLEAResult's software estimates are site and climate specific. CLEAResult will use these savings calculations when submitting savings measurements to Utility. CLEAResult will also derive prescriptive energy savings for measures that do not require an onsite audit. These measures are not climate or system specific. Lighting savings will be estimated using the BPA Commercial/Industrial Lighting Offer procedures. g. Post Installation Inspections. CLEAResult performs post installation inspections through site inspection or verification of documentation controls. h. Service Levels. CLEAResult will conduct audits with in accordance with the schedule below based upon committed incentive funds. Service Level 1 ($50,000 and above in committed incentive funds for FY2014-2015): Utilities in the Service Level I category will receive a minimum of two (2) field visits annually, audit requests fulfilled within sixty (60) days, and offered deemed and calculated measures. CLEAResult will provide post installation inspections for all projects with total project costs over $10,000. Page 2 of 8 CLEAResu It Service Level II (less than $50,000 in committed incentive funds for FY2014-2015): If Utility falls into Service Level II category, CLEAResult may elect to perform a field visit at its sole discretion. As a standard offering, CLEAResult will offer deemed Measures only. Audits, calculated measures, and post installation inspections will be offered on a case by case basis and at CLEAResult's sole discretion. CLEAResult will also offer outreach training for Utility staff (at Utility's request). Utilities in Service Level II will be required to commit a minimum of $25,000 of incentive funding or be subject to CLEAResult approval for participation in the Program. i. Rebate Processing and Reporting. CLEAResult will review and approve all Customer rebate applications and invoices for completeness and provide the information necessary to substantiate energy savings and Customer rebate eligibility. For Utilities that elect the BPA Turnkey Option, CLEAResult will submit all rebates applications to BPA for its review and approval. All rebates are subject to BPA's approval. CLEAResult will not pay rebates that are rejected by BPA. For Utilities that elect the Self-funded Turnkey Option, CLEAResult will submit all rebates applications to the Utility for its review and approval. CLEAResult shall not be responsible for any claims rejected by the Utility for any reason. CLEAResult reserves the right to subcontract rebate or check processing and similar functions. The chart below designates the responsible party for each Program component depending on which funding option is elected in the Form. Program Component BPA Turnkey Option Self-funded Turnkey Responsible Party Option Responsible Party Rebate check issuance CLEAResult CLEAResult Post Installation CLEAResult CLEAResult verification Management of CLEAResult CLEAResult required back-up documentation Review and acceptance BPA Utility of CLEAResult- submitted data to BPA Reimbursement to BPA Utility CLEAResult for incentives paid to Customers j. Rebate Payments. Within ten (10) business days of EPA's or Utility approval of submitted rebates, CLEAResult will mail checks to Customers or Customer designated rebate payees. Checks will be accompanied with a letter including Utility's logo in accordance with Section 5 below, thanking the Customer for their participation in the Program. k. Program Reports. CLEAResult will provide Utility with limited access to its online portal, Salesforce Sprocket or Sprocket Dashboard, which Utility may use for the sole purpose of viewing completed Audits, dates of any re-visits, rebate activity, rebate savings, to obtain copies of completed audit reports, view pipeline projects and associated kWh savings. Page 3 of 8 CLEAResu It 1. Targeted Facilities. Utility would like CLEAResult to target all eligible facilities. More specifically, for Program initiatives around refrigeration CLEAResult will target: i. Grocers and national accounts; ii. Convenience stores; iii. Restaurants; and iv. Other commercial refrigeration sites. 4. ACCEPTANCE. Utility's acceptance of the terms and conditions set forth in this Agreement is required for participation in the Program. Utility acknowledges that the terms and conditions of the Program are subject to change at CLEAResult's sole discretion. S. USE OF UTILITY MARKS. During the term of this Agreement, Utility grants to CLEAResult a nonexclusive, royalty free right to use its trademarks, service marks, trade names, logos, or similar markings (each a "Mark") subject to the limitations contained in this Agreement. CLEAResult may use the Marks on its website, in its advertising and other promotional activities related to the Program as well as on checks and other mailings to Customers or Contractors. Utility represents and warrants that it owns title to all Marks and agrees to indemnify CLEAResult for any third party claims against CLEAResult for misuse or infringement of the Marks or any claims by any third party pursuant to the exercise of CLEAResult's rights under this Agreement. 6. TERMINATION. The parties may terminate this Agreement for cause in the event of any default by the other party following written notice of any default and commercially reasonable opportunity for the defaulting party to cure such default. CLEAResult reserves the right to terminate the Program, this Agreement or any part of this Agreement at the direction of BPA for any reason or for no reason in its sole discretion. In the event of such termination, the Utility shall at the election of CLEAResult: (a) immediately cease participation in the Program, including but not limited to, any applicable use of Program materials, logos or other advertising tools, equipment, and incentive forms; or (b) finalize Program projects in progress at the time of termination as directed by CLEAResult. CLEAResult and BPA will not pay Utility for post- termination activity after receipt of notice of termination unless such CLEAResult elects for Utility to finalize such projects pursuant to Section 6 (b) above. 7. CONFIDENTIAL INFORMATION. The parties will not use any Confidential Information for any purpose other than as needed to perform their respective obligations under this Agreement. Each party agrees to hold all Confidential Information in strict confidence and not disclose any Confidential Information to any person other than to its employees and independent contractors who (a) have a "need to know", (b) have been advised of the confidential and proprietary nature of the Confidential Information and (c) have signed a written agreement that is as protective of the Confidential Information as that set forth in this Section. When the parties have fully performed their respective obligations under this Agreement, or at any other time upon request from the party disclosing the Confidential Information, the party in receipt of the Confidential Information will return or destroy all Confidential Information in tangible form that is in their possession. The term "Confidential Information" means all information and materials relating to Utility or CLEAResult's business, in whatever form or medium, disclosed to or received by the receiving party, whether visually, by perception, orally or in writing, whether Page 4 of 8 CLEAResu It disclosed before or after the Effective Date, and whether or not specifically marked or otherwise identified as "Confidential" or "Proprietary," including all summaries and notes prepared by or on behalf of the other party, except that "Confidential Information" does not include any information that the receiving party demonstrates: (x) has become generally available to the public without breach of this Agreement; (y) was later received from another person who did not violate any duty of confidentiality; or (z) that was developed without use of any Confidential Information by persons who were not exposed to the Confidential Information. Utility acknowledges the Program handles Customer information such as pricing, invoices, Customer addresses, rebate information, utility account numbers and tax identification numbers. If Utility receives a public records request for information that includes Customer information, Utility shall notify CLEAResult and the Customer of the request and postpone the release of information for ten business days to allow the Customer to file a lawsuit seeking an injunction preventing the release of the documents pursuant to RCW 42.546.540. Unless the Customer obtains and serves an injunction upon the Utility before the close of business on the tenth business day after the date of the notification, the Utility may release the documents. It is the Customer's discretionary decision whether to file the lawsuit. For purposes of this Agreement, any information related to pricing, invoices, Customer addresses, rebate information, utility account numbers and tax identification numbers to the Utility by CLEAResult shall at all times be considered confidential and proprietary. 8. PROGRAM CHANGES . CLEAResult reserves the right to make changes to the Program. CLEAResult will notify Utility of such changes by email or another nationally recognized mail carrier. 9. MISCELLANEOUS. (a) Indemnity. Utility will indemnify, hold harmless, and defend BPA, CLEAResult and, their respective officers, employees, agents, representatives, and affiliates against any and all losses, liabilities, damages, claims, suits, proceedings, judgments, assessments, costs, and expenses (including interest and penalties), and including reasonable attorney fees and expenses, incurred by BPA and CLEAResult arising from (i) negligent or wrongful acts or omissions of the Utility or of its officers, employees, agents, representatives, or subcontractors, affiliates, or (ii) breach by Utility or its officers, employees, agents, representatives, subcontractors, or affiliates of this Agreement. CLEAResult shall defend, indemnify and hold harmless Utility, and its respective employees, agents, officers and directors, from and against any losses, liabilities, damages, claims, damages, proceedings, judgments, assessments, costs and expenses (including interest and penalties), and including reasonable attorney fees and expenses arising out of, or resulting from any act or omission of CLEAResult relating to, or arising out of, performance or nonperformance of this Agreement by CLEAResult, except to the extent such act or omission is due to the negligence of Utility or its subcontractors or any other third party. The parties specifically agree that the provisions of this Section also apply to any claim of injury or damage to the persons or property of the Utility's employees. Utility Page 5 of 8 CLEAResu It acknowledges and agrees that, as to such claims, Utility, with respect to CLEAResult waives any right of immunity which Utility may have under any applicable law. This waiver was specifically negotiated by the Parties, is solely for the benefit of the Parties and their successors and assigns, and is not intended as a waiver of Utility's right of immunity under said industrial insurance for any other purpose. (b) Attorney's Fees. In the event an action is brought to enforce any provision of or declare a breach of this Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal costs including attorney's fees incurred. (c) Notices. Except as otherwise provided in the Agreement, all notices or other communications under this Agreement must be in writing and delivered to the addresses, including e-mail addresses, below the signatures to this Agreement. Such addresses may be changed by notice given by such party to the other pursuant to this section or by other form of notice agreed to by the parties. (d) Assignment. Neither party may assign, voluntarily, or by operation of law, or otherwise, any rights or delegate any duties under this Agreement without the other Party's prior written consent. Any attempt to do so without that consent will be void. (e) Entire Agreement; Counterparts. This Agreement contains the entire agreement of the parties regarding the subject matter described of the Agreement, and all other promises, representations, understandings, arrangements and prior agreements related to this Agreement are merged and superseded by this Agreement. The provisions of this Agreement may not be amended, except by an agreement in writing signed by the party against whom enforcement of any amendment is sought. This Agreement may be executed in two (2) or more counterparts, all of which will constitute but one and the same instrument. (f) Governing Law; Jurisdiction and Venue. This Agreement will be interpreted under, and any disputes arising out of this Agreement will be governed by, the laws of the State of Oregon, without reference to its conflicts of law principles. Utility irrevocably consents to the jurisdiction of the state and federal courts located in the State of Oregon, USA, in connection with all actions arising out of or in connection with this Agreement, and waives any objections that venue is an inconvenient forum. Utility further agrees that it will not initiate any action against CLEAResult in any other jurisdiction. (f) Severability. Should any provision of this Agreement be held by a tribunal of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement will remain in full force and effect. Page 6 of 8 CLEAResu It (g) Waiver of Breach. The failure of either party to enforce strict performance by the other of any provision of this Agreement, or to exercise any right available to the party under this Agreement, shall not be construed as a waiver of such party's right to enforce strict performance in the same or any other instance. (h) Representation on Authority of Signatory. The individual signing this Agreement represents and warrants that he or she is duly authorized and has the legal capacity to execute and deliver this Agreement on behalf of Recipient. The Recipient represents and warrants that the execution and delivery of this Agreement and Recipient's obligations under this Agreement have been duly authorized and that the Agreement is a valid and legal agreement binding on Recipient and enforceable in accordance with its terms. (i) Disclaimer. CLEAResult'S REVIEW OF THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF INSTALLATIONS SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL FEASIBLITY, OPERATIONAL CAPABLITY OR RELIABLITY OF THE INSTALLATIONS. CUSTOMERS AND CONTRACTORS ARE SOLEY RESPONSIBLE FOR THE ECONOMIC AND TECHNICAL FEASIBLITY, OPERATIONAL CAPABLITY AND RELIABLITY OF ALL INSTALLATIONS. CLEAResult SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF ANTICIPATED REVENUE, PROFITS, OR GOODWILL, WHETHER ARISING IN NEGLIGENCE, BREACH OF CONTRACT, OR UNDER STATUTE OR RULE. The parties, by their respective duly authorized representatives, have executed this Agreement on the date shown below. This Agreement shall not bind either party until executed by both parties. CLEAResult Utility CLEAResult Consulting, Inc. By: Dan McDonafi- ` Bv: _ Associate Director Name: Title: /"A-Afe--4- 14%lyJf - Notice Address: Ce.,rr~.,a~ran 100 SW Main St., Suite 1500 Notice Address: Portland, OR 97204 [Streetl [Suite] .20 tar[ Mewl-* St Attention: Dan McDonald [City, State. Zip] ~sln/aKOI 0,e 97tz10 Phone: (503) 575-4179 E-mail: aWam y- asti/a.~a✓ or: cu,r Email: daniel.mcdonald@clearesult.com Work: (SV/ )S'.ri - AdYd Cell: ( dam!/ 1 S9/ -/,704 With a copy to: 100 SW Main St., Suite 1500 Portland, OR 97204 Attention: Joe Mattoon Page 7 of 8 CLEAResu It Phone: (503) 248-4636 Email: legal@clearesult.com EXHIBIT A Energy Smart Grocer Program Sign-up Form Page 8 of 8 S O N N E V I L L E PONIA•DNIINISTRATION Energy Smart Grocer Program Sign-up Form FY2014-FY2015 • Date 11/18/2014 Is this a revision? ❑ Yes © No If this is a revision, please fully complete the form with the changed information and the information that remains unchanged. The revised form will replace your previous form. Revisions will be effective within 30 days after the request. Program option and scope maybe changed only once per fiscal year. 1. Customer Information Customer Authorized Representative Name City of Ashland Adam Hanks 71 Contact Person Phone Adam Hanks 541-552-2046 Address City, State, Zip 20 East Main St Ashland, OR 97520 E-mail adam@ashland.or.us 2. Option Election Select one option below. Under all options, PECI is responsible for rebate processing and check issuance, post-installation checks as required, management of required back-up documentation and uploading project data to the BPA Reporting System. BPA Turnkey Option (funded by the Energy Conservation Agreement Implementation Budget) ® The COTR will make a reduction to the customer's Energy Conservation Agreement Implementation Budget, Exhibit A, in an amount equal to elected funding. BPA will reimburse PECI for incentives paid to end users in the customer's service territory and will review PECI data for acceptability. Self-funded Turnkey Option (funded by the customer's own funds) ❑ Customers will use their own funds to reimburse PECI for incentives paid to end users in their service territory and will review PECI data for acceptability after BPA performs an initial review. Combined BPA Turnkey Option and Self-funded Turnkey Option ❑ Customers will initially be enrolled in the BPA Turnkey Option, and when the BPA Turnkey Option funding is depleted, they will automatically transition to the Self-funded Turnkey Option. Customers electing this option must complete funding amounts in section 3 for both the BPA and Self-funded Turnkey Option. 3. Funding Amount Provide the funding amount(s) (below) for the program option selected above. Customers must commit a minimum of $25,000 unless approved by PECI. Approved customers will receive a service agreement from PECI. Non-approved customers will be notified by BPA, and BPA engineers will help customers deliver deemed refrigeration measures outside the Energy Smart Grocer Program. Total Revisions (if revision, previous + addition) Previous Total Addition BPA Turnkey 20,000 Self-Funded Turnkey Total Funding 20,000 Total Funding Level Service Description PECI will (1) perform a minimum of two visits per fiscal year (to contractors and/or end users) in customer's service $50,000.00 and above territory, (2) perform requested audits within 60 days of request, (3) provide deemed and calculated measures and (4) provide inspections for projects with total costs over $10,000.00. PECI may perform one visit (to a contractor/end user) in customer's service territory and will provide (1) a minimum $49,999.99 and under of one end-user outreach training for customer staff (at customer's request), (2) deemed measures only, and (3) audits, calculated measures and post installation inspections on a case-by-case basis at PECI's discretion. 4. Program Scope Program scope automatically includes core refrigeration energy efficiency measures, including lighting in refrigerated spaces, in all potential end- user types (e.g., grocery/convenience stores, restaurants, schools, and other commercial refrigeration equipped facilities). Select additional program components by checking the boxes below. ❑ Interior and exterior lighting in other areas if a refrigeration project is completed or pursued ® New construction (only in buildings equipped with refrigeration) Existing building commissioning (only in buildings equipped with refrigeration) HVAC (only in buildings equipped with refrigeration) Please send completed form to BPA (e-mail eedocs9bpa.gov or fax 1-866-535-7955). Print Form