HomeMy WebLinkAbout2002-132 Agrmt - Earth AdvantageContract No.:
EARTH ADVANTAGETM PROGRAM LICENSING AGREEMENT
City of Ashland
90 North Mountain Avenue
Ashland, Oregon 97520
PHONE: (541) 488-5308 FAx: (541) 552-2436
ATTENTION: Dick Wandersheid
('ASHLAND')
EARTH ADVANTAGETM PROGRAM
PORTLAND GENERAL ELECTRIC
16280 SW UPPER BOONES FERRY RD
PORTLAND OR 97224
PHONE: X503_) 603-1701
ATTENTION: -,TIM BRANDS
("PGE')
This EARTH ADVANTAGETM PROGRAM LICENSING AGREEMENT ("Agreement's is entered into by and between Portland General
Electric (PGE) D.b.a. Efficiency Services Group (ESG) a subsidiary of PGE. PGE and the above referenced Licensee, and is
effective on the date it is executed by Licensee and accepted by Earth Advantage. PGE hereby agrees to perform and provide
Licensee with the services described below ("Services'), on the terms and conditions set forth in this Agreement.
1. SCOPE OF AGREEMENT. Subject to the terms and conditions of this Agreement, during the term of this
Agreement, Licensee will purchase the rights to operate the Earth Advantage program ("Program's and the
use of the Earth Advantage logo and Marks ("Marks"), which certifies buildings that meet the Program's
energy efficiency, healthier indoor air quality, environmental responsibility, and resource efficiency
requirements (the "Standards'. Upon execution of this Agreement, PGE will provide Licensee with
Program resources described as "Earth Advantage Program Operations Manual" in Attachment A.
2. ADDITIONAL PRODUCTS AND SERVICES. Licensee may request products and services in addition to those
included in Attachment A, including, without limitation, promotional materials, consultation, technical support
services, training, and ongoing program support by issuing purchase orders. The terms and conditions of this
Agreement will supersede all terms and conditions on any Licensee purchase order. Licensee will reference this
Agreement and will include the following information in each purchase order:
(i) date of the order,
(ii) order number,
(iii) specific program materials or services requested, and
(iv) location where materials will be delivered.
PGE will have sole discretion to accept or reject any order and will either accept or reject the order within 15
days of receipt in writing.
3. LICENSE OR MARKS. PGE grants to Licensee and Licensee accepts a non-exclusive, non-transferable
limited license to use the marks and logos listed in Attachment B (the "License"). PGE does not grant, and
Licensee shall not have, any proprietary rights in or to the Marks or the Program, including, without limitation,
any copyrights or any other tights to any intellectual property of PGE including but not limited to trademarks or
service marks. Licensee will comply with all policies and standards adopted by PGE from time to time and
communicated to Licensee regarding.
(i) use of the Marks, and
(ii) the certification of residential structures using the Marks.
PGE may at any time on reasonable notice modify, replace or withdraw any Mark which no longer is part of the
Program, and Licensee will promptly comply with such modification, replacement or withdrawal. Licensee will
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EARTH ADVANTAGE"m PROGRAM LICENSING AGREEMENT
allow PGE to audit and inspect Licensee's Earth Advantage operations and records at any time upon reasonable
notice and during normal business hours not less frequently than once annually. If, in PGE's opinion,
Licensee's use of the Marks or its certification process using the Marks does not comply with the Standards of
the Earth Advantage Program, PGE will give written notice to Licensee, giving full details of the deficiencies
therein. If Licensee does not remedy these deficiencies to PGE's satisfaction within thirty (30) days of receipt
of notice by Licensee, unless another time period is mutually agreed to in writing, PGE may immediately
terminate this Agreement, except that any payments not yet paid under section 7 and Attachment A will be
immediately due and payable to PGE.
4. USE OF THE MARKS AND PROGRAM. Licensee will use the Marks solely in conjunction with the EA
Program and to certify residential structures within Licensee's retail service territory ("Territory") that meet all
Standards and requirements prescribed in the Program materials and revised in writing and communicated to
Licensee from time to time. Licensee will only use the Marks in a manner that enhances the Marks and the
goodwill pertaining thereto and only in connection with and pursuant to the terms of the Program.
Licensee will maintain the distinctiveness and reputation of the Marks.
Licensee may not
(i) do or allow any other party to do any act or thing that could in any way impair the rights of PGE in
and to the Marks;
(ii) apply for any registration of any trademark or other designation which would affect PGE's rights in
or to the Marks, or file any document with any governmental authority to take any action which
would affect PGE's rights in or to the Marks;
(iii) acquire or claim any title to the Marks by virtue of the license granted to Licensee or through
Licensee's use of the Marks; or
(iv) during the term of this License, or thereafter, challenge PGE's rights in or to the Marks.
Licensee will assist PGE in the enforcement of PGE's rights in the Marks. PGE will have the sole control in
connection with such enforcement, including any legal actions, and will employ counsel of its own choice to
direct the handling of litigation or settlement of such claims and suits. Licensee shall, on a quarterly basis
provide to PGE a summary report in a form acceptable to PGE, the number and type of projects certified as
part of Licensee's participation in the Program, and such other information with respect to the operation of the
Program and use of the Marks as PGE may reasonably request.
5. Release of COPYRIGHTED MATERIALS. Except as provided herein, Licensee will not sell, distribute, or
otherwise make the Program materials or other copyrighted PGE products available to any third parties without
the prior written consent of PGE.
6. QUALITY ASSURANCE. Licensee will ensure that all certified structures conform to the Requirements. As a
condition of certification, Licensee will make available to PGE, upon PGE's request, access or inspection of any
or all structures that are to be certified. PGE reserves the right to revoke the use of the Program and Marks if
the program is not being operated to specifications listed in the Program manual.
7. CHARGES AND PAYMENT. Attachment A sets forth PGE's current rates, charges, and renewal fees for
Licensee's participation in the Program. PGE may change the rates, charges, and renewal fees upon 30 days
prior written notice to Licensee. The price of any additional products and services ordered or contracted for by
Licensee will be based on PGE's then current price list. PGE will ship all materials FOB from PGE facilities.
The charges and fees and all other amounts set forth in this Agreement do not include any sales, use, personal
property, or other taxes, all of which Licensee will pay, except for taxes on PGE's net income. Any amount
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EARTH ADVANTAGET" PROGRAM LICENSING AGREEMENT
payable to PGE pursuant to this Agreement and not paid within thirty (30) days after invoice date will bear
interest at the lesser of 1.5% per month or the maximum legal rate. Licensee will pay all costs of collection, of
any amounts due, pursuant to this Agreement, including reasonable attorney's fees at trial and on appeal.
Licensee will remit all payments to the address designated in PGE's invoices.
8. WARRANTIES AND REMEDIES. PGE warrants that all services under this Agreement will be provided in a
professional manner, and that Program materials will be free of material defects. Licensee's sole and exclusive
remedy for a breach of this provision will be reperformance of the defective portion of the Services and repair
or replacement of the defective portion of the Program materials at the discretion of PGE. OTTER THAN
THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, PGE DOES NOT MAKE
ANY WARRAN'T'Y TO LICENSEE, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE) WITH RESPECT TO THE MARKS, THE PROGRAM, ANY
PRODUCT, SERVICE OR PORTIONS THEREOF PROVIDED HEREUNDER
9. LIMITATION OF LIABILITY. The liability of PGE, its affiliates and their respective agents, shareholders,
representatives, employees, successors, and assigns to Licensee and its employees, successors, and assigns arising
from the licensee's use of the Marks or products or services furnished by PGE hereunder, whether arising from
breach of this Agreement, breach of warranty, tort or otherwise, is limited to the amount of compensation paid
by Licensee to PGE during the 12 month period immediately preceding the event causing such liability. IN NO
EVENT WILL PGE, ITS AFFILIATES AND THEIR RESPECTIVE AGENTS, SHAREHOLDERS,
REPRESENTATIVES, EMPLOYEES SUCCESSORS, AND ASSIGNS BE LIABLE TO LICENSEE OR
ANY INDIVIDUAL OR ENTITY FOR ANY UNFORESEEABLE, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION,
ANY LOSS OF REVENUES OR LOSS OF PROFITS.
10. INDEMNIFICATION. Licensee will indemnify and hold harmless PGE, its affiliates, and their respective
officers, directors, shareholders, employees and agents, from and against all losses, damages, injuries, causes of
action, claims, demands and expenses (whether based upon tort, breach of contract, or proprietary right
infringement), including reasonable legal fees and expenses, of whatsoever kind and nature, at trial or on appeal,
arising out of or on account of, or in connection with any use of the Marks or any Program material or services
by Licensee. Such indemnification obligation will survive the termination of this Agreement.
"Licensee, however, shall not be required to indemnify and hold harmless PGE, its affiliates, or their respective
officers, directors, shareholders, employees or agents, if use of the Marks or any Program material or services by
Licensee complies with this Agreement or if any loss, damage, injury, cause of action, claim, demand or
expenses as described in this section were caused by the negligence of PGE, its affiliates, or their respective
officers, directors, shareholders, employees or agents or by their breach of any applicable duty or applicable
provision of this Agreement."
11. TERM AND TERMINATION. The term of this Agreement and the License granted herein is effective for an
initial term commencing on the date of this Agreement and ending three years later. Thereafter, the term shall
renew automatically for one (1) year terms, subject to payment of the renewal fees at the beginning of the term
as provided herein, unless either party gives the other sixty (60) days notice of non-renewal prior to the end of
the initial term or the then current renewal term.
Notwithstanding anything to the contrary in this Agreement, PGE may terminate this Agreement immediately,
or suspend its further performance without terminating this Agreement, by notice to Licensee upon the
occurrence of any of the following:
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EARTH ADVANTAGE"' PROGRAM LICENSING AGREEMENT
(a) Licensee dissolves or suspends doing business;
(b) Licensee becomes subject to any bankruptcy or insolvency proceedings under federal or state law
(unless removed or dismissed within sixty (60) days from the filing thereof), becomes insolvent,
becomes subject to direct control of a trustee, receiver or similar authority, or makes an assignment
for the benefit of creditors;
(c) Licensee commits a material breach of any of its obligations under this Agreement that impairs or is
reasonably likely to impair PGE's rights in or to the Marks or other intellectual property rights; or
(d) Licensee otherwise materially breaches any of its obligations under this Agreement and has not
cured such breach within 30 days of receiving notice from PGE specifying such breach, or, if the
breach is such that a cure is possible but would take longer than thirty (30) days, commenced to cure
and proceeded diligently therewith.
(e) Licensee fails to enroll at least one builder and certify at least one home as Earth Advantage in the
first year.
Upon termination of this Agreement or the License granted herein, licensee will immediately discontinue all
use of the Marks and Program materials. Within thirty (30) days after the date of termination of the license, at
PGE's discretion, Licensee will either destroy all Marks and Program materials in its possession or return the
same to PGE. Licensee will certify to PGE in writing that all the Marks and Program materials have been
destroyed or returned.
12. RELATIONSHIP. This Agreement does not convey to Licensee any status as an employee, partner, joint
venturer, franchisee or agent of PGE. Accordingly, licensee has no authority or power to bind PGE, except as
is otherwise specifically provided in this Agreement. PGE will not provide Licensee with, nor require Licensee
to observe any marketing plan or procedure with respect to the promotion of any product or service. The
parties acknowledge that PGE is not bound by any representations, warranties, covenants, contracts,
agreements or understandings made by Licensee or to which Licensee may be subject that are inconsistent with
any provision of this Agreement.
13. NON EXCLUSIVITY. This Agreement does not in any way limit PGE's right to grant to other persons or
entities the right to participate in the Program.
14. FORCE MAJEURE. PGE will not be deemed to be in default of any provision of this Agreement or liable
for failures in performance resulting from acts or events beyond the reasonable control of PGE, including,
without limitation, acts of God, civil or military authority, civil disturbance, war, strikes, fires, other
catastrophes, or other events beyond PGE's reasonable control.
15. SEVERABILITY. If a competent tribunal holds any one or more provisions of this Agreement or any
application thereof to be invalid, illegal or unenforceable in any respect, such holding will not in any way affect
or impair the validity, legality and enforceability of the remaining provisions in this Agreement and all other
applications of the remaining provisions.
16. ASSIGNMENT. Licensee may not, in whole or in part, assign or otherwise transfer this Agreement, the right
to participate in the Program, the use of the Marks, or any Program material furnished hereunder, or any copy
of the foregoing, or any right granted hereunder.
17. NOTICES. All notices or other communications given, delivered or made under this Agreement by either
party to the other party will be in writing and will be delivered personally or by first class mail or by facsimile. If
such communication is delivered by facsimile the party receiving such communication will confirm receipt of
that communication in writing by means of return facsimile. All notices shall be delivered or sent to the other
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EARTH ADVANTAGE"m PROGRAM LICENSING AGREEMENT
party at the address shown on the face page of this Agreement or to any other address as the party may
designate by ten (10) days prior written notice given in accordance with this paragraph.
18. CHOICE OF LAw. The laws of the State of Oregon (excluding any choice of law principle that would result
in the application of the laws of any other jurisdiction) govern the validity, construction, and enforcement of
this Agreement, and the determination of the rights and duties of the parties. Licensee hereby submits to the
jurisdiction of the state and federal courts located in Portland, Oregon.
19. ENTIRE AGREEMENT. This Agreement (including all attachments) constitutes the entire agreement
between the parties with respect to the subject matter hereof, and supersedes any prior statement or writing not
a part of this Agreement or otherwise referenced in this Agreement, and neither party is bound by any prior or
contemporaneous representation, statement, promise, warranty, covenant, or agreement pertaining thereto
unless specifically set forth or referred to in this Agreement.
This agreement including all attachments shall be effective immediately after being signed by both parties.
PGE
Signature
;o`R`Z2? Ys-11F4
Name (print) STC-P FIE?J i {u?Kt
Title J x C E e fLEs i D NT
Date e - Z 1 -2-zc?
(City of Ashland)
Signature
Name (pnn _ 546 t S
Title'
Effective Date
City of Ashland Contract Agreement ver 8pt22.doc Page 5 of 7
EARTH ADVANTAGE"' PROGRAM LICENSING AGREEMENT
AttachmentA: Scope of Services and Cost
Services:
The scope of services includes the logo and the rights to its use, the Earth Advantage Program Operations
Manual, a 2-day orientation training session at EANC, Quarterly program operation check in via phone, and the
following items
Customized Technical Elements
1. Research local codes and building practices
2. Customize Site Built Points Worksheet
Customized Earth Advantage Program Operations Manual
1. Customized Earth Advantage Program Operations Manual
2. Minor changes, electronic & hard copy
Customize Logo & Core Materials
1. Customize Earth Advantage logo
Training (Internal)
2. Technical & field procedures 2 day training course (Hands on Training for 3 people)
3. Annual Earth Advantage refresher course
Ongoing Program Support
1. Quarterly check-ins
Cost:
The cost for the above services will be:
1. $16,200 first year
2. $4,200 per year for subsequent years
LICENSEE will make quarterly payments to PGE beginning on the effective date, unless otherwise mutually
agreed upon in writing.
Optional Products and Services available for an additional cost (to be determined at the time of request)
upon request from LICENSEE:
1. Marketing Materials
2. Website linkage
3. Additional training:
• Green Building
• Performance testing (Duct Blaster/Blower Door)
• Builder Sales
• Building science courses
• Tailored training
4. Call-in (phone or e-mail) support
5. Customized marketing kits for:
• Ashland builders
• Ashland homebuyers
• Ashland homeowners
City of Ashland Contract Agreement ver 8pt22.doc Page 6 of 7
EARTH ADVANTAGE PROGRAM LICENSING AGREEMENT
Attachment B, Marks and Logos (available as PDFfrle)
I
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lVi7 _qa _PMS :300 PMS 354 mterae:.' to march the PANTONE.reto:
`' PROCESS PROCESS Standards PAN'CNE3 s a reg,stewl
trewemark of Pantone, Inc.
Portland General Electric 100 % CYAN 91'.b CYAN
43'> MAGENTA Bile; YELLOW
The earth advantage logo was designed to appear stacked and horizontal. The stacked version is the preferred logo for
Earth Advantage applications. If at all possible, use the logo as it appears bekmr.
PRIMARY LOGO SECONDARY LOGO
FOR HORIZONTAL APPLICATIONS
ea
cx ntage ea rth QG(/C?YMCgr i!5
Portland Ganaral Elactrie Portland General Electric
earth
alfi?nn?ge &earthc7akwttgre?
Portland Genorat Electric Portland General Electric
- cx t fir! i
earth Portland General Electric
9 Size: Color:
Size should never be smaller than what appears here. The logo is designed to be used in three ways: as a 3-color treatment,
$ as a black only image, and as a white reversed image.
E C' The colors of the logo may not be changed in any way to accommodate
the background. The artwork is also not to be altered in any way from
rihec?rfhne what is shown here. Any special applications such as embossing will
x?6ra,nxp? •-+-?•- -t require prior approval from Earth Advantage.
Clearance: Treatment of the company name:
The area for clearance around the logo is dictated by the The appearance of the company name underneath the earth advantage
width and height of the Earth Advantage symbol, This logo should alway appear as black on light colored applications and
clearance must be on all four sides reverse on dark applications. The typeface must be Frutiger black. The
size of the company name should be half the letter height of the word
'advantage'.
eeaarth
?anI.W C-A EI trk
City of Ashland Contract Agreement ver 8pt22.doc
earth O&PUMIcq ' .
Portland General Electric
Page 7 of 7
PO# 03593
CITY OF ASHLAND
20 E MAIN ST.
ASHLAND, OR 97520
(541) 488-5300
VENDOR: 006214 SHIP TO. Ashland Conservation Dept.
PORTLAND GENERAL ELECTRIC, EARTH Advantage Home certification (541) 488-5306
16280 SW UPPER BOONES FERRY RD 20 E. MAIN STREET
PORTLAND, OR 97224 ASHLAND, OR 97520
FOB Point: Req, No.:
Terms: Net Dept.: ELECTRIC
Req. Del. Date: 09/03/2002 Contact: Dick Wanderscheid
Special Inst: Confirming? No
BLANKET PURCHASE ORDER
CITY OF ASHLAND N° 2 8 5 1
REQUISITION
Department Con S-err/Q , /D.41 Date ?l U 2-
Vendor 6" Requested Delivery Date'
Account. No,
(O M. //'06-00 • 6,1D //D
Deliver To
Via
('Note: Please allow approximately two (2) weeks for delivery on Hems not
neMraltv carried in stores. and sooroOnaeiv two (2) month on odnam int&
fans CundNy Unh tlon
D"wi Uee or rura,.a OfUee
No. p Unk Prla TWO Price P.O. No.
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JOB NO. UNIT NQ I hereby certify that the above items are necessary for the operatior
of this dept. and are budgeted.
rtment Heed or Authorized Person
Issued By
Date
Received By
N°