HomeMy WebLinkAbout07-12 RESOLUTIONRESOLUTION NO. 07-12
A RESOLUTION APPROVING AN AGREEMENT WITH SOUTHWESTERN
ELECTRIC POWER COMPANY (SWEPCO) TO PARTICIPATE IN AN
ENERGY EFFICIENCY REBATE PROGRAM IN THE AMOUNT OF
$13,569.32, AND APPROVING A BUDGET ADJUSTMENT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves an
agreement with Southwestern Electric Power Company (SWEPCO) to participate in an energy
efficiency rebate program in the amount of $13,569.32.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a
budget adjustment, a copy of which is attached as Exhibit "A".
PASSED and APPROVED this 3rd day of January, 2012.
APPROVED:
ATTEST:
By: ��°
SONDRA E. SMITH, City lerk/Treasurer
City of Fayetteville, Arkansas
Budget Adjustment Form
V11.0425
Budget Year
2011
Division: Strategic Planning & Internal Consulting
Department: Chief of Staff
Request Date
12/5/2011
Adjustment Number
BUDGET ADJUSTMENT DESCRIPTION / JUSTIFICATION
This will recognize the revenue from the SWEPCO rebate of $13,569.32. The money will be used to purchase LED
lights.
Division He.d Date
BudgetOirec :r Dat
/Z/ //l
Date
e t Director
Finance Director
lZ-E-zow
Date
I
Date
2 ' /
ate
Prepared By:
Reference:
kspringer
Budget & Research Use Only
Type: A BCDE P
General Ledger Date
Posted to General Ledger
Checked / Verified
Initial Date
Initial Date
TOTAL BUDGET ADJUSTMENT 13,570 13,570
Increase / (Decrease) Project.Sub
Account Name Account Number Expense Revenue Number
**ADD**State Rebates
2240.4311.00
13,570 09011. 0010
Minor equipment 2240.9240.5210.00 13,570 09011 . 0030
J:\EXCEL\Energy Block Grant\Budget Adjustment\BA to recognize SWEPCO rebate 12052011.xls
1 of 1
John Coleman
Submitted By
City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
--9e 1-3-12.,
City Council Meeting Date
Agenda Items Only
Division
Action Required:
Sustainability & Strategic Planning
Department
The City of Fayetteville qualifies for $13,569.32 in energy rebates from SWEPCO because of energy efficiency
projects performed on City facilities. The attached contract is a requirement of SWEPCO before the City can receive
the rebate check. The documentation required by the contract has already been performed by Engineering Elements,
the engineering firm that was retained by the City to design and manage the energy efficiency projects.
12,569.32
Cost of this request
2240.0924.4311.00
Account Number
09011.0010
Project Number
Budgeted Item
$
460, 713.00
Category / Project Budget
435, 797.00
Funds Used to Date
Energy Block Grant
Program Category / Project Name
Energy Block Grant
Program / Project Category Name
24,916.00 Energy Block Grant
Remaining Balance
Budget Adjustment Attached
Fund Name
Departmeector
/2
Date
Previous Ordinance or Resolution #
Original Contract Date:
Original Contract Number:
orney
Finance and Internal Services Director
1 1-t3 zoa
12 -
Chiefbf Staff,
Date
Date
12-05-1 1 A10:47 RCVD
Comments:
rinA,Vad n^ 4P9 , ,,e►.a rev ,u dff e
806/3
L ->,r (-4 TtAm
Revised January 15, 2009
ave evt le
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENT CORRESPONDENCE
ARKANSAS
www.accessfayettevi le org
TO: Mayor Lioneld Jordan and City Council
THRU: Don Marr, Chief of Staff
FROM: John Coleman, Sustainability & Strategic Planning Director
DATE: December 4, 2011
SUBJECT: SWEPCO Energy Efficiency Rebate Contract
Overview
Using Energy Efficiency and Conservation Block Grant (EECBG) funds the City of Fayetteville performed over
$250,000 in energy retrofits on the Police Department, Water & Sewer Operations facility, and two fire stations.
The City also invested $39,900 in a solar photovoltaic system for the District Court Building. These
improvements assist the Southwestern Electric Power Company (SWEPCO) in meeting its energy efficiency
goals mandated by the Public Service Commission of Arkansas, and help shave its peak power loads during the
summer.
Because of these positive impacts, the City of Fayetteville qualifies for $13,569.32 in energy rebates from
S WEPCO. The attached contract is a requirement of SWEPCO before the City can receive the rebate check.
The documentation required by the contract has already been performed by Engineering Elements, the
engineering firm that was retained by the City to design and manage the energy efficiency projects.
Since the requirements have already been met, signing the contract will not require additional funds to be spent
or additional staff time allocated to the project.
The Department of Energy requires that any rebate funds received for work performed using EECBG funds also
be reinvested in energy efficiency or renewable energy projects. With this in mind, I propose that the rebate
funds from SWEPCO be allocated to LED lighting project on the sidewalks around the Fayetteville Public
Library.
Budget Impact
Signing this contract will not have any impact on the budget or staff time.
RESOLUTION NO.
A RESOLUTION APPROVING AN AGREEMENT WITH SOUTHWESTERN
ELECTRIC POWER COMPANY (SWEPCO) TO PARTICIPATE IN AN
ENERGY EFFICIENCY REBATE PROGRAM IN THE AMOUNT OF
$13,569.32, AND APPROVING A BUDGET ADJUSTMENT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves an
agreement with Southwestern Electric Power Company (SWEPCO) to participate in an energy
efficiency rebate program in the amount of $13,569.32.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a
budget adjustment, a copy of which is attached as Exhibit "A".
PASSED and APPROVED this 3rd day of January, 2012.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
COMMERCIAL AND INDUSTRIAL
STANDARD OFFER PROGRAM AGREEMENT
This Commercial Standard Offer Program Agreement (the Agreement) is made and entered into by and
between SOUTHWESTERN ELECTRIC POWER COMPANY, a Delaware corporation (hereinafter
SWEPCO ), and City of Fayetteville (hereinafter Project Sponsor ), (SWEPCO and Project Sponsor each
hereinafter referred to as a Party and together as the Parties ).
WHEREAS, SWEPCO has developed a Standard Offer Program (the SOP ), for its commercial and
industrial customer classes; and
WHEREAS, the SOP seeks to procure energy savings and peak demand savings through the installation
and operation of energy efficiency measures at the facilities of such customers; and
WHEREAS, Project Sponsor has developed a plan for participation in the SOP through a set of proposed
or installed energy efficiency measures and other improvements necessary to produce energy savings or peak
demand savings, or both;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the
adequacy and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I - DEFINITIONS
Business Day shall mean normal working days (8:OOam - 5:OOpm), Monday through Friday, January 1 through
December 31, excluding holidays.
1.1 Contract Documents shall mean (i) the Project Sponsor s approved Initial Application, attached hereto and
incorporated herein as Exhibit A; (ii) the Project Sponsor s approved Final Application, attached hereto and
incorporated herein as Exhibit B; (iii) the SOP Procedures Manual, attached hereto and incorporated herein as
Exhibit C; and (iv) this Agreement together with any and all other exhibits, addenda, or amendments referenced
herein or made a part hereof in accordance with this Agreement.
1.2 Customer shall mean a non-residential distribution system customer of SWEPCO that owns or leases
facilities at a Project Site and that has entered into a Customer Agreement with the Project Sponsor for the
installation of Measures as a part of the Project. For the purposes of this Agreement, a non-residential
distribution system customer shall mean a non-residential retail customer with a demand that exceeds 50 kW
or a group of non- residential retail customers under common ownership within a service territory in which the
combined demand exceeds 250kW.
1.3 Customer Agreement shall mean the agreement between Customer and the Project Sponsor that
specifies the rights and obligations of each Party with respect to the installation of the Measures at the Project
Site(s) and other related and/or unrelated matters.
1.4 Deemed Energy Savings shall mean a pre -determined, validated estimate of Energy Savings attributable
to a Measure in a particular type of application that SWEPCO may use instead of Measured Energy Savings.
1.5 Deemed Peak Demand Savings shall mean a pre -determined, validated estimate of Peak Demand
Savings attributable to a Measure in a particular type of application that SWEPCO may use instead of
Measured Peak Demand Savings.
1.6 Deemed Savings shall mean the sum of Deemed Energy Savings and Deemed Peak Demand Savings.
1.7 Demand Savings shall mean a quantifiable reduction in the rate at which energy is delivered to or by a
system at a given instance, or average over a designated period, usually expressed in kilowatts (kW) or
megawatts (MW). Demand Savings will be determined by comparing the efficiency of the installed qualifying
energy efficiency equipment to that of new equipment that meets all applicable minimum efficiency
standards%not to that of the customer s existing equipment. In cases where no standard currently exists,
existing equipment efficiencies will be used. Equipment standard efficiencies are ASHRAE 90.1-1989, ASHRAE
90.1M-1995, and the SWEPCO Standard Lighting Wattage Table.
1.8 Energy Savings shall mean a quantifiable reduction in the Customer's consumption of energy, or the
amount by which the Customer s energy consumption is reduced, as a result of the installation of qualifying
energy-efficient measures. Energy Savings will be determined by comparing the efficiency of the installed
measures to that of new measures that meets all applicable minimum efficiency standards%not to that of the
customer s existing measures. In cases where no standard currently exists, existing measure efficiencies will be
used. Measure standard efficiencies are ASHRAE 90.1-1989, ASHRAE 90.1M-1995, and the SWEPCO
Standard Lighting Wattage Table.
1.9 Estimated Energy Savings shall mean the Energy Savings expected to be derived in a single Performance
Period from Measures to be installed or actually installed at the Project Site.
1.10 Estimated Peak Demand Savings shall mean the Peak Demand Savings expected to be derived in a
single Performance Period from Measures to be installed or actually installed at the Project Site.
1.11 Estimated Savings shall mean the sum of Estimated Energy Savings and Estimated Peak Demand
Savings.
1.12 Measure shall mean new equipment, material, or systems that (i) when installed and used at a Project
Site, result in a measurable and verifiable reduction in either purchased electric energy consumption, measured
in kilowatt-hours (kWh), or peak demand measured in kilowatts (kW), or both; (ii) meet the requirements of the
Contract Documents; and (iii) in the determination of SWEPCO, are not ineligible for incentive payments
pursuant to P.U.C. SUBST. R. 25.181(i)(6). Measures may include equipment, material, or systems that are
installed as part of new construction.
1.13 Measured Energy Savings shall mean the Energy Savings derived during the Performance Period from
the Measures installed at the Project Site as determined in accordance with the Measurement and Verification
Plan found in the Final Application, set forth in Exhibit B, and as documented in a Savings Report approved by
SWEPCO.
1.14 Measured Peak Demand Savings shall mean the Peak Demand Savings derived during the Performance
Period from the Measures installed at the Project Site as determined in accordance with the Measurement and
Verification plan found in the Final Application, set forth in Exhibit B, and as documented in a Savings Report
approved by SWEPCO.
1.15 Measured Savings shall mean the sum of Measured Energy Savings and Measured Peak Demand
Savings.
1.16 APSC shall mean the Arkansas Public Services Commission.
1.17 Peak Demand shall mean electrical demand at the time of highest annual demand on the utility s system,
measured in 15 -minute intervals.
1.18 Peak Demand Savings shall mean Demand Savings calculated as the maximum, one-hour average
demand reduction that occurs while the system undergoing retrofit is operating at full load conditions during the
peak summer period, defined as weekdays, between the hours of 1 p.m. and 7 p.m. CDT from June 1 until
September 30, excluding federal holidays.
1.19 Performance Period shall mean the one (1) year period following approval of the Installation Report
during which measurement and verification activities take place.
1.20 Project shall mean the sum of all activities and Measures required to achieve the Estimated Energy
Savings and the Estimated Peak Demand Savings necessary to meet the reserved incentive amount listed in
the Project Sponsor s Final Application. New construction projects are eligible for this SOP.
1.21 Project Site shall mean the location of a Customer s facilities where approved Measures will be installed
and from which Energy Savings or Peak Demand Savings, or both, will be obtained.
1.22 Project Sponsor shall mean any organization, group, or individual who contracts with SWEPCO to
provide Energy Savings or Peak Demand Savings, or both, under the SOP.
1.23 Prudent Electrical Practices shall mean those practices, methods, standards and equipment commonly
used in prudent electrical engineering and operations to operate electrical equipment lawfully and with safety,
dependability and efficiency and in accordance with the National Electrical Safety Code, the National Electrical
Code and any other applicable federal, state and local codes provided, however, that in the event of a conflict,
the applicable federal, state or local code shall govern.
ARTICLE II - TERM AND TERMINATION
The term of this Agreement shall commence on the date of execution by SWEPCO (the Effective Date) and,
unless otherwise terminated as set forth herein, shall continue in force and effect until payment by SWEPCO of
the Performance Payment due pursuant to Article 7.4 herein, or until eighteen (18) months following the
Effective Date, whichever occurs first.
ARTICLE III - COMPLIANCE WITH SOP PROCEDURES MANUAL
3.1 By executing this Agreement, Project Sponsor acknowledges that it received a copy of the SOP Procedures
Manual (Exhibit C) prior to submission of its Initial or Final Application. Project Sponsor represents and affirms
that its participation in the SOP has at all times been in compliance with the procedures and conditions set forth
in the SOP Procedures Manual and that any failure to comply therewith may be treated as a breach of this
Agreement notwithstanding the fact that such failure occurred prior to the execution of this Agreement. Project
Sponsor also acknowledges that it meets or exceeds all of the qualifications required to participate in the SOP
as described in the SOP Procedures Manual and that failure to meet the qualifications therein may be treated
as a breach of this Agreement.
3.2 Procedures or conditions set forth in the SOP Procedures Manual may only be waived or modified by
written agreement of both Parties. Any such agreement shall be attached hereto and incorporated herein for all
purposes.
ARTICLE IV PROJECT SPONSOR AND CUSTOMER AGREEMENT
AND CUSTOMER ACKNOWLEDGEMENT FORM
4.1 Project Sponsor will be solely responsible for entering into a Project Sponsor and Customer Agreement with
the Customer as appropriate for implementation of the Project. A Customer acting as its own Project Sponsor
will not be required to provide a Project Sponsor and Customer Agreement; however, such Customer will still be
bound by the provisions in Section 4.2, below. The Project Sponsor and Customer Agreement must be
executed by the Customer prior to Project Sponsor beginning installation of Measures at the Project Site. To the
extent possible, Project Sponsor and Customer Agreements will be kept confidential.
4.2 Project Sponsor agrees to disclose to Customer any potential adverse environmental or health effects
associated with the Measures to be installed at the Project Site. The Project Sponsor and Customer Agreement
includes the following provisions:
(a) Customer agrees, upon five (5) business days' prior oral notice, to provide SWEPCO and the independent
measurement and verification expert selected by the APSC with full and complete access to the Project Site for
any purpose related to the SOP. The right of access will be subject to Customer's reasonable access
requirements and, unless otherwise agreed, must occur within the Customer s normal business hours.
(b) Customer acknowledges that any review, inspection, or acceptance by SWEPCO of the Project Site or of
the design, construction, installation, operation or maintenance of the Measures is solely for the information of
SWEPCO and that, in performing any such inspection or review or in accepting the Measures, SWEPCO
makes no representation or warranty whatsoever as to the economic or technical feasibility, capability, safety or
reliability of the Measures, their installation by Project Sponsor, or their compatibility with the Customer s
facilities.
(c) Customer acknowledges that Project Sponsor is an independent contractor with respect to SWEPCO and
the SOP and that Project Sponsor is not authorized to make representations or incur obligations on behalf of
SWEPCO.
(d) Customer acknowledges that SWEPCO is not a party to the Customer Agreement and that Project Sponsor
and Customer are solely responsible for performance thereunder.
(e) Customer acknowledges that SWEPCO makes no warranty or representation regarding the qualifications of
Project Sponsor, and that the Customer is solely responsible for the selection of Project Sponsor.
(f) Customer acknowledges that the Customer may file a complaint with the APSC concerning Project Sponsor,
but that SWEPCO will play no role in resolving any disputes that arise between the Customer and Project
Sponsor.
(g) Customer agrees to provide SWEPCO with access to Customer s utility bills, project documentation,
contractor invoices, and technical and cost information directly related to the Project.
(h) CUSTOMER AGREES TO RELEASE SWEPCO AND ANY INDIVIDUAL, CORPORATION,
PARTNERSHIP, LIMITED LIABILITY COMPANY, ASSOCIATION, TRUST, OR OTHER BUSINESS
ORGANIZATION OF ANY KIND DIRECTLY OR INDIRECTLY CONTROLLING, CONTROLLED BY, OR
UNDER COMMON CONTROL WITH SWEPCO AND ITS AND THEIR RESPECTIVE SHAREHOLDERS,
MEMBERS,PARTNERS, OFFICERS, DIRECTORS, MANAGERS, TRUSTEES, INCORPORATORS, AGENTS,
ATTORNEYS, CONSULTANTS,SERVANTS, REPRESENTATIVES AND EMPLOYEES FROM ANY AND ALL
CLAIMS, DEMANDS, LOSSES, DAMAGES, COSTS, AND LEGAL LIABILITY INCLUDING, BUT NOT LIMITED
TO 1) INJURY OR DEATH OF PERSONS, 2) DAMAGE TO NATURAL RESOURCES, 3)VIOLATION OF ANY
LOCAL, STATE, OR FEDERAL LAW OR REGULATION INCLUDING, BUT NOT LIMITED
TO,ENVIRONMENTAL AND HEALTH AND SAFETY LAWS OR REGULATIONS, 4) STRICT LIABILITY
IMPOSED BY ANY LAW OR REGULATION, 5) EQUIPMENT MALFUNCTIONS, OR 6) ENERGY SAVINGS
SHORTFALLS ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE PROJECT.
THIS PROVISION SHALL NOT APPLY TO CLAIMS, DEMANDS, LOSSES, DAMAGES, COSTS AND LEGAL
LIABILITY TO THE EXTENT CAUSED BY THE NEGLIGENCE OF SWEPCO IN THE CONDUCT OF
SWEPCO S ON-SITE INSPECTION OF THE PROJECT SITE.
4.3 Project Sponsor must obtain a completed Customer Acknowledgement Form from each Customer
indicating that the Measures contracted for were installed at the Project Site. The completed Customer
Acknowledgement Form should be submitted to SWEPCO with the Installation Report described in Section 5.3
below. If a Customer refuses to sign the completed Customer Acknowledgement Form, Project Sponsor may
request, at Project Sponsor's expense, that SWEPCO perform an inspection of the Project Site. Final payment
of incentives will not be made unless and until a completed Customer Acknowledgement Form or inspection by
SWEPCO has been completed in accordance with the terms of the Contract Documents.
ARTICLE V - PROJECT IMPLEMENTATION
5.1 Project Sponsor agrees on and after the Effective Date to use all reasonable efforts to implement the
Project without undue delay and otherwise in accordance with the terms of the Contract Documents. To the
extent of any conflict between this Agreement and other Contract Documents, the terms of this Agreement shall
prevail.
5.2 Measures shall be designed, constructed and installed in a good and workmanlike manner only with
materials and equipment of appropriate quality, and, in any event, in accordance with Prudent Electrical
Practices. Installation of Measures at all Project Sites shall be completed and an Installation Report, as defined
below, shall be submitted to SWEPCO within six (6) months of the Effective Date. Project Sponsor may apply,
in writing, for an extension of this time period. The extension may be granted to Project Sponsor for this Project
at SWEPCO s sole discretion. Any extension will be for a period of no more than three (3) months beyond the
initial six (6) month period. If granted, the extension must be made in writing as an amendment to this
Agreement. Such amendment will be attached hereto and become a part of the Contract Documents.
Furthermore, if an extension is granted, the term of this Agreement will be extended by the length of the
extension.
5.3 Within fifteen (15) business days of completing installation of Measures at a Project Site, Project Sponsor
shall so notify SWEPCO by submitting a report for review and approval documenting the Measures actually
installed (the Installation Report ). The Installation Report shall be submitted to SWEPCO pursuant to the
notice provisions of Section 15.1. Within thirty (30) business days of receipt of the Installation Report, SWEPCO
may complete an inspection of all or some of the Measure installations at the Project Site. This inspection shall
be used to determine whether the Measures were installed and are capable of performing their intended
function of producing Energy Savings and Peak Demand Savings. Approval of the Installation Report shall be
granted if SWEPCO reasonably determines that the Measures at the Project Site have been installed, tested
and inspected to the extent required by SWEPCO and found to be capable of providing Energy Savings and
Peak Demand Savings in material compliance with the Contract Documents. If Measures are rejected,
SWEPCO will set forth the written reasons for such rejection and Project Sponsor may attempt to remedy the
deficiencies and resubmit its Installation Report. If any Measure is rejected a second time, SWEPCO will
consider it a material breach of this Agreement and will not pay any incentive for such Measure. The Estimated
Savings attributable to the Measures documented in the approved Installation Report will be used for purposes
of calculating the Installation Payment in Section 7.3.
5.4 Project Sponsor acknowledges that any review, inspection, or acceptance by SWEPCO of any Project Site
or of the design, construction, installation, operation and maintenance of the Measures is solely for the
information of SWEPCO. In performing any such inspection or review or in accepting the Measures, SWEPCO
makes no representation or warranty whatsoever as to the economic or technical feasibility, capability, safety or
reliability of the Measures, their installation by Project Sponsor or their compatibility with the Customer's
facilities.
5.5 Within thirty (30) business days of the conclusion of the Performance Period, Project Sponsor shall submit a
report to SWEPCO documenting the Measured Energy Savings and Measured Peak Demand Savings for the
Performance Period (the Savings Report ). If the Savings Report is deficient, SWEPCO will provide, in writing,
notice of the deficiency, and Project Sponsor shall revise and resubmit the Savings Report until it is approved
by SWEPCO. Any necessary revisions shall be performed in the time -period specified by SWEPCO in the
notice of deficiency.
ARTICLE VI - MEASUREMENT AND VERIFICATION
Project Sponsor shall document the measurement and verification of the Energy Savings or Peak Demand
Savings, or both, that result from the Measures installed as a part of the Project as set forth in the Measurement
and Verification Plan found in the Final Application, which is attached hereto as Exhibit B. The measurement
and verification activities shall be performed by Project Sponsor.
ARTICLE VII INCENTIVE PAYMENTS
7.1 SWEPCO agrees to make incentive payments to Project Sponsor based upon the sum of the documented
Deemed Savings and Measured Savings derived from the Project. The total incentive payments due to Project
Sponsor will be calculated by multiplying the Deemed Savings and Measured Savings by the applicable
Incentive Rate specified in Section 7.2. The total incentive payment shall be payable as set forth herein. As
set forth in Section I of the SOP Manual, a Load Factor cap governs the maximum payment allowed, based on
the ratio between demand and energy savings from a Project. Regardless of the actual sum of Deemed
Savings and Measured Savings for the Project, the total incentive payment for this Project shall not exceed
$13,569.32 based upon a total Peak Demand Savings of 27.76 kW and Energy Savings of 134,033.54 kWh.
7.2 The Incentive Rate applicable to each type of measure is set forth in the following table:
Energy Incentive Rate ($/kWh)
Demand Incentive Rate ($/kW)
$0.065
$175.00
7.3 Upon completion of Measure installation and approval of the Installation Report, Project Sponsor shall
submit an invoice for review and approval to SWEPCO for the first installment of the incentive payment (the
Installation Payment ). SWEPCO will make the Installation Payment within thirty (30) business days of its
approval of the invoice. The Installation Payment will be one hundred percent (100%) of the incentive payment
due for Deemed Savings plus forty percent (40%) of the total incentive payment due based upon the Estimated
Savings set forth in an approved Installation Report. Individual Measures will be eligible for incentive payments
based on either a Deemed Savings basis or an Estimated/Measured Savings basis, but not both. The amount
of the Installation Payment will be calculated using the following formula:
IP = DIP + EIP
DIP = [(DES x $0.065) + (DDS x $175.00)]
EIP = 0.40 x [(EES x $0.065) + (EDS x $175.00)]
Where:
IP is the total Installation Payment
DIP is the portion of the incentive payment attributable to Deemed Savings
EIP is the portion of the incentive payment attributable to Estimated Savings
DES is the amount of Deemed Energy Savings;
DDS is the amount of Deemed Peak Demand Savings;
EES is the amount of Estimated Energy Savings; and
EDS is the amount of Estimated Peak Demand Savings.
7.4 At the conclusion of the Performance Period and upon SWEPCO s approval of the Savings Report, Project
Sponsor shall submit an invoice for review and approval to SWEPCO for the second installment of the incentive
payment (the Performance Payment ). Subject to the limitation in Section 7.1, the Performance Payment will
be the remaining amount of the total incentive payment due based upon the Measured Savings. The amount of
the Performance Payment shall be calculated using the following formula:
Performance Payment = [(MES x $0.065) + (MDS x $175.00)]-EIP
Where:
MES is the amount of Measured Energy Savings (not including DES);
MDS is the amount of Measured Peak Demand Savings (not including DDS); and
EIP is the portion of the Installation Payment attributable to Estimated Savings as calculated and paid pursuant
to Section 7.3.
SWEPCO will make the Performance Payment within thirty (30) business days of its approval of the invoice. In
the event that the above formula results in a negative Performance Payment, then Project Sponsor will refund
that amount to SWEPCO within thirty (30) business days of receipt of notification of SWEPCO s approval of the
invoice.
7.5 SWEPCO will retain the security deposit provided by Project Sponsor pursuant to Section I (Program
Description) of the SOP Procedures Manual unless and until Project Sponsor receives approval of (i) for
Measured Savings, the Installation Report and Savings Report documenting Measures representing
seventy-five percent (75%) of the total incentive payment set forth in Section 7.1, or (ii) for Deemed Savings,
the Installation Report documenting Measures representing seventy-five percent (75%) of the total incentive
payment set forth in Section 7.1. Furthermore, in the event Project Sponsor fails to adhere to the SOP timelines
set forth in the SOP Procedures Manual, the security deposit may be retained. If Project Sponsor chooses to
resubmit the Project, an additional security deposit will be required.
ARTICLE VIII - AUDIT AND RECORDS
8.1 Project Sponsor or its assignee shall keep and maintain accurate and detailed records and documentation
relating to the Project and its associated Energy Savings and Peak Demand Savings under this Agreement for
a period of not less than three (3) years 10 beyond the termination of this Agreement. During the retention
period, such records shall be made available, upon reasonable notice, for inspection during normal business
hours by SWEPCO or any governmental agency having jurisdiction over the SOP or any portion of the Project.
8.2 Project Sponsor understands that the APSC may request or require an audit of the matters addressed in
this Agreement or commence an investigation or other regulatory proceeding. Project Sponsor agrees to
cooperate with any such process and make available detailed records and documentation relating to the
Project, upon reasonable notice by SWEPCO or any governmental agency having jurisdiction over the SOP.
ARTICLE IX - INSURANCE
Project Sponsor represents and agrees that it and its subcontractors will carry all statutorily required insurance
for the protection of its employees and that each of its subcontractors will carry such insurance for the
protection of their respective employees.
ARTICLE X - INDEMNITY
10.1 PROJECT SPONSOR AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS SWEPCO, A
ANY INDIVIDUAL, CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY, ASSOCIATION
TRUST, OR OTHER BUSINESS ORGANIZATION OF ANY KIND DIRECTLY OR INDIRECTLY
CONTROLLING, CONTROLLED BY, OR UNDER COMMON CONTROL WITH SWEPCO AND ITS ND
THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, PARTNERS, OFFICERS, DIRECTORS, r� NAGERS,
TRUSTEES, INCORPORATORS, AGENTS, ATTORNEYS, CONSULTANTS, SERVANTS,
REPRESENTATIVES, AND EMPLOYEES FROM AND AGAINST ANY CLAIMS, CAUSES 0
SUITS, JUDGMENTS, LOSSES, DAMAGES AND LIABILITIES OF ANY KIND INCLUDING
OF LITIGATION, COSTS OF COURT AND/OR ALTERNATIVE DISPUTE RESOLUTION
AND EXPERT WITNESS FEES (WHETHER THE SAME ARE BASED IN CONTRACT
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) FOR INJURIES, DEATH OR P
OR LOSS (INCLUDING INJURIES, DEATH OR PROPERTY DAMAGES SUFFER
SPONSOR OR ITS AGENTS, EMPLOYEES OR CONTRACTORS) WHICH OCC
TO HAVE OCCURRED DIRECTLY AS A RESULT OF (i) PROJECT SPONSO
SUBCONTRACTOR'S PARTICIPATION IN ANY STAGE OF THE SOP; (ii) A
PROJECT SPONSOR IN OR COLLATERAL TO ITS PERFORMANCE OF
IN CONNECTION WITH THIS AGREEMENT; OR (iii) ANY DEFECT (IN
MANUFACTURING DEFECT OR THE FAILURE TO PROVIDE PROP
FOR USE) IN OR MALFUNCTION OF OR FINDING OF STRICT LIA
ANY MEASURE PROVIDED UNDER OR IN CONNECTION WITH
OBLIGATION SPECIFICALLY INCLUDES ANY CLAIMS, CAUS
LOSSES, DAMAGES AND LIABILITY OF EVERY KIND, INCL
COSTS OF COURT AND/OR ALTERNATIVE DISPUTE RES
WITNESS FEES (WHETHER THE SAME ARE BASED IN
OR STRICT LIABILITY OR OTHERWISE) ALLEGING S
STRICT LIABILITY REGARDLESS OF WHETHER SU
LIABILITY IS A JOINT AND CONCURRING CAUSE
THIS PROVISION SHALL NOT APPLY TO CLAIM
DAMAGES AND LIABILITIES TO THE EXTENT
CONDUCT OF SWEPCO S ONSITE INSPECT 4N
AGREEMENT.
ACTION,
LL EXPENSES
ATTORNEYS' FEES
ORT, INCLUDING
OPERTY DAMAGES
BY PROJECT
RRED, OR ARE ALLEGED
S OR ITS
ACT OR OMISSION OF
ORK OR SERVICES UNDER OR
UDING A DESIGN OR
WARNING OR INSTRUCTIONS
LITY IN TORT ATTRIBUTABLE TO
IS AGREEMENT. THIS INDEMNITY
OF ACTION, LAWSUITS, JUDGMENTS,
ING ALL EXPENSES OF LITIGATION,
LUTION, ATTORNEYS' FEES AND EXPERT
NTRACT, TORT, INCLUDING NEGLIGENCE,
PCO'S NEGLIGENCE, GROSS NEGLIGENCE OR
NEGLIGENCE, GROSS NEGLIGENCE OR STRICT
THE INJURIES, DEATH OR PROPERTY DAMAGE.
CAUSES OF ACTION, SUITS, JUDGMENTS, LOSSES,
USED BY THE NEGLIGENCE OF SWEPCO IN THE
OF THE PROJECT SITE PURSUANT TO THIS
10.2 IN ADDITION TO THE INDEMNITIE AND OTHER PROTECTIONS PROVIDED UNDER THIS ARTICLE
X, PROJECT SPONSOR HEREBY AG'' ES TO INDEMNIFY, DEFEND AND HOLD HARMLESS SWEPCO,
AND ANY INDIVIDUAL, CORPORAT 4 N, PARTNERSHIP, LIMITED LIABILITY COMPANY, ASSOCIATION,
TRUST, OR OTHER BUSINESS O: GANIZATION OF ANY KIND DIRECTLY OR INDIRECTLY
CONTROLLING, CONTROLLED , OR UNDER COMMON CONTROL WITH SWEPCO AND ITS AND
THEIR RESPECTIVE SHARE LDERS, MEMBERS, PARTNERS, OFFICERS, DIRECTORS, MANAGERS,
TRUSTEES, INCORPORATE ' S, AGENTS, ATTORNEYS, CONSULTANTS, SERVANTS,
REPRESENTATIVES, AND MPLOYEES FROM AND AGAINST ANY CLAIMS, CAUSES OF ACTION,
SUITS, JUDGMENTS, D AGES, LIABILITIES, EXPENSES, CONTRIBUTIONS, REMEDIATION OR
CLEANUP COSTS, 0 •THER LOSSES OF ANY KIND INCLUDING ALL EXPENSES OF LITIGATION,
COSTS OF COURT D/OR ALTERNATIVE DISPUTE RESOLUTION, ATTORNEYS' FEES AND EXPERT
WITNESS FEES ( ETHER THE SAME ARE BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE,
STRICT LIABILI OR OTHERWISE) ARISING FROM, ASSOCIATED WITH, OR RELATING IN ANY WAY
TO:
10.2.1 ANY REACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT OF PROJECT SPONSOR
CONTAI D IN THIS AGREEMENT;
10.2. ANY VIOLATION OR ALLEGED VIOLATION OF ANY FEDERAL, STATE OR LOCAL LAW,
RE r LATION, OR POLICY RESPECTING PROTECTION OF THE ENVIRONMENT, HEALTH, AND/OR
S ETY (HEREINAFTER EHS LAWS ) ASSOCIATED WITH OR RELATED IN ANY WAY TO THE
ROJECT;
10.2.3 ANY PROPERTY DAMAGE OR IMPAIRMENT OR ANY PERSONAL INJURY ALLEGED TO BE
ASSOCIATED WITH ANY EXPOSURE TO MATERIALS REGULATED UNDER ANY EHS LAW REL
ANY WAY TO THE PROJECT; OR
10.2.4 ANY RELEASE OR THREATENED RELEASE OF ANY HAZARDOUS SUBST
MATERIAL OR SUBSTANCE REGULATED UNDER ANY EHS LAW RELATIN 1 ANY WAY TO THE
PROJECT.
E OR OTHER
G IN
10.3 THE ENVIRONMENTAL INDEMNITY PRESCRIBED BY T t ARTICLE X SHALL APPLY REGARDLESS
OF WHETHER THE CLAIMS ARISE FROM THE JOINT 0: ONCURRENT NEGLIGENCE, GROSS
NEGLIGENCE, STRICT LIABILITY IN TORT OR WIL - 1 L MISCONDUCT OF OR BREACH OF CONTRACT
BY SWEPCO, OR ANY INDIVIDUAL, CORPO' • N, PARTNERSHIP, LIMITED LIABILITY COMPANY,
ASSOCIATION, TRUST, OR OTHER BUSI S ORGANIZATION OF ANY KIND DIRECTLY OR
INDIRECTLY CONTROLLING, CONT' • LED BY, OR UNDER COMMON CONTROL WITH SWEPCO AND
ITS AND THEIR RESPECTIVE - REHOLDERS, MEMBERS, PARTNERS, OFFICERS, DIRECTORS,
MANAGERS, TRUSTEES, ORPORATORS, AGENTS, ATTORNEYS, CONSULTANTS, SERVANTS,
REPRESENTATIVES A ID EMPLOYEES.
10.4 The re. --sentations, warranties, covenants, indemnities, and other obligations or protections provided by
Projec = •onsor pursuant to this Article X shall not be limited by time and shall survive the completion of the
P = ect or any other completion, expiration or termination of this Agreement.
ARTICLE XI - PERMITS, LICENSES AND COMPLIANCE WITH LAWS
11.1 Project Sponsor represents and warrants that prior to beginning installation of Measures, Project Sponsor
will, at its own cost and expense, obtain all permits and other authorizations from governmental authorities as
then may be required to install, construct, operate and maintain the Measures in question and to perform its
obligations hereunder. During the term hereof, Project Sponsor will, at its own cost and expense, obtain all such
additional governmental permits, licenses, and other authorizations when required with respect to any of the
Measures under this Agreement. If requested by SWEPCO, Project Sponsor shall furnish to SWEPCO copies
of each such permit, license or other approval promptly following receipt thereof. Project Sponsor shall maintain
in full force and effect all such governmental permits, licenses and other authorizations as may be necessary for
the construction, operation or maintenance of the Measures in accordance herewith. Failure to maintain
licenses, permits and other authorizations required to perform the work detailed in this Agreement constitutes a
material breach of Project Sponsor s obligations under this Agreement.
11.2 Project Sponsor shall be responsible for all royalties, fees, or claims for any licensed, copyrighted or
similarly protected intellectual property, device, process or procedure used installed, or provided by it. Project
Sponsor shall defend any suit that may be brought against SWEPCO and shall hold SWEPCO and any
individual, corporation, partnership, limited liability company, association, trust, or other business organization
of any kind directly or indirectly controlling, controlled by, or under common control with SWEPCO and its and
their respective shareholders, members, partners, officers, directors, managers, trustees, incorporators, agents,
attorneys, consultants, servants, representatives, and employees harmless from any liability or infringement of
any such intellectual property used by Project Sponsor in the implementation of the Project.
11.3 All work performed by Project Sponsor in connection with the implementation of the Project and all
Measures installed or maintained by Project Sponsor shall conform to all applicable laws, statutes, ordinances,
rules, regulations, and decrees of any governmental or administrative body having jurisdiction over the SOP or
any portion of the Project, including without limitation, the Occupational Safety and Health Administration
(OSHA) regulations, the National Electric Safety Code (NESC), the National Electric Code (NEC) and Sections
11-5-301 through 11-5-309 of the Arkansas Code Annotated. Handling of hazardous waste must be in
compliance with all applicable federal, state and local laws, rules and regulations.
ARTICLE XII - DEFAULT AND REMEDIES
12.1 Each of the following events will be deemed to be an Event of Default hereunder:
(a) failure of Project Sponsor to perform its responsibilities in a timely manner or implement the Project in
compliance with the SOP Procedures Manual and other Contract Documents;
(b) failure of Project Sponsor to provide SWEPCO and/or its contractors with sufficient access to the Project
Sites for the purposes of conducting inspections, observations, or measurement and verification activities;
(c) failure of Project Sponsor to obtain or maintain any necessary permits, licenses or insurance required
pursuant to the Contract Documents;
(d) Project Sponsor s assignment or subcontracting of all or part of the duties required under the Contract
Documents without the prior written consent of SWEPCO;
(e) Project Sponsor s submission to SWEPCO of any false, misleading or inaccurate information or
documentation with respect to implementation of the Project or Project Sponsor s performance hereunder,
when Project Sponsor knew or reasonably should have known that such information was false, misleading or
inaccurate; or
(f) failure of either Party in a material fashion to perform or observe any of the material terms, conditions or
provisions of this Agreement not otherwise described in this Section 12.1, which failure materially adversely
affects the other Party and continues after notice and a thirty (30) day period to cure, or, if such failure cannot
reasonably be cured within thirty (30) days, after notice and such period to cure in excess of thirty (30) days as
may be reasonably required (provided that the non-performing Party commences action to cure within an initial
period of thirty (30) days after notice and thereafter pursues such cure with reasonable diligence).
12.2 If an Event of Default occurs, the non -defaulting Party shall be entitled to exercise any and all remedies
provided for by this Agreement, by law or in equity, including, but not limited to, the right to immediately
terminate this Agreement upon written notice to the other Party. Termination shall be effective upon the receipt
of properly served notice. Termination of this Agreement will not relieve the defaulting Party of any obligations
accruing prior to the event of termination.
ARTICLE XIII - LIMITATION OF LIABILITY
13.1 SWEPCO AND ANY INDIVIDUAL, CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY,
ASSOCIATION, TRUST, OR OTHER BUSINESS ORGANIZATION OF ANY KIND DIRECTLY OR
INDIRECTLY CONTROLLING, CONTROLLED BY, OR UNDER COMMON CONTROL WITH SWEPCO AND
ITS AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, PARTNERS, OFFICERS, DIRECTORS,
MANAGERS, TRUSTEES, INCORPORATORS, AGENTS, ATTORNEYS, CONSULTANTS, SERVANTS,
REPRESENTATIVES, AND EMPLOYEES SHALL NOT BE LIABLE TO PROJECT SPONSOR OR ANY
CUSTOMER FOR ANY LOSSES, COSTS, INJURIES, LIABILITIES, EXPENSES (INCLUDING ATTORNEY S
FEES), OR CLAIMS FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES
OF ANY NATURE CONNECTED WITH OR RESULTING FROM
(i) NEGOTIATION, EXECUTION, OPERATION, OR TERMINATION OF THIS AGREEMENT;
(ii) PERFORMANCE OR NON-PERFORMANCE OF ANY COMMITMENT TO A CUSTOMER; OR
(iii) ANY ACTS, OMISSIONS, OR REPRESENTATIONS MADE BY PROJECT SPONSOR IN CONNECTION
WITH SOLICITING CUSTOMERS OR PERFORMING ANY OTHER FUNCTIONS,
INCLUDING WITHOUT LIMITATION, CLAIMS IN THE NATURE OF LOST REVENUES, INCOME OR
PROFITS, IRRESPECTIVE OF WHETHER SUCH CLAIMS ARE BASED UPON WARRANTY, NEGLIGENCE,
STRICT 15 LIABILITY, CONTRACT, OPERATION OF LAW OR OTHERWISE AND PROJECT SPONSOR
SHALL PROTECT, INDEMNIFY AND HOLD SWEPCO HARMLESS FROM SAME.
13.2 BOTH PARTIES AGREE THAT, IN THE EVENT OF (i) ANY DISPUTE THAT ARISES OUT OF THE
NEGOTIATION, EXECUTION, OPERATION, OR TERMINATION OF THIS AGREEMENT AND ITS SUBJECT
MATTER, WHETHER THE DISPUTE SOUNDS IN CONTRACT OR TORT, OR AS A RESULT OF A CLAIMED
STATUTORY OR REGULATORY VIOLATION, OR (ii) ANY OTHER CLAIM THAT MAY ARISE OUT OF THE
RELATIONSHIP OF THE PARTIES, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER
REASONABLE ATTORNEYS' FEES, EXPERT WITNESS FEES, LITIGATION EXPENSES, AND COSTS OF
COURT AND/OR ALTERNATIVE DISPUTE RESOLUTION FROM THE LOSING PARTY.
ARTICLE XIV - INDEPENDENT CONTRACTOR
Project Sponsor will act as and be deemed to be an independent contractor, and nothing in this Agreement
shall be construed to create the relationship of employer and employee, master and servant, principal and
agent or joint venturers. Project Sponsor will be solely responsible for and have the sole right to control and
directly supervise the method, manner and details of the Project providing it is in accordance with the Contract
Documents. SWEPCO shall have no responsibility with respect to withholding, deductions or payment of any
federal or state tax on behalf of Project Sponsor or any of Project Sponsor s employees. Project Sponsor
agrees to pay and comply with and hold SWEPCO harmless from and against the payment of all contributions,
taxes and premiums which may be payable by Project Sponsor under federal, state or local laws arising out of
the performance of this Agreement and all other taxes of whatever nature levied or assessed against Project
Sponsor arising out of this Agreement, including any interest or penalties, and Project Sponsor hereby waives
any and all claims for additional compensation because of any increase in the aforementioned taxes.
ARTICLE XV - NOTICES
15.1 All notices from one Party to the other will be deemed
United States mail to the following addresses:
AEP SWEPCO
ARKANSAS SWEPCO
Attn: Greg Perkins
101 West Township
Fayetteville, AR 72703
Phone: (479)973-2435
to have been delivered if hand delivered or sent by
(Project Sponsor)
City of Fayetteville
Attn: John Coleman
113 W Mountain Street
Fayetteville, AR, 72701
Phone: 479-575-8272
15.2 Either Party may change its address by written notice to the other in accordance with this Article XV.
ARTICLE XVI - AMENDMENT
No amendment or modification of this Agreement shall be binding on either Party unless it is in writing and
signed by both Parties. Amendments to this Agreement will be attached hereto and made a part hereof for all
purposes.
ARTICLE XVII - ALTERNATIVE DISPUTE RESOLUTION
17.1 BOTH PARTIES AGREE TO RESOLVE ANY AND ALL DISPUTES THAT ARISE OUT OF THE
NEGOTIATION, EXECUTION, OPERATION OR TERMINATION OF THIS AGREEMENT AND ITS SUBJECT
MATTER, WHETHER THE DISPUTE SOUNDS IN CONTRACT OR TORT, OR AS A RESULT OF A
CLAIMED STATUTORY OR REGULATORY VIOLATION, OR ANY OTHER CLAIM WHICH MAY ARISE OUT
OF THE RELATIONSHIP OF THE PARTIES, THROUGH ALTERNATIVE DISPUTE RESOLUTION
TECHNIQUES. BOTH PARTIES AGREE TO FIRST ATTEMPT TO RESOLVE DISPUTES THROUGH
MEDIATION. IF, HOWEVER, SUCH DISPUTES CANNOT BE RESOLVED THROUGH MEDIATION, BOTH
PARTIES AGREE TO SUBMIT SUCH DISPUTES FOR RESOLUTION THROUGH BINDING ARBITRATION,
TO BE CONDUCTED BY ONE QUALIFIED INDEPENDENT ARBITRATOR THAT IS MUTUALLY SELECTED
BY BOTH PARTIES, IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES ( RULES ) OF
THE AMERICAN ARBITRATION ASSOCIATION ( AAA ) THEN IN EFFECT. IF THE PARTIES CANNOT
AGREE UPON THE SELECTION OF THE ARBITRATOR, THEN EITHER PARTY MAY FILE ITS DEMAND
WITH THE AAA AND THE ARBITRATION SHALL BE ADMINISTERED IN ACCORDANCE WITH ITS
RULES. VENUE OF THE ARBITRATION SHALL BE THAT VENUE SET FORTH IN SECTION 20.5 UNLESS
THE PARTIES AGREE OTHERWISE. THIS BINDING ARBITRATION PROVISION SHALL NOT PROHIBIT
OR RESTRICT EITHER PARTY FROM SEEKING EMERGENCY INJUNCTIVE OR OTHER EQUITABLE
RELIEF IN THE DISTRICT COURTS OF THE COUNTY OF VENUE TO PRESERVE THE STATUS QUO. IF
ANY SUCH RELIEF IS SOUGHT AND OBTAINED, THE MATTER WILL THEN BE IMMEDIATELY
REFERRED TO ARBITRATION IN ACCORDANCE WITH THE TERMS OF THIS PROVISION FOR A
HEARING ON THE MERITS OF THE RELIEF SOUGHT.
17.2 BOTH PARTIES AGREE THAT THE TERMS OF ANY AGREEMENT, SETTLEMENT, JUDGMENT OR
AWARD RESULTING FROM ANY MEDIATION OR ARBITRATION PROCEEDINGS DESCRIBED IN
SECTION 17.1 SHALL BE CONFIDENTIAL, AND THE PARTIES AGREE NOT TO DISCLOSE SUCH
TERMS, OR ANY DRAFTS OR COMMUNICATIONS CONCERNING SUCH TERMS, TO ANY THIRD -PARTY
EXCEPT AS FOLLOWS:
17.2.1 THE TERMS MAY BE DISCLOSED, BUT ONLY TO THE EXTENT REASONABLY NECESSARY, TO
A PARTY S ATTORNEYS, INSURERS, AGENTS, EMPLOYEES, AND ACCOUNTANTS, PROVIDED THAT
THOSE PERSONS HAVE AGREED TO KEEP SUCH INFORMATION CONFIDENTIAL AND NOT DISCLOSE
IT TO ANY OTHER PERSON OR ENTITY; OR
17.2.2 THE TERMS MAY BE DISCLOSED TO A COURT OR TRIBUNAL IN CONNECTION WITH AN
ACTION TO ENFORCE ANY AGREEMENT, SETTLEMENT, JUDGMENT OR AWARD RESULTING FROM
ANY MEDIATION OR ARBITRATION PROCEEDING DESCRIBED IN SECTION 17.1; OR
17.2.3 THE TERMS MAY BE DISCLOSED TO OTHERS (i) PURSUANT TO AN APPROPRIATE COURT
ORDER ENTERED AFTER EVERY OTHER PARTY TO THE AGREEMENT HAS BEEN GIVEN
REASONABLE NOTICE AND AN OPPORTUNITY TO BE HEARD, OR (ii) IF REQUIRED BY A
GOVERNMENTAL AGENCY AFTER EVERY OTHER PARTY TO THE AGREEMENT HAS BEEN GIVEN
REASONABLE NOTICE AND AN OPPORTUNITY TO BE HEARD, OR (iii) WITH THE PRIOR WRITTEN
APPROVAL OF EVERY OTHER PARTY TO THE AGREEMENT.
ARTICLE XVIII - FORCE MAJEURE
18.1 The term Force Majeure as used herein means causes beyond the reasonable control of and without the
fault or negligence of the Party claiming Force Majeure, including, but not limited to, acts of God, labor disputes,
flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance, sabotage, change in laws or
applicable regulations subsequent to the date hereof and action or inaction by any federal, state or local
legislative, executive, administrative or judicial agency or body, which, in any of the foregoing cases, by
exercise of due foresight such Party could not reasonably have been expected to avoid, and which, by the
exercise of due diligence, it is unable to overcome.
18.2 The term Force Majeure shall not include any of the following:
(a) Any removal, reduction, curtailment or interruption of operation of any or all Measures whether in whole, or
in part, which removal, reduction, curtailment or interruption is caused by or arises from the action or inaction of
the Customer or any third party, including without limitation, any vendor or supplier to Project Sponsor or
SWEPCO, unless, and then only to the extent that, any such action or inaction was beyond the reasonable
control of, and occurred without the fault or negligence of such third party, and such third party, by exercise of
due foresight, could not reasonably have been expected to avoid such action or inaction;
(b) Any outage, whether or not due to the fault or negligence of SWEPCO or Project Sponsor, of the Measures
or SWEPCO s system attributable to a defect or inadequacy in the manufacture, design or installation of the
Measures that prevents, curtails, interrupts or reduces the ability of the Measures to provide Peak Demand
Savings and/or Energy Savings; or
(c) Any reduction in Measured Peak Demand Savings and/or Measured Energy Savings caused by or resulting
from a Customer s termination or reduction of electrical distribution service received from SWEPCO and the
substitution therefor of electric service from any other source.
18.3 The Parties shall be excused from performing their respective obligations under this Agreement and shall
not be liable in damages or otherwise if, and to the extent that, they are unable to so perform or are prevented
from performing by an event of Force Majeure,provided that:
(a) The non-performing Party, as promptly as practicable after the occurrence of the Force Majeure, but in no
event later than fourteen (14) days thereafter, gives the other Party written notice describing the particulars of
the occurrence;
(b) The suspension of performance is of no greater scope and of no longer duration than is reasonably required
by the Force Majeure;
(c) The non-performing Party uses its best efforts to remedy its inability to perform; and
(d) As soon as the non-performing Party is able to resume performance of its obligations excused as a result of
the occurrence, it shall give prompt written notification thereof to the other Party.
ARTICLE XIX - NONDISCLOSURE
19.1 If either Party hereto provides confidential information to the other in writing and identified as such, the
receiving Party shall protect the confidential information from disclosure to third parties. Neither Party shall be
required to hold confidential any information which (i) becomes publicly available other than through the
recipient; (ii) is required to be disclosed by a governmental or judicial order, rule or regulation; (iii) is
independently developed by the receiving Party as evidenced by written records; or (iv) becomes available to
the receiving Party without restriction from a third party. These obligations shall survive expiration or termination
of this Agreement.
19.2 Should any person or entity seek to legally compel a receiving Party (by oral questions, interrogations,
requests for information or documents, subpoena, civil investigative demands, regulation, statute or otherwise)
to disclose any confidential information, the receiving Party will provide the disclosing Party prompt written
notice so that the disclosing Party may seek a protective order or other appropriate remedy (including
participating in any proceeding to which the receiving Party is a party, which receiving Party will use its
reasonable business and legal efforts to permit). If, in the absence of a protective order, the receiving Party is,
in the opinion of its legal counsel, compelled to disclose the confidential information, the receiving Party may
disclose only such of the confidential information to the person or entity compelling disclosure as is required by
applicable law, order, regulation or rule.
ARTICLE XX - MISCELLANEOUS
20.1 Project Sponsor will not assign, transfer or otherwise dispose of any of its obligations or duties without the
prior written approval of SWEPCO. No assignment of this Agreement shall relieve Project Sponsor of any of its
obligations under this Agreement. When duly assigned in accordance with the foregoing, this Agreement shall
be binding upon and shall inure to the benefit of the assignee. Any assignment or transfer made without the
express written approval of SWEPCO will be null and void. No part of the work contemplated under this
Agreement may be performed by subcontractors without the prior written approval of SWEPCO.
20.2 The rights and remedies provided by this Agreement are cumulative and the use of any one right or
remedy by either Party shall not preclude or waive its right to use any or all other remedies. Said rights and
remedies are given in addition to any other rights the Parties may have by law, statute, ordinance or otherwise.
No waiver by the Parties hereto of any default or breach of any term, condition or covenant of this Agreement
shall be 20 deemed to be a waiver of any other breach of the same or any other term, condition or covenant
contained herein.
20.3 The Contract Documents constitute the entire Agreement between the Parties with respect to the subject
matter hereof and there are no express or implied warranties or representations upon which any party may rely
beyond those set forth therein. The execution of this Agreement supersedes all previous agreements,
discussions, communications and correspondence with respect to such subject matter.
20.4 In the event any provision of this Agreement is held to be void, unlawful, or otherwise unenforceable, that
provision will be severed from the remainder of the Agreement and replaced automatically by a provision
containing terms as nearly like the void, unlawful, or unenforceable provision as possible; and the Agreement,
as so modified, will continue to be in full force and effect.
20.5 This Agreement will be governed by, construed and enforced in accordance with the laws of the State of
Arkansas excluding any conflict or choice of law rules that direct the application of the laws of another
jurisdiction, irrespective of the place of execution or of the order in which the signature of the Parties hereto are
affixed or of the place or places of performance. Except for matters and disputes with respect to which the
APSC is the sole proper venue for dispute resolution pursuant to applicable law or this Agreement, the Parties
agree that the proper venue and jurisdiction for any cause of action relating to the Agreement will be in
Washington County, Arkansas and the Parties hereto submit to the exclusive jurisdiction of the federal and
state courts located in such county with respect to such matters and disputes.
20.6 The duties, obligations, and liabilities of the Parties hereto are intended to be several and not joint or
collective. Nothing contained in this Agreement shall ever be construed to create an association, trust,
partnership or joint venture or impose a trust or partnership duty, obligation, or liability on or with regard to
either Party. Each Party shall be liable individually and severally for its own obligations under this Agreement.
20.7 Project Sponsor shall not use SWEPCO s corporate name, trademark, trade name, logo, identity or any
affiliation for any reason, including to solicit customers for participation in its project, without SWEPCO s prior
written consent.
20.8 The Parties expressly agree that time is of the essence for all portions of this Agreement. In no event shall
the arbitration of any controversy or the settlement thereof delay the performance of this Agreement.
20.9 The descriptive headings of the various sections of this Agreement have been inserted for convenience of
reference only and shall in no way define, modify, or restrict any of the terms and provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly
authorized representatives.
SOUTHWESTERN ELECTRIC POWER (PROJECT SPONSOR)
COMPANY
By: 4 By:
Name: Phillip A Watkins Name:
Title: EE / Consumer Programs Manager Title:
City Fayeltliv
►gig
(Ylaor
Date: if— 2 2 ' /1 Date: �g�/o2
EXHIBIT A
INITIAL APPLICATON
Page 1 of 3
Project Information - Initial Application
Project ID
Project Name
Sponsor Name
: 58
: Municipal Energy Efficiency
: City of Fayetteville
71-8018462
JohnColeman /Sustainability Director
479-575-8272
113 W Mountain Street
Fayetteville, AR , 72701
Project Contact : JohnColeman
Create Date
Project Type
: 7/22/2010 2:06:52 PM
: This is a Retrofit project.
Project Description
Lighting Reto
HVAC Retro
Controls Retro
Solar Addition
A hardcopy of description ? NO
Project Calculation
Stipulated deemed savings ? YES
Simplified M&V ? NO
Full M&V ? YES
Full M&V for Solar
A hardcopy of Calculation ? NO
Project Estimate Schedule
Project Qualification
Qualification Name : Municipal Energy Efficiency Project
1. Statement of technical and managerial capabilities and experience (500 word maximum):
Engineering Elements is an MEP Engineering Firm established in 2005 in Fayetteville, AR. Principal Engineer is Shane
Lanning, PE, LEED-AP, and Project Manager is Ryan McClain, PE, CEM, LEED-AP.
2. Evidence that Project Sponsor and its subcontractors possess all applicable licenses. Evidence includes a
list of all applicable licenses, issuing agencies and license numbers.
Ryan McClain, Arkansas PE License No. 12025.
3. Descriptions and references (at least three) for comparable projects, including information about the year
the project was undertaken, the services provided, and the estimated and actual performance of the
energy -efficiency equipment. Provide a contact name, title, address and phone number for each reference.
3.a. Reference 1:
Architecture Plus, Inc., Michael Johnson, Architect, (479) 783-8395
Mena High School Project, Post Office Projects of US Government
3.b. Reference 2:
ParkCo, Architects, Bret & Stacey Park, Owners & Architects (479) 527-6465
FBC Farmington
3.c. Reference 3:
Spaces Design & Architecture., Michael Riley, Architect (918) 682-5824
Muskogee High School
4. Evidence of Project Sponsor's financial strength and capability in the form of trade references. Include
contact name, title, address and phone number for each reference. Provide at least two references.
4.a. Trade Reference 1:
Trane of Arkansas, Jim Bradford, Senior Sales Manager, (479) 361-2030
http://www.aepefficiency.com/Comm/arkansas/admin ProjectAppinfoPrint.asp?pj_id=58... 11/22/2011