Entergy New Orleans, LLC (“Customer”) and APTIM (“APTIM” or “Program Administrator”) have entered into an Energy Training, Consulting or Professional Services Stand-Alone Contract (the “Contract”). Pursuant to the Contract, APTIM will serve as the Third Party Administrator for the design, implementation and administration of the Energy Smart Programs in accordance with the ENO comprehensive demand side management plan. The Energy Smart Program and any applicants to the program (“Applicant”) shall be the parties to this Agreement and bound by these terms and conditions.
INCENTIVE OFFER
Monetary incentives or rewards from Energy Smart Programs (“Program Payments”) shall be available to eligible Applicants that properly submit a Program application (“Application”). Program Payments shall be available according to the terms on the applicable Program and Application as well as these Terms and Conditions. Products must be purchased and installed within the date range outlined on the Application. Applications must be postmarked within the number of calendar days reflected on the Application. The Applicant understands that Energy Smart must pre-approve all custom incentive Applications in writing. Applicants should maintain a copy of their Application for their records. Incomplete Applications will be returned and will not be processed. Applications must have complete information and be submitted with proof of purchase, such as receipts or invoices that clearly itemize the product(s) and/or services(s) received. Purchase orders, proposals and quotes are not considered proof of purchase.
PROJECT TERM AND DESCRIPTION
The Term of this Agreement shall begin on the Approval Date as shown on this Agreement and shall run continuously through the Project Completion Deadline, unless extended or terminated pursuant to this Agreement or by mutual agreement of the parties. The energy savings project (the “Project”) shall be as described on the Agreement and approved by Energy Smart. The Project shall be implemented in accordance with this Agreement.
PROJECT PAYMENTS
All Program Payments shall be made through the Energy Smart Program, Program Administrator shall not be responsible for any payment to Customer. Program Administrator shall direct the Energy Smart Fiscal Agent to make payment in the amount set forth in the Agreement upon Energy Smart’s receipt and acceptance to Energy Smart’s satisfaction of a Completion Notice and any other required project documentation as defined in Article 3 hereof. Energy Smart shall be under no obligation to make any payments to the Customer if Entergy does not provide the funds to Energy Smart for this purpose. Energy Smart reserves the right to decrease incentive amounts if conditions change from the time of project approval to the time of project implementation. This includes, but is not limited to, project cost and project scope. Customer may only receive one payment per project measure. Should customer or its representative make duplicate application for payment of project measure, Energy Smart reserves the right to recover any payments made in excess of the entitled project payment. Energy Smart excludes internal, non-contracted labor for private companies or individuals when calculating the total project cost. Incentives are available on a first-come, first-served basis. Incentives are subject to change or termination without notice at the discretion of Energy Smart.
PROGRAM DISCRETION
Energy Smart reserves the right to change or discontinue any Program at any time without notice. Energy Smart also reserves the right, in Energy Smart’s sole discretion, to withhold or terminate Program Payments if:
a) An identified problem with a project is not resolved, due to an Applicant’s failure to follow any and all applicable terms and conditions, rules, or procedures; or
b) Energy Smart determines that Applicant’s receipt of Program Payments will not result in the implementation of any Measures by Applicant, or if the Measures will not result in the reduction of energy usage; or
c) The Applicant becomes “Insolvent” (which shall mean Applicant (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, including but not limited to the United States Bankruptcy Code or the laws of any state, or has any such petition filed or commenced against it; (ii) makes an assignment or any general arrangement for the benefit of creditors; (iii) other-wise becomes the subject of a bankruptcy proceeding or insolvent (however evidenced); (iv) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets; or (v) is generally unable to pay its debts as they fall due).
MISREPRESENTATION
Making false statements on any Energy Smart incentive Application is punishable by law. Any person who knowingly files an Application containing any materially false information or who purposely and misleadingly conceals information commits a fraudulent act and may be subjected to criminal and civil penalties. Any and all funds determined by Energy Smart to have been acquired on the basis of fraudulent information must be returned to Energy Smart. This article shall not limit other remedies that may be available for the filing of false or fraudulent applications. Customer shall be responsible for all costs incurred for collection of monies owed due to any misrepresentation or false statements.
PROJECT IMPLEMENTATION
The Customer’s procurement, installation and implementation (“Completion”) of energy efficiency measures shall be accomplished in accordance with the requirements outlined in this Agreement. The Customer shall deliver to Energy Smart a Project Completion Notice by the Project Completion Deadline noted in the Application. The Customer must provide invoices for equipment purchased or service performed as well as documentation that verifies that the energy efficiency measures, (i) have been properly installed, (ii) are functioning properly and (iii) have the potential to generate energy savings if properly maintained and operated. All projects are expected to comply with federal, state and local codes. All equipment must be new; used or rebuilt equipment is eligible only when pre-approved by Energy Smart in writing. Displaced equipment must be removed and not reused. Equipment purchased under a capital lease structure may qualify for an incentive, but must be pre-approved by Energy Smart in writing before project initiation or entering into the equipment lease.
Should Energy Smart discover that the project was not implemented as attested to in the Project Completion Notice the Customer shall be in breach of the Agreement and subject to recovery of any incentive payment made and any other costs incurred by Energy Smart in relation to any such Project. At the discretion of Energy Smart, the Customer is liable to refund to Energy Smart incentives received for a Project and other costs directly related to any such Project, if Energy Smart determines that the Customer has misrepresented information including, but not limited to, eligibility or project information.
RIGHT TO INSPECT
Energy Smart and Entergy shall have the right to inspect any and all project records during the term of this Agreement and for a two-year period thereafter. Energy Smart, and its designated representatives, shall have the right to observe and inspect all project work in any of the Customer’s facilities at any reasonable time for a period of two (2) years from the incentive payment date. The Customer and its subcontractors shall maintain accurate records of the project work (e.g., installation records, invoices, and maintenance information) that is performed hereunder for a period of two (2) years from the date of incentive payment under this Agreement.
MONITORING AND VERIFICATION
Energy Smart, and its designated representatives, shall have the right to monitor energy use/production prior to and after installation of the project or to perform an inspection of any Project to evaluate Program efficacy for a period of two (2) years from the date of incentive payment under this Agreement.
MANNER OF PERFORMANCE
The Customer shall perform its responsibilities under this Agreement in an efficient and expeditious manner and in accordance with all of the terms and provisions of this Agreement. The Customer shall strive to resolve differences in a respectful and fair manner. The Customer shall make all reasonable attempts to ensure that all Project work, as described in the Agreement, is performed in accordance with current professional standards and with the diligence and skill expected for the performance of such work.
REPRESENTATIONS/WARRANTY
Energy Smart and Program Administrator do not endorse any particular trade ally, manufacturer, product, system, or design by offering an incentive. Energy Smart and Program Administrator are not responsible for any tax liability imposed on the recipient as a result of the payment of incentives. Energy Smart and Program Administrator make no representation or warranty, and assumes no liability with respect to the quality, safety, performance, or other aspect of any design, consulting, product, system, equipment, Project, or appliance installed or received and expressly disclaims any such representations, warranties, and liability, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose. Energy Smart and Program Administrator do not guarantee that installation and operation of energy-efficient equipment will result in reduced usage or in cost savings. Energy Smart and Program Administrator are not responsible for the proper disposal/recycling of any waste generated as a result of any Project. Energy Smart and Program Administrator are not liable for any damages, including any incidental or consequential damages, arising out of the operation or malfunction of any Project, products, equipment, or appliances, or the installation thereof.
DEFAULT AND TERMINATION
(1) Subject to Article 9(3), this Agreement shall remain in effect until the Project Completion Deadline as specified in Article 1 hereof unless a Party is in breach of any provision of this Agreement.
(2) In the event that ENTERGY terminates, for any cause, Program Administrator’s Contract with ENTERGY, which terminates Program Administrator’s right to act as Program Administrator of the Energy Smart Program, responsibility for this Agreement transfers to the new Program Administrator.
(3) This Agreement may be terminated at Energy Smart’s sole discretion if Customer does not complete implementation of the project on or before the project Completion Deadline, unless the project Completion Date is extended by mutual written agreement of the Parties.
(4) Energy Smart reserves the right to change or discontinue any Program at any time without notice and reserves the right to terminate or amend this Agreement upon the change or discontinuance of any such Program.
INDEMNIFICATION AND DAMAGES
The Customer shall protect, indemnify, defend and hold harmless Energy Smart, Program Administrator, Customer, the City of New Orleans respective affiliates, subsidiaries, parent companies, officers, directors, agents, and employees, against all losses, damages, expenses, fees, costs and liability arising from any Project, design, consulting, product, system, equipment, or appliance. The Customer agrees that such obligations under this Article shall survive any expiration or termination of this Agreement and shall not be limited by any enumeration herein of required insurance coverage. To the maximum extent permitted by law, the Customer agrees to limit Energy Smart’s, Customer’s and Program Administrator’s liability to the Customer for any reason to the total amount of the payments identified in this Agreement. This limitation shall apply regardless of the cause of action or legal theory pled or asserted. Customer hereby expressly waives the right to specifically enforce this Agreement. Under no circumstances shall Energy Smart, Program Administrator, Customer the City of New Orleans, and participating utilities be liable for any special, indirect or consequential damages, however the same may be caused.
PUBLICITY
The Customer shall not use Program Administrator’s or Customer’s corporate name, logo, identity, any affiliation, or any related logo including the “Energy Smart” name, logo, or identity, for any marketing, advertising or solicitation without prior written consent of Energy Smart. Such written consent may be withheld in Energy Smart’s sole discretion. When referencing Energy Smart involvement with any project, the Customer shall collaborate with Energy Smart to prepare any press re-lease and to plan for any news conference and agrees to provide Energy Smart, for its written approval prior to publication, a written copy of any advertisements or promotional material regarding this program prior to publishing any such advertisements or promotional material. Energy Smart and Program Administrator reserve the right to publicize the Customer’s participation in the Energy Smart program unless requested otherwise in writing and submitted to [email protected]. Energy Smart and Program Administrator reserve the right to publicize the Applicant’s participation in the Program unless a written request is submitted info@ energysmartnola.com no later than fifteen (15) days after receiving payment from Energy Smart. Such right to publicize by Energy Smart or Program Administrator is part of Applicant’s consideration for participation in the Energy Smart Program. For purposes of the foregoing, to the extent applicable, Applicant grants Energy Smart and Program Administrator a nonexclusive, fully-paid up, irrevocable license to Applicant’s name and logo solely for the purpose of publicizing Applicant’s participation in the Program.
REVIEW AND DISCLAIMER
Energy Smart’s execution of this Agreement and any review of the design, construction, operation, or maintenance of the Project by Energy Smart or Program Administrator or any of their subcontractors shall not constitute any representation or warranty by Energy Smart or Program Administrator as to the economic or technical feasibility, operational capability or reliability of any renewable and/or energy efficiency measures or the capability or reliability of any market provider performing any work on the Project. The Customer shall in no way represent to any third party that Energy Smart’s execution of this Agreement or any reviews by Energy Smart or Program Administrator or their subcontractors, including, but not limited to, review of the design, construction, operation, or maintenance of the Project is a representation or warranty by Energy Smart or Program Administrator as to the economic or technical feasibility, operational capability or reliability of the renewable and/or energy efficiency measures or an endorsement of the contractor performing work on the Project. The Customer is solely responsible for the technical feasibility, operational capability and reliability of the renewable and/or energy efficiency measures.
MISCELLANEOUS
Governing Law. All Applications, Incentive Agreements and these Terms and Conditions shall be governed, construed and enforced in accordance with the internal laws of the State of Louisiana, without regard to any conflicts of laws principles that may direct the application of the laws of another jurisdiction. The Applicant irrevocably submits to the original jurisdiction of the state and federal courts sitting in New Orleans, Louisiana with regard to any controversy in any way relating to the execution, delivery or performance of an Application or Incentive Agreement. Suits, claims or actions founded upon such controversies shall be brought or filed exclusively in such courts and nowhere else. The exclusive venue for any dispute or controversy arising under an Application or Incentive Agreement shall be the Orleans Parish Civil District Court or the Federal District Court for the Eastern District of Louisiana.
Compliance with Applicable Laws. The Applicant shall at all times comply with and observe all federal and Louisiana state laws and published circulars, local laws, ordinances, rules and regulations which are in effect from the time at which Applicant submits an Application or enters into an Incentive Agreement to Applicant’s receipt of a Program Payment, and which in any manner affect the performance of an Application or Incentive Agreement. All references to statutes or regulations contained in any Application, Incentive Agreement or these Terms and Conditions shall be construed to include successors thereto.
Assignment. Energy Smart may assign, transfer or convey any Application or any of Energy Smart’s rights, obligations, interests or responsibilities thereunder, in whole or in part, without the consent of the Applicant. Neither an Application nor any rights or obligations hereunder or thereunder may be sold, assigned, transferred or otherwise disposed by Applicant, whether pursuant to a change of control, by operation or law or otherwise, without Energy Smart’s prior written consent.
Severability. If any provision of any Application, Incentive Agreement or these Terms and Conditions is construed by a court of competent jurisdiction to be illegal, invalid, or unenforceable under present or future laws, that provision shall be fully severable and the Application, Incentive Agreement and these Terms and Conditions shall be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part thereof. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, the Application, Incentive Agreement and these Terms and Conditions shall be reformed to include as a part of the Application, Incentive Agreement and these Terms and Conditions a provision as similar in terms to the illegal, invalid, or unenforceable provision as may be possible and still be legal, valid, or enforceable.
Risk of Loss. The Energy Smart, Customer, and Program Administrator at no time assume risk of loss for any personal property of the Applicant.
Waiver. Failure or delay on the part of either party to exercise any right, power, privilege or remedy hereunder shall not constitute a waiver thereof. A waiver of any default shall not operate as a waiver of any other default or of the same type of default on a future occasion.
ACCEPTANCE
The Customer is required to acknowledge its understanding and acceptance of the terms and conditions of this Agreement by returning an executed copy of this Agreement to Energy Smart at the address identified in this form on or before the Agreement Return Date. If the Customer’s Energy Smart representative does not receive the executed copy of this Agreement by the Deadline, Energy Smart will consider that Customer’s decision is to decline the terms and conditions contained herein and this Agreement will be of no force and effect.