CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. TARGETED STEAM AIR CONDITIONING INCENTIVE PROGRAM CUSTOMER AGREEMENT

Transcription

1 CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. TARGETED STEAM AIR CONDITIONING INCENTIVE PROGRAM CUSTOMER AGREEMENT This Agreement ( Agreement ) is entered into as of the date set forth on the signature page hereto by and between Consolidated Edison Company of New York, Inc. ( Con Edison or the Company ), a New York corporation having its principal place of business at 4 Irving Place, New York, New York and ( Customer ), a having its principal place of business at. RECITALS WHEREAS, Con Edison is a utility subject to regulation by the New York Public Service Commission (the PSC ); WHEREAS, Customer is the rightful customer of record at the property known as Con Edison [steam service address: ] [and/or] [Con Edison electric service address: ](the Property ), and as more particularly described as the building located on Block, Lot in the borough of Manhattan, on the side of [Avenue][Street], between and, which Property bears Con Edison [steam account number ] [and/or] [Con Edison electric account number ][, respectively]. WHEREAS, Customer desires to participate in Con Edison s Targeted Steam Air Conditioning Incentive Program (the Program ), comprising part of the Company s Targeted Demand Side Management Program in collaboration with the Demand Management Program, and, in connection therewith, has read the guidelines for the Program as provided to Customer or otherwise accessible at (as modified from time to time in accordance with the terms thereof and incorporated herein by reference as though fully set forth herein, the Program Guidelines ) and has submitted to Con Edison a completed Program application (the Application ); and WHEREAS, Con Edison desires that Customer participate in the Program and has accepted, by letter dated (the Acceptance Letter ), Customer s Application and has agreed to pay Customer, [(i)] upon receipt of required documentation, confirmation of equipment type and tonnage, field verification of completion of the eligible chiller equipment s installation (within the time period required by the Program Guidelines), evidence of payment in full of the eligible chiller equipment and satisfaction of all other conditions set forth in the Program Guidelines, an incentive amount calculated in accordance with the Program Guidelines (the Steam Chiller Incentive Amount )[, and (ii) if applicable, upon receipt and approval of a genuine and complete copy of Customer s maintenance service contract with the manufacturer of, or authorized service provider for, the eligible chiller equipment (within the time required by the Program Guidelines), a maintenance incentive amount (which may include a special incentive for participating in a remote monitoring program, if applicable (the Remote

2 Monitoring Bonus Incentive )) calculated in accordance with the Program Guidelines (the Maintenance Incentive Amount and, together with the Steam Chiller Incentive Amount, the Incentive Amount[s] ), in each case] on the condition that Customer enter into and perform this Agreement; WHEREAS, Customer desires to receive the Incentive Amount[s] and to purchase steam service from Con Edison on the terms and subject to the conditions set forth herein, and Con Edison desires to pay the Incentive Amount[s] and provide the steam service to Customer as set forth herein. NOW, THEREFORE, in consideration of the foregoing and of the mutual representations, warranties, covenants and agreements herein contained, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows: 1. Payment of Incentives. Upon Customer s execution hereof, and satisfaction of all other conditions to payment set forth in the Program Guidelines, including, without limitation, the truth, accuracy and performance of all representations, warranties, covenants and agreements set forth in Section 2 hereof and Customer s completion of the installation in accordance with the Documents (as defined in section 2.1) and payment in full of the Incentivized Equipment (as defined in Section 4), Con Edison shall pay to Customer, by check, within sixty (60) days after Con Edison s verification of Customer s satisfaction of the foregoing, [(i)] a Steam Chiller Incentive Amount (which amount shall equal the estimate therefor set forth in Customer s Acceptance Letter or such other amount as shall be determined by Con Edison in accordance with the Program Guidelines and set forth in a letter sent to Customer following Con Edison s completion of the post-installation inspection (the Post-Inspection Letter ))[, and (ii) if applicable, subject to all conditions precedent thereto set forth in the Program Guidelines, a Maintenance Incentive Amount [(which amount may include a Remote Monitoring Bonus Incentive), in each case as determined by Con Edison in accordance with the Program Guidelines]. Or [Customer has not elected to participate in the Maintenance Incentives option and therefore is not eligible to receive any Maintenance Incentive Amount.] 2. Customer Representations and Covenants. In consideration of Con Edison s agreement to pay the Incentive Amount[s], Customer represents and warrants to and agrees with Con Edison, as of the date hereof and for all periods throughout the Term (as defined in Section 5), as follows: 2.1 Customer has timely delivered and will timely deliver to Con Edison all documents and materials required by the Program Guidelines to be submitted to Con Edison in connection with the Program (including, without limitation, the Application, any and all calculation worksheets, Incentivized Equipment information, evidence of authority of Customer s agent, any and all invoices for the purchase, delivery and installation of the Incentivized Equipment, any maintenance service contracts and invoices and, if requested, annual tasks and alarm summaries in connection therewith and any other records, calculations, design drawings, shop drawings, agreements or documents required by the Program Guidelines) (collectively, Documents ), and all such

3 Documents have been and will be true, correct and complete in all respects, and no additions, deletions or modifications to such Documents have been or will be made without notification and submission thereof to[, and approval by,] Con Edison. 2.2 All calculations set forth in the Documents (including, without limitation, in any amendments thereof or revisions thereto, and those additional assessments and calculations required by the Program Guidelines to be performed for (i) Incentivized Equipment installed on the 10 th floor of a building or above, (ii) multiple steam powered chillers,(iii) Incentivized Equipment installations whose capacity (either alone or in combination with other existing chiller or Incentivized Equipment) exceeds the Property s load requirements), or (iv) custom steam chiller projects (including, but not limited to, steam turbine rebuilds), have been or, prior to commencement of installation or construction work, will be reviewed, signed and stamped by licensed engineers in the State of New York. 2.3 The installation of Incentivized Equipment will be completed by contractors duly licensed in the State of New York in conformity with the Documents and in compliance with all applicable laws, rules, regulations, codes and ordinances, and Customer will deliver, within the time period required by the Program Guidelines, notice of completion to Con Edison. Customer acknowledges and agrees that, unless Customer notifies Con Edison at least sixty (60) days prior to the first anniversary of the date hereof that it requires an extension of the completion date by no more than six (6) months, Customer shall be required to cause the installation of the Incentivized Equipment to be complete on or before the first anniversary of the date hereof, and that failure to achieve such completion within such time (as the same may be extended) will result in the forfeiture of all Incentive Amounts. 2.4 Customer agrees to provide Con Edison with all such access as it shall reasonably require, during normal business hours and upon reasonable notice, to the Property and the Incentivized Chiller Equipment, for the purpose of conducting a post-installation inspection. Customer further agrees to make all documents pertaining to the Incentivized Equipment available to the Company for review on-site during such inspection. Customer recognizes that any breach by it of its obligations under this Section 2.4 will result in the forfeiture of all Incentive Amounts. 2.5 Customer acknowledges and agrees that Con Edison bears no responsibility for the work performed in connection with the installation or for the performance of the Incentivized Equipment, nor does Con Edison guarantee or warrant that any energy or cost savings will result therefrom. Con Edison shall not be liable to Customer or any other person or entity in connection with any project undertaken by Customer pursuant to the Program, including in connection with Con Edison s review or approval of any Documents or imposition of any requirements upon Customer or the project. Customer understands that Con Edison makes no representation or warranty, and undertakes no responsibility whatsoever concerning, the adequacy of any project design or plan, any construction or

4 installation work, the completion of any project or the performance of any Incentivized Equipment. Neither this Agreement, nor any act or omission by Con Edison or any of its employees, agents or representatives under or pursuant to the Program shall constitute, or be construed to constitute or relied upon by Customer or any other person or entity as (i) a representation, warranty or determination by Con Edison that (i) any project design or plan is structurally sound or safe, or technically correct, (ii) an opinion by Con Edison that any plans, specifications, calculations or other information contained in any Document is accurate or complete, or can accomplish their intended purposes or achieve their intended energy savings, or that Incentivized Equipment, when installed in accordance with the Documents, will be adequate or sufficient for any purpose or use, or (iii) a waiver of any of Con Edison s rights. 2.6 Customer has and agrees to maintain, and agrees to cause any and all contractors engaged by it to perform construction or installation work related to the Incentivized Equipment to maintain, (i) until completion of such work, commercial general liability insurance, including contractual liability, with limits of not less than $5,000,000 per occurrence and in the aggregate for bodily injury or death and property damage and (ii) for at least three (3) years after completion of all such work, products/completed operations liability insurance with similar but separate and independent limits. The required liability limits may be met by a combination of primary and excess liability policies. The insurance shall be in policy forms which contain an "occurrence" and not a "claims made" determinant of coverage and shall be placed with insurance companies reasonably acceptable to the Company. Such insurance policies shall include and insure the Company, its affiliates, and all of its and their respective officers, employees and agents, successors and assigns, as "additional insureds". All required coverage under this Agreement shall be primary to any other insurance available to the additional insureds and shall contain a waiver of subrogation in favor of the additional insureds. 2.7 Customer understands that the estimated Incentive Amount set forth in Customer s Acceptance Letter is an estimate only and may not reflect the actual amount payable to Customer upon completion of installation (which actual amount shall be determined in accordance with the Program Guidelines and shall be based upon the type and capacity of Incentivized Equipment installed, among other things). Accordingly, any modification to, or failure to comply with, the specifications described in the Application and related Documents, which formed the basis of the estimate set forth in the Acceptance Letter, may result in changes to the Incentive Amount payable, including the possible forfeiture thereof. 2.8 Customer acknowledges and agrees that it is solely responsible for any and all taxes that may be imposed in respect of the Incentivized Equipment, the installation work and any Incentive Amount[s] paid hereunder.

5 2.9 If Customer seeks to operate electric and steam air conditioning chillers together (a Hybrid Chiller Plant ), then Customer hereby commits, during the Term, to reduce its electric load at the Property, on each occasion and for the duration called upon to do so by Con Edison and otherwise in the manner and subject to the limitations described in the Program Guidelines, by an amount equal to the Incentivized Equipment equivalent peak electric load (measured in KW), as such amount has been set forth in Customer s Acceptance Letter or with such changes thereto as Con Edison shall determine shall be required upon conclusion of Con Edison s post-installation inspection and set forth in the Post-Inspection Letter. (For the avoidance of doubt, the Incentive Amount(s) and any committed electric load reduction amount, as shall be set forth in the Post Inspection Letter received by Customer, shall be deemed to be incorporated by reference herein and made a part hereof as though fully set forth herein). Customer acknowledges that payment of Incentive Amounts hereunder is premised upon electric load avoidance, and that any failure by Customer to comply with such required electric load reductions will cause the Company to incur significant damages, the precise amount of which will be difficult, if not impossible, to calculate with certainty. As a consequence, Customer agrees that, if at any time it shall breach its obligations under this Section 2.9, Customer shall be required to pay to the Company, immediately upon demand, to the fullest extent permitted by law, as liquidated damages and not as a penalty, an amount equal to $300 for each KW of load Customer used in excess of the electric load allowed. In the event a court of competent jurisdiction shall determine that Customer s obligation to pay the amount of liquidated damages set forth herein is unenforceable, then Customer and the Company agree that the amount of liquidated damages that Customer shall pay shall be the maximum amount permitted by law and that the court may determine such maximum amount. Customer agrees that in addition to Con Edison s other remedies pursuant to this Agreement and applicable law (including, without limitation, receiving payment of liquidated damages), Customer is entitled to injunctive relief to enforce this Section 2.9 and to enjoin any violations or threatened violations of this Section. Customer hereby agrees to reimburse Con Edison for any and all court costs and reasonable attorneys fees incurred by the Company in connection with a violation or threatened violation of this Section This Agreement has been duly authorized by all necessary action on behalf of Customer and the person executing this Agreement on behalf of Customer has full authority to do so. This Agreement constitutes the legal, valid and binding obligation of Customer and is enforceable against Customer in accordance with its terms. 3. Purchase and Sale of Steam. During the Term (as hereinafter defined), Con Edison shall [continue to] sell to Customer, and Customer shall [continue to] purchase from Con Edison, steam service in accordance with the terms and conditions applicable to [Customer s existing] Service Classification on Con Edison s Schedule for Steam Service, as set forth in Tariff [SC-2] OR [SC-3]. Customer acknowledges that the rules governing such Tariff may change during the Term. Customer further agrees to operate and maintain the Incentivized Equipment during the Term.

6 4. Use of Steam. Customer acknowledges that the purpose of the Program is to facilitate avoidance of electric load growth. Consequently, the sale by Con Edison and purchase by Customer of steam service shall, at a minimum, be sufficient to operate on a normal basis Customer s newly installed chiller(s) as to which the Steam Chiller Incentive Amounts are to be paid (the Incentivized Equipment ). Customer shall use Con Edison s steam service only for the Property, and not for resale, during the term of this Agreement. Customer may not combine hereunder its requirements with those of any other existing or future customer of Con Edison, regardless of whether such other customer operates at the same physical address as Customer. 5. Term. The term of this Agreement shall commence on the date set forth on the signature page hereto and shall expire on the tenth (10 th ) anniversary hereof (the Term ). Customer may not terminate this Agreement for any reason prior to its expiration without Con Edison s prior written consent, which Customer acknowledges shall be contingent upon Customer s compliance with the provisions of Section 6 and which Con Edison may withhold in its sole and absolute discretion. 6. Clawback of Incentives in the Event of Breach/Termination or Removal of Incentivized Equipment. Customer acknowledges that Con Edison s agreement to pay Customer the Incentive Amounts is contingent upon (a) the truth and accuracy of Customer s representations and warranties contained herein, and (b) the performance by Customer of its obligations hereunder, including, without limitation, Customer s agreement to (i) operate and maintain the Incentivized Equipment, (ii) purchase steam service and/or generate peak electric load avoidance in the amounts set forth in the worksheet (as approved by Con Edison), for at least ten (10) years, and (iii) in the case of the Maintenance Incentive, Customer s continued compliance with its obligations under, and the continued enforceability of, the maintenance service contract. As a consequence, if Customer shall breach any of its representations of warranties contained herein, or seek to terminate this Agreement for any reason or otherwise discontinue service, or removes the Incentivized Equipment, in whole or in part, without replacing the same of like kind with Con Edison s approval or fails to maintain in full force and effect any maintenance service contract, in each case prior to the expiration of the Term, then Customer shall be obligated, immediately upon the occurrence of such breach, attempted termination or discontinuance or such removal and demand therefor by Con Edison, to render payment to Con Edison by check or wire transfer of immediately available funds, of an amount equal to (A) the Steam Chiller Incentive Amount, multiplied by a fraction, the numerator of which shall be the number of months remaining in the Term following the date hereof that such breach, attempted termination or discontinuance and/or removal occurred, rounded to the nearest quarter of a month (i.e., week), and the denominator of which shall be 120, and (B) any Maintenance Incentive Amount (if applicable), multiplied by a fraction, the numerator of which shall be the number of months remaining in the term of the maintenance service contract provided to Con Edison following the date that such Customer breach, attempted termination or discontinuance or removal occurred, rounded to the nearest quarter of a month (i.e., week), and the denominator of which shall be the total number of months in the term of such maintenance service contract. Further, if Customer continues to own and operate the Incentivized Equipment and purchase steam service, but fails to maintain any

7 maintenance service contract in good standing throughout its term, then Customer shall be obligated to refund to Con Edison that portion of the Maintenance Incentive Amount received from Con Edison that is attributable to periods during which the Incentivized Equipment is not covered by such contract. Con Edison reserves the right, from time to time, to request documentation supporting the continued enforceability and Customer s continued performance of the maintenance service contract. Under no circumstances shall Con Edison pay any additional incentives to Customer, whether upon renewal or extension of a maintenance service contract or otherwise, at any time following Con Edison s initial payment of the Maintenance Incentive Amount. 7. Release and Indemnity. Customer, on behalf of itself and any other person or entity claiming by or through Customer, hereby (i) irrevocably and unconditionally releases and forever discharges the Company, its affiliates and the Company s and such affiliates respective past, present and future officers, directors, trustees, stockholders, employees, agents, representatives, successors and assigns, from any and all claims, charges, complaints, causes of action, damages, agreements and liabilities of any kind or nature whatsoever, whether known or unknown and whether at law or in equity, arising from the design, installation or performance of any Incentivized Equipment or related to energy costs incurred by Customer, and (ii) to the fullest extent permitted by applicable law, agrees to defend, indemnify and hold harmless Con Edison, its shareholders and affiliates, and each of its and their respective officers, directors, trustees, employees and agents, successors in interest and assigns from and against any and all such claims, charges, complaints, causes of action, damages, losses and liabilities (including, without limitation, attorneys' fees, court costs, costs of experts) (collectively, "Losses") arising out of or resulting, in whole or in part, from, or incurred by any Con Edison indemnitee in connection with, the design, installation or performance of any Incentivized Equipment, including (without limitation) Losses for injury to or the death of persons or damage to property or resulting from any violation or alleged violation of applicable law. 8. Force Majeure. Except for Customer s obligation to make payments when due, neither party shall be considered to have breached its obligations under this Agreement if failure to perform is caused by an act, omission or circumstance which could not, with the exercise of due diligence have been foreseen or avoided, including acts, omissions or circumstances occasioned by acts of a governmental authority or God, extraordinary weather conditions, flood, accident (such as fire or explosion) not due to the negligence of a party, strike or lock-out (that is not the result of an unfair labor practice or other unlawful activity by a party), riot or failure of public transportation facilities. A party shall give written notice and full particulars of any event or circumstance that it claims constitutes a Force Majeure within 48 hours after its occurrence. 9. Governing Law. This Agreement shall be governed by, and construed and enforced, in accordance with the laws of the State of New York applicable to contracts between New York residents to be performed entirely within the State of New York. 10. Regulatory Requirements. Customer acknowledges that Con Edison may be required to report the material terms and conditions of this Agreement to the PSC.

8 11. Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by Customer, by operation of law or otherwise, without the prior written consent of Con Edison. Con Edison may assign this Agreement, in whole or in part, to one or more of its affiliates or to any Person acquiring all of its stock or substantially all of its assets or in connection with a consolidation or merger transaction. Subject to the foregoing, all of the terms and provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective permitted successors and assigns. 12. Notices. Any notice required or permitted hereunder shall be in writing, and shall be deemed given (a) on the date delivered personally, by private courier (provided signature for delivery is obtained), or sent by facsimile or transmission (if confirmation of receipt is obtained) or (b) on the fifth day after mailing, by certified or registered mail, return receipt requested, postage prepaid. Each party to whom such communication is sent has the obligation to accept delivery of such communication. Such communications, to be valid, must be addressed as follows, or to such other address or to the attention of such person or persons as the recipient party has specified by prior written notice to the sending party. If to Customer, to: [insert] Att: [ ] Fax: [ ] [ ] With a copy to: [insert] Att: [ ] Fax: [ ] [ ] If to Con Edison, to: Consolidated Edison Company of New York, Inc. 4 Irving Place Suite 1810S Att:, Steam Operations Fax: And to: Consolidated Edison Company of New York, Inc. 4 Irving Place

9 Suite 1810S Att:, Energy Efficiency Fax: Amendment; Waiver. This Agreement may not be amended, or its provisions supplemented or otherwise modified, except by an instrument in writing, signed by the parties. Any waiver of any provision of this Agreement shall be effective only if it is in writing and is signed by the party against whom the waiver is sought to be effective. No failure or delay by any party in exercising any right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. 14. Entire Agreement. This Agreement, together with the Program Guidelines, the Documents and any other documents and instruments delivered pursuant to the Program Guidelines, set forth the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties, whether written or oral, with respect to such subject matter. 15. Captions. All captions contained in this Agreement are for convenience of reference only, do not form a part of this Agreement and shall not affect the meaning or interpretation of this Agreement. 16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission or transmission of a.pdf file shall be as effective as delivery of a manually executed counterpart of this Agreement. 17. Third-Party Beneficiaries. Nothing in this Agreement will be construed as giving any person other than the parties and their permitted successors and assigns, any right, remedy or claim under or in respect of this Agreement. IN WITNESS WHEREOF, the Parties, by their duly authorized representatives, have executed this Agreement as of the date set forth below. Customer: [ ] Company: CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. By: Name: By: Name:

10 Title: Title: Date: Date: By: Name: Title: Date: