ONSITE ENERGY CORPORATION PERFORMANCE BASED ENERGY SAVINGS AGREEMENT
CONTRACTOR: Client:
Onsite Energy Corporation Unified School District Xx. 000,
0000 Xxxxxx Xxxx Xxxxxxxxx Xxxxxx, Xxxxxx
Xxxxxxxx Xxxx, XX 00000 000 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxx 00000
Corporate Headquarters:
000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Program Data: Planned Service Data:
Date of this Agreement: MARCH , 1998 Anticipated Date of Commencement: DECEMBER 1, 1998
Savings Period: 10 YEARS PLUS
INSTALLATION PERIOD Duration of Planned Services: 10 YEARS
Total Project Fee: $5,930,576 First Year Monthly Monitoring Fee: $5,416.00 *
Payable in Advance
(* First Year Monitoring Fee of $64,992, payable in
monthly installments)
SCHEDULES OF AGREEMENT
SCHEDULE TITLE ATTACHED
A. Energy Conservation Measures *
B. Energy Use Base *
C. Base Energy Rates *
D. Insurance *
E. Client's Facilities and Existing Equipment *
F. Measurement & Verification (M&V) Protocols *
G. Payment Schedule *
H. Stipulated Savings *
I. Client Disclosure Information *
J. Responsibilities of Contractor & Client *
K. Annual Program Costs *
L. Planned Service *
This Onsite Energy Corporation Performance Based Energy Savings Agreement (this
"Agreement") is entered into by and between Onsite Energy Corporation of 0000
Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000, ("Contractor") and the Unified School
District No. 500, Wyandotte County, Kansas ("Client") identified above, and
consists of this facing sheet, Exhibit I, and Schedules A through L attached
hereto. In consideration of the foregoing (comprising a part of the written
agreement between the parties) and the additional terms and conditions attached
hereto as Exhibit I, the parties agree by signing this facing sheet below to be
bound by the foregoing and attached Exhibit I.
Onsite Energy Corporation: Unified School District No. 500, Wyandotte
County, Kansas:
By: __________________________ By: ______________________________
Print Print
Name: XXXXXXX X. XXXXXXXX Name: XXXXXX XXXXXXXXXXX
Title: PRESIDENT AND CEO Title: PRESIDENT, BOARD OF EDUCATION
Date Signed: __________________________ Date Signed: _________________________
EXHIBIT I
ONSITE ENERGY CORPORATION PERFORMANCE BASED ENERGY SAVINGS
AGREEMENT TERMS AND CONDITIONS
PRELIMINARY STATEMENT
A. Client desires to install various EC Measures
for the purpose of achieving reductions in Client's
operating costs including energy consumption, demand and
maintenance.
B. Contractor has expertise in the design,
implementation and monitoring of EC Measures.
C. Contractor has analyzed energy use at the
Client's facilities described in Schedule E (the "Client's
Facilities") and made recommendations as set forth herein
concerning the EC Measures and the Program.
D. Contractor will guarantee that Client will
obtain the energy savings set forth in this Agreement
(calculated as set forth in this Agreement), and will
assist Client in obtaining the agreement of Westar Capital,
Inc. ("Westar") to guarantee Contractor's performance under
this Agreement, including any energy savings guarantee as
set forth herein.
1. DEFINITIONS:
A. Performance Based Guaranteed Energy
Savings Program ("Program"): The full complement of EC
Measures to be designed, implemented and monitored by
Contractor pursuant to this Agreement, and the energy
savings guarantee set forth in Section 5 of this Agreement.
B. Energy Conservation Measures ("EC
Measures"): Those Energy Conservation Measures set forth in
the attached Schedule A.
C. Energy Conservation Savings ("EC
Savings"): Those savings achieved through reduction in
energy consumption, demand or maintenance costs by
implementation of the EC Measures identified by Contractor,
to be calculated as set forth in Section 4.
D. Base Energy Rates ("Base Energy Rates"):
The energy rates described on Schedule C and increased each
year on a cumulative basis by 5.40 percent beginning on the
first anniversary of the Commencement Date and continuing
on the first day of each Contract Year thereafter used by
Contractor, as set forth in Section 4, to calculate the EC
Savings for the various EC Measures.
E. Substantial Completion ("Substantial
Completion"): When substantially all of the items of new
equipment included in the EC Measures are operational and
Contractor notifies Client thereof in writing, and Client
confirms the same in writing to Contractor, which
confirmation shall not be unreasonably withheld.
F. Energy Savings Commencement Date
("Commencement Date"): The first day of the month following
Substantial Completion of all EC Measures.
G. Contract Year ("Contract Year"): Each one-
year period following the Commencement Date.
H. Energy Use Base ("Energy Use Base"): The
historical energy usage and demand of the Client's
Facilities and existing equipment are described in Schedule
B. In determining the Energy Use Base, Contractor
identified factors which may affect energy use for the
Client's Facilities and existing equipment, including but
not limited to: hours and levels of occupancy; adjustments
in labor force; building use and operational procedures;
temperature, humidification and ventilation levels;
installed lighting and scheduled use; building construction
and size; general level of repair and efficiency of heating
and air conditioning equipment and other energy using
equipment; and amount of heating and air conditioning
equipment and other energy using equipment.
I. Equipment ("Equipment"): All equipment
provided to Client by Contractor pursuant to this
Agreement.
J. Installation Period ("Installation
Period"): The period of time beginning on the date of this
Agreement and ending on the Commencement Date.
2. EC MEASURES:
A. Client authorizes Contractor to design,
implement and monitor the Program. Contractor shall supply
all labor, materials, equipment, management and supervision
necessary to design, install and commission all EC
Measures. Contractor's responsibilities for each of the EC
Measures described in Schedule A shall include:
(1) providing all necessary
designs, plans and specifications;
(2) selecting subcontractors;
(3) awarding subcontracts;
(4) obtaining and evaluating
submitted drawings on all Equipment to be provided;
(5) progress inspections during
installation;
(6) training Client's personnel on
proper operation of the newly installed Equipment;
(7) final inspection,
(8) commissioning or start-up of
each item of Equipment; and
(9) measurement and verification of
EC Savings.
3. MONITORING:
A. Client acknowledges and consents to
Contractor's right to monitor EC Savings and Program
performance by conducting on-site measurements, including
but not limited to reading meters, and installing and
observing on-site monitoring equipment. Client shall
cooperate fully with any such measures instituted by
Contractor pursuant to this subsection. Contractor shall
not institute any measures which unreasonably interfere
with the business of Client conducted at the Client's
Facilities.
B. For the purpose of documenting EC Savings,
Contractor shall prepare quarterly measurement and
verification reports from and after the Commencement Date.
Schedule F details the measurement and verification
protocols (the "M&V Protocols") and report content.
C. Client shall notify Contractor within
twenty-four (24) hours of the discovery or obtaining actual
knowledge of any malfunction in the operation of any
Equipment, or of the interruption or alteration of the
energy supplies to the Client's Facilities. Client shall
notify Contractor as soon as possible after the discovery
or obtaining actual knowledge of the existence of any
emergency or dangerous condition affecting the Equipment.
If Client delays in so notifying Contractor of a
malfunction or emergency, Contractor may make reasonable
adjustments to the energy savings guarantee for financial
loss due solely to the delay.
D. Client shall forward copies of its monthly
utility bills to Contractor within ten (10) working days of
receipt by Client, or Client and Contractor may make
arrangements for duplicate copies of such bills to be
forwarded directly to Contractor.
E. Contractor will provide Client training
throughout the Term of this Agreement (as defined in
Section 28 hereof) in accordance with Schedule L.
4. EC SAVINGS:
A. Within forty-five (45) days after receipt
from the Client of its twelfth monthly utility bill after
the Commencement Date, and for each Contract Year during
the Term of this Agreement, Contractor shall submit an
annual energy savings report ("Energy Savings Report") with
a calculation of the EC Savings to Client in accordance
with this Agreement. The annual EC Savings will be
determined by using the M&V Protocols documented in
Schedule F.
B. EC Savings for each Contract Year shall
consist of utility cost savings derived from the sources
indicated below. From and after the Commencement Date, EC
Savings shall be computed as specified in this section and
further detailed in Schedule F. Four different types of EC
Savings may be achieved under this Agreement: Energy Use
Savings (1), Fuel Switch Savings (2), Energy Rate Savings
(3) and Stipulated Savings (4). EC Savings will be
determined by adding together the Energy Use Savings, Fuel
Switch Savings, Energy Rate Savings and Stipulated Savings
for each Contract Year. Regardless of whether amounts
saved are classified as Energy Use Savings, Fuel Switch
Savings, Energy Rate Savings or Stipulated Savings,
Contractor and Client agree that no dollars saved as a
result of implementation of the EC Measures will be double-
counted in calculating EC Savings.
1) Energy Use Savings are those savings achieved
through reduction in energy consumption (including
energy and demand savings). Contractor will
calculate Energy Use Savings achieved at the
Client's Facilities according to the M&V Protocols
detailed in Schedule F. In no case, however,
shall energy unit costs utilized in the
calculations be less than the Base Energy Rates.
The dollar amount arrived at by such calculation
shall be the Energy Use Savings for such period.
2) Fuel Switch Savings are those savings achieved
by switching to a more economical source of
energy. Contractor will calculate Fuel Switch
Savings by subtracting the dollar value of the
alternate energy utilized during the applicable
period from the Energy Use Savings as determined
in Section 4(B)(1). The dollar value of the base
energy consumption which would have been utilized,
is determined by multiplying the number of units
of base energy consumption by the then current
unit costs. Savings will be determined by
subtracting the alternate energy costs from the
base energy costs. In no case, however, shall
unit cost utilized in this specific calculation be
more than the Base Energy Rate for said alternate
energy used.
3) Energy Rate Savings are those savings achieved
through a reduction in fuel and/or electricity
rates by one of the following means:
a) Improved rate from local electric utility
company, natural gas or fuel company
occurring after the date of this Agreement,
b) Direct purchase of natural gas or
electricity from a supplier other than the
local electric utility company, natural gas
or fuel company, or
c) Bulk purchase of fuel.
Contractor will calculate the Energy Rate Savings
obtained for each period by multiplying energy
consumption and demand for the applicable period
by the energy rate reduction which is the amount
by which the Base Energy Rate exceeds the then
current rate. There will be no Energy Rate
Savings calculation or penalty if the current
energy rate exceeds the Base Energy Rate. There
will be no Energy Rate Savings calculation unless
an energy rate reduction has been achieved either
directly or indirectly by the Contractor through
one of the means listed in this Section 4(B)(3).
4) Stipulated Savings are
those savings that Contractor and Client have
agreed will be achieved and are set forth in
Schedule H.
5. ENERGY SAVINGS GUARANTEE:
A. Subject to the provisions of Section 6
hereof, Contractor guarantees that Client will realize EC
Savings from the EC Measures during the Term of this
Agreement of not less than Total Project Costs (as set
forth in Schedule K). If the EC Savings realized do not
meet or exceed the Total Project Costs, Contractor
guarantees to make payment of any shortfall to Client in
accordance with the terms of
this Section. Additionally, Contractor shall obtain a
guarantee of the payment of any shortfall in EC Savings
from Westar.
D. Within sixty (60) days after the
Commencement Date, or earlier if otherwise specified in
this Agreement, Contractor will calculate the savings
achieved during the Installation Period and advise Client
of the amount of such savings. Savings shall be calculated
in accordance with the methods stated in this Agreement
with review and concurrence by Client. For purposes of
this reconciliation, such Installation Period savings shall
be considered savings achieved during the first Contract
Year of the Term of this Agreement. The Stipulated Savings
shall be credited to the EC Savings on the Commencement
Date and each Contract Year thereafter.
If the EC Savings during a specific Contract Year are less
than the Total Project Costs for the same Contract Year, at
Client's option Contractor may apply the difference
(shortfall) against any unpaid balances then due from
Client under the Agreement. If there are any remaining
amounts, Client may elect to have Contractor carry over the
difference to the next Contract Year so as to increase the
Total Project Costs attributable to that Contract Year or,
at Client's election, pay Client the remaining amounts.
Upon the mutual agreement of the parties, Contractor may
also provide additional products or services, in the value
of the shortfall, at no additional cost to the Client.
Where shortfalls have occurred, Contractor reserves the
right, subject to the approval of the Client, which shall
not be unreasonably withheld, to implement additional
operational improvements or conservation measures, at no
cost to the Client, that will generate additional savings
in future Contract Years. Client shall notify Contractor
within forty (45) days of Client's receipt of the Energy
Savings Report of Client's decision required under this
paragraph regarding the payment and/or application of any
shortfall. If Client elects to require Contractor to pay
any shortfall amounts in accordance with this paragraph,
Contractor shall pay such amounts within thirty (30) days
of receipt of said notification from Client. If the EC
Savings during a specific Contract Year are greater than
the Total Project Costs for the same Contract Year,
Contractor may carry over the difference (surplus) to
future Contract Year(s) and use the same to offset any
shortfall in EC Savings that may occur in such future
Contract Year(s).
6. CHANGES IN FACTORS AFFECTING ENERGY USE:
A. Client shall notify Contractor within ten (10) business
days of any change in its operations or the Client's
Facilities which may have a material impact on any factor
as set forth in the Energy Use Base, Schedule B.
Contractor will determine the effect that any such change
will have on EC Savings.
B. If a material change in any of the factors involved in
the Energy Use Base occurs and results in a material change
in consumption, then the dollar level of energy savings to
be guaranteed by Contractor may be adjusted per the M&V
Protocols in Schedule F.
C. Client and Contractor may from time to time desire to
make changes for the express purpose of increasing EC
Savings. It is agreed that these changes will only be made
with the prior consent of both parties, which will not be
unreasonably withheld. The EC Savings will not be adjusted
to reflect any changes agreed to under this subparagraph.
7. WARRANTIES:
A. Client shall maintain all EC Measures
installed under this Agreement in a manner consistent with
the manufacturer's recommended maintenance schedules and
procedures, which Contractor will provide to Client.
Client shall provide Contractor with quarterly
service/maintenance checklists. Contractor shall, if it
deems it necessary, inspect the Client's Facilities
annually.
B. For the benefit of Client, Contractor
shall obtain from all vendors and manufacturers (as
applicable) of the Equipment installed or materials used in
the EC Measures such warranties against defects and
deficiencies in design, material and workmanship as are
generally given in the trade to an owner or contractor.
Except as otherwise set forth in this Agreement, Contractor
makes no warranties or representations of any kind with
respect to any of the Equipment or materials supplied by
Contractor or by any vendor or subcontractor hereunder, and
all Equipment and materials hereunder is delivered as is,
and the sole warranties and representations that shall
apply with respect to such Equipment and materials shall be
those warranties and representations, whether statutory,
written, oral, express or implied (including warranties of
fitness for a particular purpose or merchantability) that
have been given or made by suppliers or subcontractors to
Contractor or by manufacturers of such equipment to end
users. This warranty is expressly in lieu of all other
warranties except as are expressly stated in this
Agreement. Contractor hereby assigns to Client all of
Contractor's interest, if any, in all Equipment vendors and
manufacturers' warranties and guarantees, express or
implied, issued on or applicable to the Equipment installed
and materials used in EC Measures. Client shall hold
Contractor harmless for any loss, damage or injury to
persons or property caused by the Equipment and not caused
in whole or in part by Contractor. No representation or
warranty by the suppliers or manufacturers is binding on
Contractor nor shall breach of such warranty relieve Client
of Client's obligations to Contractor. During the
applicable warranty periods, Contractor shall assist Client
in the administration of said warranties.
C. In connection with any Equipment, property or services
described herein or utilized in any Program,
each party hereby disclaims any liability for consequential,
indirect or special damages incurred by the other even
if said party is advised as to the possibility of such
consequential, indirect or special damages.
D. Contractor accepts the relationship of trust and
confidence established by this Agreement and
covenants with Client to utilize Contractor's commercially
reasonable skill, efforts and judgment in furthering the
interests of Client; to furnish efficient business
administration and supervision to make commercially reasonable
efforts to furnish at all times an adequate supply of workers
and materials; and to perform the work set forth in
this Agreement (the "Work") in an expeditious and economical
manner consistent with the interests of Client. Client
agrees to exercise commercially reasonable efforts to enable
Contractor to perform the Work in an expeditious manner
by furnishing and approving in a timely way information
required by Contractor and by making payments to Contractor
in accordance with the requirements of this Agreement.
E. Contractor shall be responsible for initiating, maintaining,
planning and supervising all safety
precautions and programs in connection with the Work.
F. Via the EC Savings guarantee set forth in this Agreement,
Contractor hereby warrants to Client the
appropriateness of the EC Measures designed and implemented by
Contractor.
G. Contractor shall, at its own cost and expense, obtain all
necessary permits, licenses, approvals or
consents required by law or regulation to perform the Work at
the Client's Facilities as set forth in this
Agreement. Contractor also shall give all notices, pay
all fees and otherwise comply with all applicable laws,
ordinances, rules and regulations.
H. On or before the date of execution of this Agreement, and
on or before September 30 of each year
thereafter, Contractor shall give Client copies of
Contractor's then current fiscal year financial statements,
including balance sheet for Contractor's last fiscal year.
8. REPRESENTATION AND WARRANTIES OF CLIENT:
A. Client hereby warrants and represents to
Contractor that: (i) Client has provided Contractor with
all records heretofore requested by Contractor and, to
Client's knowledge, the information set forth therein is,
and all information in other records to be subsequently
provided by the Client pursuant to this Agreement will
be, true and accurate in all material respects; (ii)
except as disclosed by Client to Contractor, Client has
not entered into any contracts or agreements with other
persons or entities regarding the provision of energy
management services or with regard to servicing any of
the Equipment located on the Client's Facilities; and
(iii) Client presently intends to continue the use of the
Client's Facilities in a manner similar to its present
use, except as is disclosed by Client in writing on
Schedule I to this Agreement.
Client will provide Contractor with copies of any
successor or additional contracts for the management or
servicing of pre-existing equipment or the Equipment
which may be executed from time to time hereinafter
within ten (10) days after execution thereof.
9. AFFIRMATIVE COVENANTS OF CLIENT:
A. The parties acknowledge and agree that the
EC Savings will not likely be obtained unless certain
procedures and methods of operation designed for energy
conservation shall be implemented and followed by Client
on a regular basis. Client agrees that it shall exercise
commercially reasonable efforts to follow and implement
the procedures and methods of operation and maintenance
set forth in this Agreement and the Schedules hereto. In
addition, Client agrees to continue and follow the
operational procedures set forth by Contractor.
Client agrees that Contractor shall have the right, with
prior notice, to inspect the Client's Facilities to
determine Client's compliance with its obligations as set
forth above. In the event that any inspection discloses
that Client has failed on the date of the inspection to
be in compliance with any items set forth above, then the
portion of EC Savings attributable to the specific
facility of the Client's Facilities at which such failure
occurred shall be assumed to have been achieved for and
with respect to the portion of the applicable Contract
Year during which such failure shall have existed.
10. FEES:
A. Client shall pay Contractor the Total Project Fee, as
set forth on the facing page of this Agreement and in
Schedule G, and the Annual Monitoring Fee, as set forth
on the facing sheet of this Agreement and in Schedule L.
The Annual Monitoring Fee shall be increased annually at
the rate of five percent (5%) of the initial Contract
Year's cost, with the first such increase to be effective
twelve (12) months after the Commencement Date. The
Total Project Fee is payable in the manner set forth in
Section 13 below following the date of invoices sent to
Client by Contractor, either on a monthly basis or upon
the occurrence of "milestone" dates or events specified
in Schedule G.
11. WORKING HOURS:
A. It is agreed that all installation work
except lighting renovations shall be conducted during
normal working hours, unless otherwise mutually agreed to
by the parties. The extra expense incurred for overtime
work shall be paid by the party requiring it.
Additionally, Contractor agrees to conduct all work in a
manner which minimizes disruption to Client's educational
program and business operations.
12. TERMINATION OF CONTRACT:
A. Contractor shall have the option to terminate this
Agreement without further responsibility or liability only
upon the following conditions:
(1) All or any part of Client's ownership interest in
the Client's Facilities is transferred voluntarily or
involuntarily by any means including but not limited
to the transfer of any ownership interest in the
Client.
(2) If Client defaults in any payment or any other
obligation to Contractor under this Agreement, and
such default is not cured within fifteen (15) days
(for payment) or sixty (60) days (for any other
obligation) of notice by Contractor to Client of such
alleged default.
C. In the event of the termination of this Agreement by
either party, Contractor and Client shall continue to be
responsible for their respective payment obligations
accrued under this Agreement prior to the date of
termination. Client agrees to pay Contractor all Annual
Monitoring Fees and Total Project Fees incurred or accrued
prior to the date of termination.
D. Client reasonably believes that sufficient funds will be
obtained to pay all monies due during the Term of this
Agreement (as the same may be extended in accordance with
Section 28 hereof), and hereby covenants that it will do
all things lawfully within its power to obtain, maintain
and properly request and pursue funds from which the
payments may be made, including making provisions for such
payments to the extent necessary in each budget submitted
for the purpose of obtaining funding, using commercially
reasonable efforts to have such portion of the budget
approved. It is Client's intent to make all payments
required hereunder, if funds are legally available
therefor, and in that regard, Client represents that the
use of the Equipment is essential to its proper, efficient
and economic operation.
In the event no funds or insufficient funds are
appropriated and budgeted or are otherwise legally
available by any means whatsoever in any fiscal period
for payments due under this Agreement, then Client will
immediately notify Contractor or its successor or
assignee of such occurrence and this Agreement shall
terminate as of the last day of the fiscal period for
which appropriations were received without penalty or
further expense to Client except as otherwise expressly
provided for herein and except as to the portions of
payments required hereunder for which funds shall have
been appropriated and budgeted or otherwise available.
Client has informed Contractor that funds sufficient to
pay the Total Project Fee have been allocated, and thus
are available therefor.
Mf\work\onsite\filings\10q exhibit 10.88\<> 2
13. TERMS OF PAYMENT:
A. Contractor shall submit to Client invoices for the work
performed to the date of each invoice in accordance with
Schedule G. Invoices must be received by Client within
five (5) days of their date. All invoices of Contractor
shall be due and payable by Client within thirty (30) days
of the invoice date. Interest at rate of ten percent (10%)
per annum will accrue on all unpaid balances more than
thirty (30) calendar days after the invoice date.
B. Prevailing wage compliance documentation, if required,
and conditional lien waivers from Contractor shall be among
the evidence required by Client to be submitted by
Contractor with each invoice. With each invoice,
Contractor shall submit partial lien waivers from
Contractor and all applicable subcontractors and suppliers,
which waivers shall be submitted to Client prior to the
time that the next succeeding invoice is submitted by
Contractor to Client.
14. INDEPENDENT CONTRACTOR:
A. Contractor is an independent Contractor
and is not an employee, partner, legal representative,
joint venturer or agent of Client. Contractor does not
in any way assume any of the contractual or other
obligations of Client to other parties under any
agreements referred to herein or otherwise. Client is not
an employee, partner, legal representative, joint
venturer or agent of Contractor. Client does not in any
way assume any of the contractual or other obligations of
Contractor to other parties under agreements referred to
herein or otherwise.
15. CASUALTY OR CONDEMNATION OF FACILITIES:
A. Any fire, flood or other casualty or
condemnation affecting any portion of the Client's
Facilities may be a material change. If so, the notice
thereof shall be given to Contractor by Client and the
appropriate modifications, if any are required, to the EC
Savings guarantee will be made. If any fire, flood or
other casualty or condemnation renders a majority of the
Client's Facilities incapable of being occupied and the
affected portion is not or cannot be reconstructed or
restored within one hundred twenty (120) days from the
date of such casualty or condemnation, either party may
terminate this Agreement by delivery of written notice to
the other. Any such termination shall not be considered
a breach of this Agreement.
16. NOTICES:
A. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing, and if
sent by a nationally recognized overnight carrier, or by
registered or certified mail, postage prepaid, return
receipt requested to either party at its address
specified on the facing sheet to this Agreement.
17. GOVERNING LAW:
A. This Agreement is made in the State of Kansas and
shall be subject to and governed by the laws of the State
of Kansas, and all questions concerning its validity,
construction and administration shall be determined under
such laws.
Mf\work\onsite\filings\10q exhibit 10.88\<> 3
18. INDEMNIFICATION:
A. To the fullest extent permitted by law, Contractor shall
indemnify and hold harmless Client, its agents and
employees, from and against claims, damages, losses and
expenses, including but not limited to reasonable
attorneys' fees, arising out of or resulting from
performance of the Work, which is caused in whole or in
part by the negligent acts or omissions of Contractor, a
subcontractor of Contractor, anyone directly or indirectly
employed by them or anyone for whose acts them may be
liable. In the event any action is brought therefor
against Client or any of its agents or employees,
Contractor shall assume full responsibility for the defense
therefor. Upon Contractor's failure to do so on proper
notice, Client reserves the right to defend such action and
to charge all reasonable costs thereof to Contractor. Such
obligation shall not be construed to negate, abridge or
reduce other rights or obligations to indemnify which would
otherwise exist as to a party or person described in this
paragraph.
B. Claims against Client may be pursued in accordance with,
and subject to, the Kansas Tort Claims Act, K.S.A. 75-6101,
ET SEQ., as amended. Client agrees to be responsible for
claims, liability, causes of action or damages, including
reasonable attorneys' fees, arising directly or indirectly
from the acts or omissions of Client's employees and
agents.
19. DOCUMENTS:
A. All drawings, designs and specifications
prepared by Contractor for Client hereunder shall remain
the property of Contractor until such time as the Total
Project Fee has been paid in full, at which time said
documents shall become the property of Client. Client
grants Contractor a perpetual, non-exclusive and royalty-
free license to use all such drawings, designs and
specifications. Without specific written consent,
however, Contractor shall not use Client's name in
connection with any such drawings, designs and
specifications.
20. SEVERABILITY:
A. This Agreement shall be severable.
Accordingly, to the extent that any part of the Agreement
is unenforceable for any reason whatsoever, the remaining
parts of this Agreement shall remain in full force and
effect.
21. ASSIGNMENT:
A. This Agreement is not assignable by Client
or by Contractor without the prior written consent of the
other party.
22. SUCCESSORS AND ASSIGN:
A. The obligations of this Agreement shall be
binding on the successors and assigns of Client and of
Contractor.
23. INSURANCE:
A. Contractor and Client at all times during
the term of this Agreement shall carry the types of
insurance coverage as set forth in the attached Schedule
D.
B. Contractor shall be required to purchase and maintain
in force for the duration of this Agreement, from
insurance companies authorized to conduct business in the
State of Kansas, (a) general liability, providing bodily
injury and property damage coverage in the minimum amount
of $2,000,000 per person and $2,000,000 per occurrence,
(b) automobile liability insurance with the minimum
amount of $1,000,000, with a deductible not in excess of
$5,000, (c) workers compensation insurance as required by
the laws of the State of Kansas, and (d) excess coverage
or umbrella coverage in the minimum amount of $5,000,000.
Contractor also agrees to have Client named as an
additional insured on all such insurance policies and to
deliver, or cause to have delivered, to Client
certificates of insurance evidencing the appropriate
insurance coverage containing a provision that at least
thirty (30) days prior written notice be given to Client
by the insurance company prior to cancellation or
alternation in the event of cancellation, reduction in
coverage, or non-renewal of the insurance. Contractor
also shall confirm that any of its subcontractors have
adequate insurance, including workers' compensation, to
protect the interests of Client.
C. At all times during the Term of this Agreement
following the installation of any or all of the EC
Measures, Client shall maintain in full force and
effect, at its expense, property and liability
insurance on the Premises and on the Equipment for
the replacement value thereof. Client shall bear
the entire risk of loss with respect to any
damage, destruction, loss or theft of the
Equipment after installation of the same by
Contractor, whether partial or complete.
Contractor shall ensure that its subcontractors
carry installation floaters covering the Equipment
being installed in the performance of the Work
while such equipment and materials are in transit
or at the Client's Facilities prior to
installation, in an amount equal to the cost to
replace the Equipment with like kind and quality.
This installation floaters insurance shall be on
an "all risk" basis including, but not limited to,
the perils of fire, vandalism, malicious mischief
and theft.
24. MEDIATION:
A. Any dispute, controversy or claim arising
out of or relating to this Agreement or any breach or
alleged breach hereof, shall, upon the request of any
party involved, be submitted to mediation by a mediator
mutually agreed upon by the parties. If the parties do
not agree upon a mediator, or if the mediation does not
result in a resolution of the dispute between the
parties, then the parties shall be free to exercise any
and all rights and remedies which either may have under
applicable law. No mediation statement or documents
shall be admissible in court without the express written
consent of the other party.
25. PRIOR AGREEMENTS:
A. This Agreement supersedes the terms and
conditions of any prior agreements, understandings or
representations, oral or written, between the parties.
26. SUBCONTRACTORS:
X. Xxxxx to the execution of any subcontracts, Contractor
agrees to provide to Client a list of all
subcontractors and suppliers which Contractor intends to
utilize in completing the Work. Contractor shall not
engage any subcontractor to which Client shall have an
objection. Also, Contractor shall not install or use any
equipment, materials or supplies to which Client has an
objection. Additionally, Client may designate specific
subcontractors or suppliers from whom Contractor shall
obtain bids. Client may not, however, prohibit Contractor
from obtaining bids from other subcontractors or suppliers.
Contractor shall not be required to contract with
anyone to whom Contractor has reasonable objection.
27. NONDISCRIMINATION:
A. Contractor shall not discriminate against any employee, applicant for
employment or subcontractor or supplier on the basis of race,
religion, color, sex, handicap or national origin.
28. TERM:
A. The term of this Agreement (the "Term") shall be for a period
commencing on the date of execution hereof and
ending on June 30, 1999. The Agreement shall be automatically
renewed for successive one-year terms, commencing
on July 1{st} of each succeeding year, until the date ten
(10) years from the Commencement Date, unless Client
notified Contractor in writing of its intent to terminate
this Agreement within thirty (30) days prior to the
renewal date of July 1st.
