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HomeMy WebLinkAbout18-34 Resolution No. 18-34 RESOLUTION AUTHORIZING EXECUTION OF A DEMAND RESPONSE ORDER FORM WITH ENERNOC, INC. FOR EMERGENCY LOAD RESPONSE PROGRAM BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9)the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Demand Response Order Form on behalf of the City of Elgin with EnerNOC, Inc. for emergency load response program, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: March 7, 2018 Adopted: March 7, 2018 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk n DocuSi.n Envelope ID:0E8300D1-203D-4BBA-A73B-B221979F8177 An Enel Group Company Provider: Demand Response Order Form EnerNOC, Inc. One Marina Park Drive, Suite 400 Boston, MA 02210 Customer: Order Form#: 00178755.0 Name: City of Elgin, Illinois, a municipal corp. Order Effective Date: March 7, 2018 DR Payment Contact: Jeff Luker Order Expiration Date: 5/31/2023 847-931-6108 Iukerj@cityofelgin.org DR Payment Address: 150 Dexter CT Elgin, IL 60120-5555 This Order Form (this "Order Form"), made by and between EnerNOC, Inc., a Delaware corporation ("Provider") and the customer identified above ("Customer"), is subject to and governed by Provider's: (i) applicable program rule attachment(s) attached hereto and made a part hereof as Attachment A (each a "PRA") for participation in and administration of the PJM Interconnection (a regional transmission organization) demand response program (the "Solutions"), and (ii) general terms and conditions attached hereto and made a part hereof as Attachment B ("Terms and Conditions"). Provider and Customer are referred to herein collectively as the "Parties"and each individually as a"Party"to this Order Form. Demand Response Program Aggregate Anticipated Capacity Payment Rate Energy Payment Rate Capacity(kW) Emergency Load Response 1,100 60% 100% Program Demand Response Terms: 1. Term. The term of this Order Form shall commence on the Order Effective Date and continue until the Order Expiration Date ("Order Term"). 2. Demand Response Solutions. The Parties understand that the"Anticipated Capacity"value set forth on this Order Form is solely the Parties' best estimate of performance and does not necessarily represent the Customer's Accepted Capacity(as defined in the applicable PRA incorporated by reference). 3. Demand Response Payments. For each Customer site address that is enrolled in a demand response program, Provider shall pay Customer in accordance with the applicable PRA. Unless otherwise indicated on the applicable PRA, any reference to a payment"%" shall mean (i)the capacity payment rate identified on this Order Form as a percent of the price obtained by Provider for the applicable demand response program and/or product, and (ii) the energy payment rate identified on this Order Form as a percent of the energy payments available to Provider. Provider D«uspnedby: Customer / Signature: L+ Signature: �Ar /, �Eo°uaa iDd24er - Name: Adam Col l i cel 1 i Name: Richard G. Kozel Title: Deputy General Counsel Title: City Manager Att-st: City Clerk DocuSign Envelope ID:0E8300D1-203D-4BBA-A73B-B221979F8177 Site Address Attachment The following reflects current estimates provided by Customer, which, may change during the Order Term. Provider reserves the right to amend the Site Address Attachment by providing written notice to Customer and with no further act required by Provider or Customer. Site Address Demand Response Program Anticipated Capacity(kW) 375 W.River Rd Emergency Load Response Program 1,100 El.in, IL 60120 DocuSign Envelope ID:0E83O0D1-203D-4BBA-A73B-B221979F8177 r '^"r rr'r`"' " Terms & Conditions 1.Order Form.These Terms and Conditions govern and are incorporated into the Order Form made and maintaining the installed EnerNOC site server,the Solutions and any other components of the by and between the Provider and Customer. Unless otherwise defined herein,capitalized terms in EnerNOC system. these Terms and Conditions shall have the meanings given to them in the Order Form. 10.Non-Payment.In the event that Customer fails to make any payment to Provider for undisputed 2.Use and Access License.For the duration of the Order Term, Provider grants to Customer a amounts by the date such payment is due,Provider may(i)immediately suspend Customer's access to United,revocable,non-transferrable(except as set forth herein)and non-exclusive right to use and the Solutions and all related services until payment is received by Provider if payment is past-due by access (including through remote means) the Solutions solely for Customer's internal business more than ten(10)business days; (ii)offset unpaid amounts due against any demand response operations and subject to the terms of the Order Form.Without limiting the terms of the Order Form, payments to Customer;and/or(iii)terminate the Order Form if Customer's non-payment continues for Customer agrees not to decompile,disassemble,reverse engineer or otherwise attempt to perceive the more than thirty(30) days following date of written notice of non-payment from Provider. Such source code relating to the Solutions or any web-based portal relating thereto or assign,sublicense, remedies are in addition to any legal or equitable remedies available to Provider. sell,resell,lease or otherwise transfer,convey,or pledge as security or encumber,any right in the 11.Customer's Support Requirements. Solutions.Except as expressly permitted herein,Customer agrees that it shall not receive any right,title a.Customer Data.Customer agrees to provide or cause to be provided to Provider such contact, or interest in,or any license or right to use or access,the Solutions or any patent,copyright,trade billing and energy usage data,and facility information as is required by Provider to support the secret,trademark or other intellectual property rights therein by implication or otherwise. Solutions("Customer Data").Customer(i)represents that it has the right to provide Customer 3.Confidentiality. Data to Provider and will provide Customer Data to Provider in compliance with applicable legal a.Nondisclosure to Third Parties.In performing its obligations under the Order Form,each Party requirements;(ii)authorizes Provider to use,copy,store,modify and display Customer Data for may receive nonpublic information of the other Party("Confidential Information").Each Party,on Customer's benefit and as expressly set forth in Section 4 of these Terms and Conditions,and(iii) authorizes Provider to access Customer Data to provide quality assurance, perform software behalf of itself and its employees,contractors and agents(collectively,"Representatives"),agrees maintenance,and deliver customer service and technical support.During the Order Term and for not to,except as set forth in Section 3(b)or as required by applicable law or regulation,use or thirty(30)days following expiration or termination of the Order Form,Provider will preserve and disclose Confidential Information during or after the Order Term without the prior written consent of maintain Customer Data.Thereafter,Provider will have no obligation to preserve or return any the other Party.To protect Confidential Information,each Party agrees to:(i)limit dissemination of Customer Data. Confidential Information to only those Representatives having a"need to know";(ii)advise each b.Demand Response.Customer represents and warrants it has the intent and ability to generate Representative who receives Confidential Information of the confidential nature of such information; and/or reduce electrical demand to achieve Accepted Capacity(as defined in the applicable and (iii) have appropriate agreements, policies and/or procedures in place with such Program Rule Attachment attached hereto)when notified by Provider during demand response Representatives sufficient to enable compliance with the confidentiality obligations contained herein. events.if Customer is enrolled in a demand response program utilizing on-site electric generation, b.Use of Confidential information. Customer acknowledges that Provider may receive Customer further represents and warrants that(i)it holds all applicable federal,state,and local Confidential Information of Customer from the applicable independent system/grid operator,utility licenses and/or permits that are required for the proper participation in such demand response and/or supplier,through data collected through the Solutions or otherwise,which may be used or program; and(ii)when responding to a demand response event, it will comply with,and be disclosed by Provider as necessary for the performance of the Order Form. responsible for any violation of,federal,state,and local regulations. 4.Aggregate Data Collection and Usage.Customer acknowledges and agrees that Provider may:(i) 12.Provider Limitation.Provider shall be Customer's exclusive provider during the Order Term for collect,process and aggregate any data used with,stored in,or related to the Solutions,including, the site addresses listed on the Site Address Attachment for any demand response program and/or without limitation, end-user energy usage and demand data, and create aggregate data records demand management services,irrespective of whether such program and/or service is set forth in an 9Order Form. ("Aggregate Data")by removing any personally identifiable information("P11")from the underlying data; 13.Payments to Utilities or Other Suppliers.In no event shall Provider or its affiliates,directors, (ii)use such Aggregate Data to improve the Solutions, develop new solutions, understand actual employees and agents(collectively,the"Indemnified Parties")be responsible or liable for payment of energy usage and demand trends and general industry trends, develop white papers, reports, or any utility bill of Customer or any amount Customer may owe to any utility or other supplier.To the databases summarizing the foregoing,and generally for any legitimate purpose related to Provider's fullest extent permitted by law,Customer shall defend and indemnify,at its own expense,any third business;and(iii)share Aggregate Data with third parties or publish any reports,white papers,or other party claim against the Indemnified Parties,that arise due to any allegation that the Indemnified Parties summaries based on Aggregate Data. are responsible for payment of any utility bill of Customer or a portion thereof,or any other amounts 5.Indemnification.Provider agrees to defend and indemnify(subject to the terms of this Section),at due by Customer to any utility or other supplier. In connection with the foregoing indemnification its own expense,any third party claim against Customer,its parent corporation,affiliates,directors, obligations,Customer shall pay reasonable legal fees as incurred and such damages or costs as are employees and agents that arise due to any(i)bodily injury,death or damage to tangible personal finally awarded against Provider or agreed to in settlement for such claim. property to the extent caused by the negligent acts or omissions of Provider or its employees in the 14.Miscellaneous.Customer may not assign any of its rights or delegate any of its performance performance of the Order Form;and(ii)a claim that the Solutions(or any software,hardware,or other obligations hereunder without the prior written consent of Provider;except that Customer may assign component thereof)or any other goods,software or Solutions provided by Provider hereunder(so long the Order Form to its successor or any entity acquiring all or substantially all of the assets of Customer bas the foregoing have not been altered or modified by a party other than Provider)or the use thereof by including providing Provider with written noticetapromptly followingsthe eacquisitiontieagreementdate. The Order Form,d any addenda,exhibits and attachments,constitutes the entire between Provider Customer infringes upon any copyright,trademark,trade secret or proprietary right of any third party. and Customer with respect to Provider's provision of the Solutions identified on an Order Form,and Provider will pay reasonable legal fees as incurred and such damages or costs as are finally awarded may only be amended in writing signed by each of the Parties.If any of its provisions shall be held against Customer or agreed to in settlement for such claim provided that Customer gives Provider(i) invalid or unenforceable,the Order Form shall be construed as if not containing those provisions and written notice of any such claim or threatened claim within 30 days of receipt of notice;(ii)sole control the rights and obligations of the Parties hereto shall be construed and enforced accordingly.The Order of the defense,negotiations and settlement of such claim;and(iii)full cooperation in any defense or Form shall be binding upon the Parties together with their successors and permitted assigns.Each settlement of the claim.The foregoing indemnification obligations shall not apply to the extent that any Party shall be responsible for its Representatives'compliance with the Order Form. such claims or damages result from goods,software or Solutions provided by a party other than 15.Taxes.The Generator Compliance Project Cost identified in Schedule 1 of Attachment A includes Provider,or are the fault of or caused by the sole acts or omissions of Customer. any sales tax related to the Generator Compliance Project. 6.Limitation on Liability. Except for breaches of confidentiality and claims involving the 16.Termination.Either Party may terminate(i)the Order Form in the event of the other Party's indemnification obligations contained herein,Provider's liability hereunder is limited to direct actual material breach,provided that the breaching Party fails to cure the specific breach within thirty(30) damages plus fees and costs as provided above as the sole and exclusive remedy,and total damages days following date of written notice from the non-breaching Party specifying the purported breach;or under the Order Form shall not exceed $100,000.00. In no event shall either Party, its officers, (ii)the Order Form immediately upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the other Party's directors, partners,shareholders, employees or affiliates, or any contractor or subcontractor or its employees or affiliates,be liable to the other Party for special,indirect,exemplary,punitive,incidental the debts. tin addition,if CustomererFormis pli b eed inta demand pro raspon)i program,either Party may terminate , the portion of the Order applicable to such program(iii)if such program is materially altered, or consequential damages of any nature whatsoever connected with or resulting from the Solutions or suspended or ended;or(iv)in accordance with the terms set forth in the applicable Program Rule from performance or non-performance of obligations under the Order Form,including without limitation, Attachment attached hereto. damages or claims in the nature of lost revenue,income or profits,loss of use,or cost of capital, 17.Notices.Any notices required or permitted to be given hereunder by either Party to the other Party irrespective of whether such damages are reasonably foreseeable and irrespective of whether such shall be given in writing by:CO personal delivery;(ii)bonded courier or nationally recognized overnight claims are based upon negligence, strict liability contract, operation of law or otherwise; provided delivery company;(iii)electronic mail or(iv)U.S.mail.If notice is given by personal delivery,bonded however,that the aforementioned limitation of damages shall not apply to any damage to Customer's courier or nationally recognized overnight delivery company,such notice shall be addressed to the equipment directly caused by and attributable to any negligent acts of EnerNOC.. Parties as follows(or to such other addresses as the Parties may request in writing by notice given 7.Warranty Limitations. IF THE SOLUTIONS BECOME OR ARE LIKELY TO BECOME THE pursuant to this Section):to Provider at EnerNOC, Inc.,Attn: Legal Department,One Marina Park SUBJECT OF ANY THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT CLAIM OR Drive,Suite 400,Boston,MA 02210;and to Customer at the Customer address indicated on the Order ACTION, PROVIDER MAY, AT PROVIDER'S SOLE OPTION, EITHER' (I) REPLACE SUCH Form. If notice is sent by electronic mail, such notice shall be sent to Provider at SOLUTIONS WITH AN EQUALLY SUITABLE SOLUTION FREE OF INFRINGEMENT;(II)MODIFY contractmanagement@enemoc.com;and/or to Customer at the email address,if any,indicated on the Order Form. OR OBTAIN A LICENSE FOR THE SOLUTIONS SO THAT THEY NO LONGER INFRINGE ON ANY RIGHTS; OR (III)AFTER PROVIDER HAS DEMONSTRATED ITS GOOD FAITH EFFORTS TO 18.Insurance. Provider shall maintain the following insurance: (i) Commercial General Liability ACHIEVE THE FOREGOING WITHOUT SUCCESS,TERMINATE THE ORDER FORM.EXCEPT AS Insurance with limits of o$1,000,000, ,per occurrence and$2,000,000 aggregate;ingle (ii)Automobile Liability PROVIDED HEREIN, THE SOLUTIONS (AND ANY SOFTWARE, HARDWARE, OR OTHER Insurance with limits f $1 00 per oconce with ocombined single limit; and (iii) Workers'ce Compensation and Employers'Liability Insurance with limits of not less than$500,000.All insurance COMPONENT THEREOF)ARE PROVIDED AS IS WITHOUT ANY WARRANTY OF ANY KIND.ALL carriers must have an AM Best rating of A-VIII or better.Customer shall be listed as a certificate holder WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL and additional insured on the Commercial General Liability policy.Customer shall be notified in writing WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE at least thirty(30)days prior to cancellation of any insurance policy. EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. 19.Prior Agreement.This agreement supersedes and replaces any and all prior agreements between 8.Choice of Law.This Order Form shall be subject to and governed by the laws of the State of Illinois. the parties hereto regarding the subject matter hereof.More particularly,this Agreement terminates that Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection Demand Response Sales and Services Agreement between the Parties effective as of April 2,2013. with this Agreement shall be in the Circuit Court of Kane County,Illinois. Provider hereby irrevocably 20.Execution.This agreement may be executed in counterparts,each of which shall be an original consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any and all of which shall constitute one and the same agreement. For the purposes of executing this rights,the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement,any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in agreement or the subject matter hereof;and the Provider agrees that service by first class U.S.mail to all manners and respects as an original document.The signature of any party on a copy of this the entity and address provided for herein shall constitute effective service.. agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original 9.Data Enablement. If required by Provider for Customer's use and access to the Solutions, signature and shall have the same legal effect as an original signature.Any such faxed or e-mailed Customer shall,within twelve(12)days following execution by the Parties of the Order Form,provide copy of this agreement shall be considered to have the same binding legal effect as an original Provider with reasonable access to perform a data enablement for the Solutions, including the document.At the request of either party any fax or e-mail copy of this agreement shall be re-executed installation of an EnerNOC site server that allows for Internet-based power metering,data collection, by the parties in an original form.No party to this agreement shall raise the use of fax machine or e- near real-time data communication,and Internet-based reporting and analytics.Customer agrees to mail as a defense to this agreement and shall forever waive such defense. collaborate with Provider in a timely manner in enabling data for the Solutions and in testing,enabling EnerNOC Inc.I Version 1.1 DocuSign Envelope ID:0E8300D1-203D-4BBA-A73B-B221979F8177 ATTACHMENT A Program Rule Attachment Emergency Load Response Program 1. Program Description. The "Program" means Provider's enrollment and management of Customer's Accepted Capacity (as defined below) in the PJM Interconnection ("PJM") Emergency Load Response Program ("ELRP"). The Program enables participants to receive recurring payments for being available and reducing electricity consumption when called upon to do so by Provider. Unless otherwise defined herein, capitalized terms in this Program Rule Attachment shall have the meanings given to them in the"PJM Open Access Transmission Tariff." 2. Definitions. a. Accepted Capacity. "Accepted Capacity" shall represent the best estimate of Customer's expected curtailment based on Provider's analysis of consumption data and pre-enrollment testing. Customer agrees that the Accepted Capacity may be adjusted by Provider in the future to reflect changes including but not limited to, Customer's actual performance, facility operations, Program and/or ELRP rules, applicable regulations, Customer's PLC and WPL applicable to each Program Period (as defined herewith), and/or other relevant information, including availability of capacity. Customer and Provider understand that the curtailable electrical capacity identified on the Order Form is solely the Parties' best estimate of performance and does not represent Accepted Capacity. b. Delivered Capacity."Delivered Capacity"shall represent the Customer's actual performance as calculated by Provider. c. Enrollment Date. For a given Site Address, the "Enrollment Date" refers to the date specified in the Provider's enrollment e- mail to the Customer stating that the Site Address(es,listed on the Site Address Attachment below is enrolled to participate in an upcoming Program Period. No later than April 25m, 2018, Provider will issue an e-mail to the Customer stating whether or not the Site Address(es)have been enrolled to participate in the Program Period starting June 1, 2018.. In the event that the Enrollment Date is not June 1,2018, then the Enrollment Date shall be June 1, 2019. In the event that the Enrollment Date is June 1, 2019, then, notwithstanding anything to the contrary in the Order Form, and as of the Enrollment Date, the Order Expiration Date shall be hereby automatically extended to May 31, 2024,without further action by either party. d. Reimbursement Term. For a given Site Address,the"Reimbursement Term"shall commence on the start of the first Program Period that begins subsequent to the Enrollment Date and continue through the period of time identified in Schedule 1, and as may be adjusted from time to time pursuant to Section 3(b)below. 3. Payments to Customer. a. Capacity Payments. Customer will begin to accrue Capacity Payments pursuant to this Order Form beginning as of the start of the first Program Period that begins as of or subsequent to the Enrollment Date. Provider will pay Customer capacity payments("Capacity Payments")equal to(a)the product of"Accepted Capacity"times the applicable Capacity Payment Rate, less(b)Underperformance Adjustments if any, and less(c)all or a portion of the Reimbursement Deduction. b. Reimbursement Deductions. Subject to the adjustments detailed in this Section 3(b), Provider will deduct Generator Compliance Project Costs over the Reimbursement Term as shown in Schedule 1. The parties agree that the Generator Compliance Project Cost identified in Schedule 1 is an initial estimate. Provider reserves the right to adjust Reimbursement Deductions and/or Reimbursement Term (as identified in Schedule 1)at its sole discretion in the event that the Generator Compliance Project Costs change by fifty (50%) percent or less than the previously-quoted Generator Compliance Project Cost. Provider will provide no less than thirty (30) days' notice of any such adjustment. If the previously-quoted Generator Compliance Project Cost changes by more than fifty (50%) percent, then Provider may adjust Reimbursement Deductions and/or Reimbursement Term, provided that Provider obtains prior written approval from Customer. c. Energy Payments. Customer will begin to accrue Energy Payments pursuant to this Order Form beginning as of the start of the first Program Period the begins subsequent to the Enrollment Date. Provider will pay Customer an Energy Payment Rate in connection with Customer responding to a demand response event when notified by Provider("Energy Payments"), less all or a portion of the Reimbursement Deduction. d. Underperformance Adjustment Payments. In no event shall Customer be required to return previously distributed payments to Provider, except as expressly described below. Provider will reduce Provider's future payments to Customer to account for any Underperformance Adjustment. If the Underperformance Adjustment exceeds Provider's payments to Customer for a given Delivery Year, that adjustment may be carried over by Provider to any subsequent Delivery Year. Notwithstanding the foregoing, Customer will be required to pay to Provider a one-time reimbursement payment equal to the balance of the Generator Compliance Project Costs that remains unpaid (the"Reimbursement Payment") in the event that Customer has not repaid the Generator Compliance Project Cost after Provider's receipt of PJM"s final payment for the third full year subsequent to the Enrollment Date, or this Order Form is terminated, as further described in Section 6 below. Except as otherwise described in this Section 3(d), after such time as the Generator Compliance Project Cost has been fully reimbursed,customer shall not be required to make any payments to Provider due to underperformance. DocuSign Envelope ID:0E8300D1-203D-4BBA-A73B-B221979F8177 4. Program Rules.The Program terms and conditions are summarized in the table below: Program Availability and Customer has the intent and ability to respond to Demand Response Events called by Provider. Enrollment Customer will be enrolled in the Base Capacity DR Product and/or the Capacity Performance DR Product, as referenced below(each a"Demand Response Product")for a given delivery year(June 1 —May 31) (the"Delivery Year")with the periods defined below(each, individually a"Product Period" and collectively the "Program Period"). Demand response product availability to Customer varies by Delivery Year and PJM Zone. 1. Base Capacity DR Product("BC"): 10:00 AM to 10:00 PM (Eastern Prevailing Time)during all days for the period of June 1 —September 30. 2. Capacity Performance DR Product ("CP"): 10:00 AM to 10:00 PM (Eastern Prevailing Time) during all days for the period of June 1 — October 31, as well as the following May of a Delivery Year and 6:00 AM to 9:00 PM(Eastern Prevailing Time)for the period of November 1 —April 30 of a Delivery Year. Provider may call Demand Response Events outside the Program Period; Customer's performance during such Demand Response Events will not affect Capacity Payments, but will be included in Customer's Energy Payments. Customer authorizes Provider to enroll Customer in any Demand Response Product offered by PJM in ELRP during the Order Form Term. Before the start of each Delivery Year, Provider will provide Customer with an annual enrollment notification. Event Trigger Provider will initiate Demand Response Events during PJM defined system events and in accordance with ELRP terms and conditions. Advanced Notification Provider will use commercially reasonable efforts to provide Customer with advanced notification of a Demand Response Event in accordance with ELRP terms and conditions,which is currently between thirty(30)minutes and one hundred twenty(120)minutes. Testing Requirement If Customer is not called to respond to a Demand Response Event during the Customer's enrolled Product Period, Provider will conduct a test event (a "Test Event") during the Customer's enrolled Product Period. A Test Event shall not contribute to Customer's Capacity Payments if a Demand Response Event is called during the Customer's enrolled Product Period after the Test Event has occurred. Underperformance The "Underperformance Adjustment" for a BC demand response event will equal the product of(a) Adjustments Customer's MW Shortfall,times(b)Customer's applicable Capacity Payment Rate. The Underperformance Adjustment for a CP demand response event will be calculated hourly across all demand response event hour(s), and will equal the product of(a)Customer's MW Shortfall, times (b)the applicable Non-Performance Charge Rate(as defined by PJM). The Underperformance Adjustment for a Test Event will equal the product of (a) Customer's MW Shortfall, times(b)Customer's applicable Capacity Payment Rate. The "MW Shortfall" is the difference between the Customer's actual metered load and their enrolled drop-to MW level,adjusted by applicable electric loss factor(s)and capped at Accepted Capacity. Payment Timing 1. BC: Provider shall make all payments associated with Customer's participation in the Program to Customer on a quarterly basis. 2. CP: Provider shall make all payments associated with Customer's participation in the Program to Customer on an annual basis. All payments shall be made within forty-five (45) days of Provider's receipt of total payment from PJM, however, in no event shall Provider be responsible for payments to Customer if PJM defaults on its payments to Provider. Reimbursement Deductions will begin to accrue at the start of the first Program Period that begins subsequent to the Enrollment Date and will continue through the Reimbursement Term The foregoing reflects the current terms and conditions of the Program, which terms and conditions may change during the Order Term. In the event PJM amends, supplements or modifies the terms or conditions of the ELRP, or any current or future Demand Response Product offered in the ELRP, in any way, Provider reserves the right to amend the Program terms set forth herein by providing written notice to Customer and with no further act required by Provider or Customer. 5. Miscellaneous. a. Termination. In the event that capacity is not available in the Program for a given Delivery Year, Provider may reduce Customer's Accepted Capacity to zero(0)and/or terminate this Program Rule Attachment. DocuSign Envelope ID:0E830001-203D-4BBA-A73B-B221979F8177 b. Curtailment Service Provider. Customer hereby designates Provider as its exclusive agent to manage its participation in the Program. 6. Generator Compliance Project. a. Description of Services. Provider will manage the Generator Compliance Project and pay for the Generator Compliance Project Costs as shown in Schedule 1 ("Reimbursement Schedule"), and as adjusted pursuant to Section 3(b) above. Provider shall provide certain necessary ancillary equipment modifications, as such modifications are required to comply with the Environmental Protection Agency administrative ruling referred to as RICE NESHAP, as such requirements exist as of the Order Effective Date, as described in more detail in Schedule 2 attached hereto and made a part hereof. Except as set forth in Section 3(b),in no event will Provider pay for services in excess of the Schedule 1 attached hereto. The services and deliverables for which Provider will pay, as described in this section 6(a)above, are collectively referred to herein as the"Generator Compliance Project."The costs of these services and deliverables are collectively referred to herein as"Generator Compliance Project Costs." Title to any deliverables of the Generator Compliance Project will transfer upon delivery. Customer is solely responsible for any fees or costs other than Generator Compliance Project Costs associated with the Generator Compliance Project, including but not limited to maintenance, additional professional services, replacement parts, fuel costs,and insurance. Customer will operate and maintain the generator and deliverables at all times in accordance with the written instructions of the manufacturer, Provider, and Provider's subcontractors and agents. In addition, Customer will operate the equipment consistent with information that may be outlined in an associated quote for the deliverables. Customer will use fuels with sulfur content lower than 50 ppm by weight or other contaminates such as siloxanes, phosphorus,zinc, barium, and lead. Customer will record all operating parameters on an hourly basis. During the Order Term, Customer agrees to provide reasonable access and cooperation to Provider, its subcontractors, and agents to the Customer's site and facilities in order to deliver and install the deliverables and to provide all related services. During the Order Term, Customer will allow Provider to remotely control the operation of the generator at all times for testing, curtailment, and other related purposes. b. Enrollment Date. i. New Rates. Effective as of the first Program Period subsequent to the Enrollment Date for a given Site Address, the Parties agree that, with respect to that Site Address, the Capacity Payment Rate and/or Energy Payment Rate identified on this Order Form shall apply, as described in more detail herein. c. Indemnification. Notwithstanding any other terms of this Order Form, Customer indemnifies, defends and holds Provider and Provider's affiliates, directors, employees, and agents harmless against any third-party claim, action, liability or expense, including reasonable attorney's fees and court costs, incurred by Provider related to the Generator Compliance Project.While it is not anticipated that Provider will have any liability for torts related to the Generator Compliance Project, the foregoing indemnification obligations apply to any tort proceedings including any strict liability claim, any claim under another theory related to latent or other defects and any patent, trademark or service mark infringement claim. The terms of this section survive the termination of this Agreement. Customer agrees that Provider does not provide any representations or warranties, either express or implied, with respect to the services or deliverables of the Generator Compliance Project, including any warranties of merchantability or fitness for a particular purpose. Customer bears the entire risk of loss,theft, malfunction,damage or destruction of any deliverable in whole or in part from any cause whatsoever.No such occurrence shall relieve Customer from its obligations under this Agreement. d. Generator Compliance Project Reimbursement. If Provider has not been reimbursed for the Generator Compliance Project Costs as of either: (a) Provider's receipt of PJM"s final payment for the third full year subsequent to the Enrollment Date, or; (b)the termination of the Order Form pursuant to the Customer's exercise of its termination right under the Terms and Conditions during the Reimbursement Term, then Provider shall invoice the Customer for the balance of Generator Compliance Project Costs(the"Reimbursement Payment"), and Customer shall pay within thirty(30)days of invoice date. e. Reimbursement Payment for Early Termination. Termination of the Agreement for any reason other than the Customer's exercise of its termination rights under the Terms and Conditions (including Provider's termination of the Agreement during the Reimbursement Term following Customer's material breach of the Agreement) will cause the Reimbursement Payment, plus an early termination fee equal to twenty(20%)percent of the Reimbursement Payment, to become due and payable to Provider within thirty (30) days of the termination date, regardless of the period of time remaining in the Reimbursement Term. f. PLC and Generator Use. With respect to the materials provided pursuant to the Generator Compliance Project, Customer agrees that,during the Order Term, Customer will not knowingly take any actions which could adversely impact their ability to DocuSign Envelope ID:0E8300D1-203D-4BBA-A73B-B221979F8177 perform at the levels identified in this Order Form. Customer acknowledges that attempting to actively manage its Peak Load Contribution ("PLC Management") may increase the likelihood of underperformance and that its Delivered Capacity will generate insufficient Capacity Payments to cover the Generator Compliance Project Costs. In the event that Customer wishes to engage in PLC Management and does not want to participate in demand response following the expiration of the Order Term, then within ninety(90)days prior to the expiration of the Order Term, Provider will contact the Customer to discuss potential services, and Provider will have a right of first offer to provide PLC Management to Customer. DocuSign Envelope ID:0E8300D1-203D-4BBA-A73B-B221979F8177 Schedule 1 Reimbursement Schedule Generator Compliance Project Cost $76,504.00(includes sales tax) Reimbursement Term The period of time required for Provider to receive full reimbursement for the Generator Compliance Project Cost, where 100% of the Capacity Payments and Energy Payments will be retained by Provider to offset the Generator Compliance Project Cost until Provider is fully reimbursed Reimbursement Deduction(per month) The monthly Reimbursement Deduction will equal the entirety of Capacity Payments and Energy Payments for each month until the remaining Generator Compliance Project Cost is fully repaid DocuSign Envelope ID:0E8300D1-203D-4BBA-A73B-B221979F8177 Schedule 2 Scope of Work Provider will work with Customer to facilitate the provision of certain necessary ancillary equipment modifications, as such modifications are required to comply with the Environmental Protection Agency administrative ruling referred to as RICE NESHAP, as such requirements exist as of the Order Effective Date, in order to utilize on-site generation in connection with Customer's participation in the Program(s)(as described in more detail in Section 6 above). 1. Deliverables Description. (a) As of the Order Effective Date,the deliverables that Provider plans to provide are as follows: • 2 X AirClarityTM 1250 Systems o Flanged DOC Housing w/12"ANSI Inlet/Outlet.Carbon Steel, Painted High-Temp Black o FieldsightTM E2 Generator and Emission Monitoring Systems w/ Pressure and Temp. Sensors, Data Logging, Alarm, and Digital Touch Screen Display • 2 X Diesel Oxidation Catalyst -21.5"Diameter Catalyst(200 CPSI) -Metallic, Precious-Metal Based -CO Reductions->70%or 23 ppmvd @ 15%02 -Avg. Pressure Drop Across Filters—3.7" H2O at 100%load The foregoing deliverables description(s)reflects the contemplated deliverables as of the Order Effective Date,which may change following further site evaluation. In the event Provider reasonably determines that it must revise or supplement the deliverables, Provider reserves the right to amend the deliverables set forth herein by providing written notice to Customer and with no further act required by Provider or Customer. 2. Engine Specifications. (a) The deliverables identified in Section 1(a)of this Schedule 2 will be provided to the extent that Customer's current generator meets the engine specifications listed below: Engine Specifications: Model:Cummins KTA50-G11 Engine Power Rating: 1,250 KW Exhaust Flow Rate:9100 acfm Exhaust Stack Temp:887°F Maximum Backpressure:27"H2O Power Requirements: 120 VAC—Monitoring System(Max 10 A) Sound Attenuation: N/A 3. Compliance Services. EnerNOC will provide certain compliance-related services that are required to comply with the Environmental Protection Agency administrative ruling referred to as RICE NESHAP, as such requirements exist as of the Order Effective Date, as more specifically described below: (a) Initial performance testing and reporting,subject to Section 3(a)(i)of this Schedule 2 below: i. Initial performance testing and reporting assumes generator will be run at building load conditions (no load bank nor load bank operator required). EnerNOC (or its subcontractors)will be responsible for submitting the performance test notification sixty(60)days prior to testing. EnerNOC (or its subcontractors)will provide labor and equipment to collect exhaust gas samples over the required sampling duration and three (3) test runs, including pre and post calibration procedures, pre-test notifications, and performance test results reporting and initial compliance certification. Costs are not included for load banks, man lifts and any consumables required to run the engines at required loads. (b) Provision of all paperwork and/or data required for permitting; (c) Compliance with emissions standards,as such standards exist as of the Order Effective Date(federal, state, and local)during the Order Term,excluding engine failure issues,and; (d) Notifications and recordkeeping,as more specifically described in romanettes(i)-(iii)below. i. Pressure and temperature data is monitored and recorded, and will be made available via website portal. Annual Compliance Reporting(all engines>300 hp)which includes system deviation reports(semi-annually, if required)based on runtime records and/or monitoring data. DocuSign Envelope ID:0E8300D1-203D-4BBA-A73B-B221979F8177 ii. Annual continuous parameter monitoring system performance evaluation (for engines>500 hp)which involves sixty (60) days' notice to the regulators and a thermocouple swap; provided, however, that thermocouple swap (2 wires disconnected and removal of the thermocouple head and probe and installation of replacement thermocouple unit with 2 wires reconnected) will be performed by Customer's personnel using a replacement thermocouple unit provided by EnerNOC (or its subcontractor(s)). Customer agrees that removed parts shall be return shipped to EnerNOC (or its subcontractor)at Customer's sole expense. iii. Development of Site-Specific Monitoring Plan(for engines>500 hp).