APS WEX ENERGY WISE AGREEMENT .PDF

Agreement for Energy Wise Low Income Weatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
c-.Xa - 08 -o 5q- 3
This Agreement for Energy Wise Low Income Weatherizatiort Program Implementation (the "Agreement") is entered
into as of this 1st day of January, 2008 (the "Effective Date") by and between the Maricopa County Human Services
Department (the "Contractor") and Arizona Public Service Company, an Arizona corporation ("APS") (Contractor and APS
are individually referred to herein as "Party" and collectively referred to herein as "Parties").
RECITALS
Whereas, on April 12, 2006, the Arizona Corporation Commission ("ACC") approved the APS Energy Wise Low
Income Weatherization Program ("Program") in Decision No 68647;
Whereas, the Contractor and APS desire to implement a comprehensive approach to affordable energy, including
weatherization activities, crisis bill assistance, and energy education for APS customers;
Whereas, APS and the Contractor desire to have the Contractor coordinate and implement the Program in conjunction
with existing activities for the Federal Weatherization Assistance Program ("WAP"), the Low Income Home Energy
Assistance Program ("LIHEAP"), and other programs as appropriate;
Now, therefore, for and in consideration of the recitals set forth above, the respective agreements of the Parties herein
set forth, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties
do hereby agree as follows:
AGREEMENT
TERM/TERMINATION.
This Agreement is effective on the Effective Date and terminates on December 31, 2008 (the "Term").
Notwithstanding the foregoing, either Party may terminate this Agreement upon thirty (30) days prior written notice to
the other Party.
2. SCOPE OF SERVICES. Contractor will provide the following services (collectively, the "Services"):
A. Contractor will provide repairs, reconditioning, replacement or restoration of deficiencies in a Customer's
Qualified Home in order to make such homes energy efficient (collectively, the "Weatherization Services").
1. For purposes of this Agreement, an individual is a "Customer" if he or she meets the following
requirements:
a) the individual resides in Qualified Home;
b) the Qualified Home is served by APS; and
c) the individual has a maximum gross household income of 150% of the Federal poverty
guideline as defined by the Arizona Department of Economic Security ("DES"), as
adjusted by DES on a yearly basis every July 1st. (Income determination guidelines will be
based on the countable income definition in the Contractors Weatherization Assistance
Program guidelines.)
2. For purposes of this Agreement, a "Qualified Home" may be any of the following:
a) an owner-occupied single family dwelling unit, which may be detached or attached to other
owner-occupied dwelling units (e.g., duplex, triplex), including stationary mobile homes
that have had the wheels removed and are supported by foundation or blocking;
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Agreement for Energy Wise Low Income Weatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
b) on a case-by-case basis and with APS' prior written consent, which consent APS may
withhold in its sole and absolute discretion, a multi-family dwelling located in a structure
containing more than dwelling unit (multi-family housing);
c) a rental property, provided that the renters provide the Contractor with the property
Owner's written permission for the property to receive Weatherization Services, and the
property owner agrees in writing to not increase the rent for 12 months after completion of
the Weatherization Services. A copy of the owner's consent and written agreement must
be provided to Contractor prior to performing the Weatherization Services. For rental
properties, structurally attached appliances or systems (e.g., evaporative cooler, water
lines) are not eligible for the Program. Such appliances or systems are the responsibility of
the property owner.
3. Contractor will obtain verification of ownership of housing, appliance and/or system. The following
documents will be acceptable forms of verification:
a) Homeowner: Deed or property tax statement; and
b) Renter: Receipt of purchase for the specific appliance or notarized affidavit signed by the
property owner confirming that the renter is owner of the specific appliance (with serial
number noted) AND proof that the property owner is the owner of the rental property (deed
or property tax statement).
B. All Weatherization Services will be implemented by the Contractor in accordance with the WAP rules as
administered by the Arizona Department of Commerce Energy Office (the "Energy Office") with the
following exceptions:
I. Weatherization Services will be limited to those that conserve primarily electric energy;
2. Waivers for exceptions in special cases not specifically addressed in the ACC Decision No. 68647,
docketed April 12, 2006, will not be eligible for reimbursement unless the exceptions are reviewed
and approved by APS prior to commencing the work outlined in the waiver; or
3. General Repairs to membranes to stop roof leaks, repairs to or replacement of non-repairable
window units, repairs to or replacement of non-repairable exterior doors, restoration or replacement
of ceiling areas which cannot support ceiling insulation and restoration or replacement of floor areas
over "crawl spaces" which are not structurally strong enough to remain part of a building
"envelope" and other similar general repairs may be done as part of Weatherization Services,
provided that the entire project per individual residence is cost effective and yields at least a 1.0
benefit to cost ratio using the WAP program manual.
C. Health and Safety Services: Install, repair, or replace window unit air conditioners or heat pumps that are
prescribed by a medical doctor's order.
D. Repair/Replacement Services: Repairs or replacements of existing utility related electric appliances/systems.
When repair costs would exceed replacement costs, or when an appliance would be inoperable or unsafe even
with repairs, or when an appliance is of such a vintage that it is economical to replace with an energy
efficient model in accordance with guidelines established by the Energy Office, then the item shall be
replaced instead of repaired. This service is available only for Customer's in a Crisis Situation, therefore an
Assessment is not required prior to performing this Service. Appliances eligible for Repair/Replacement
Expenditures are limited to air conditioners, heat pumps, evaporative coolers, refrigerators, and water
heaters. The Allocation may not be used to provide for maintenance of these appliances/systems. Inspection
of the repair or replacement after completion of the work is to be made by a Contractor representative.
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Agreement for Energy Wise Low Income Weatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
WAP Coordination (Piggyback Program Component). Where possible, the Program will be coordinated by
Contractor with or piggybacked onto WAP to achieve maximum cost effectiveness and expand the scope of
Weatherization Services to be performed on each Qualified Home.
F. Parallel Weatherization (Stand Alone Program Component). A stand alone program will be utilized by
Contractor for those Customers who cannot otherwise be served due to lack of federal or local program
funding or who are ineligible for WAP due to being previously weatherized, but who are in need of
Weatherization Services.
G. Energy Education.
1. Contractor shall provide energy education which shall be designed to educate, promote, and assist
the Customers on the efficient use of electricity and the benefits of Weatherization Services.
2. Any energy education program will inform the Customers on how their behavior affects energy
consumption, efficiency, cost, health and safety so the Customers can make better choices regarding
the management of energy usage and its impact on their electric bill.
3. The Contractor may designate energy educators (the "Energy Educator") as responsible for
delivering energy education by visiting homes participating in the Weatherization portion of the
Program. The Energy Educators may be intake workers, case managers, and/or weatherization crew
members.
4. When called upon by the Weatherization Program representative to provide the education services
set forth above, the Energy Educator will perform a "walk through" review of the residence to
discover the particular sources of energy waste in the home, explain the results of the review to all
household members present at the time of the review, and provide recommendations for improving
efficiencies in energy usage.
5. If the Energy Educator provides an in-home "walk through" educational visit for a home
participating in the Weatherization portion of the Program, the Contractor may invoice APS for a
one-time per home fee of $25 to cover costs associated with energy education. This fee will be
deducted from the Allocation.
H. Program Promotion.
1. The Contractor may, with the Customer's prior written consent, place a sticker provided by APS on
the Qualified Home's door or front window that will identify the home as having received
Weatherization Services.
2. With the Customer's prior written consent, the Contractor may place signage provided by APS in
the front of the property during the Weatherization Services. Contractor will remove the sign when
the workers leave the property for more than 24 hours.
I. Implementation.
1. The Contractor will obtain the Customer's prior written consent and approval for APS to provide the
Customer's utility bill history information, including the historic usage of energy by kilowatt hours
or therms, to the Contractor.
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Agreement for Energy Wise Low Income Weatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
2. The Contractor will conduct the on-site energy audit and detailed inspection of the Qualified Home
and appliances using current building science technologies, such as blower doors, duct blasters, flow
hoods, infrared heat sensors; analysis of appliances using amp meters and refrigerant pressure gages,
and will prepare a report that delineates any deficiencies (the "Assessment") and analyze cost
effectiveness in accordance with the Arizona Department of Commerce Energy Office
Weatherization Assistance Program Rules.
3. The Contractor will prioritize the Weatherization Services for each Qualified Home based on cost
effectiveness and will implement as many Weatherization Services on each Qualified Home, up to a
maximum of $6,000.00 per Qualified Home in any 12-month period, not including Program
Delivery Expenditures, subject to the overall cap of the Allocation.
J. Bill Assistance. Certain customers will qualify for financial assistance in paying their bills ("Bill
Assistance"). Contractor will submit requests for Bill Assistance and requests for reimbursement for crisis
bill assistance payments to the Arizona Community Action Association ("ACAA") who will process and, if
such requests meet all applicable requirements, pay such requests from the ACAA Bill Assistance
Allocation, as defined herein. All of the following program conditions and parameters will continue to be
elements of the "Program". The Contractor will pay electric bills for eligible Customers who are in a Crisis
Situation ("Crisis Payment"). Contractor shall not pay electric bills for any other Customer.
1. A Customer is in a "Crisis Situation" if the Customer meets all of the following criteria:
a) must be a resident of Arizona;
b) must not be a resident of an institution. Institutions include:
i) hospitals;
ii) licensed domiciliary care facilities (family care homes, homes for the aged and
family care homes for developmentally disabled adults);
iii) intermediate care facilities;
iv) skilled nursing facilities or homes;
v) alcohol and drug rehabilitation centers or treatment program;
vi) dormitories;
vii) temporary protective facilities, such as domestic violence shelters, etc.; or
viii) prisons;
c) for a resident of public housing, the individual must have an obligation to pay the utility
bill directly to APS on an ongoing basis; and
d) the individual must have had: (i) a loss or reduction of income; (ii) unexpected or
unplanned expenses that caused a lack of resources; or (iii) a condition has occurred or
exists that endangers the health or safety of the household.
2. A group of individuals in a single residence for which energy is purchased in common is defined
herein as a "Household." A Household is eligible for bill assistance for one payment during any 12-
month period.
3. A Household may receive up to $400 to cover a current or past due APS bill, but may not receive
funds to pay APS bills from former residences.
K. Case Management.
1. APS may refer payment troubled and high use low-income customers to the Contractor for
participation in the Program.
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Agreement for Energy Wise Low Income Weatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
2. Customer caseworkers may refer clients to APS Customer Service for information about and
enrollment in suitable rate and billing programs, such as Time of Use rates, Equalizer payment, and
APS' Energy Support Program (E-3) which is a discount program for low-income customers.
L. Program Coordination.
APS' may at its option retain a third party manager to coordinate the Program. If APS elects to
retain a third party, the third party will serve as the coordinator for all APS Weatherization Services
and bill assistance activities that are within APS' service territory. In this capacity, the coordinator
will:
a) act as liaison between APS and the Contractor for program coordination and
implementation;
b) serve as a central point for invoicing, tracking, validating and reporting weatherization
program activities to APS; and
c) identify technical assistance needs and develop and coordinate training.
d) Encourage the dissemination of energy education information by the Energy Educator to all
Customers participating in the weatherization portion of the Program.
e) Assist APS in developing and delivering communications to promote the Program.
2. All household Weatherization Services and bill assistance related data will be entered into a
database approved by APS and made available to APS on a monthly and as-needed basis. The
database is to be kept current and confidential.
M. Documentation. The following documentation will be kept on file in the Customer file at the Contractor's
offices and will be available for review by APS until such a time that APS deems it unnecessary for audit
purposes:
1. Community action client application form with appropriate documentation attached. This
application is currently being used for DES LIHEAP program.
2. Weatherization Services application-specific information form.
3. Energy assistance program fuel information release form. Indicates the energy supplier is APS.
4. Documentation required by Section 2.A.2 with respect to a Qualified Home.
5. Household Characteristics Form.
6. Pressure Diagnostic Report (where applicable).
7. Combustion Safety Report (where applicable).
3. COMPENSATION/TAXES.
A. APS shall reimburse Contractor for Authorized Expenditures in an amount not to exceed $167,576.00 for the
Term (the "Allocation"). Unused portions of the Allocation are not carried over beyond the Term. The
Allocation is based on an estimate of the number of low -income customers living in the areas served by APS.
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Agreement for Energy Wise Low Income Weatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
The Allocation may be adjusted by APS as the number of qualified customers served by APS changes and as
the Contractor demonstrates its ability to manage the funds provided by APS.
1. The "Authorized Expenditures" consist of the following:
a) Weatherization Expenditures. Expenditures for the Contractor's direct costs of providing
Weatherizadon Services, including:
Preparation and performance of the Assessment;
analysis of appliances using amp meters and refrigerant pressure gages;
visual inspection of the property;
Contractor labor;
materials;
contract labor;
General Repairs; and
Energy Education fee as specified in Section 2.G.5.
b) Expenditures for Health and Safety Services.
c) Expenditures for Repair/Replacement Services.
e) Program Delivery Expenditures. Reasonable out-of-pocket costs incurred by the
Contractor to provide Weatherization Services, Health and Safety Services, and
Repair/Replacement Services to Customers that would not be incurred if those Services
were not provided, including: vehicle mileage; tools; employee related expenses such as
social security, Medicare, etc.; equipment rental; cost allocated shares of office and
management expenses; expenses for technical training of field technicians.
B. In addition, the following limitations apply to the distribution of the Allocation among the Authorized
Expenditures:
1. Weatherization Expenditures: maximum of 100% of the Allocation.
2. Health and Safety Expenditures: maximum of 2% of Weatherization Expenditures.
3. Repair/Replacement Expenditures: maximum of 10% of Weatherization Expenditures.
4. Program Delivery Expenditures: maximum of 20% of the combined Weatherization Expenditures,
Health and Safety Expenditures, and Repair/Replacement Expenditures. Program Delivery
Expenditures are funded from the Allocation and are not in addition to the Allocation.
C. Bill Assistance expenditures will be funded and reimbursed from the Arizona Community Action
Association ("ACAA") Bill Assistance Allocation and subject to the following stipulations:
1. ACAA Bill Assistance Allocation: maximum of S59,424.00. If other agencies participating in the
Program under spend their Bill Assistance allowance, APS may, in its sole discretion, allocate
additional sums for this Program component.
2. Bill Assistance Delivery Expenditures: Contractor may receive payment for Bill Assistance
Delivery Expenditures up to a maximum of 10% of Bill Assistance Allocation. Such expenses are
deducted from the ACAA Bill Assistance Allocation and are not in addition to the Bill Assistance
Allocation. Bill Assistance Delivery Expenditures are funded from the ACAA Bill Assistance
Allocation.

Agreement for Energy Wise Low Income Weatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
3. Bill Assistance Program Delivery Expenditures are defined as reasonable out-of-pocket costs
incurred by the Contractor to provide Bill Assistance that would not be incurred if those Services
were not provided, including: vehicle mileage; tools; employee related expenses such as social
security, Medicare, etc.; cost allocated shares of office and management expenses.
D. The Contractor will submit to APS within 30 days of the Effective Date, a budget for the Term showing a
projected best estimate of how funds will be spent month by month. The budget will include allocations to
each of the Authorized Expenditures. The Weatherization budget shall include Weatherization Expenses,
Health and Safety Expenses, Repair/Replacement Expenses, and the Weatherization portion of the program
delivery expense. The Bill Assistance budget shall include the bill assistance and the bill assistance portion
of the program delivery expense. The Contractor will make a good faith effort to manage expenditures to
meet the budgeted amounts on a monthly basis.
E. The Contractor will submit all invoices to APS or the third party contractor within 30 working days
following the last day of the month in which work is completed.
F. APS or the Third Party Coordinator if so designated, will review the weatherization expenditures for
compliance with the Program and will process the invoice and APS will make payment to the Contractor
within 30 days of receipt of the invoice from the Third Party Coordinator. Weatherization expenditures for
items that are not within the scope of this Agreement or not covered by a pre-approved waiver will be
disallowed and the invoice will be returned to the Contractor with the specific items highlighted. The
Contactor may resubmit the invoice with further explanation for review by APS. If the weatherization
expenditures are deemed to comply with the terms of this Agreement, APS will reimburse the Contractor for
those items; otherwise, they will be disallowed and ineligible for reimbursement.
G. Until further notice, the Contractor will send monthly invoices to:
Arizona Community Action Association
Executive Director
2700 N 3rd Street, Suite 3040
Phoenix, AZ 85004
H. Each invoice shall include itemized expenditures by APS Customer account number broken into the
following categories: Weatherization Expenditures; Health and Safety Expenditures; Repair/Replacement
Expenditures; Bill Assistance costs and Bill Assistance Delivery Expenditures; Program Delivery
Expenditures costs by category; and Energy Education fees.
I. As between APS and the Contractor, the Contractor shall be responsible for any taxes that may be levied or
imposed upon the transactions contemplated by this Agreement.
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Agreement for Energy Wise Low Income Weatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
4. GENERAL TERMS AND CONDITIONS.
A. Warranties.
Contractor's Warranties. The Contractor warrants that the Services shall: (a) be performed and
completed in a thorough, safe and workmanlike manner; (b) be free from defects in design,
workmanship, and title; (c) otherwise conform to this Agreement; (d) be of the standard and quality
generally recognized and accepted within its industry or profession throughout the United States; (c)
be performed in compliance with all applicable laws, rules, regulations, codes, standards, ordinances
and orders of regulatory authorities having jurisdiction over the activities contemplated by this
Agreement.
2. Disclaimer of Warranties by APS. APS is only providing funding to the Contractor to enable it to
afford and provide the Services to the Customers. APS is not involved in the selection or
implementation of the Services provided. Accordingly, all warranties of any kind or nature are
hereby disclaimed by APS whether statutory, express or implied, including, without
limitation, the warranty of merchantability, fitness for purpose or arising from course of
dealing or usage of trade. The total cumulative liability of APS for all claims of any kind
arising from or relating to this Agreement, whether such claims are based on contract,
warranty, tort (including negligence), strict liability, contribution or otherwise, shall not
exceed the unused portion of the Allocation.
B. Independent Contactor. The Parties will act as independent contractors and neither Party will act as agent
for or partner of the other Party for any purpose whatsoever, and the employees of one will not be deemed
employees of the other. Nothing in this Agreement will grant to either Party, the right to make commitments
of any kind for or on behalf of the other Party without prior written consent of the other Party.
C. Limitation of Liability.
Neither Party, nor its respective officers, directors, employees, agents, advisors, representatives,
affiliates, or successor or assigns shall be liable to the other Party for any indirect, consequential,
special, punitive or exemplary damages for any actions resulting from or arising out of this
Agreement, whether based on contract, tort (including, but not limited to, negligence), strict
liability, professional liability, contribution, or otherwise, provided, however, that this limitation of
liability shall not apply to the extent: (a) that APS is entitled to indemnification from the Contractor
as a result of a third party action as set forth in Section 4.D, Indemnification, or (b) losses arise from
a breach of Contractor's obligations of confidentiality under Section 4.E, Confidentiality and
Advertising.
2. The Contractor assumes all risks with respect to the selection of contractors and subcontractors who
will perform Weatherization Services as contemplated by this Agreement and the sale and/or
distribution of Weatherization.
D. Indemnification. To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold
harmless APS and its officers, directors, employees, agents, advisers, representatives, and affiliates
(collectively, an "APS Indemnitee") for, from and against any and all liabilities, losses, damages, fines,
penalties, and costs and expenses of any kind or nature, whether or not covered by insurance, including
reasonable attorneys' fees and expenses, that any APS Indemnitee may incur in connection with any claim,
action, dispute, demand, or right of action, whether in law or in equity, of every kind and character arising
out of, or resulting from (either directly or indirectly): (a) any bodily injury, including death, to any person,
or any damage or destruction of any tangible property, to the extent caused by any willful, wanton or reckless
misconduct or any negligent or intentional act or omission (including acts or omissions resulting in strict
liability) of Contractor, its officers, employees, agents (including, any contractors or subcontractors of the
Contractor), and suppliers; or (b) any actual or alleged infringement, misuse, derogation, or violation of any
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Agreement for Energy Wise Low Income Weatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
third party intellectual property. If a third party asserts a claim against an APS Indemnitee, the APS
Indemnitee will give written notice to the Contractor promptly after the APS Indernnitee has actual
knowledge of any claim as to which indemnity may be sought. The failure to give notice of the claim as
required by the preceding sentence will not relieve the Contractor of its indemnification obligations except to
the extent that the Contractor is materially damaged as a result of such failure. The APS lndemnitee will
permit the Contractor (at the expense of the Contractor) to assume the defense of any claim or any litigation
resulting therefrom, provided that (a) the counsel for the Contractor who conducts the defense ofsuch claim
or litigation is reasonably satisfactory to the APS Indemnitee, and (b) the APS Indemnitee may participate in
such defense at their own expense. If the APS Indemnitee determines in good faith that the conduct of the
defense of any claim might adversely affect any APS Lndemnittee's ability to conduct its business, or that the
APS Indemnitee may have available to it one or more legal defenses that are different from, additional to, or
inconsistent with those that may be available to the Contractor, the APS Indemnitee will have the right to
participate in the defense of such action at the Contractor's expense. Neither the Contractor nor the APS
indemnitee may settle or compromise any claim without the prior written consent of the other party, which
consent shall not be unreasonably withheld. The APS Indemnitee will have the right to defend any claim, at
the Contractor's expense, if the Contractor does not undertake the defense of the claim. In any event, the
Contractor and the APS Indemnitee will cooperate in the defense of any claim and the records of each will be
available to the other with respect to such defense.
E. Confidentiality and Advertising. All nonpublic information that APS provides to the Contractor or that the
Contractor acquires from any source in connection with this Agreement shall be deemed to be APS'
confidential information ("APS Confidential Information"). APS Confidential Information includes, but is
not limited to (a) Customer specific information, including Customer's utility bill information history; (b)
any reports, specifications, know-how, strategies or technical data, processes; business documents or
information, market research or other data, customer or client lists, and all other information Concerning the
business and affairs of APS that are owned, used, or possessed by or for the benefit of APS; (c) APS
intellectual property; and (d) confidential information or materials obtained by the Contractor from a third
party in connection with performance of its obligations under this Agreement.
The Contractor shall not make copies, reproductions, abstracts Or excerpts of the APS Confidential
Information in whole or in part, except as authorized by APS. All copies, reproductions, excerpts or abstracts
are deemed to be APS Confidential Information to the same extent as any originals. Upon APS' request at
any time or upon the expiration of the Term, the Contractor shall promptly return to APS all APS
Confidential Information and all copies thereof or other physical embodiments of the APS Confidential
Information.
The Contractor agrees that any and all of the APS Confidential Information shall be maintained in confidence
by the Contractor indefinitely. APS Confidential Information may not be disclosed by the Contractor to any
person other than the Contractor's personnel, employees or agents who require knowledge of the APS
Confidential Information in order to perform its obligations under this Agreement. The Contractor further
agree§ that such APS Confidential Information shall be used solely in connection with the Contractors
performance of its obligations hereunder, and for no other purpose, and that all persons to whom the
Contractor discloses the APS Confidential Information shall be advised of its confidential nature and of the
Contractor's obligations of confidentiality and non-use under this Agreement. The Contractor shall be
responsible for any disclosure or use of APS Confidential Information by persons to whom Contractor
provided the APS Confidential Information that is not in accordance with this Agreement.
The name of APS or any of its affiliates shall not be used in any advertising or other promotional context by
the Contractor or its contractors or subcontractors without the prior written consent of APS (which may be
withheld by APS in its sole discretion).
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Agreement for Energy Wise Low Income Weatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
F. Dispute Resolution/Attorneys Fees. If a dispute arises concerning this Agreement, a meeting of the Parties
shall be held within 10 business days after either Party gives the other Party written notice of the dispute (the
"Dispute Notice"). The Dispute Notice shall set forth in reasonable detail the aggrieved Party's position and
its proposal for resolution of the dispute. A representative of each Party who has authority to resolve the
dispute shall be in attendance at all meetings. If the dispute is not resolved within 30 calendar days after the
first meeting of the Parties, either Party is free to use any other available remedy, including litigation. The
Dispute Notice and 30-day discussion period are conditions precedent to each Party's right to resort to any
other method. A Party's failure to comply with this Section shall entitle the other Party to recover its costs
and reasonable attorney's fees in any judicial proceedings that circumvent this dispute resolution provision.
The prevailing Party in any proceedings instituted by either Party regarding a dispute concerning this
Agreement shall be entitled to recover its reasonable attorney's fees, costs, and expenses.
Severability. If any term or condition of this Agreement is held to be invalid, void, or otherwise
unenforceable by any court of competent jurisdiction, that holding shall not affect the validity or
enforceability of any other term or condition of this Agreement, unless enforcing the balance of this
Agreement would deprive either party of a fundamental benefit of its bargain.
H. Disclaimer of Third Party Beneficiaries. There are no persons or entities other than those who are signatory
to this Agreement that are intended to be benefited by the terms contained herein and except to the extent a
person or entity is entitled to indemnification pursuant to Section 4.D, all third party beneficiaries are hereby
disclaimed.
Survival. Termination of this Agreement shall not relieve either Party of any obligation under this
Agreement which expressly or by implication survives termination of this Agreement, including its
obligations under the following section headings: Insurance Coverages, Indemnification, Limitation of
Liability, Warranties, Records and Auditing, Confidentiality and Advertising, Governing Law, Dispute
Resolution/Attorney's Fees.
J. Entire Agreement. This Agreement contains the final and complete agreement between the Parties for
performance of the Services specified herein and supersedes all prior and contemporaneous conduct,
agreements, statements, representations, negotiations, course of conduct, course of dealing, and
communications pertaining to those Services, whether written or oral.
K. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the
State of Arizona and of the United States without giving effect to the doctrine of conflict of laws. This
Agreement shall be deemed made and entered into in Maricopa County, Arizona. Any suit to 'enforce this
Agreement shall be instituted only in the Superior Court of Maricopa County, Arizona, or the Federal District
Court for the District of Arizona, and such Courts shall have the exclusive jurisdiction.
Preservation of Rights. The Parties further agree that this Agreement shall not in any way be deemed a
waiver, abrogation, impairment or amendment of any other agreement between the Contractor and APS,
including but not limited to (i) lease(s) entered into by APS, either alone or as a co-tenant with others, and
the Contractor, and (ii) federal grant(s) of rights-of-way issued to APS, either alone or as a co-tenant with
others, by the United States. Except as expressly provided in this Agreement, this Agreement and the actions
of the Parties contemplated under such Agreement are not intended, nor shall they be deemed, to constitute
any waiver, consent or admission with respect to the existence or lack of regulatory, taxing, or adjudicatory
authority or jurisdiction of the Contractor over APS.
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Agreement for Energy Wise Low Income Weatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
M. Notices and Designated Representatives. All notices required to be given by this Agreement will be given in
person, by certified United States Mail, postage prepaid, return receipt requested, or by telecopier (confirmed
by the mailing of the original in the manner as abovementioned). All notices shall be deemed given when
received. Notices shall be directed to the Parties as follows:
If to APS:
Arizona Public Service Company
P.O. Box 53999
Phoenix, Arizona 85072-3999
Designated Representative:
Jerry Mendoza, Mail Station 8666
Phone: (602) 250-2243
Fax: (602) 250-3371
If to Contractor:
Maricopa County Human Services Department
234 North Central Ave, #3000
Phoenix, Arizona 85004
Designated Representative:
Margaret Leyvas, Assistant Director
Phone: (602) 506-5911
Fax: (602) 506-4982
Notices shall be effective: (a) on the date delivered by personal delivery, facsimile, or electronic mail; (b)
three (3) business days following the date deposited in the United States mail; or (c) the next business day
following delivery to a reputable overnight delivery service. Notices and communications shall be delivered
or mailed to the Parties' designated representatives named above.
Designated representatives of either Party may be changed at any time upon providing the other Party prior
written notice of such change.
N. Assignment. Neither Party will assign, transfer or otherwise dispose of its rights or obligations under this
Agreement or any interest therein, without the other Party's prior written consent, which will not be
unreasonably withheld or delayed.
0. Amendments and Modifications. This Agreement can be modified or rescinded only by a writing signed by
both parties or their duly authorized agents. No course of dealing or oral changes between the parties will be
effective or legally binding as an amendment to this Agreement.
P. Records and Auditing. Contractor shall maintain accurate and complete records relating to its performance
of this Agreement, including accounting records in support of all billings to Company. These records shall
be retained by Contractor and be reasonably available for Company's inspection and audit for 4 years after
completion or termination of this Agreement.
Q. Waiver. A Party's failure or delay in enforcing the terms and conditions of this Agreement or in insisting
upon strict performance of any of the other Party's obligations shall not be interpreted as a waiver thereof.
Waiver of any provision of this Agreement by either Party shall only be effective if in writing and shall not
be interpreted as a waiver of any subsequent breach or failure under the same or any other provision of this
Agreement. No conduct, statement, course of conduct course of dealing, oral expression, or other action
shall be construed as a waiver.
R.. Waiver of Jury Trial. THE PARTIES WAIVE TRIAL BY JURY AND AGREE THAT ANY ACTION TO
ENFORCE THIS AGREEMENT SHALL BE TO THE JUDGE WITHOUT A JURY.
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Agreement for Energy Wise Low Income VVeatherization Program
Implementation between the Maricopa County Human Services
Department and Arizona Public Service Company
IN WITNESS WHEREOF, this Agreement has been executed by the Parties as of the Effective Date.
ARIZONA PUBLIC SERVICE COMPANY
By: By:
CHAIRMAN BOARD OF soPERvisoRs DEC 3 1 2111)1
Title: Title:
02,2401
Fulton Brock
Chairman
Board of Supervisors
ved as o Form:
Appri ,
Aridrea Cummings,
Deputy County Attorney
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