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4. Equipment and Customer Contribution:
<br />a.The estimated cost of the installation including the estimated Participating
<br />Customer’s contribution is itemized on Proposal. The Participating Customer may
<br />choose one of the payment options as set forth on the Proposal. The Company
<br />and lender shall have sole discretion in determining whether to approve
<br />Participating Customer for extended payment terms, and Participating Customer
<br />shall provide all information reasonably requested by the Company and lender
<br />with respect to making any such determination. The Company reserves the right
<br />to receive and review credit profiles on the participating customer when deciding
<br />whether to approve extended payment terms.
<br />b.If you have not paid your Lump Sum Account Balance in full within 45 days from
<br />the completion of the project, as determined by Lime Energy, your account is in
<br />default. If you are in default, you will forfeit any previously agreed upon discounts,
<br />including Lump Sum pricing, and must immediately pay your total portion of the
<br />unpaid Instalment pricing project cost Account Balance in addition to a monthly
<br />Service (Finance) Charge fee equal to 1.50% of the Account Balance. If the
<br />minimum Instalment payment due is not paid for three (3) consecutive periods
<br />and the Account Balance is greater or equal to the sum of those three (3)
<br />minimum required payments as determined by their Due Dates, your account is in
<br />default and you must immediately pay your total portion (all past due and future
<br />amounts) of the unpaid pricing project cost Account Balance in addition to a
<br />monthly Service (Finance) Charge fee equal to 1.50% of the total past due
<br />Account Balance. A Returned Payment Fee in the amount of $50.00 will be
<br />charged to your Account by Lime Energy for each payment on your Account,
<br />either by, credit card, ACH, check or other means, that is returned to Lime Energy
<br />unpaid and or dishonored. Upon project completion, any changes to the original
<br />scope of work and associated costs will be documented and reflected in the close
<br />out process and reflected in the Project Completion Form, including any required
<br />changes to the Extended Payment Terms and Conditions.
<br />Customer also acknowledges that the total amount due from Customer may be
<br />increased (or decreased) due to and in accordance with Section 1 hereof. Should
<br />the total amount due from Customer be increased or decreased pursuant to
<br />Section 1, Customer understands that his/her monthly payment (if Customer has
<br />selected one of the Payment Plans or the Extended Financing Option) will be
<br />automatically increased or decreased to reflect the adjusted (increased or
<br />decreased) total amount due over the applicable payment term. Customer hereby
<br />consents to and agrees to a relevant adjustment in his/her monthly payment
<br />obligation without further notice from Company.
<br />c.Any amount due from Participating Customer and not received by Company
<br />within 30 days of its due date shall bear interest at the rate of one and one-half
<br />percent (1.50%) per month from the date such invoice was originally due to
<br />Company.
<br />d.Participating Customer shall pay Company or Lender, as the case may be, all
<br />costs and expenses including reasonable attorney fees and/or collection agency
<br />fees incurred in collection of any past due amounts.
<br />5. Follow-up Visits and On Site Monitoring:
<br />The Company, Duke Energy or agents of either party reserve the right to make a reasonable
<br />number of both pre-installation and post-installation follow-up visits during the 36 months
<br />following the completion date of the Work. Such visit(s) will be at a time convenient to the
<br />Participating Customer. The purpose of the follow-up visit(s) is to provide the Company and
<br />Duke Energy with an opportunity to evaluate the installed Measures in order to determine
<br />the actual kW reduction and energy savings for program evaluation purposes.
<br />6. Indemnification from Participating Customer:
<br />As part of agreeing to participate in the Program, which includes financial incentives to
<br />reduce the Participating Customer’s net project costs, the Participating Customer shall
<br />protect, indemnify, and hold harmless the Company, Lender (if applicable) and Duke Energy
<br />(including their parent, officers, directors, agents, affiliates, distributors, franchisees and
<br />employees) from and against any and all claims, demands, suits, actions or causes of
<br />action, liabilities, losses, damages, judgments, settlements, penalties, costs and expenses
<br />(including without limitation, attorney’s fees and expenses) (collectively, “Losses”) imposed
<br />upon or incurred by or asserted against the Company, Lender (if applicable) or Duke Energy
<br />resulting from, arising out of, or relating to the Company’s performance of this Participation
<br />Agreement, other than Losses resulting from the negligence or willful misconduct of, or the
<br />breach of this Participation Agreement by, the Company, but specifically including any
<br />Losses resulting from breach or default by Participating Customer of the terms and
<br />conditions of this Participation Agreement. This indemnity obligation under this section shall
<br />survive any expiration or termination of this Participation Agreement.
<br />7. Indemnification from Company:
<br />The Company shall indemnify and hold harmless Participating Customer from and
<br />against any and all Losses to the extent such Losses directly arise from the
<br />Company’s (a) breach or default of any material provision of this Participation
<br />Agreement, or (b) negligent or willful misconduct in the performance of this
<br />Participation Agreement.
<br />8. Limitation on Liability:
<br />Company’s liability to Participating Customer for all Losses pursuant to this
<br />Participation Agreement will be limited to any invoiced amounts actually received by
<br />Company from Participating Customer with respect to the Work. Notwithstanding the
<br />foregoing, the Company and Duke Energy shall not be responsible or liable for (a) the
<br />condition, maintenance or repair of any electrical wiring or other existing condition
<br />located in or on the Premises, (b) repairs or replacements of fixtures or lamps
<br />damaged or destroyed by acts of negligence of persons not under the direct
<br />supervision of the Company, (c) delays in the completion of the Work or for failure to
<br />give notice for such delays unless such delays are caused by the negligence of the
<br />Company, or (d) for the non-performance of any of the terms or conditions of this
<br />Participation Agreement directly attributable to a strike, national emergency, act of
<br />God or any other act for which the Company and Duke Energy are not responsible
<br />and over which Company and Duke Energy have no control. Neither the Company nor
<br />Duke Energy shall, in any event, be liable to Participating Customer for incidental,
<br />indirect, special, punitive, exemplary or consequential damages.
<br />9. Representations of Customer:
<br />Participating Customer represents, covenants and warrants to Company that
<br />Participating Customer (a) has corporate or other authority to enter into and perform
<br />under the terms of this Participation Agreement; (b) will not violate any provisions of
<br />applicable law or its organizational documents by performing under this Participation
<br />Agreement; and (c) entering into this Participation Agreement will not result in the
<br />breach of any agreement to which Participating Customer is a party.
<br />10. Entire Agreement:
<br />This Participation Agreement, including all Exhibits to this Participation Agreement and
<br />all other agreements incorporated herein by reference, constitutes the entire
<br />agreement between the parties relating to the subject matter hereof and supersedes
<br />all prior or simultaneous representations, discussions, negotiations, and agreements,
<br />whether written or oral with respect to the subject matter hereof. All provisions of this
<br />Participation Agreement shall be considered as separate terms and conditions and in
<br />the event any one of them shall be held illegal, invalid or unenforceable in an
<br />arbitration or by a court of competent jurisdiction, all other provisions hereof shall
<br />remain in full force and effect if the illegal, invalid or unenforceable provisions were not
<br />a part hereof.
<br />11. Miscellaneous:
<br />This Participation Agreement is not assignable except by written agreement entered
<br />into by the Parties hereto. Neither Party hereto shall unreasonably withhold consent to
<br />the other Party’s assignment of this Participation Agreement. Any attempted
<br />assignment without the consent of the other Party hereto shall be null and void and of
<br />no effect. The Parties to this Participation Agreement are independent contractors. As
<br />used herein this Participation Agreement, the term ''Duke Energy'' shall mean Duke
<br />Energy Progress, Inc., Duke Energy Carolinas, LLC., Duke Energy Ohio, Inc., Duke
<br />Energy Kentucky, Inc. or Duke Energy Indiana, Inc. depending upon the Participating
<br />Customer’s regulated utility account and Facility Address. of this Participation
<br />Agreement.
<br />12. Arbitration:
<br />In the event of any dispute relating to this Participation Agreement, the Parties will
<br />attempt in good faith to resolve the dispute by conducting a minimum of two
<br />discussions between senior executives of each Party having authority to settle the
<br />dispute. If such discussions do not result in a resolution of the dispute within sixty (60)
<br />days, the dispute shall finally be settled by arbitration by a sole arbitrator in North
<br />Carolina, Ohio, Kentucky, or Indiana in accordance with the Arbitration Rules of the
<br />American Arbitration Association (“AAA”). The arbitrator will not have the authority to
<br />award punitive damages to either Party. Each Party shall bear its own expenses, but
<br />the Parties will share equally the expenses of the arbitrator and the AAA. This
<br />Participation Agreement will be enforceable, and any arbitration award will be final, and
<br />judgment thereon may be entered in any court of competent jurisdiction.
<br />13. Governing Law:
<br />This Agreement shall be governed by and construed in accordance with the laws of
<br />the state of North Carolina, Ohio, Kentucky, or Indiana.
<br />14. Customer Responsibility for Additional Equipment and Services
<br />For any additional services included in the Non-Incentivized Scope of Work, Lime
<br />Energy agrees to provide the work although the costs for this additional work will be
<br />the responsibility of the customer. Additional services may include permit fees, fixture
<br />relocations, wiring, disposal, lift equipment, any work performed outside of normal
<br />business hours, costs required to maintain compliance with electrical codes, other
<br />costs listed in the following section, and any other special project applications.
<br />Participation Agreement
<br /> Proposal Provided By:DEC00044506.50 Page 9
<br />DocuSign Envelope ID: 69370BFA-5538-4B9E-BA17-E7F5AC496936
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