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Advanced Metering Infrastructure Project with Interstate Power and Light and IBMOFFICE OF ENERGY INDEPENDENCE Chi ,ter I CUIVE�r, 0- (-')ve.,r )r Ro Staailey, Dirc — r June 4, 2010 Mr. Michael C. Van Milligen City Manager 50 West 13th Street Dubuque, IA 52001 RE: Project Name: Smarter Sustainable Dubuque: Demonstration of Smart Grid Technology Contract Number: 09- IPF -25 Dear Mr. Van Milligen; Enclosed please find a fully executed original Iowa Power Fund Contract between the City of Dubuque and the Iowa office of Energy Independence. This contract has been signed b g Y our office and a second copy has been retained for our files. Should you have any questions, feel free to contact me at 515-725-2066, Sincer Brian Crowe Senior Program Manager Enclosure Wallace Building, 502 E. St St Des Moines, IA 50319 P1515.725.0431 www. energy.t - owa.gov Iowans creating an economically viable and environmentally sound energy future. GRANT OF $1,400,000 TO The City of Dubuque, Iowa BY THE Iowa Power Fund Board CONTRACT NUMBER: 09- IPF -25 For the Smarter Sustainable Dubuque: Demonstration of Smart Grid Technology F is��7��i MAY 11 2010 C i By TABLE OF CONTENTS ARTICLE I - IDENTITY OF THE PARTIES ARTICLE 2. CONTRACT DURATION ARTICLE 3. FUNDING Article 3.1 Funding Source Article 3.2 Reduction, Discontinuance or Alteration of Funding ARTICLE 4. DEFINITIONS; DOCUMENTS INCORPORATED BY REFERENCE; AND ORDER OF PRIORITY Article 4.1 Article 4.2 , Article 4.3 Article 4.4 ARTICLE 5. AW) Article 5.1 Article 5.2 Article 5.3 Article 5.4 Article 5.5 Definitions Documents Incorporated by Reference Recipient's Financial Assistance Application on File Order of Priority • �RD TERMS Description of the Project and Award Budget Award of Grant Use of Grant Funds Acknowledgment of obligations Replication and Success Payments ARTICLE 6. CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS Article 61 Documents Submitted Article 62 Prior Costs Article 63 Cost Variation Article 64 Suspension of Disbursement Article 6.5 Investment of Award Proceeds Article 6 Disbursement Schedtcle; OEI Review and Approval of Quarterly Project Status Article 7.7 Reports ARTICLE 7. REPRESENTATIONS AND WARRANTIES Article 7.1 Authority and Validity of obligations Article 7.2 Use of Proceeds Article 7.3 Financial Reports Article 7.4 No Material Adverse Change Article 7.5 Full Disclosure; Recipient's Financial Assistance Application Article 7.6 Trademarks, Franchises and Licenses Article 7.7 Governmental Authority and Licensing Article 7.8 Litigation and other Controversies Article 7.9 other Contracts Article Z10 No Default t Article 7.11 Compliance with Laws Article 7.12 Effective Date of .Representations and Warranties ARTICLE 8. COVENANTS Article 8.1 Maintain Existence in Iowa Article 8.2 Performance obligations Contract #09- IPF -25 -2- Article 8.3 Maintenance of Properties Article 8.4 Taxes and Assessments Article 8.5 Insurance Article 8.6 Required Reports Article 8.7 Inspection and Audit Article 8.8 Compliance with Laws Article 8.9 Use of Award Proceeds Article 8.10 Notice of Proceedings Article 5.11 Accounting Records Article 8.12 Restrictions Article 8.13 No Changes in Recipient Operations Article 5.14 Indemnification Article 8.15 Intellectual Property ARTICLE 9. EVI Article 9.1 Article 9.2 Article 9.3 Article 9.4 Article 9.5 1NTS OF DEFAULT AND REMEDIES Notice of Events of Default Events of Default Notice of Default and Opportunity to Cure Default Remedies Expenses ARTICLE 10. MISCELLANEOUS Article 10.1 Timely Performance Article 10.2 State of Iowa Recognition Article 10.3 Choice of Law and Forum Article 10.4 Governing Law Article 10.5 Contract Amendments Article 10.6 Notices Article 10.7 Headings Article 10.8 Final Authority Article 10.9 Waivers Article 10.10 Counterparts Article 10.11 Survival of Representations Article 10.12 Severability of Provisions Article 10.13 Successors and Assigns Article 10.14 Termination Article 10.15 Integration Contract #094PF -25 -3- IOWA POWER FUND CONTRACT - Grant - RECIPIENT: City of Dubuque CONTRACT NUMBER: #09- IPF -25 AWARD DATE: February 10, 2010 THIS IOWA POWER FUND CONTRACT ( "Contract ") is made as of the Contract Effective Date by and between the Iowa office of Energy Independence ( "OEI"), administrative entity for the Iowa Power Fund Board ( "Board ") and the City of Dubuque ( "Recipient "). WHEREAS, the Recipient submitted an application to the Iowa Power Fund Board requesting financial assistance in the financing of its Project as more fully described in Exhibit B, Description of the Project and Award Budget, (the "Project "); and WHEREAS, the Iowa Power Fund Board found the Project to meet the requirements established to receive financial assistance; and WHEREAS, the Board's Due Diligence Committee recommended and the Iowa Power Fund Board ("Power Fund Board "). approved a financial assistance award from the Iowa Power Fund to the Recipient for the Project, subject to the terms and conditions set forth herein and referred to as the "Award "; and NOW THEREFORE, in consideration of the mutual promises contained herein and intending to be legally bound, the Recipient and the Power Fund agree to the following terms: ARTICLE 1 IDENTITY OF THE PARTIES 1.1 Iowa Power Fund Board. The Board is a public instrumentality of the State established by 2007 Iowa Acts, Chapter 168, Section 6. The Board is charged with the responsibility of managing, overseeing and approving all awards of financial assistance from the Iowa Power Fund. The Board's address is Lucas State Office Building, 321 East 12th Street, Des Moines, Iowa 50319. 1.2 Iowa Office of Energy Independence The Iowa Office of Energy Independence (OEI) is an agency of the executive branch of State government that provides administrative support to the Power Fund Board. OEI is established pursuant to 2007 Iowa Acts, Chapter 168, Section 2. OEI's address is Lucas State Office Building, 321 East 12' Street, Des Moines, Iowa 50319. 1.3 City of Dubu ue. The City of Dubuque is an Iowa city established pursuant to Iowa Code Chapter 364. The City of Dubuque's address is 50 west 13th Street, Dubuque, Iowa 52001. Contract #09- IPF -25 -4- ARTICLE 2 CONTRACT DURATION This Contract shall be in effect on the Contract Effective Date and remain in effect until all of Recipient's obligations and liabilities under this Contract have been satisfied and OEI has provided Recipient with written notice of final Contract closeout. ARTICLE 3 FUNDING 3.1 Fundinga Source. The sole source of funding for this Award is the Iowa Power Fund established in 2007 Iowa Acts, Chapter 168, Section 9. 3.2 Reduction, Discontinuance or Alteration of Funding. Any termination, reduction, or delay of funds available due, in whole or in part, to (i) lack of, reduction in, or a deappropriation of revenues previously appropriated by the legislature for this Award, or (ii) any other reason beyond the OEI's control may, in the OEI's sole discretion, result in the termination, reduction or delay of funds to the Recipient. ARTICLE 4 DEFINITIONS; DOCUMENTS INCORPORATED BY REFERENCE; AND ORDER OF PRIORITY 4.1 Definitions. The following terms apply to this Contract: "Award Date" means the date first stated in this Contract and is the date the Board approved the awarding of financial assistance to the Recipient for the Project. "Contract Effective Date" means the last date stated on the signature page of this Contract. "Project" means the description of the work and activities to be completed by the Recipient as outlined in Exhibit B, Description of the Project and Award Budget and Exhibit A, Recipient's Financial Assistance Application. "Project Completion Date" means the date stated in Exhibit B, Description of the Project and Award Budget. The Project Completion Date is the date by which all Project activities shall be satisfactorily completed. 4.2 Documents Incorporated by Reference. The following documents are incorporated by reference and considered an integral part of this Contract: . Exhibit A - Recipient's Financial Assistance Application, Application #09 -08 -1224 Exhibit B - Description of the Project and Award Budget. Exhibit C- Memorandum of Understanding Between The City of Dubuque and the Interstate Light and Power Company for The Sustainable Dubuque AMI Pilot Project Exhibit D- Joint Development Agreement No. W1055610 Between the City of Dubuque and the International Business Machines Corporation Exhibit E-- April 7, 2010 letter from Barry A. Lindahl, Esq., Dubuque City Attorney, to the Iowa Power Fund. Contract #09- IPF -25 -5- 4.3 Recipient's Financial Assistance Application on File. Due to its size, Exhibit A will not be attached to this Contract, but will be kept on file at the Iowa office of Energy Independence. It shall nevertheless, be considered an incorporated element of this Contract. 4.4 Order of Priority. In the case of any inconsistency or conflict between the specific provisions of this document and the exhibits, any inconsistency or conflict shall be resolved according to the following order of priority: (a) Contract, Articles 1 -10. (b) Exhibit B -- Description of the Project and Award Budget. (c) Exhibit A - Recipient's Financial Assistance Application # 09-08-1224. (d) Exhibit C-- Memorandum of Understanding Between The City of Dubuque and the Interstate Light and Power Company for The Sustainable Dubuque AMI Pilot Project (e) Exhibit D- Joint Development Agreement No. W1055610 Between the City of Dubuque and the International Business Machines Corporation (f) Exhibit E-- April 7, 2010 letter from Barry A. Lindahl, Esq., Dubuque City Attorney, to the Iowa Power Fund. ARTICLE 5 AWARD TERMS 5.1 Description of the Project and Award Budget. The Board has approved an Award to the Recipient in the amount identified in Article 5.2 for the Project described in Exhibit B, Description of the Project and Award Budget. 5.2 Award of Grant In consideration of the Recipient's completion of the Project in compliance with the terms and conditions of this Contract, the Board hereby awards to the Recipient to i assist with the Project a Grant n an amount not to exceed One Million, Four Hundred Thousand Dollars (US$1,400,000) , payable in accordance with the Award Budget identified in Exhibit B, Description of the Project and Award Budget. 5.3 Use of Grant Funds. Grant Funds shall only be used for The City of Dubuque to create a Sustainability Service model for measurement and monitoring of city energy and water systems. The City of Dubuque and International Business Machines Corporation (IBM) will develop electric portion of the Sustainability Service model. This system will allow the City and utility to track electrical energy usage on a near -real time basis to allow comparison between individual customer's energy usage with other electric service customers usage, track: the impact of utilization changes, and analyze the effectiveness of system design with incentives, which shall enable cross analytics with water and carbon utilization. The project will determine electrical consumption patterns as well as provide cross analytics for all related areas of energy consumption within the community. The City will educate the public on the methods and benefits of reducing consumption of electricity. The City will randomly select 1000 households to participate in this Smart Grid demonstration program using AMI technology, and contract with IBM to research, measure and analyze the data. 5.4 Acknowledgement of Obli : ations. Recipient acknowledges and agrees that: (a) This Grant is made in consideration of Recipient's representations and warranties described in this Contract, and (b) Upon violation of such covenants and warranties, Recipient is obligated to immediately repay any amounts OEI determines Recipient received without fulfillment of Recipient's obligations under this Contract, plus applicable interest (6 %) and costs described in Article 9.4 Contract #09- IPF -25 -6- 5.5 REPLICATION AND SUCCESS SHARING PAYMENTS. As a condition of receiving this grant, recipient agrees to facilitate replication of the technology developed by the project and to facilitate success sharing payments if the technology developed by the project is commercially deployed. (a) Time Period. The terms of this paragraph shall remain in effect during the period of this agreement and for a period of three (3) years after the expiration of this agreement. During this Time Period, the recipient agrees to the following: 1. The recipient shall notify OEI and ISM in writing via US Mail, facsimile, or email within one (1) business day that the recipient has been contacted by a governmental entity that has requested to be referred to IBM to gain access to the Prototype Service referenced in paragraph 1.3 of Exhibit D. 2. The recipient shall notify OEI in writing via US Mail, facsimile or email that it has referred a governmental entity interested in accessing the Prototype Service to IBM pursuant to paragraph 1.3 of Exhibit D. The recipient shall provide said notice to OEI within 30 days of its referral of a governmental entity to IBM pursuant to paragraph 1.3 of Exhibit D. Recipient's notice to OEI shall include the name, address and contact information for the referred governmental entity and a copy of the written referral the recipient provided to IBM. 3. Success Sharing Payments as described in this paragraph 5.5 may be applied to any referral of a governmental entity to IBM by the recipient, OEI or the Power Fund. If IBM has received such referrals prior to the expiration of the three (3) year time period described above, IBM will provide an extension of an additional 6 months of receiving such referral_ ( "Extension Period ") to fully execute a signed commercial agreement between IBM and the other Iowa government entity. In the event that a commercial agreement is not executed between IBM and such Iowa government entity during the Extension Period, IBM may charge the governmental entity IBM Research's then current rates for the Prototype Service. IBM will not unreasonably withhold such commercial agreement. (b) Events Triggering Payment. At the option of the Power Fund, the discount provided pursuant to section 1.3 of the Joint Development Agreement between the City of Dubuque and IBM may be modified to trigger a payment of up to 50% of that discount to the Power Fund. (c) Payment Amount. Success Sharing Payments pursuant to this section shall cease upon the recovery of a total of $1,400,000 by the Power Fund. ARTICLE 6 CONDITIONS To DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS The obligation of the OEI to make, continue or disburse funds under this Contract shall be subject to the following conditions precedent: 6.1 Documents Submitted. OEI shall have received each of the following documents, properly executed and completed, and approved by the OEI as to form and substance: (a) Contract Fully executed Contract. (b) Project Financial Cominitments. The Recipient shall have submitted documentation acceptable to OEI from the funding sources identified in Exhibit B committing to the specified financial involvement in the Project and received the OEI's approval of the documentation. The documentation shall include the amount, terms and conditions of the financial commitment, as well as any applicable Contract #094PF -25 -7- schedules. c Other Required Documents. OEI shall have received such other contracts, instruments, documents, certificates and opinions as the GEI may reasonably request. (d) Requests for Disbursement: Documentation of Expenditure by Other Funding Sources.. All disbursements of Award funds shall be subject to receipt by QEI of requests for disbursement, in form and content acceptable to OEI, submitted by the Recipient. All requests shall include documentation of costs that have been paid or costs to be paid immediately upon receipt of Award proceeds and documentation 'that the other funding sources identified in Exhibit B, Project Description and Award Budget, have been received and used for the intended purposes. 6.2 Prior Costs No expenditures made prior to the Award Date may be included as Project costs. 6.3 Cost Variation. In the event that the total cost of the Project is less than the amount specified in Exhibit B Eleven Million, Eighty Nine Thousand Dollars (US$ 11,089,000), the amount awarded hereby shall be reduced by multiplying the Award amount of One Million, Four Hundred thousand dollars (US$1,400,000), by a fraction, the numerator of which shall be the actual total cost of the Project as determined by OEI, and the denominator of which shall be Eleven Million, Eighty Nine Thousand Dollars (US$ 11,089,000). Any Grant monies disbursed in excess of such amount shall be immediately returned to OEI. Award Amount X Actual Total Project Cost _ = Reduced Amt of Grant Total Project Cost (as shown in Exhibit B) 6.4 Suspension of Disbursement. Upon the occurrence of an Event of Default (as defined in this Contract) by the Recipient, the GEI may suspend payments to the Recipient until such time as the default has been cured to the OEI's satisfaction. Notwithstanding anything to the contrary in this Contract, upon a termination of this Contract on account of an Event of Default by the Recipient, Recipient will no longer have the right to receive any disbursements after the effective date of default. 6.5 Investment of Award Proceeds. (a) In the event that the Award proceeds are not immediately utilized, temporarily idle Award proceeds held by the Recipient may be invested provided such investments shall be in accordance with State law, including but not limited to the provisions of Iowa Code chapter 12C concerning the deposit of public funds. Interest accrued on temporarily idle Award proceeds held by the Recipient shall be credited to and expended on the Project prior to the expenditure of other Award proceeds. (b) All proceeds remaining, including accrued interest, after all allowable Project costs have been paid or obligated shall be returned to the GEI within thirty (30) days after the Project Completion Date. Within ten (10) days of receipt of a written request from OEI, Recipient shall inform the 4EI in writing of the amount of unexpended Award funds in the Recipient's possession or under the Recipient's control, whether in the form of cash on hand, investments, or otherwise. 6.6 Disbursement Schedule; GEI Review and Approval of Quarterly Project Status Reports. Exhibit B, Description of Project and Award Budget, includes a projected quarterly disbursement schedule. The dates listed therein are the dates when Recipient is eligible to request a disbursement, subject to satisfaction of all of the conditions to disbursement as outlined in Article 6.1, and it is not the date when funds will actually be disbursed. The time period to process disbursement requests ranges from 60 -90 days after GEI review and approval of each Quarterly Status Report required by Article 8.6. No funds shall be disbursed until GEI reviews and accepts the Quarterly Project Status Reports required in Article 8.6. GEI will review each Report to determine compliance with the requirements of this Contract. Contract #99- IPF -25 -8 If OEI is not satisfied that the Recipient is making progress toward its performance goals, or if the documentation submitted with the Report is not acceptable, or if the level of participation by other investors is not consistent with the Exhibit B, or if the Report indicates that Recipient is not meeting any other contract requirement, CEI may issue a Notice of Default pursuant to §9.3. ARTICLE 7 REPRESENTATIONS AND WARRANTIES The Recipient represents and warrants to the OEI as follows: 7.1 Authority and Validity of obligations The Recipient has full right and authority to enter into this Contract. The person signing this Contract has full authority to: a) Sign this Contract on behalf of the Recipient, and b} obligate the Recipient to the performance of each and all of the obligations under the Contract. The Contract delivered by the Recipient has been duly authorized, executed and delivered by the Recipient and constitutes the valid and binding obligations of the Recipient and is enforceable against it in accordance with the terms. 7.2 Use of Proceeds. The Recipient hereby agrees to use Award proceeds only for the Project and for the activities described in Exhibit B, Description of the Project and Award Budget. Use of Award proceeds shall conform to the Budget for the Project as detailed in Exhibit B. The Recipient represents that there are legally enforceable commitments in place from the funding sources identified for the Project in Exhibit B. 7.3 Financial Reports. The Project financial information furnished by the Recipient to OEI as of the Contract Effective Date, fairly present the Project budget. 7.4 No Material Adverse Change Since the Award Date, there has been no material changes to the Project as presented in Exhibit A, except as otherwise expressed herein. 7.5 Full Disclosure; Recipient's Financial Assistance Application The statements and other information furnished to the OEI by Recipient in its Financial Assistance Application and in connection with the negotiation of this Contract do not contain any untrue statements of a material fact or omit a material fact. necessary to make the material statements contained herein or therein not misleading. The CEI acknowledges that as to any projections furnished to the OEI, the Recipient only represents that the same were prepared on the basis of information and estimates it believed to be reasonable. 7.6 Trademarks, Franchises and Licenses The Recipient owns, possesses, or has the right to use all necessary patents, licenses, franchises, trademarks, trade names, trade styles, copyrights, trade secrets, knowhow and confidential commercial and proprietary information to conduct its business as now conducted, without known conflict with any patent, license, franchise, trademark, trade name, trade style, copyright or other proprietary right of any other Person. As used in this Contract, "Person" means an individual, partnership, corporation, association, trust, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof. 7.7 Governmental Authority and Licensing The Recipient has received all licenses, p ermits, and approvals of all Federal, state, local, and foreign governmental authorities, if any, necessary to conduct its business, in each case where the failure to obtain or maintain the same could reasonably be expected to have a material adverse effect. No investigation or proceeding which, if adversely determined, could reasonably be expected to result in revocation or denial of any material license, permit, Contract #09- 1PF -25 -9 or approval is pending or, to the knowledge of the Recipient threatened. 7.8 Litigation and Other Controversies other than the litigation described in Exhibit E, there is no litigation or governmental proceeding pending, nor to the knowledge of the Recipient threatened g P , against the Recipient which if adversely determined would result in any material adverse change in the financial condition, properties, business or operations of the Recipient, nor is the Recipient aware of any existing basis for any such other litigation or governmental proceeding: 7.9 Other Contracts. The Recipient is not in default under the terms or any covenant, indenture or contract of or affecting either the Recipient or any of its properties, which default, if uncured, would have a material adverse effect on its financial condition, properties, business or operations. 7.10 No Default No Default or Event of Default has occurred or is continuing. 7.11 Compliance with Laws Other than the regulatory matters described in Exhibit E, the Recipient is in compliance with the requirements of all federal, state and local laws, rules and regulations applicable to or pertaining to the business operations of the Recipient and laws and regulations establishing quality criteria and standards for air, water, land and toxic or hazardous wastes or substances, non - compliance with which could have a material adverse effect on the financial condition, properties, business or operations of the Recipient. Other than the regulatory matters described in Exhibit E, the Recipient has not received notice to the effect that its operations are not in compliance with any of the requirements of applicable federal, state or local environmental or health and safety statutes and regulations or are the subject of any governmental investigation evaluating whether any remedial action is needed to respond to a release of any toxic or hazardous waste or substance into the environment, which non - compliance or remedial action could have a material adverse effect on the financial condition, properties, business or operations of the Recipient. 7.12 Effective Date of Representations and Warranties The warranties and representations of this Article are made as of the Contract Effective Date and shall be deemed to be renewed and restated by the Recipient at the time each request for disbursement of funds is submitted to OEI. ARTICLE 8 COVENANTS OF RECIPIENT For the duration of this Contract, Recipient covenants with OEI that: 8.1 Maintain Project in Iowa_ The Recipient shall at all times preserve and maintain the Project in Iowa. The Recipient will preserve and keep in force and affect all licenses, permits, franchises, approvals, patents, trademarks, trade names, trade styles, copyrights and other proprietary rights necessary to the proper conduct of its respective business. 8.2 Performance Obligations By the Project Completion Date, Recipient shall complete the Project, make the total investment pledged for the Project and in accordance with the Award Budget as detailed in Exhibit B and comply with all other performance requirements described in this Contract. The Recipient shall promptly provide the OEI with written notice of any major changes that would impact the success of the Project. OEI will use the performance measures identified in Exhibit B to assess project completion. 8.3 Maintenance of Properties. The Recipient shall maintain, preserve and keep its properties in good repair, working order and condition (ordinary wear and tear excepted) and will from time to time make all needful and proper repairs, renewals, replacements, additions and betterments thereto so that at all times the efficiency thereof shall be fully preserved and maintained in accordance with prudent Contract #09- IPF -25 _10- business practices. 8.4 Taxes and Assessments. The Recipient shall duly pay and discharge all taxes, rates, assessments,, fees and governmental charges upon or against its properties, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being contested in good faith and by appropriate proceedings and adequate reserves are provided therefore. 8.5 Insurance The Recipient shall insure and keep insured with good and responsible insurance companies, all insurable property owned by it which is of a character usually insured by Persons similarly situated and operating like properties against loss or damage from such hazards or risks as are insured by Persons similarly situated and operating like properties; and the Recipient shall insure such other hazards and risks (including employers' and public liability risks) in good and responsible insurance companies as and to the extent usually insured by Persons similarly situated and conducting similar businesses. The Recipient will upon request of the OEI furnish a certificate setting forth in summary form the nature and extent of the insurance maintained pursuant to this Article. 8.5 Required Reports (a) Review of Disbursement Requests and Reports. The Recipient shall prepare, sign and submit disbursement requests and reports as specified in this Contract in the form and content required by the OEI. The Recipient shall review all disbursement requests and verify that claimed expenditures are allowable costs. The Recipient shall maintain documentation adequate to support the claimed costs. N Reports. The Recipient shall prepare, sign and submit the following reports as specified in this Contract in the form and content required by the OEI: Quarterly Status Reports The Quarterly Project Status Reports will collect information from the Recipient about the status of the project. This report will collect information that includes, but is not limited to: A description of the use and effectiveness of the moneys granted; data such as project expenditures; any changes to the Recipient's benefits, ownership, structure, or control of the Recipient; amount of new money from non- governmental sources; progress toward meeting performance measures; financial data necessary to determine repayment amounts due under Article 5.5 and any other information required by the OEI. Further definition of the deliverables can be found in the Statement of work of Exhibit C to this Agreement. Due Date • Readiness of the project, including project plan and overall May 15, 2010 Research progress Payment due on deliverables $75,000 • Performance report • Progress of requirements gathered and overall Research July 15, 2010 progress • initial outreach, education and marketing plan • Project management plan • Criteria for selection of 1000 pilot recipients (including criteria for scientific validity) • Progress on the development of draft design of the research prototvr)e Contract #09- IPF -25 - 11 Payment due on deliverables $200,000 ■ Progress made in identifying data sources, frequency of data updates and overall Research progress September 15, 2010 • Performance Report • Education and marketing updates • Project management updates Payment due on deliverables $200,000 ■ Progress in developing tools for automated data gathering, and warehousing from smart meters and Jan 15, 2011 overall Research progress Performance report • Education and marketing updates ■ Project management updates • Evidence of the selection of 1000 pilot recipients. • Evidence of the installation of 1000 AM I meters Payment due on deliverables $225,000 ■ Progress on end to end integration of data from the meters into the Prototype Service and overall Research April 15, 2011 progress ■ Performance report ■ Education and marketing updates ■ Project management updates • Incentive programs offered including successes and failures ■ Electrical usage data, and other aggregate data being collected by the City of Dubuque or other involved parties as a result of this award. Payment due on deliverables $175,000 • Progress on end to end integration of data from the meters into the July 15, 2011 • Prototype Service and overall Research progress. • Education and marketing updates • Project management updates Payment due on deliverables $175,000 • Progress of the demonstration of the Prototype Service and overall Research progress September 15, 2011 • Education and marketing updates • Project management updates Payment due on deliverables $175,000 Contract #09- IPF -25 -12- • Project summary, included lessons learned regarding analysis of consumption, data, and insight on how the January 15, 2012 Prototype Service was used, • Electrical usage data, and other aggregate data being collected by the City of Dubuque or other involved parties as a result of this award. Payment due on deliverables $175,000 (c) Additional Reports, Financials as Requested by the GEI. The GEI reserves the right to require more frequent submission of any of the above reports if, in the opinion of the GEI, more frequent submissions would help improve the Recipient's Project performance, or if necessary in order to meet requests from the Iowa General Assembly, the Department of Management or the Governor's office. At the request of the GEI, Recipient shall submit its annual financial statements completed by an independent CPA, or other financial statements including, but not limited to, income, expense, and retained earnings statements. (d) Use of Reports. The GEI reserves the right to publish, copy, and distribute any reports submitted by the Recipient as part of this Contract. The Recipient shall not publish interim reports without the prior, written consent of the GEI. Nothing in this section shall be construed to limit the rights of the Recipient to publish the data or information in scholarly or professional journals as long as any copyright to be obtained is not prejudiced by such publication. There shall be no pre - release of data or findings connected with this Contract in scholarly or professional journals or through public presentations or news media until the Contract is completed, unless the GEI has given prior written approval for the release or the Recipient has notified the GEI of the release in advance. All reports, interim and final, published by either the Recipient or the GEI, shall give credit to the other party's participation in the Project. The Recipient shall not use the name of the Iowa Power Fund or the Iowa office of Energy Independence for advertising, promotional, or publicity purposes without the prior consent of the GEI. 8.7 Inspection and Audit The Recipient will permit the GEI and its duly authorized representatives to visit and inspect any of the Recipient's properties, corporate books and financial records of the Recipient related to the Project, to examine and make copies of the books of accounts and other financial records of the Recipient, and to discuss the affairs, finances and accounts of the Recipient with, and to be advised as to the same by, its officers, and independent public accountants (and by this provision the Recipient authorizes such accountants to discuss with the GEI and the GEI's duly authorized representatives the finances and affairs of the Recipient) at such reasonable time and reasonable intervals as the GEI may designate, but at least annually. 8.8 Compliance with Laws (a) The Recipient will comply in all material respects with the requirements of all federal, state and local laws, rules, regulations and orders applicable to or pertaining to its properties or business operations including, but not limited to, all applicable environmental, hazardous waste or substance, toxic substance and underground storage laws and regulations, and the Recipient will obtain any permits, licenses, buildings, improvements, fixtures, equipment or its property required by reason of any applicable environmental, hazardous waste or substance, toxic substance or underground storage laws or regulations. (b) The Recipient shall comply in all material respects with all applicable federal, state, and local laws, rules, ordinances, regulations and orders applicable to the prevention of discrimination in employment, including the administrative rules of the Iowa Department of Management and the Iowa Civil Rights Commission which pertain to equal employment opportunity and affirmative action. Contract #09- IPF -25 -13- (c) The Recipient shall comply in all material respects with all applicable federal, state and local laws, rules, ordinances, regulations and orders applicable to worker rights and worker safety. (d) The Recipient shall comply with the OEI's administrative rules, 350 Iowa Administrative Code. 8.9 Use of Award Proceeds. The Recipient will use the Award proceeds extended under this Contract solely for the purposes set forth in this Contract. 8.10 Notice of Proceedings The Recipient shall promptly notify the OEI of the initiation of any claims, lawsuits, bankruptcy proceedings or other proceedings brought against the Recipient which would adversely impact the Project. 8.11 Accounting Records. The Recipient is required to maintain its books, records and all other evidence pertaining to this Contract in accordance with generally accepted accounting principles and such other procedures specified by the OEI. These records shall be available to the OEI, its internal or external auditors, the Auditor of the State of Iowa, the Attorney General of the State of Iowa and the Iowa Division of Criminal Investigations at all times during the Contract duration and any extensions thereof, and for three (3) full years from the Agreement Expiration Date. 8.12 Restrictions. The Recipient shall not, without prior written disclosure to the GEI and prior written consent of the OEI, which shall not be unreasonably withheld, directly or indirectly assign, waive or transfer any of Recipient's rights, powers, duties or obligations under this Contract. 8.13. No Changes in Recipient Operations. The Recipient shall not materially change the Project or the nature of the Recipient and activities being conducted, or proposed to be conducted by Recipient, as described in the Recipient's approved application for funding, Exhibit A and Exhibit B of this Contract, unless approved in writing by the GEI prior to the change. 8.14 Indemnification. To the extent permitted by Iowa Code Chapter 670,the Recipient shall indemnify, defend and hold harmless the GEI, the State of Iowa, its departments, divisions, agencies, sections, commissions, officers, employees and agents from and against all losses, liabilities, penalties, fines, damages and claims (including taxes), and all related costs and expenses (including the reasonable value of the time spent by the Attorney General's Office, and the costs, expenses and attorneys' fees of other counsel retained by the indemnified parties and costs of investigation, litigation, settlement, judgments, interest and penalties), arising from or in connection with any of the following: a} Any claim, demand, action, citation or legal proceeding arising out of or resulting from the Project; b} Any claim, demand, action, citation or legal proceeding arising out of or resulting from a breach by the Recipient of any representation or warranty made by the Recipient in this Contract; c) Any claim, demand, action, citation or legal proceeding arising out of or related to occurrences that the Recipient is required to insure against as provided for in this Contract; and d) Any claim, demand, action, citation or legal proceeding which results from an act or omission of the Recipient or any of their agents in its or their capacity as an employer of a person. 8.15 Intellectual Property. (a) Recipient represents and OEI acknowledges that the technology, processes, or research developed or studied in the Project do and will involve patentable products or processes or otherwise protectable intellectual property such as copyright, trademark, or trade dress. Recipient acknowledges that one of the objectives of the Iowa Power Fund is to promote utilization across the State of the results of research, development, and commercialization activities related to energy independence funded in whole or in part by the Iowa Power Fund. Contract #09- IPF -25 -14- (b) Intellectual Property terms and conditions will be governed by the terms of Exhibit C and Exhbit D to this Agreement. The terms will include, but are not limited to the provisions in Exhibit C Section 4 (Copyrights) and Section 5 (Inventions). In addition, the terms will include, but are not limited to the pricing concessions related to subsequent deployments of the Prototype Service set out in paragraph 1.3 of Exhibit D to this Agreement. ARTICLE 9 EVENTS OF DEFAULT AND REMEDIES 9.1 Notice of Events of Default. Recipient shall promptly notify OEI upon becoming aware of an actual or imminent Event of Default. 9.2 Events of Default. Any one or more of the following shall constitute an "Event of Default" hereunder: (a) Noncompliance with Covenants Default in the observance or performance of any covenant set forth in Article 8, for more than five (5) business days; or (b) Noncompliance with Contract Default in the observance or performance of any other provision of this Contract; or (c) Failure to Complete Protect by Project Completion Date. If the Project, in the sole judgment of QEI, is not satisfactorily completed by the Project Completion Date. (d) Material Misrepresentation Any representation or warranty made by the Recipient in this Contract or in any statement or certificate furnished by it pursuant to this Contract, or made in its Financial Assistance Application, or in connection with any of the above, proves untrue in any material respect as of the date of the issuance or making thereof; or (e) Adverse Change in Financial Condition Any change shall occur in the financial condition of the Recipient which would have a material adverse effect on the ability of the Recipient to p erform under this Contract; or (f) Failure to Make Timely or Satis actoty Progress. The OEI in good faith reasonably believes, after consideration of all the facts and circumstances then existing, that the prospect of the Recipient's satisfaction of the obligations under this Contract or the performance of or observance of the covenants in this Contract is or will be materially impaired; or the Recipient is not making substantial or satisfactory progress toward meeting the performance measures identified in Exhibit B; or the other funding sources investing in the Project have not been disbursed to Recipient or used for the intended purposes, both as identified in Exhibit B. (g) Failure to Submit Required Reports. The Recipient fails to submit complete reports by the required due dates as outlined in Article 8.6. Failure to submit the timely reports may, in the OEI's sole discretion, result in the termination, reduction or delay of funds to the Recipient. 9.3 Notice of Default and unity _to Cure. If the OEI has reasonable cause to believe that an Event of Default has occurred under this Contract the OEI shall issue a written Notice of Default to the Recipient, setting forth the nature of the alleged default in reasonable specificity, and providing therein a reasonable period time, which shall not be fewer than thirty (30) days from the date of the Notice of Default, in which the Recipient shall have an opportunity to cure, provided that cure is possible and feasible. 9.4 Default Remedies. Subject to the notice and cure provisions contained in Article 9.3, when Contract #09- IPF -25 -15- an Event of Default has occurred and is continuing, OEI shall have the right to: (a) Terminate this Contract and all of the .obligations of OEI under this Contract on the date stated in such notice, and (b) Suspend pending disbursement of funds and terminate further disbursement of Grant funds, and (c) Declare the total amount of Grant funds disbursed to be due and payable, including any and all fees, charges, interest ( 6 %) and other amounts payable under this Contract. The total amount due shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind, all of which are expressly waived by Recipient, and (d) If the default is due to failure to submit timely reports, reduce the amount of any scheduled disbursement described in Exhibit B by 5% for each 30 day increment a required report is late. 9.5 Expenses The Recipient agrees to pay to the GEI all expenses reasonably incurred or paid by the GEI including reasonable attorneys' fees (including the reasonable value of the time of the Attorney General's Office) and court costs, in connection with any Default or Event of Default by the Recipient or in connection with the enforcement of any of the terms of this Contract. ARTICLE 10 MISCELLANEOUS. 10.1 Timelv Performance The parties agree that the dates and time periods specified in this Contract including the timelines established for the Project and more fully described in Exhibit B, are of the essence to the satisfactory performance of this Contract. 10.2 State of Iowa Reco nition (a) If the Project involves reports and publications pertaining to the Project, the Recipient agrees to acknowledge the support of the Iowa Power Fund Board and the Office of Energy Independence with the following statement: "This (type of material) was prepared with the support of the Iowa Power Fund Board and the Iowa Office of Energy Independence. However, any opinions, findings, conclusions or recommendations expressed herein are those of the author(s) and do not necessarily reflect the views of the Iowa Power Fund Board or the Office of Energy Independence." (b) If the Project involves construction and there is signage recognizing the financial contributions made to the Project, the Recipient agrees to include the Iowa Power Fund Board and the Iowa Office of Energy Independence on the list of entities providing assistance. For example, a sign or plaque indicating that the Project was funded in part by an Award from the State of Iowa, Iowa Power Fund Board, and the Iowa Office of Energy Independence. 10.3 Choice of Law and Forum (a) The laws of the State of Iowa shall govern and determine all matters arising out of or in connection with this Contract without regard to the conflict of law provisions of Iowa law. Any and all litigation commenced in connection with this Contract shall be brought and maintained solely in Polk County District Court for the State of Iowa, Des Moines, Iowa, or. in the United States District Court for the Southern District of Iowa, Central Division, Des Moines, Iowa, wherever jurisdiction is appropriate. (b) This provision shall not be construed as waiving any immunity to suit or liability, in state or federal court, which may be available to the OEI, the State of Iowa or its board members, officers, employees or agents. Contract #09- IPF -25 -16- 10.4 Governing Law This Contract and the rights and duties of the parties hereto shall be governed by, and construed in accordance with the internal laws of the State of Iowa without regard to principles of conflicts of laws. 10.5 Contract Amendments. Neither this Contract nor any documents incorporated by reference in connection with this Contract may be changed, waived, discharged or terminated orally, but only as provided below: (a) Writing required. The Contract may only be amended if done so in writing and signed by the Recipient and the OEI. Examples of situations requiring an amendment include, but are not limited to, time extensions, budget revisions, and significant alterations of existing activities or beneficiaries. (b) Board review. The Board will consider whether an amendment request is so substantial as to necessitate reevaluating the Board's original funding decision. An amendment may be denied by the Board if it substantially alters the circumstances under which the Project funding was originally approved. - 10.6 Notices. Except as otherwise specified herein, all notices hereunder shall be in writing (including, without limitation by fax) and shall be given to the relevant party at its address, a --mail address, or fax number set forth below, or such other address, e-mail address, or fax number as such party may hereafter specify by notice to the other given by United States mail, by fax or by other telecommunication device capable of creating a written record of such notice and its receipt. Notices hereunder shall be addressed: To the Recipient: City of Dubuque Michael C. Van Milligen, City Manager 50 West 13th Street Dubuque, Iowa 52001 E-mail: ctymmgr @cityofdubuque.org Telephone: 563-589-4110 Facsimile: 563-589-4149 IBM Research Milind Naphade 19 Skyline Drive, Hawthorne, NY 10532 Email: nghade@us.ibm.com Telephone: 914- 7847032 Facsimile: 914 --784 -7455 To the DEI at: Iowa Office of Energy Independence Brian Crowe, Project Manager 321 E. 12 Street Des Moines, Iowa 50319 E -mail: Brian. Crowe @ iowa. gov Telephone: 515.725.206 6 Contract #09- 1PF -25 -17- Facsimile: 515. 281.4225 Each such notice, request or other communication shall be effective (i) if given by facsimile, when such facsimile is transmitted to the facsimile number specified in this Article and a confirmation of such facsimile has been received by the sender, (ii) if given by e -mail, when such e-mail is transmitted to the e- mail address specified in this Article and a confirmation of receipt of such e -mail has been received b y the sender, (iii) if given by mail, five (5) days after such communication is deposited in the mail, certified or registered with return receipt requested, addressed as aforesaid or (iv) if given by any other means, when delivered at the addresses specified in this Article. 10.7 Headings. Article headings used in this Contract are for convenience of reference only and are not a part of this Contract for any other purpose. 10.8 Final Authority. The OEI shall have the authority to reasonably assess whether the Recipient has complied with the terms of this Contract. Any OEI determinations with respect to compliance with the provisions of this -Contract shall be deemed to be final determinations pursuant to Section 17A of the Code of Iowa. 10.9 Waivers. No waiver by the OEI of any default hereunder shall operate as a waiver of any other default or of the ' same default on any future occasion. No delay on the part of the OEI in exercising any right or remedy hereunder shall operate as a waiver thereof. No single or partial exercise of an right y g or remedy by the OEI shall preclude future exercise thereof or the exercise of any other right or remedy. 10.10 Counterparts. This Contract may executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 1 0.11 Survival of Representations All representations and warranties made herein or in any other Contract document or in certificates given pursuant hereto or thereto shall survive the execution and delivery of this Contract and the other Contract documents and shall continue in full force and effect with respect to the date as of which they were made until all of Recipient's obligations or liabilities under this Contract have been satisfied. 10.12 Severability of Provisions Any provision of this Contract which is unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. All rights, remedies and powers provided in this Contract or any other Contract document may be exercised only to the extent that the exercise thereof does not violate any applicable mandatory provisions of law, and all the provisions of this Contract and any other Contract document are intended to be subject to all applicable mandatory provisions of law which may be controlling and to be limited to the extent necessary so that they will not render this Contract or any other Contract document invalid or unenforceable. 1 0.13 Successors and Assigns. This Contract shall be binding upon the Recipient and its respective successors and assigns, and shall inure to the benefit of the OEI and the benefit of their respective successors and assigns. The Recipient may not assign its rights hereunder without the written consent of the 4EI, which consent will not be unreasonably withheld. 10.14 Termination. This Contract can be terminated upon mutual, written agreement of the Recipient and the OEI. Contract #09- 1PF -25 _18- 10. 15 Integration. This Contract contains the entire understanding between the Recipient and the OEI relating to the Project and any representations that may have been made before or after the signing of this Contract which are not contained herein, are nonbinding, void and of no effect. None of the Parties have relied on any such prior representation in entering into this Contract. INVITNESS WHEREOF in consideration of the mutual covenants set forth above and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties have entered into this Contract and have caused their duly authorized representatives to execute this Contract, effective as of the latest date stated below (the "Contract Effective Date " ). Signature page to follow. FOR OEI: FOR RECIPIENT: BY: BY: Z && S/& k i9r; � Roya Stargy, Director Signature Michael C. Van Milligen, City Manager Typed Na e and Title &,910 � O ICJ Date Date Contract #09- iPF -25 -19- M LIST OF EXHIBITS Exhibit A -- Recipients' Financial Assistance Application (on file with Office of Energy Independence), Application #09 -08 -1244 Exhibit B -- Description of the Project and Award Budget Exhibit G Memorandum of Understanding Between The City of Dubuque and the Interstate Light and Power Company for The Sustainable Dubuque AMI Pilot Project Exhibit D- Joint Development Agreement No. W1055610 Between the City of Dubuque and the International Business Machines Corporation Exhibit E- April 7, 2010 letter from Barry A. Lindahl, Esq., Dubuque City Attorney, to the Iowa Power Fund. Contract #09- 1PF -25 -20- Exhibit A Recipient's Financial Assistance Application, Application # 09 -08 --1224 (on file with Office of Energy Independence) Contract #09- IPF -25 -21- Exhibit B Description of the Project and Award Budget Name of Recipients: Award Date: Project Completion Date: City of Dubuque Iowa February 10, 2010 December 31, 2011 ROJECT DESCRIPTION Contract #09- IPF -25 -22- _ - _ - -- - - =; =: SOURCE OF FUNDS USE OF :FUNDS:: =_ � _ _ _ - - - =_ F AMOUNT --_ _ �= � - - - _= owa ower- and -_= _ =_= - - -_ _ -_ _ _ _ -__ Research -and deveio n�ent of ISS -_ ___= _ _= - _ _ - 1 - 400 OOO - _, , - CB_G = Funds -_ - = = Research and develo merit -vf -ISS _= = - 1 49 ,000 = _ == _ City of Dubuque `_ _ -__: _ =- Contradt with IBM or 850 a0a= 7 6 0 __ _ -- , 5 ,000 funds committed �n -- _ - - ..:.... -. -- . City - -CIP to =__ == -- -- - - = - =- co lete 3 e P = - = =- __- Y ar prpcess of rep_ = lacing all 22 - _ — - - -- - - -- _ _ -- - - Dubuqu - - - - -- == -- - - - - -_ __ -- _- _ resi entia wa ter. meters wit smart water_ meters _: _ -____ _ _ _ - _$1,690,000 - - ____- =___- partment of _ _Natu Iowa De = _ = = - - ral -Res - -_ - -- --- _ :_ = -: ources Clean Water SRF - -- -_= _ - Installation _vf smart water-me ters - == - - - $1OOo,a00 _ -City of Dubuque - . -_ - : - -- __ =_ Salaries 1 FTE Smart Sus �n -- - - _ _ - _ - to _ability Dubuque Project: Manager, - .. -.. -- ... 5 :FTE Sus = - i -_ °- : , - = == _ = - - = - � -- __- :_ .. - a na f oor �nator, ministrat�ve S u ort = - __ =: -- _- - -- =_ -- _� 2Q Q;aao n ty Foundation of Greater - -_ _ _ = Community Engagement process (website, public meetings, Dubuque = _ _ _ - suppli es, mar ketin - 250 000 -: - - $ 1 Interstate - Power :and: i qht - _ _ -_ _ - __ - _ _ Install of AMI_l'Ilot Meters- in1 a0o households - - _ -- $400s000-: Tot O ther Fundi _ — PERFORMANCE MEASURES Deliver quarterly progress reports to the office of Energy Independence including updated project development timelines, project progress and implementation, -job hours spent, receipts and invoices for reimbursements related work requested for reimbursement to the office of Energy Independence. DISBURSEMENT = DETAIL The milestones listed below are the deliverables required when Recipients are eligible to request a disbursement, subject to satisfaction of all of the conditions to disbursement as outlined in Article 6.1; No funds shall be disbursed until OEI reviews and approves of the Quarterly Project Status Reports required in Article 8.6. The schedule below is based on satisfactory completion of interim quarterly progress reports, office of Energy Independence staff evaluation of the project, project site visits, and timely reporting of all project development timelines, project progress, job hours spent on the project by the City of Dubuque and International Business Machines on the project, tracking and reporting. Deliver quarterly progress reports by 15 days following every quarter that will include: Quarterly Status Reports The Quarterly Project Status Reports will collect information from the Recipient about the status of the project. This report will collect information that includes, but is not limited to: A description of the use and effectiveness of the moneys granted; data such as project expenditures; any changes to the Recipient's benefits, ownership, structure, or control of the Recipient; amount of new money from non - governmental sources; progress toward meeting performance measures; financial' data necessary to determine repayment amounts due under Article 5.5 and any other information required by the 00. Further definition of the deliverables can be found in the Statement of Work of Exhibit C to this Agreement. Contract #09- IPF -25 -23- Contract #09 -1 P F -25 -24- Due Date • Readiness of the project, including project plan and overall May 15, 2010 Research progress Payment due on deliverables $75,000 • Performance report • Progress of requirements gathered and overall Research July 15, 2010 progress • Initial outreach, education and marketing plan • Project management plan • Criteria for selection of 1000 pilot recipients (including criteria for scientific validity) • Progress on the development of draft design of the research prototype Payment due on deliverables $200,000 • Progress made in identifying data sources, frequency of data updates and overall Research progress September 15, 2010 ■ Performance Report • Education and marketing updates • Project management updates Payment due on deliverables $200,000 • Progress in developing tools for automated data gathering, and warehousing from smart meters and Jan 15, 2011 overall Research progress • Performance report ■ Education and marketing updates ■ Project management updates • Evidence of the selection of 1000 pilot recipients. ■ Evidence of the installation of 1000 AM I meters Payment due on deliverables $225,000 • Progress on end to end integration of data from the meters into the Prototype Service and overall Research April 15, 2011 progress • Performance report • Education and marketing updates • Project management updates - ■ Incentive programs offered including successes and failures • Electrical usage data, and other aggregate data being collected by the City of Dubuque or other involved parties as a result of this award. Payment due on deliverables $175,000 Contract #09 -1 P F -25 -24- • Progress on end to end integration of data from the meters into the July 15, 2011 • Prototype Service and overall Research progress., • Education and marketing updates • Project management updates Payment due on deliverables $175,000 • Progress of the demonstration of the Prototype Service and overall Research progress September 15, 2011 • Education and marketing updates • Project management updates Payment due on deliverables $175,000 • Project summary, included lessons learned regarding analysis of consumption data, and insight on how the January 15, 2012 Prototype Service was used. • Electrical usage data, and other aggregate data being collected by the City of Dubuque or other involved parties as a result of this award. Payment due on deliverables $175,00.0 Contract #09- IPF -25 -25- Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Advanced Metering Infrastructure Project with Interstate Power and Light Company and International Business Machines Corporation; Iowa Power Fund Board Contract DATE: April 27, 2010 Dubuque All- America City 111111! 2007 As part of our Smarter Sustainable Dubuque Initiative, we are proposing to work with IBM, and Interstate Power and Light on the Smart Metering and Measurement of electrical energy utilization in Dubuque. IBM would develop a prototype service using Web portals to access the prototype service running on IBM servers that would allow City management and electric utility customers to monitor electric energy consumption on a near real -time basis in order to better control and reduce the consumption of electric energy. IBM will develop the software tools for collecting, updating and processing the Data provided by the volunteers participating in the project for use for the Prototype Service; providing written reports to the City on the progress and results of the project; and demonstrating the Prototype Service to the City and other Iowa government agencies as agreed by the parties. The City is willing to provide funding for the project subject to approval of the project by the Iowa Power Fund. The City will identify volunteers among its residents to participate in this project; work with Interstate Power and Light Company on the installation of smart meters with two -way communication capability necessary for the project; provide the volunteers' energy consumption data to IBM in an anonymized form, interface with the volunteers to answer questions about the Prototype Service, work with IBM to analyze the results, and provide IBM with feedback on the results. Interstate Power and Light Company will install 1000 Advanced Metering Infrastructure meters for project participants in Dubuque, Iowa and provide the individual customer electricity usage and related data as described to the City for restricted display on a web portal and for independent analysis in accordance with the City's research objectives for the project and for the City to provide any and all analysis and reports resulting from such analysis to Interstate Power and Light Company as a result of the project. To achieve these goals, Smarter Sustainable Dubuque Project Manager David Lyons recommended that the City enter into agreements with IBM and Interstate Power and Light Company. Those agreements were approved by the City Council at a special meeting on April 12, 2010. The Iowa Power Fund Board has tentatively approved a grant of $1.4 Million Dollars for the project, subject to some revisions to the agreements with IBM and Interstate Power and Light Company. The revised agreements with redlined versions showing the changes from the agreement approved April 12, 2010 are attached. The agreement with Interstate Power and Light Company has been revised to eliminate the ability of either party to terminate the agreement "for convenience." The Iowa Power Fund Board wanted assurance that the agreement would not be terminated except for the specific causes set out in the agreement. The primary change in the agreement with IBM is the payment schedule. The Iowa Power Fund Board has established a payment schedule for payments made by the Power Fund to the City. Ideally, that payment schedule would coincide with the City's payment schedule to IBM. For accounting reasons, however, IBM has provided a separate payment schedule for payments from the City to IBM. IBM has requested to receive payment from the City by the first of each calendar quarter to keep a level payment term. The City would be paying IBM an advance of no more than $175,000 each calendar quarter for no longer than 30 days prior to receiving the Iowa Power Funds from the State. In the unlikely event that the project costs of the advanced metering infrastructure project were less than projected, the amount of the Iowa Power Fund grant would be reduced by the same pro -rata share of cost reduction. The City of Dubuque would still be liable to IBM for the payment terms included in the joint development agreement, however section 6.2 of the joint development agreement between the City of Dubuque and IBM states that the City can terminate the agreement at the end of any calendar quarter with written notice to IBM sent not Tess than thirty days prior to the end of that quarter, on the condition that the City pays IBM the payment due at the beginning of the next calendar quarter commending after the effective date of the termination. The contract between the City and the Iowa Power Fund Board provides for a grant not to exceed $1.4 Million Dollars in consideration for the City's completion of the project, which is creating a Sustainability Service model for measurement and monitoring of energy and water systems. The City also agrees to facilitate replication of the technology developed by the project and to facilitate sharing success payments if the technology developed by the project is commercially deployed. The contract establishes a reporting and payment schedule. In September 2009, the Mayor and City Council approved a Smarter City partnership with IBM. IBM and Dubuque are bound by a common commitment to aggressive innovation —the kind of innovation that has transformed the oldest city in Iowa to become one of the newest and strongest regional economies in the country. This partnership is intended to demonstrate that sustainability can be sustainable. Dubuque is a community that clearly understands IBM's vision for a Smarter Planet, and is uniquely positioned for IBM's needs through a decade of work on sustainability. This is an opportunity to create a replicable business model for IBM and for future sustainable, smarter cities across the country. This is the right opportunity to contribute to the creation of a Smarter Planet. This project seeks to provide information to citizens so that they can make smarter choices related to energy consumption. The program outlines a pilot project of citizens who through advanced technology will be able to actively participate in managing consumption of energy. It is a model that results in community engagement and education, more energy - efficient ways of operating municipal services and buildings, decreased carbon emissions, job creation, financial savings, and a higher quality of life for the entire community. The City has already begun the water conservation component of this project. This will be the electrical energy component. The City will continue to seek to expand the electrical energy component and to implement the natural gas, transportation and wellness components. respectfully recommend Mayor and City Council approval of the contract with the Iowa Power Fund Board and the revised agreements with Interstate Power and Light Company and IBM. MCVM:bal Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager David Lyons, Project Manager Michael C. Van Milligen Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: IBM /City of Dubuque Smarter City Partnership DATE: September 16, 2009 Dubuque 2007 In 1982, there was a national recession and the State of Iowa had an unemployment rate of 8.5 %. However, armed with a comprehensive plan dated 1936, and an over dependence on a few employers for jobs, the City of Dubuque had an unemployment rate in 1982 of 14.2 %, or 67% higher than the rest of the State. For the entire decade of the 1980's, the City's unemployment rate was 35% higher than the State unemployment rate. Today the City has taken the position to plan, invest and take calculated risks, and the national unemployment rate is 9.4 %, while the City of Dubuque unemployment rate is 6.3 %, 33% lower than the national rate. In 2007, Dubuque was recognized by the National League of Cities as an All- America City, and in 2008 by the U.S. Conference of Mayors as The Most Livable City in the United States for a city under 100,000 population. The America's River Project and the Port of Dubuque redevelopment have received many awards, including the 2005 Phoenix Award for Excellence in Brownfield Redevelopment for U.S. E.P.A. Region 7 and the 2004 Achievement in Economic Development Award from the International Downtown Association. Now, a new opportunity is presenting itself. Mayor Roy Buol and the Dubuque City Council have made sustainability a top priority. A community task force has received significant community input over a two -year period, creating the community's definition of sustainability as a livable, viable and equitable community with environmental/ ecological integrity, economic prosperity and cultural /social vibrancy. It is my pleasure to present an unparalleled opportunity for cooperation and innovation between IBM and the City of Dubuque. Dubuque is a community that clearly understands IBM's vision for a Smarter Planet, and is uniquely positioned for IBM's needs through a decade of work on sustainability. This is an opportunity to create a replicable business model for IBM and for future sustainable, smarter cities across the country. This is the right opportunity to contribute to the creation of a Smarter Planet. 1IPage IBM and Dubuque are bound by a common commitment to aggressive innovation —the kind of innovation that has transformed the oldest city in Iowa to become one of the newest and strongest regional economies in the country. This partnership is intended to demonstrate that sustainability can be sustainable. January 15, 2009, marked the announcement that IBM planned to establish a Global Service Center in Dubuque. Following rigorous competition from many other cities across the country, the decision to locate 1,300 jobs in the historic downtown Roshek Building was lauded by local leaders as the nation sunk into what has been described as the most serious recession since the Great Depression. IBM leaders sited three reasons for the selection 1) strong public - private partnerships 2) strong foundation of education in the region and 3) Sustainable Dubuque – the Mayor and Council led- citizen supported initiative. As work began to restore the Roshek Building, another opportunity arose. IBM Vice - President Robert Morris of the Watson Research Center arrived in Dubuque. His visit in early February identified the possibility of partnering with Dubuque in several areas, including Smart Cities research, instrumentation, intelligence and interconnection. Over the past six months City staff have met through teleconference, videoconference and in person with IBM staff. There have been meetings and visits with elected officials and federal department staff and time spent working with IBM on this project. Of the areas of focus identified by Mr. Morris and his team, City staff and IBMers agreed to focus on the Smarter City Initiative. The City and IBM will partner to create a groundbreaking model for cities with populations of 200,000 or less, where over 40% of the United State's population lives. This project seeks to provide information to citizens so that they can make smarter choices related to energy consumption. The program outlines a pilot project of citizens and businesses who through advanced technology will be able to actively participate in managing consumption of energy. Dubuque's compelling community story and accomplishments in sustainability form a model for other communities across the nation to learn from in order to effect change. This model can be replicated in any community, particularly communities under 200,000, where 40% of the United States population resides. It is a model that results in community engagement and education, more energy- efficient ways of operating municipal services and buildings, decreased carbon emissions, job creation, financial savings, and a higher quality of life for the entire community. Cities are in search of a bold and transformational agenda, a road map that will ignite community engagement and create real results in relationship to sustainability. Dubuque has proven its ability to excite and engage citizens through past projects, including Sustainable Dubuque. Dubuque proposes to build upon its successes in partnering with businesses, non - profits, and residents to reduce energy use, lower 21 Page costs, create jobs and increase quality of life indicators such as air and water quality. The project will do so by engaging initially 250 pilot households, eventually expanding to 1,000 and beyond, in a community -wide data collection campaign. Those pilot participants will track their water consumption, energy consumption, and, in future phases, vehicle miles traveled. Based on the data collected, citizens can make educated decisions about their energy use. Dubuque's sustainability initiative is based on a multi -step process that is undertaken in every major public and private initiative in the City. That process creates a model for communities across the country: 1) Engage citizens 2) Develop and define vision and goals 3) Identify strategies and methods to implement goals 4) Collect and disseminate information 5) Targeted community education based on collected data 6) Interface technology in response to data and analysis and optimize outcomes. New technologies are capable of digitizing and connecting City systems, so they can sense, analyze and integrate data, and respond intelligently to the needs of citizens. IBM, the City of Dubuque, and other partners will revitalize the City's systems to become smarter and more efficient in order to meet the City's vision for sustainability. Locally, the effort will be led by Smart City Project Manager David Lyons. David served as Chief Business Development Officer for the Iowa Farm Bureau Federation before becoming involved with this project. At the Iowa Farm Bureau, David worked to increase business opportunities and choices for Iowa's producers, with particular focus on growing value added agriculture and improving rural infrastructure. Prior to joining the Iowa Farm Bureau in 2000, David was Director of the Iowa Department of Economic Development, Insurance Commissioner for the State of Iowa and Legal Counsel with the Iowa Legislature. During his service with the State, David spearheaded numerous special State projects including the Iowa Trust Receivership, the Iowa Health Care Reform Council and the Food Capitol of the World Initiative. He received his undergraduate degree from Loras College in Dubuque and his law degree from the University of Iowa. Consistent with the City's emphasis on partnerships, many organizations are making important contributions to this project, including Alliant Energy, Black Hills Energy,.the Historic Millwork District property owners, Dubuque Initiatives, the Federal and State governments, ECIA, the Community Foundation of Greater Dubuque, the Dubuque Area Chamber of Commerce, the Greater Dubuque Development Corporation, Dubuque Main Street, AY McDonald Manufacturing, the Dubuque Racing Association and others are helping to make this work. As you know, the Dubuque Area Chamber of Commerce and the Community Foundation of Greater Dubuque are partnering on a community dialogue on 3IPage sustainability titled Dubuque that is funded by the Mystique Casino. This project complements that effort. Later today, the City of Dubuque will be hosting U.S. Department of Transportation Secretary Ray LaHood, U.S. Housing and Urban Development Secretary Shaun Donovan and U.S. Environmental Protection Agency Secretary Lisa P. Jackson. This IBM /City of Dubuque Smarter City Partnership matches well with the intent of their visit as they discuss the sustainability partnership they have created amongst those agencies as they lead the country forward. I am recommending the City provide $850,000 towards this project from the Water Fund. Even with this expense, and some additional expenses related to the project, capacity exists within the Water Fund. The Fiscal Year 2010 adopted budget included an increase to City water rates of 5 %. The City -wide installation of new water meters and a low flow metering device manufactured by AY McDonald, as well as financing the meter change -out project with debt over a 20 -year term, rather than a 15 -year term, produces the possibility to reduce the water rate increase in Fiscal Year 2010 by 2 %. Through better monitoring of Water Department energy usage, it is hoped that further reductions in the cost of the City processing and delivering water will be possible. As the City installs new water meters, I am further recommending that the City budget $10,000 this fiscal year, and additional amounts in future years, to assist property owners with matching funds for the repair of water leaks. I am also recommending approval of the contract with David Lyons to manage this project. City funds have been identified for this purpose, but Federal and State grants might support this position and future phases of this Smarter City Project. Should the City not receive Federal or State grant funds, which it is anticipated the City will receive some grant funds, the City has sufficient capacity within the Water Department budget and other sources where savings have been realized, to provide the City funds needed to support Phase I of the pilot program expenses. The pilot project will not be able to be as robust as hoped without outside grant dollars, it may take longer to complete, and it will create a higher hurdle for community -wide implementation. The City has applied for the following grants: Grants Showcase Communities Community Renewable Energy Deployment Industrial Energy Efficiency TIGER Submitted To US Environmental Protection Agency US Department of Energy US Department of Energy US Department of Transportation Amount $ 500,000 $ 6,000,000 $19,854,150 $49,799,979 These four grants bring the total number of grants submitted by the City of Dubuque to State or Federal stimulus /funding programs to seventeen, with fourteen grant 4IPage applications still in progress. The City of Dubuque has received $10.6 million in funds to date, and the City now has $85.7 million pending in grant requests submitted. Sustainability has a hidden benefit. Sustainability is an opportunity for Dubuque to continue to diversify the economy and to perform better than the rest of the State and the nation on job creation. Just look at sustainability as another new market, as the automobile industry was in the early 1900's, the airline industry in the 1940's, computer hardware in the 1970's, and computer software in the 1980's. The businesses and industries in Dubuque have a chance to be on the cutting edge of developing products and services that will be in demand across the world as there is a move to more efficiently use energy resources and water. The City's sustainability effort, and specifically the IBM /City of Dubuque Smart City Partnership, could be more than we ever dreamed it could be. Not only will the IBM /City of Dubuque Smart City partnership save businesses and individuals money, create jobs, contribute to local and national energy independence, help brand the community to help recruit businesses and workforce, create a major recruitment tool for the three colleges to entice students, and bolster the convention and tourism business, but it will accelerate local business growth. As Vice - President of IBM Research Robert Morris has said, "The goal of this collaboration is to develop and pilot a systematic mechanism to give consumers and businesses the information they need to make informed decisions about how they consume resources like electricity, water, natural gas, and oil. To create such a mechanism, a partnership is needed between a community with a track record of successful public - private partnerships, citizens and businesses that believe in sustainability, and enterprises like IBM that have the information technology and knowledge to apply to this transformative partnership." My thanks to David Lyons, Greater Dubuque Development Corporation Executive Director and Chief Operating Officer Rick Dickinson, City Attorney Barry Lindahl, Assistant City Manager Cindy Steinhauser, Assistant City Manager Teri Goodmann, Public Information Officer Randy Gehl and Stimulus Coordinator Cori Burbach for all they have done to make this partnership a reality. Specifically, I am respectfully recommending Mayor and City Council approval of four items: 1. Authority to finalize negotiations on the IBM Services Agreement, as detailed in the memorandum from Assistant City Manager Cindy Steinhauser. 2. Authorization to commit $850,000 in Water Department funds and approval of a 2% water rate reduction for the current fiscal year. 3. Authorization to execute a contract with David Lyons to serve as the City's Project Manager for the Smarter City Project. 5IPage 4. Approval of several Federal grant applications that will not only support this partnership, but lead to the construction of the Southwest Arterial and support redevelopment of the Historic Millwork District. MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Cori Burbach, Stimulus Coordinator David Lyons, Project Manager Michael C. Van Milligen 6IPage 04/28/10 SPECIAL CITY COUNCIL MEETING IBM COUNCIL ITEM The following documents are enclosed regarding the 04/28/10 IBM Council item. 1. Resolution Accepting Amendment and Agreements; 2. Memorandum of Understanding Between the City of Dubuque and Interstate Power and Light Company for the Sustainable Dubuque AMI Pilot Project— redline 3. Memorandum of Understanding Between the City of Dubuque and Interstate Power and Light Company for the Sustainable Dubuque AMI Pilot Project — clean 4. April 27, 2010 Kearney email 5. Amendment 1 to the Joint Development Agreement (W01055610) 6. Joint Development Agreement — redline 7. Joint Development Agreement — clean 8. Iowa Power Fund Board Contract No. 09- IPF -25 RESOLUTION NO. 124-10 APPROVING AGREEMENTS WITH INTERSTATE POWER AND LIGHT COMPANY AND INTERNATIONAL BUSINESS MACHINES CORPORATION FOR THE ADVANCED METERING INFRASTRUCTURE PROJECT AND APPROVING AN IOWA POWER FUND BOARD CONTRACT FOR A GRANT FOR THE PROJECT Whereas, the City of Dubuque (City) as part of its Smarter Sustainable Dubuque Initiative is proposing to work with International Business Machines Corporation (IBM) and Interstate Power and Light Company (IPL) on the Smart Metering and Measurement of electrical energy utilization in Dubuque; and Whereas, IBM will work on developing a prototype service using Web portals to access the prototype service running on IBM servers that would allow City management and electric utility customers to monitor electric energy consumption on a near real -time basis in order to better control and reduce the consumption of electric energy; and Whereas, IBM will work on developing the software tools for collecting, updating and processing the Data provided by the volunteers participating in the project for use for the Prototype Service; providing written reports to the City on the progress and results of the project; and demonstrating the Prototype Service to the City and other Iowa government agencies as agreed by the parties; and Whereas, the City is willing to provide funding for the project subject to approval of the project by the Iowa Power Fund Board (Power Fund). The City will identify volunteers among its residents to participate in this project; work with City energy company, IPL on the installation of smart meters with two -way communication capability necessary for the project; provide the volunteers' energy consumption data to IBM in an anonymized form, interface with the volunteers to answer questions about the Prototype Service, work with IBM to analyze the results, and provide IBM with feedback on the results; and Whereas, IPL will install up to 1000 Advanced Metering Infrastructure meters for project participants in Dubuque, Iowa and provide the individual customer electricity usage and related data as described to the City for restricted display on a web portal and for independent analysis in accordance with the City's research objectives for the project and for the City to provide any and all analysis and reports resulting from such analysis to IPL as a result of the project; and Whereas, the Power Fund has tentatively approved a grant for the project. The contract between the City and the Power Fund provides for a grant not to exceed $1.4 Million Dollars in consideration for the City's completion of the project, which is creating a Sustainability Service model for measurement and monitoring of city energy and water systems. The City also agrees to facilitate replication of the technology developed by the project and to facilitate sharing success payments if the technology developed by the project is commercially deployed. The contract establishes a reporting and payment schedule; and Whereas, to achieve these goals, and as provided in the Power Fund contract, the City is required to enter into agreements with IBM and IPL; and Whereas, the City Council has determined that it is in the best interests of the City of Dubuque to approve an amendment to the Joint Development Agreement between the City of Dubuque and International Business Machines Corporation, the Memorandum of Understanding between the City of Dubuque and Interstate Power and Light Company for the Sustainable Dubuque AMI Pilot Project, and the Power Fund Contract Number 09- IPF -25, attached hereto. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. Amendment No. 1 to the Joint Development Agreement between the City of Dubuque and International Business Machines Corporation, the Memorandum of Understanding between the City of Dubuque and Interstate Power and Light Company for the Sustainable Dubuque AMI Pilot Project, and the Power Fund Contract Number 09- IPF -25 are hereby approved. Section 2. The City Manager is authorized and directed to sign the agreements on behalf of the City of Dubuque and to take such further action as he determines appropriate to implement the agreements. Passed, approved and adopted this day of aiD/J. Attest: Jeanne F. Schneider, City Clerk David T. Resnick, Mayor Pro -Tem F: \USERS \tsteckle \Lindahl \IBM Power Fund -AMI Pilot Project\ ResolutionApprovingAgreements _042810.doc , 2010. This Memorandum of Understanding (MOU) is made and entered into by and between the City of Dubuque (City) and Interstate Power and Light Company (IPL) to set forth the understandings and obligations of the parties pertaining to City's Sustainable Dubuque AMI Pilot Project to assess energy efficiency technologies (the Project). This MOU supersedes and replaces the MOU dated April 14, 2010. The terms and conditions govern work performed on the Project prior to the effective date below. 1. Scope /Objective MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF DUBUQUE AND INTERSTATE POWER AND LIGHT COMPANY FOR THE SUSTAINABLE DUBUQUE AMI PILOT PROJECT The overall objective of the Project is for IPL to install up to 1000 Advanced Metering Infrastructure (AMI) meters for Project participants in Dubuque, Iowa and to provide the individual customer electricity usage and related data as described in Exhibit D (the Data) to City for restricted display on a web portal and for independent analysis in accordance with the City's research objectives for the Project and for the City to provide any and all analysis, reports or other deliverables resulting from such analysis to IPL as a result of the Project. This MOU shall only relate to the activities described herein below and shall not relate to any other project, contract or obligation undertaken by the parties, either jointly or severally, including other IPL AMI or Smart Grid projects. IPL was not awarded an American Recovery and Reinvestment Act Smart Grid Investment Grant by the U.S. Department of Energy for a proposed demand response pilot in Dubuque. In addition, in IPL's 2009 rate case order, IPL did not receive accelerated meter depreciation for its existing electric meters, causing a delay in its AMI deployment in Iowa. As a result, IPL is not implementing a demand response pilot in Dubuque itself as originally en_ visioned, but is supporting the City's Sustainable Dubuque AMI Pilot Project. 2. Term a. The term of this MOU shall commence on the date when the last of the two parties has executed this MOU and shall expire upon completion of both parties' Project obligations set forth herein, currently estimated to be no later than March 31, 2013. b. IPL may terminate this MOU upon prior written notice to City in the event City or its contractors, including IBM, breaches any term of this MOU, including but not limited to the Data restrictions set forth below. Draft 4 4-026 -2010 1 c. IPL may terminate this MOU upon prior written notice to City in the event that any submission by the City delays IPL's ability to commence interval Data submission after December 31, 2010, in which event no further action will be required by either party. d. If the Iowa Power Fund notifies City that it desires to terminate the Project or the portion of the Project for which IPL is responsible, within one day thereafter, City will notify IPL in writing that it is terminating the Project or such IPL portion at the request of the Iowa Power Fund and such notice will state an effective date of termination. , . written notice to the othcr party. fe. In the event of expiration or termination: • IPL will immediately cease providing Data to City and City will immediately cease providing anonymized Data to IBM. • City will stop displaying individualized customer usage Data on the portal. *City and IBM will have 90 days to producc any reports from thc Data rcceived prior to thc cffcctive date of tcrmination. • After such reports arc produced, copics will be provided to IPL as dcscribcd in Scction 'I below. • Nincty days aftcr the effcctivc datc of termination, City's and IBM's limited license to the use the Data shall terminate, subject to Sections 6.c and 6.d below, except that bethCity may retain one archival copy in electronic form and one archival copy in paper form and may only use such archival paper copies for on -site reviews by the Iowa Power Fund /Office of Energy Independence or the Iowa Utilities Board as described in Section 6.c below. • IBM's limited license to use the anonymized Data provided by the City shall be governed by Section 6.a and 6.d below. 3. Assumptions related to the Project a. The Project participants shall be current customers of IPL located within the areas specified on the map attached hereto as Exhibit A or such other areas as the parties may agree in writing. b. The Project participants shall be screened by IPL for elimination from participation in the Project for reasons, including but not limited to, insufficient network overage, irregular bill payment history, renter rather than homeowner, or other applicable criteria. c. Customer billing data will not be provided to City. d. IPL's participant screening and consent process will last approximately one (1) month after the final participant list is received from City. The target date for completion of this task is set forth in Section 7 below. e. The meter installation period will last approximately 26 weeks after the commencement of the term of this MOU. The target date for completion of this task is set forth in Section 7 below. Draft 4 -1-026 -2010 2 f. The Data will be collected starting approximately October 1, 2010, for a minimum two -year period for each participant or through December 31, 2012, whichever occurs earlier. g. Customer meters will be manually read and billed through the current billing process. h. Any task not specified herein is excluded from the scope of this MOU. i. IPL will not be offering new or incentive rates to electric customers as part of this Project. j. Meters installations may be subcontracted by IPL and all meters will be installed during the installation period commencing on or about July 1, 2010. k. IPL will not spend more than $400,000 to cover its activities and deliverables outlined in this MOU. 4. Obligations of City a. City shall provide IPL with a complete list of potential participants, including names, addresses, participant's Anonymous ID number, and other applicable information. City shall provide prompt periodic updates of this list to IPL for additional customers and removal of customers, including dropouts. No additions may be made after June 1, 2010 or when City has identified the list as complete to IPL, whichever is earlier. b. City shall provide secure test and production FTP sites with security as described herein and otherwise consistent with IPL policies and requirements. Data transmission must comply with best practices for file transfer using Secure FTP (SFTP or FTPS) as set forth in FIPS 140 -2. The target date for completion of this task is set forth in Section 7 below. c. The Data transmitted is confidential information and must be protected by City and its contractors from unauthorized use or users. User accounts must comply with the Password Guidelines attached hereto as Exhibit B and incorporated herein by this reference. d. City shall promptly refer any meter and billing related questions, inquiries, or complaints (e.g, can't hear meter, meter isn't transmitting, etc.) from participants to IPL for resolution, at 1- 866 - ALLIANT (255 -4268) or customercare Cc�alliantenergy.com. Any change to this process will be documented via a written modification of this MOU signed by both parties. e. City is the primary point of contact for participants regarding the Project. IPL is the primary point of contact for participants regarding meters. f. City may use the Data provided by IPL, subject to Section 6 below. g. City shall provide other deliverables to IPL for this Project as follows: • Reports, analysis, and derivative works resulting from the Data provided by the IPL with unlimited rights for IPL, promptly following acceptance of the final version by City from its consultant or promptly following submission if acceptance by City is not required — to include at a minimum, the information showing how customers changed their behavior and attained a heightened awareness of their energy usage. • Reports, analysis, and derivative works resulting from the "Iowa Power Fund Community Grant" with unlimited rights for IPL, promptly Draft 4 -1-026 -2010 3 following acceptance of the final version by City from its consultant or promptly following submission if acceptance by City is not required — to include at a minimum, the information showing how customers changed their behavior and attained a heightened awareness of their energy usage, energy savings and energy impacts to the community. • Reports, analysis, and derivative works resulting from the "Community Foundation of Greater Dubuque's EECBG ARRA Grant for the Greater Dubuque /State of Iowa Smarter Cities & Smarter State Retrofit Ramp -up" with unlimited rights for the IPL, promptly following acceptance of the final version by City from its consultant or promptly following submission if acceptance by City is not required — to include at a minimum, the information showing how customers changed their behavior and attained a heightened awareness of their energy usage, energy savings and energy impacts to the community. • IPL may use, reproduce, display, publish, or distributive, in whole or in part, any of City's deliverables and may create derivative works therefrom. h. City agrees to adhere to EEI's Customer Data Access Principles for AMI, as they may be amended from time, a current draft of which is attached hereto as Exhibit C and incorporated herein by this reference. City agrees to treat customer Data, including any inadvertent disclosures of personally identifiable information by IPL, City or its contractors, in accordance with the restrictions outlined therein for electric utilities and to be liable and responsible for lost or misused customer - related Data as stated herein and therein. i. In addition to approvals required by IPL's Corporate Communications director or manager under Section 9.c below, City shall promptly provide drafts of all communications that reference IPL, Alliant Energy, or electricity usage for review and written approval by IPL's Project Manager or Program Manager prior to publication or distribution. IPL shall have a reasonable period of time to review such submissions. 5. Obligations of IPL a. IPL shall develop and provide to City screening criteria that IPL will use in screening potential Project participants from the potential participants identified by City. b. IPL shall screen potential Project participants in accordance with such criteria prior to meter installations. c. Meter installations will begin after the participants have been identified, the complete list of potential participants as outlined in section 4.a is received by IPL from City in a mutually agreed upon electronic format, the participants are screened by IPL and participants have agreed to participate in writing or through other verifiable means sufficient to meet IPL's obligations for customer consent for release of utility usage Data under applicable laws, regulations and policies. Draft 4 4026 -2010 4 6. Data d. IPL shall promptly approve or reject changes in the participants identified by City, including any replacements for drop -outs. The deadline for additions or replacements is outlined in Sections 4.a and 7. e. IPL shall address participants' questions, inquiries and complaints related to meters in accordance with its standard procedures for all customer inquiries at 1- 800 - ALLIANT (255 -4268) or customercare(�alliantenergy.com or through another referral method to be mutually agreed upon in a written modification to this MOU signed by both parties. f. IPL may drop any participants at any time for any reason, upon written notice to the City. g. IPL shall install meters at participants' locations after they have passed IPL's screening. h. IPL shall approve the security features of City's FTP site for Data before posting any Data to it, but that IPL shall have no liability associated therewith. IPL shall have the right to audit the security features of the FTP site at a mutually agreeable time upon request to City during or after the term of this MOU. i. IPL shall provide deliverables to the City for this Project as follows: • Data as further described in Section 6 below • Up to 1000 electric AMI meters configured for 1 hour interval reads including installation, trouble shooting, and repair /replacement. Of these electric AMI meters, up to 250 may be configured for 15- minute interval reads. j. IPL shall transfer any customer calls regarding the Project to City's call center at 1- 563 - 589 -4144 or email publicinfo(c�cityofdubuque.org. k. Meter shipment delays to IPL that will impact the meter installation target completion date will be promptly communicated to City. Meter delays will result in a minimum day for day schedule delay. a. City is granted a limited license to reproduce, use and sublicense the Data to IBM only in anonymized form. IBM's rights to the anonymized Data will be a limited, irrevocable, nonexclusive, worldwide, and fully paid -up license to use, reproduce and distribute the anonymized Data furnished by the City under its joint development agreement with IBM ( "JD Agreement ") for the following purposes: (i) as necessary to perform the work required of IBM by the JD Agreement for the Project; (ii) to demonstrate IBM's resulting Prototype Service (as defined in the JD Agreement) to third parties; (iii) to publish the results of the Project in scientific journals, periodicals, and conference papers and presentations; and (iv) for internal use for research purposes. IBM may not sublicense the anonymized Data to any third party. City will consult with IPL before modifying IBM's scope of work under the JD Agreement. b. City is granted a limited license to use and reproduce the Data in order to display the Data in a restricted web portal so that each customer may only view its own Data and no other customers may view a customer's Data. Draft 4 4026 -2010 5 c. City may not otherwise transfer, sell or license the individual customer Data supplied by IPL or used by the City to any third party in written or electronic form, including the Office of Energy Independence, the Iowa Utilities Board, or other communities in Iowa due to Iowa law restrictions on disclosure of such Data; however, provided that if an individual customer has consented to review by the following entities and has not withdrawn any such consent, the Office of Energy Independence and the Iowa Utilities Board may view individual customer Data at the City's offices where it is stored. Otherwise, the Office of Energy Independence, the Iowa Utilities Board, or other communities in Iowa may only view the aggregated Data as contained in the reports and presentations to be produced as part of the City's Project. d. Other than as set forth above, all Data will be used, reproduced, displayed, or published in reports only on an aggregated basis or as specifically approved in advance in writing by IPL. e. The foregoing limited licenses are granted contingent on all applicable terms of this MOU being incorporated into the JD Agreement between the City and IBM prior to the supply of any real Data to the City by IPL, including but not limited to applicable portions of Sections 6 and 9, a copy of which signed JD Agreement will be provided to IPL prior to IPL signing this MOU. Unless this MOU is terminated earlier, the City's rights to use the Data supplied by IPL pursuant this MOU in Section 6.b above expire upon completion of the deliverables or March 31, 2013, whichever occurs earlier. At such time or date, the City will remove and destroy all such Data from its electronic and written records (other than those allowed by Sections 2.e #, 6.a, 6.c and 6.d) and notify IPL that it has done so. f. Data files to be supplied by IPL will consist of the participant's Anonymous ID number and raw read Data files containing mutually agreed -to information that is normally read from the meter and is available from the Remote Network Interface (RNI) g. IPL will use commercially reasonable efforts to read meters and to transmit Data to City's secure FTP site at least one time per day. h. For meters designated as one -hour interval read meters, the interval Data reads will be a maximum of 24 one -hour increments per day. i. For meters designated as high - resolution 15- minute interval read meters the interval Data reads will be a maximum of 96 fifteen - minute increments per day and configured for 10 Watt/Hr. j. The parties will mutually agree on the file format for Data transmittals by April 2, 2010 in writing in which each party confirms that an attached or enclosed list is acceptable. k. Customer specific Data to be posted on City's website is for informational use by individual customer only. I. Data provided to City may not match a customer's bill so the Data provided may not be consistent with the actual bill data. m. Meter reader readings may not match the Data provided to City so the portal may not be consistent with the actual bill data. n. IPL will note readings in accordance with the list attached as Exhibit D in Data submitted for analysis. Draft 4 -1426 -2010 6 Deliverables Target Date IPL submits Sample Raw Interval Data to City February 26, 2010 (complete) City submits initial proposed participant list to IPL April 1, 2010 (complete) City submits final proposed participant list to IPL. No participant additions made after this date June 1, 2010 IPL completes screening and consent process for all participants July 1, 2010 City has its test and production FTP sites ready to accept Data June 30, 2010 IPL installs up to 1000 Electric AMI Meters October 1, 2010 Interval Data Provided by IPL to City — Start October 1, 2010 Data collection complete December 31, 2012 o. IPL may estimate a bill in lieu of performing actual meter reads, in its sole discretion. p. City is responsible for maintaining data relationships to any other data in its Project that is provided or obtained from any other source. q. Nothing contained in this MOU shall, by express grant, implication, estoppels or otherwise, create in City or its contractors any ownership, right, title, interest, or license in or to the Data supplied hereunder, except to the extent expressly set forth in this MOU. The Data is and will remain owned by IPL and its customers. r. IPL disclaims any responsibility, liability, or warranty related to the Data, including but not limited to, merchantability, fitness for a particular purpose, suitability, accuracy, or completeness. s. City represents and warrants that it has and will maintain adequate systems and other controls in place to protect the Data supplied by IPL in accordance with the requirements of this MOU. City agrees that it shall only post Data on the portal for which IPL has informed City that permission to do so has been received from the applicable customer. t. Data files for a participant will only be sent during the period that the participant has agreed to participate. 7. Schedules and Timelines Estimated Schedule Completion dates of IPL are contingent on City meeting the foregoing estimated target dates. Delays in meeting target dates for submissions to IPL will result in a minimum day for day delay in IPL meeting its target dates for providing deliverables. 8. Communication a. The parties will hold a kick -off meeting at a mutually agreeable time and location within two weeks after the effective date of this MOU. b. The parties will agree on a schedule of and format for continuing meetings or teleconferences throughout the Project at the kick -off meeting, which process 7 Draft 4 -1-026 -2010 will be subject to change over the Project. The initial agreement will be documented in meeting minutes after the kick -off meeting. c. Notices, demands, or other communications related to this MOU will be sent in writing by hand delivery or recognized overnight carrier service, although electronic mail notices may be sent for specific issues if e-mail is specifically allowed herein. 9. Other Considerations a. Each party will bear its own costs and liabilities of participating in this Project. Nothing contained herein shall prevent IPL from including such costs in a rate case. b. Nothing in this MOU shall be deemed to constitute or create a joint venture, partnership, or any type of permanent arrangement. The parties shall act in all matters related to this MOU as independent contractors. The employees of one party shall not be deemed employees of the other party. Nothing in this MOU shall grant to any party the right to make commitments of any kind or create any obligation, express or implied, for or on behalf of the other party without the prior written consent of the other party. c. No publicity or advertising will be released by City that directly or indirectly references that IPL is providing support for this Project or refers to IPL or uses IPL's name and /or logo (including the Alliant Energy name or logo), without IPL's prior written consent of its Corporate Communications director or manager. Similarly, IPL shall not release publicity or advertising concerning this Project without the prior written consent of City. Neither party, however, is precluded from revealing the contents of this MOU and the relationship of the parties to appropriate governmental agencies, a court of competent jurisdiction pursuant to a lawful order or a regulatory body having jurisdiction over such party. d. Each party will indemnify and hold harmless the other party against third party claims for losses, expenses, damages, and liability of any nature, including court costs and reasonable attorney's fees, arising out of or related to its Draft 4 -1-026 -2010 • Notices sent to IPL will be sent to: Interstate Power and Light Company c/o Alliant Energy Corporate Services, Inc. Attention: Debbie Branson, Program Manager 4902 N. Biltmore Lane Madison, WI 53718 -2148 E -mail: debbiebranson @alliantenergy.com • Notices sent to the City will be sent to: The City of Dubuque Attention: City Manager 90 West 13 Street Dubuque, Iowa 50301 E -mail: ctymgr @cityofdubuque.org 8 performance or non - performance under this MOU, including but not limited to, infringement claims, breach of confidentiality or Data access provisions, or adverse environmental effects. City and IPL will each maintain insurance sufficient to cover its obligations hereunder and will provide a certificate of such insurance to the other party upon request. e. Neither City nor its contractor, IBM, may assign or transfer its duties, interests, or obligations under this MOU without obtaining the prior written consent of IPL. f. Subject to Section 2.c above, a party shall not be in default because of any failure to perform or delay in performing this MOU if the failure or delay arises from causes beyond the control and without the fault or negligence of such party. Draft 4 4926 -2010 9 10. This MOU, along with Exhibits A, B, C, and D hereto, constitutes the complete agreement between the parties concerning its subject matter, and supersedes all prior oral and written communications between the parties with respect to the Project. No amendment to this MOU shall be binding unless agreed to in writing and executed by both parties. The City of Dubuque Interstate Power and Light Company By: By: Name: Name: Title: Title: Draft 4 4926 -2010 10 Draft 4 -4026 -2010 EXHIBIT A PROJECT AREA 11 Legend IBM Project Area User Passwords EXHIBIT B PASSWORD GUIDELINES Applicability: This standard applies to all passwords that are used on computer systems, terminals, data entry devices, and personal digital assistants (PDAs) that are maintained by the corporation, carry corporate information, or that connect to corporate networks or computer systems. This includes end user, shared, system and administrative passwords. Purpose: To reduce risks posed by simple, obvious, or easy to guess passwords. Standard: Passwords are often the first line of defense in maintaining appropriate access controls for access to corporate networks or computing resources. An easy to guess password can undermine the protection provided by user credentials, allowing an unauthorized user to view or modify information to which he or she would not normally have access. Most IT computers and applications will enforce the following criteria when updating your password: Password History - end users must change their password 12 times before an old password can be reused Password Length — The password must be between 7 and 16 characters long Password Complexity - The password contains characters from at least 3 of the following 5 categories: • English uppercase characters (A - Z) • English lowercase characters (a - z) • A number (0 - 9) • Non - alphanumeric (for example: !, $, #, or %) • Unicode Characters Does not contain the user account name Maximum password age Users must update their passwords every 60 days 1. Choose a good password. A good password shall be easy to remember so you don't have to write it down, but difficult for someone else to guess or "crack ". Here are some guidelines to assist • Password should not be a key sequence (i.e., 1234567, abcdefg, qwertyu) • Don't use repeated keys (e.g, aaa, 111, $$$). • Don't use dictionary words (ie.g, password, Iowa or Madison). • Use a Pass - Phrase (e.g, PasswordsAreFun!) • Substitute letters with special characters or numbers (e.g. a =@ e=3 i =1 0 =0 u =4 s =5) 'boating' made strong would be B0 @t1 ng System and Administrative Passwords: Access to administrative passwords is restricted to network or system administrators who require access to resources to perform job duties. Administrative passwords must meet at least the end user password standard with the following additions: 1. Administrative passwords will not be hard -coded in files or tables to create a login shortcut Draft 44026 -2010 13 2. System ID passwords may be hard -coded in files or tables to create a login shortcut 3. Storage and transmission of passwords must be encrypted. 4. Delivered systems will be secured by placing controls (administrative accounts that cannot be deleted or disabled will be secured with a strong password and, where possible, renamed) upon all default accounts (i.e., admin, root, super user, anonymous, guest). 5. Access to administrative or system accounts will be limited to a specific use and accounts with the lowest level of access will be utilized to apply changes 6. Systems must mask display of the password when entered by the user. 7. Invalid authentication attempts will not result in an account lockout for administrative or system accounts. Draft 4 -4026 -2010 14 Draft 4 -4026 -2010 EXHIBIT C CURRENT EEI CUSTOMER DATA ACCESS PRINCIPLES 15 Draft 4 -1-026 -2010 EXHIBIT D DATA FILE AND QUALITY FLAGS 16 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF DUBUQUE AND INTERSTATE POWER AND LIGHT COMPANY FOR THE SUSTAINABLE DUBUQUE AMI PILOT PROJECT This Memorandum of Understanding (MOU) is made and entered into by and between the City of Dubuque (City) and Interstate Power and Light Company (IPL) to set forth the understandings and obligations of the parties pertaining to City's Sustainable Dubuque AMI Pilot Project to assess energy efficiency technologies (the Project). This MOU supersedes and replaces the MOU dated April 14, 2010. The terms and conditions govern work performed on the Project prior to the effective date below. 1. Scope /Objective The overall objective of the Project is for IPL to install up to 1000 Advanced Metering Infrastructure (AMI) meters for Project participants in Dubuque, Iowa and to provide the individual customer electricity usage and related data as described in Exhibit D (the Data) to City for restricted display on a web portal and for independent analysis in accordance with the City's research objectives for the Project and for the City to provide any and all analysis, reports or other deliverables resulting from such analysis to IPL as a result of the Project. This MOU shall only relate to the activities described herein below and shall not relate to any other project, contract or obligation undertaken by the parties, either jointly or severally, including other IPL AMI or Smart Grid projects. IPL was not awarded an American Recovery and Reinvestment Act Smart Grid Investment Grant by the U.S. Department of Energy for a proposed demand response pilot in Dubuque. In addition, in IPL's 2009 rate case order, IPL did not receive accelerated meter depreciation for its existing electric meters, causing a delay in its AMI deployment in Iowa. As a result, IPL is not implementing a demand response pilot in Dubuque itself as originally envisioned, but is supporting the City's Sustainable Dubuque AMI Pilot Project. 2. Term a. The term of this MOU shall commence on the date when the last of the two parties has executed this MOU and shall expire upon completion of both parties' Project obligations set forth herein, currently estimated to be no later than March 31, 2013. b. IPL may terminate this MOU upon prior written notice to City in the event City or its contractors, including IBM, breaches any term of this MOU, including but not limited to the Data restrictions set forth below. Draft 4 -26 -2010 1 c. IPL may terminate this MOU upon prior written notice to City in the event that any submission by the City delays IPL's ability to commence interval Data submission after December 31, 2010, in which event no further action will be required by either party. d. If the Iowa Power Fund notifies City that it desires to terminate the Project or the portion of the Project for which IPL is responsible, within one day thereafter, City will notify IPL in writing that it is terminating the Project or such IPL portion at the request of the Iowa Power Fund and such notice will state an effective date of termination. e. In the event of expiration or termination: • IPL will immediately cease providing Data to City and City will immediately cease providing anonymized Data to IBM. • City will stop displaying individualized customer usage Data on the portal. • • City's limited license to the use the Data shall terminate, subject to Sections 6.c and 6.d below, except that City may retain one archival copy in electronic form and one archival copy in paper form and may only use such archival paper copies for on -site reviews by the Iowa Power Fund /Office of Energy Independence or the Iowa Utilities Board as described in Section 6.c below. • IBM's limited license to use the anonymized Data provided by the City shall be governed by Section 6.a and 6.d below. 3. Assumptions related to the Project a. The Project participants shall be current customers of IPL located within the areas specified on the map attached hereto as Exhibit A or such other areas as the parties may agree in writing. b. The Project participants shall be screened by IPL for elimination from participation in the Project for reasons, including but not limited to, insufficient network overage, irregular bill payment history, renter rather than homeowner, or other applicable criteria. c. Customer billing data will not be provided to City. d. IPL's participant screening and consent process will last approximately one (1) month after the final participant list is received from City. The target date for completion of this task is set forth in Section 7 below. e. The meter installation period will last approximately 26 weeks after the commencement of the term of this MOU. The target date for completion of this task is set forth in Section 7 below. f. The Data will be collected starting approximately October 1, 2010, for a minimum two -year period for each participant or through December 31, 2012, whichever occurs earlier. g. Customer meters will be manually read and billed through the current billing process. h. Any task not specified herein is excluded from the scope of this MOU. Draft 4 -26 -2010 2 i. IPL will not be offering new or incentive rates to electric customers as part of this Project. j. Meters installations may be subcontracted by IPL and all meters will be installed during the installation period commencing on or about July 1, 2010. k. IPL will not spend more than $400,000 to cover its activities and deliverables outlined in this MOU. 4. Obligations of City a. City shall provide IPL with a complete list of potential participants, including names, addresses, participant's Anonymous ID number, and other applicable information. City shall provide prompt periodic updates of this list to IPL for additional customers and removal of customers, including dropouts. No additions may be made after June 1, 2010 or when City has identified the list as complete to IPL, whichever is earlier. b. City shall provide secure test and production FTP sites with security as described herein and otherwise consistent with IPL policies and requirements. Data transmission must comply with best practices for file transfer using Secure FTP (SFTP or FTPS) as set forth in FIPS 140 -2. The target date for completion of this task is set forth in Section 7 below. c. The Data transmitted is confidential information and must be protected by City and its contractors from unauthorized use or users. ,User accounts must comply with the Password Guidelines attached hereto as Exhibit B and incorporated herein by this reference. d. City shall promptly refer any meter and billing related questions, inquiries, or complaints (e.g, can't hear meter, meter isn't transmitting, etc.) from participants to IPL for resolution, at 1- 866 - ALLIANT (255 -4268) or customercare (a� alliantenergy.com. Any change to this process will be documented via a written modification of this MOU signed by both parties. e. City is the primary point of contact for participants regarding the Project. IPL is the primary point of contact for participants regarding meters. f. City may use the Data provided by IPL, subject to Section 6 below. g. City shall provide other deliverables to IPL for this Project as follows: • Reports, analysis, and derivative works resulting from the Data provided by the IPL with unlimited rights for IPL, promptly following acceptance of the final version by City from its consultant or promptly following submission if acceptance by City is not required — to include at a minimum, the information showing how customers changed their behavior and attained a heightened awareness of their energy usage. • Reports, analysis, and derivative works resulting from the "Iowa Power Fund Community Grant" with unlimited rights for IPL, promptly following acceptance of the final version by City from its consultant or promptly following submission if acceptance by City is not required — to include at a minimum, the information showing how customers changed their behavior and attained a heightened awareness of their energy usage, energy savings and energy impacts to the community. Draft 4 -26 -2010 3 • Reports, analysis, and derivative works resulting from the "Community Foundation of Greater Dubuque's EECBG ARRA Grant for the Greater Dubuque /State of Iowa Smarter Cities & Smarter State Retrofit Ramp -up" with unlimited rights for the IPL, promptly following acceptance of the final version by City from its consultant or promptly following submission if acceptance by City is not required — to include at a minimum, the information showing how customers changed their behavior and attained a heightened awareness of their energy usage, energy savings and energy impacts to the community. • IPL may use, reproduce, display, publish, or distributive, in whole or in part, any of City's deliverables and may create derivative works therefrom. h. City agrees to adhere to EEI's Customer Data Access Principles for AMI, as they may be amended from time, a current draft of which is attached hereto as Exhibit C and incorporated herein by this reference. City agrees to treat customer Data, including any inadvertent disclosures of personally identifiable information by IPL, City or its contractors, in accordance with the restrictions outlined therein for electric utilities and to be liable and responsible for lost or misused customer - related Data as stated herein and therein. i. In addition to approvals required by IPL's Corporate Communications director or manager under Section 9.c below, City shall promptly provide drafts of all communications that reference IPL, Alliant Energy, or electricity usage for review and written approval by IPL's Project Manager or Program Manager prior to publication or distribution. IPL shall have a reasonable period of time to review such submissions. 5. Obligations of IPL a. IPL shall develop and provide to City screening criteria that IPL will use in screening potential Project participants from the potential participants identified by City. b. IPL shall screen potential Project participants in accordance with such criteria prior to meter installations. c. Meter installations will begin after the participants have been identified, the complete list of potential participants as outlined in section 4.a is received by IPL from City in a mutually agreed upon electronic format, the participants are screened by IPL and participants have agreed to participate in writing or through other verifiable means sufficient to meet IPL's obligations for customer consent for release of utility usage Data under applicable laws, regulations and policies. d. IPL shall promptly approve or reject changes in the participants identified by City, including any replacements for drop -outs. The deadline for additions or replacements is outlined in Sections 4.a and 7. e. IPL shall address participants' questions, inquiries and complaints related to meters in accordance with its standard procedures for all customer inquiries at 1- 800 - ALLIANT (255 -4268) or customercare Aalliantenergy.com or through Draft 4 -26 -2010 4 6. Data another referral method to be mutually agreed upon in a written modification to this MOU signed by both parties. f. IPL may drop any participants at any time for any reason, upon written notice to the City. g. IPL shall install meters at participants' locations after they have passed IPL's screening. h. IPL shall approve the security features of City's FTP site for Data before posting any Data to it, but that IPL shall have no liability associated therewith. IPL shall have the right to audit the security features of the FTP site at a mutually agreeable time upon request to City during or after the term of this MOU. i. IPL shall provide deliverables to the City for this Project as follows: • Data as further described in Section 6 below • Up to 1000 electric AMI meters configured for 1 hour interval reads including installation, trouble shooting, and repair /replacement. Of these electric AMI meters, up to 250 may be configured for 15- minute interval reads. j. IPL shall transfer any customer calls regarding the Project to City's call center at 1- 563 - 589 -4144 or email publicinfocityofdubuque.orq. k. Meter shipment delays to IPL that will impact the meter installation target completion date will be promptly communicated to City. Meter delays will result in a minimum day for day schedule delay. a. City is granted a limited license to reproduce, use and sublicense the Data to IBM only in anonymized form. IBM's rights to the anonymized Data will be a limited, irrevocable, nonexclusive, worldwide, and fully paid -up license to use, reproduce and distribute the anonymized Data furnished by the City under its joint development agreement with IBM ( "JD Agreement ") for the following purposes: (i) as necessary to perform the work required of IBM by the JD Agreement for the Project; (ii) to demonstrate IBM's resulting Prototype Service (as defined in the JD Agreement) to third parties; (iii) to publish the results of the Project in scientific journals, periodicals, and conference papers and presentations; and (iv) for internal use for research purposes. IBM may not sublicense the anonymized Data to any third party. City will consult with IPL before modifying IBM's scope of work under the JD Agreement. b. City is granted a limited license to use and reproduce the Data in order to display the Data in a restricted web portal so that each customer may only view its own Data and no other customers may view a customer's Data. c. City may not otherwise transfer, sell or license the individual customer Data supplied by IPL or used by the City to any third party in written or electronic form, including the Office of Energy Independence, the Iowa Utilities Board, or other communities in Iowa due to Iowa law restrictions on disclosure of such Data; however, provided that if an individual customer has consented to review by the following entities and has not withdrawn any such consent, the Office of Energy Independence and the Iowa Utilities Board may view Draft 4 -26 -2010 5 individual customer Data at the City's offices where it is stored. Otherwise, the Office of Energy Independence, the Iowa Utilities Board, or other communities in Iowa may only view the aggregated Data as contained in the reports and presentations to be produced as part of the City's Project. d. Other than as set forth above, all Data will be used, reproduced, displayed, or published in reports only on an aggregated basis or as specifically approved in advance in writing by IPL. e. The foregoing limited licenses are granted contingent on all applicable terms of this MOU being incorporated into the JD Agreement between the City and IBM prior to the supply of any real Data to the City by IPL, including but not limited to applicable portions of Sections 6 and 9, a copy of which signed JD Agreement will be provided to IPL prior to IPL signing this MOU. Unless this MOU is terminated earlier, the City's rights to use the Data supplied by IPL pursuant this MOU in Section 6.b above expire upon completion of the deliverables or March 31, 2013, whichever occurs earlier. At such time or date, the City will remove and destroy all such Data from its electronic and written records (other than those allowed by Sections 2.e, 6.a, 6.c and 6.d) and notify IPL that it has done so. f. Data files to be supplied by IPL will consist of the participant's Anonymous ID number and raw read Data files containing mutually agreed -to information that is normally read from the meter and is available from the Remote Network Interface (RNI) g. IPL will use commercially reasonable efforts to read meters and to transmit Data to City's secure FTP site at least one time per day. h. For meters designated as one -hour interval read meters, the interval Data reads will be a maximum of 24 one -hour increments per day. i. For meters designated as high - resolution 15- minute interval read meters the interval Data reads will be a maximum of 96 fifteen - minute increments per day and configured for 10 Watt/Hr. j. The parties will mutually agree on the file format for Data transmittals by April 2, 2010 in writing in which each party confirms that an attached or enclosed list is acceptable. k. Customer specific Data to be posted on City's website is for informational use by individual customer only. I. Data provided to City may not match a customer's bill so the Data provided may not be consistent with the actual bill data. m. Meter reader readings may not match the Data provided to City so the portal may not be consistent with the actual bill data. n. IPL will note readings in accordance with the list attached as Exhibit D in Data submitted for analysis. o. IPL may estimate a bill in lieu of performing actual meter reads, in its sole discretion. p. City is responsible for maintaining data relationships to any other data in its Project that is provided or obtained from any other source. q. Nothing contained in this MOU shall, by express grant, implication, estoppels or otherwise, create in City or its contractors any ownership, right, title, interest, or license in or to the Data supplied hereunder, except to the extent Draft 4 -26 -2010 6 Deliverables Target Date IPL submits Sample Raw Interval Data to City February 26, 2010 (complete) City submits initial proposed participant list to IPL April 1, 2010 (complete) City submits final proposed participant list to IPL. No participant additions made after this date June 1, 2010 IPL completes screening and consent process for all participants July 1, 2010 City has its test and production FTP sites ready to accept Data June 30, 2010 IPL installs up to 1000 Electric AMI Meters October 1, 2010 Interval Data Provided by IPL to City — Start October 1, 2010 Data collection complete December 31, 2012 expressly set forth in this MOU. The Data is and will remain owned by IPL and its customers. r. IPL disclaims any responsibility, liability, or warranty related to the Data, including but not limited to, merchantability, fitness for a particular purpose, suitability, accuracy, or completeness. s. City represents and warrants that it has and will maintain adequate systems and other controls in place to protect the Data supplied by IPL in accordance with the requirements of this MOU. City agrees that it shall only post Data on the portal for which IPL has informed City that permission to do so has been received from the applicable customer. t. Data files for a participant will only be sent during the period that the participant has agreed to participate. 7. Schedules and Timelines Estimated Schedule Completion dates of IPL are contingent on City meeting the foregoing estimated target dates. Delays in meeting target dates for submissions to IPL will result in a minimum day for day delay in IPL meeting its target dates for providing deliverables. 8. Communication a. The parties will hold a kick -off meeting at a mutually agreeable time and location within two weeks after the effective date of this MOU. b. The parties will agree on a schedule of and format for continuing meetings or teleconferences throughout the Project at the kick -off meeting, which process will be subject to change over the Project. The initial agreement will be documented in meeting minutes after the kick -off meeting. c. Notices, demands, or other communications related to this MOU will be sent in writing by hand delivery or recognized overnight carrier service, although electronic mail notices may be sent for specific issues if e-mail is specifically allowed herein. Draft 4 -26 -2010 7 9. Other Considerations a. Each party will bear its own costs and liabilities of participating in this Project. Nothing contained herein shall prevent IPL from including such costs in a rate case. b. Nothing in this MOU shall be deemed to constitute or create a joint venture, partnership, or any type of permanent arrangement. The parties shall act in all matters related to this MOU as independent contractors. The employees of one party shall not be deemed employees of the other party. Nothing in this MOU shall grant to any party the right to make commitments of any kind or create any obligation, express or implied, for or on behalf of the other party without the prior written consent of the other party. c. No publicity or advertising will be released by City that directly or indirectly references that IPL is providing support for this Project or refers to IPL or uses IPL's name and /or logo (including the Alliant Energy name or logo), without IPL's prior written consent of its Corporate Communications director or manager. Similarly, IPL shall not release publicity or advertising concerning this Project without the prior written consent of City. Neither party, however, is precluded from revealing the contents of this MOU and the relationship of the parties to appropriate governmental agencies, a court of competent jurisdiction pursuant to a lawful order or a regulatory body having jurisdiction over such party. d. Each party will indemnify and hold harmless the other party against third party claims for losses, expenses, damages, and liability of any nature, including court costs and reasonable attorney's fees, arising out of or related to its performance or non - performance under this MOU, including but not limited to, infringement claims, breach of confidentiality or Data access provisions, or adverse environmental effects. City and IPL will each maintain insurance sufficient to cover its obligations hereunder and will provide a certificate of such insurance to the other party upon request. Draft 4 -26 -2010 • Notices sent to IPL will be sent to: Interstate Power and Light Company c/o Alliant Energy Corporate Services, Inc. Attention: Debbie Branson, Program Manager 4902 N. Biltmore Lane Madison, WI 53718 -2148 E -mail: debbiebranson @alliantenergy.com • Notices sent to the City will be sent to: The City of Dubuque Attention: City Manager 90 West 13 Street Dubuque, Iowa 50301 E -mail: ctymgr @cityofdubuque.org 8 e. Neither City nor its contractor, IBM, may assign or transfer its duties, interests, or obligations under this MOU without obtaining the prior written consent of IPL. f. Subject to Section 2.c above, a party shall not be in default because of any failure to perform or delay in performing this MOU if the failure or delay arises from causes beyond the control and without the fault or negligence of such party. 10. This MOU, along with Exhibits A, B, C, and D hereto, constitutes the complete agreement between the parties concerning its subject matter, and supersedes all prior oral and written communications between the parties with respect to the Project. No amendment to this MOU shall be binding unless agreed to in writing and executed by both parties. The City of Dubuque Interstate Power and Light Company By: By: Name: Name: Title: Title: Draft 4 -26 -2010 9 Draft 4 -26 -2010 EXHIBIT A PROJECT AREA 10 Legend IBM Project Area User Passwords EXHIBIT B PASSWORD GUIDELINES Applicability: This standard applies to all passwords that are used on computer systems, terminals, data entry devices, and personal digital assistants (PDAs) that are maintained by the corporation, carry corporate information, or that connect to corporate networks or computer systems. This includes end user, shared, system and administrative passwords. Purpose: To reduce risks posed by simple, obvious, or easy to guess passwords. Standard: Passwords are often the first line of defense in maintaining appropriate access controls for access to corporate networks or computing resources. An easy to guess password can undermine the protection provided by user credentials, allowing an unauthorized user to view or modify information to which he or she would not normally have access. Most IT computers and applications will enforce the following criteria when updating your password: Password History - end users must change their password 12 times before an old password can be reused Password Length — The password must be between 7 and 16 characters long Password Complexity - The password contains characters from at least 3 of the following 5 categories: • English uppercase characters (A - Z) • English lowercase characters (a - z) • A number (0 - 9) • Non - alphanumeric (for example: !, $, #, or %) • Unicode Characters Does not contain the user account name Maximum password age Users must update their passwords every 60 days 1. Choose a good password. A good password shall be easy to remember so you don't have to write it down, but difficult for someone else to guess or "crack ". Here are some guidelines to assist • Password should not be a key sequence (i.e., 1234567, abcdefg, qwertyu) • Don't use repeated keys (e.g, aaa, 111, $$$). • Don't use dictionary words (ie.g, password, Iowa or Madison). • Use a Pass - Phrase (e.g, PasswordsAreFun!) • Substitute letters with special characters or numbers (e.g. a =@ e=3 i =1 o =0 u =4 s =5) 'boating' made strong would be B0 @t1 ng System and Administrative Passwords: Access to administrative passwords is restricted to network or system administrators who require access to resources to perform job duties. Administrative passwords must meet at least the end user password standard with the following additions: 1. Administrative passwords will not be hard -coded in files or tables to create a login shortcut Draft 4 -26 -2010 12 2. System ID passwords may be hard -coded in files or tables to create a login shortcut 3. Storage and transmission of passwords must be encrypted. 4. Delivered systems will be secured by placing controls (administrative accounts that cannot be deleted or disabled will be secured with a strong password and, where possible, renamed) upon all default accounts (i.e., admin, root, super user, anonymous, guest). 5. Access to administrative or system accounts will be limited to a specific use and accounts with the lowest level of access will be utilized to apply changes 6. Systems must mask display of the password when entered by the user. 7. Invalid authentication attempts will not result in an account lockout for administrative or system accounts. Draft 4 -26 -2010 13 Draft 4 -26 -2010 EXHIBIT C CURRENT EEI CUSTOMER DATA ACCESS PRINCIPLES 14 Draft 4 -26 -2010 EXHIBIT D DATA FILE AND QUALITY FLAGS 15 Tracey Stecklein - Fw: Joint Development Dubuque Revision Markup 042710ba1 From: Michael Kearney <mkearney @us.ibm.com> To: "Barry Lindahl" <balesq @cityofdubuque.org> Date: 4/27/2010 7:03 PM Subject: Fw: Joint Development Dubuque Revision Markup 042710ba1 CC: "Mike Van Milligen" <CtyMgr @cityofdubuque.org >, "David Lyons" <Dlyons @cityofdubuque.org >, "Jenny Larson" <Jlarson @cityofdubuque.org >, "Tracey Stecklein" <Tsteckle @cityofdubuque.org >, Patrick D Canavan <canavan@usibm.com>, Milind Naphade <naphade @us.ibm.com> Attachments: Dubuque JDA Amendment One 04- 27- 10.doc; City of Dubuque W1055610 L105986.pdf; Joint Development Dubuque Revision Markup 042710bal- mk.doc; Joint Development Dubuque Final W1044510 Amendment 04- 27- 10.doc; Joint Development Dubuque Revision Markup 042710bal.doc Barry... I spoke with our contracts and fmance teams and we do need to go the Amendment route unless we terminate the old one give it a new Agreement and license number since it's already been recorded in IBM's legal and financial systems. I hope this Amendment to the previously signed agreement will work for Dubuque. It is consistent with the changes we have agreed to in the markups. (See attached file: Dubuque JDA Amendment One 04- 27 -10. doc) (See attached file: City of Dubuque W1055610L105986.pdJ) Regards, Michael Kearney Business Development Executive IBM Research Division cell - 980 - 621 -5301 Forwarded by Michael Kearney /Charlotte /IBM on 04/27/2010 07:55 PM Page 1 of 2 From: Michael Kearney /Charlotte/IBM To: "Barry Lindahl" <balesq @cityofdubuque.org> Cc: "Mike Van Milligen" <CtyMgr @cityofdubuque.org >, "David Lyons" <Dlyons @cityofdubuque.org >, "Jenny Larson" <Jlarson @cityofdubuque.org >, "Tracey Stecklein" <I'steckle @cityofdubuque.org >, Patrick D Canavan/Watson/IBM @IBMUS, Milind Naphade /Watson/IBM Date: 04/27/2010 05:01 PM Subject: Fw: Joint Development Dubuque Revision Markup 042710ba1 Barry... I have made one additional change at the end of Section 1.3 to accommodate the last request by IPF. (See attached file: Joint Development Dubuque Revision Markup 042710ba1 -mk. doc) Also... here is a compilation of the changes made since the Mayor and IBM signed on April 13th. We'll need to create an amendment to the original signed contract which reflects these changes. (See attached file: Joint Development Dubuque Final W1044510 Amendment 04-27-10.doc) I hope all goes well with the City Council meeting tomorrow. Regards, Michael Kearney Business Development Executive file: / /C: \Documents and Settings \tsteckle \Local Settings \Temp \XPgrpwise \4BD7351BDB... 4/28/2010 IBM Research Division cell - 980 - 621 -5301 Forwarded by Michael Kearney /Charlotte/IBM on 04/27/2010 04:57 PM From: "Barry Lindahl" <balesq @cityofdubuque.org> To: Michael Kearney /Charlotte/IBM@,IBMUS Cc: "Mike Van Milligen" <CtyMgr @cityofdubuque.org >, "David Lyons" <Dlyons @cityofdubuque.org >, "Jenny Larson" <Jlarson @cityofdubuque.org >, "Tracey Stecklein" <Tsteckle @cityofdubuque.org> Date: 04/27/2010 03:16 PM Subject: Joint Development Dubuque Revision Markup 042710ba1 Michael, I changed the payment dates to the first of the month and corrected one of the months to March. Dubuque All- Aitierica City 1 2007 (See attached file: Joint Development Dubuque Revision Markup 042710bal. doc) Page 2 of 2 file: / /C: \Documents and Settings \tsteckle \Local Settings \Temp \XPgrpwise \4BD7351BDB... 4/28/2010 AMENDMENT 1 TO THE JOINT DEVELOPMENT AGREEMENT (W01055610) This is Amendment 1 to the Joint Development Agreement (W01055610) ( "Agreement ") by and between the City of Dubuque ( "City ") and International Business Machines Corporation, through its T.J .Watson Research Center ( "IBM "). The Agreement shall be modified as follow: 1) Section 1.3 is amended to add the following: If IBM has received such referrals prior to the expiration of the three (3) year time period described above, IBM will provide an extension of an additional 6 months of receiving such referral ("Extension Period ") to fully execute a signed commercial agreement between IBM and the other Iowa government entity. In the event that a commercial agreement is not executed between IBM and such Iowa government entity during the Extension Period, IBM may charge the governmental entity IBM Research's then current rates for the Prototype Service. IBM will not unreasonably withhold such commercial agreement. 2) Section 3.1 is replaced by the following: City will pay IBM One Million Four Hundred Thousand Dollars ($1,400,000) toward the costs of the project in accordance with the following payment schedule: June 1, 2010 $140,000 September 1, 2010 $210,000 December 1, 2010 $210,000 March 1, 2011 $210,000 June 1, 2011 $210,000 September 1, 2011 $210,000 December 1, 2011 $210,000: TOTAL $1,400,000 These payments are nonrefundable. 3) Appendix A, in the sub - section "Estimated Schedule" replace the first date stated with the following: May 15, 2010 Readiness of the project, including project plan Except as expressly modified herein, all terms and conditions of the Agreement shall remain in full force and effect. By signing below, the parties agree to the terms of this Amendment 1: INTERNATIONAL BUSINESS CITY OF DUBUQUE, IOWA MACHINES CORPORATION Name: Name: Title: Title: Title: Title: License No. W105986 JOINT DEVELOPMENT AGREEMENT Agreement No. W1055610 This Joint Development Agreement ( "Agreement ") is between City of Dubuque, Iowa, with an address at 50 W. 13 Street, Dubuque, IA 52001 ( "City "), and International Business Machines Corporation, a New York corporation, through its T. J. Watson Research Center, with a location at 1101 Kitchawan Road, Route 134, Yorktown Heights, NY 10598 ( "IBM "). WHEREAS, IBM would like to work on developing a prototype service using Web portals to access the prototype service running on IBM servers, that would allow City management and electric utility customers to monitor electric energy consumption on a near real -time basis in order to better control and reduce the consumption of electric energy ( "Prototype Service "); and WHEREAS, City is willing to provide funding for the project subject to approval of the project by the Iowa Power Fund; identify volunteers among its residents to participate in this project; work with City energy company, Interstate Power and Light Company (an Alliant Energy company) ( "IPL "), on the installation of smart meters with two -way communication capability necessary for the project; provide the volunteers' energy consumption data to IBM in an anonymized form ( "Data "), interface with the volunteers to answer questions about the Prototype Service, work with IBM to analyze the results, and provide IBM with feedback on the results ( "Feedback "); and WHEREAS, IBM is willing to work on developing the software tools for collecting, updating and processing the Data provided by the volunteers participating in the project for use for the Prototype Service ( "Tools "); provide written reports to City on the progress and results of the project; and demonstrate the Prototype Service to City and other Iowa government agencies as agreed by the parties; NOW, THEREFORE, for good and valuable consideration as stated herein, City and IBM agree as follows: 1.0 Scope of Work 1.1 The scope of work for the project is as described in Appendix A, Statement of Work. 1 1.2 All components of the Prototype Service, the Tools, and the Feedback will be owned by IBM and will be considered IBM Confidential Information in accordance with the provisions of Article 7.0. 1.3 For a period of three (3) years after the expiration of this Agreement, IBM agrees that IBM Research will make available to any Iowa governmental entity (State, County or Local), the Prototype Service developed under this Agreement in accordance with terms and conditions to be agreed upon by the governmental entity and IBM, for the sole purpose of monitoring electric energy consumption during the term of such entity's contract with IBM. In the event the Iowa governmental entity is not referred to IBM by City, IBM will charge the governmental entity IBM Research's then current rates for the Prototype Service. If the Iowa governmental entity is referred to IBM by City, IBM will not charge the governmental entity for the Prototype Service; however, each such governmental entity will be required to pay IBM Research for: (i) any customizations that need to be made to the Prototype Service, and (ii) use of the IBM Cloud Service, IBM Smarter City Sustainability Model Software, and any other Software necessary to run the Prototype Service (including, without limitation, IBM's Infosphere Information Server, DB2, Cognos and Websphere Application Server), in each case, at the then current rates for IBM Research. IBM acknowledges that City has informed IBM that it is the intent of City to enter into an agreement with the Iowa Power Fund to allow the Iowa Power Fund to make direct referrals to IBM of Iowa governmental entities on behalf of City for purposes of this Article 1.3, and IBM agrees to accept such referrals as referrals by City for purposes of this Article 1.3. If IBM has received such referrals prior to the expiration of the three (3) year time period described above, IBM will provide an extension of an additional 63 months of receiving such referral ("Extension Period ") to fully execute a signed commercial agreement between IBM and the other Iowa government entity. In the event that a commercial agreement is not executed between IBM and such Iowa government entity, IBM will charge the governmental entity IBM Research's then current rates for the Prototype Service. IBM will not unreasonably withhold such an agreement. 2.0 Technical Coordinators David Lyons for City, and Milind Naphade, for IBM, are the Technical Coordinators for this Agreement. Their responsibilities will include exchanging information with the other party, coordinating any visits, and arranging all other matters pertinent to this Agreement. Each party may change its Technical Coordinator by giving written notice to the other party. 3.0 Costs and Expenses 2 3.1 City will pay IBM One Million Four Hundred Thousand Dollars ($1,400,000) toward the costs of the project in accordance with the following payment schedule: June 1 May 15, 2010 $140,000 September 1July 15, 2010 $210,000 December lOctober 15, 2010 $210,000 March 1 January 15, 2011 $210,000 June lApril 15, 2011 $210,000 September 1July 15, 2011 $210,000 December lOctober 15, 2011 $210,000 TOTAL $1,400,000 These payments are nonrefundable. 3.2. Payment will be made by wire transfer to the following account: Director of Licensing International Business Machines Corporation PNC Bank 500 First Avenue Pittsburgh, PA 15219 Bank Account Number: 1017306369 ABA Routing Number: 043000096 3.3 The License Reference Number shown on the first page of this Agreement must be included in all communications, including wire transfer payments, tax credit certificates, letters, faxes and e -mail messages pertaining to the payments made under Article 3.1. 3.4 IBM will be entitled to late payment fees on payments due but not received within thirty (30) days after. the due date. Late payment fees are defined as the lesser of one percent (1 %) of the amount due, compounded each subsequent thirty (30) day period that payments remain unpaid, or the highest rate permitted by law. 3.5 City will bear and pay all taxes (including, but not limited to, sales, property and value added taxes) imposed by any governmental entity of any country in which 3 City is doing business as the result of the existence of this Agreement or the exercise of rights hereunder, except that City will not be liable for any taxes based on IBM's net income. Taxes paid by City will not be deducted from or credited against payments due IBM. 4.0 Copyrights 4.1 "Software" means computer programs, computer program changes, computer program enhancements, and /or any documentation related to computer programs. The parties agree that no Software will be delivered by either party to the other party under this Agreement. 4.2 IBM grants to City an irrevocable, nonexclusive, worldwide and fully paid -up license to use, reproduce and distribute internally, any copyrightable materials other than Software furnished or developed by IBM under this Agreement. In addition, IBM grants to City the right to sublicense the Progress Reports and the Summary Report identified in Appendix A to the Iowa Power Fund and to IPL, for the Iowa Power Fund and IPL to use, reproduce and distribute internally and externally. 4.3 City grants to IBM an irrevocable, nonexclusive, worldwide, and fully paid -up license for any copyrightable materials other than the Data and Software, furnished or developed by City under this Agreement. This license includes the right to use, execute, display, reproduce, perform, disclose, prepare derivative works from, and distribute and transmit (internally and externally) such copyrightable materials and their derivative works and to sublicense others to do any or all of the foregoing. City grants to IBM an irrevocable, nonexclusive, worldwide, and fully paid -up license to use, reproduce and distribute the Data furnished by the City under this Agreement: (i) as necessary to perform the work described in Appendix A of this Agreement; (ii) to demonstrate the Prototype Service to third parties; (iii) to publish the results of the work under this Agreement in scientific journals, and periodicals, and in conference papers and presentations; and (iv) for internal use for research purposes. IBM may not sublicense the Data to any third party. IBM will not take ownership interests in the Data or in any other copyrightable materials other than the Feedback, furnished or developed by City under this Agreement. 5. Inventions 5.1 "Invention" means any idea, design, concept, technique, invention, discovery or improvement, whether or not patentable, conceived or first reduced to practice solely by one or more employees of a party hereto ( "Sole Invention "), or jointly by 4 one or more employees of one party with one or more employees of the other party ( "Joint Invention "), in the performance of work under this Agreement. 5.2 Each party will promptly provide to the other party a written description of each Invention. The other party agrees to delay making public, by publication or otherwise, until the earlier of (1) the first filing of a patent application claiming the Invention by the owning party or (2) six months after the date the Invention is disclosed to the other party, for any Invention for which the disclosing party has decided, or is in the process of deciding, to seek patent protection. 5.3 Any Sole Invention will be the property of the inventing party, subject to a license hereby granted to the other party of the scope set forth in Article 5.4 for such Sole Invention and all patents issued on it. Any Joint Invention will be jointly owned, and title to all patents issued on it will be joint, all expenses (including those related to preparation, prosecution and maintenance) will be jointly shared (except as provided below), and each party will have the right to license and assign its ownership interest in the joint patent to third parties without need for consent from or accounting to the other party. Where one party elects not to share equally in the expenses for a Joint Invention, the other party will have the right to seek or maintain such protection for such Joint Invention at its own expense and will have full control over its preparation, prosecution and maintenance, even though title to any issuing patent will be joint. 5.4 All licenses granted to City and IBM under this Article 5 will be worldwide, irrevocable, nonexclusive, nontransferable, and fully paid -up, and will include the right to make, have made, use, have used, lease, sell, offer to sell, import and /or otherwise transfer any product, and to practice and have practiced any method. All licenses granted to City and to IBM in this Article 5 will include the right of the grantee to grant revocable or irrevocable sublicenses to its Subsidiaries, such sublicenses to include the right of the sublicensed Subsidiaries correspondingly to sublicense other Subsidiaries. 5.5 "Subsidiary" will mean a corporation, company, or other entity; i. more than 50% of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, now or hereafter, owned or controlled, directly or indirectly, by a party hereto, but such corporation, company, or other entity will be deemed to be a Subsidiary only so long as such ownership or control exists; or ii. which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, but more than 50% of whose ownership interest representing the right to make the decisions for such corporation, company or other entity is now or hereafter, owned or controlled, directly or indirectly, by a party hereto, but such corporation, 5 6.0 Term and Termination company or other entity will be deemed to be a Subsidiary only so long as such ownership or control exists. 6.1 This Agreement will begin on the date it is signed by the last signatory ( "Effective Date "), and end twenty (20) months later, unless terminated earlier by either party as provided in Article 6.2 or 6.3 below; provided, however, because City's participation in this project is subject to approval by the Iowa Power Fund, in the event such approval is not granted by April 30, 2010, as of May 1, 2010, this Agreement will become null and void ab initio. 6.2 City may terminate this Agreement at the end of any calendar quarter with written notice to IBM sent not less than thirty (30) days prior to the end of that quarter, on condition that City pay IBM the payment due at the beginning of the next calendar quarter commencing after the effective date of the termination. 6.3 IBM may terminate this Agreement at the end of any calendar quarter with written notice to City sent not less than thirty (30) days prior to the end of that quarter. 7.0 Confidentiality 7.1 "IBM Confidential Information" means the Feedback, and any technical information about the Prototype Service and the Tools. 7.2 For five (5) years from the date of disclosure, City agrees to hold IBM Confidential information in trust and confidence for IBM. City will limit disclosure of the IBM Confidential Information to those of its employees who have a need to know it. City will use IBM's Confidential Information only for the purposes of this Agreement. 7.3 Disclosure of Confidential Information will not be precluded if the disclosure is required by law, but City will give IBM reasonable notice to allow IBM an opportunity to obtain a protective order. The obligations of Article 7.2 above will not apply to information that is: (a) already in the possession of City without obligation of confidence; (b) independently developed by City; (c) publicly available, or becomes publicly available through no fault of City; (d) disclosed by IBM without obligation of confidence; or e) disclosed with the permission of IBM. 7.4 Each party agrees that the disclosure of its Confidential Information pursuant to this Agreement does not limit the assignment or reassignment of the other party's employees. 6 7.5 Notwithstanding any provision in this Agreement to the contrary, City may provide any reports provided to City by IBM under this Agreement to the Iowa Office of Energy Independence, and to other governmental entities in Iowa. In addition, IBM agrees that the Iowa Office of Energy Independence and the Iowa Utilities Board may have unrestricted access to all City records for purposes of evaluating the work performed under this Agreement. 7 ■ 8.0 Representations, Warranties, Disclaimers, Indemnification and Limitation of Liability 8.1 City will be solely responsible for the collection of the Data, and for determining what Data may and will be provided to IBM under this Agreement. 8.2 City represents and warrants that it has all necessary third party consents to provide the Data to IBM, and to permit IBM to use the Data as provided in this Agreement. City further represents and warrants that it has anonymized the Data delivered to IBM to an extent sufficient to ensure that a person without prior knowledge of the original Data and its collection cannot, from the anonymized Data and other publicly available information, deduce the personal identity of the Data subjects. 8.3 Except as provided in Article 8.2, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, CONCERNING COPYRIGHTABLE MATERIALS, INVENTIONS, PROTOTYPES, DATA, INFORMATION, OR OTHER DELIVERABLES SUPPLIED UNDER THIS AGREEMENT, WHICH ARE ALL PROVIDED "AS IS." EACH PARTY EXPLICITLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OF NON - INFRINGEMENT OF ANY THIRD PARTY'S PATENTS, COPYRIGHTS, OR ANY OTHER INTELLECTUAL PROPERTY RIGHT. 8.4 EACH PARTY ALSO SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING ANY PROTOTYPE(S) WHICH MAY BE DEVELOPED PURSUANT TO THIS AGREEMENT INCLUDING THAT ANY PROTOTYPE(S) WILL MEET ANY DEVELOPMENT OBJECTIVES, OR ANY REQUIREMENTS OF EITHER PARTY. EACH PARTY WILL MAKE GOOD FAITH EFFORTS TO COMPLETE THE ACTIVITIES UNDER THE STATEMENT OF WORK. FAILURE TO COMPLETE SUCH ACTIVITIES DOES NOT CONSTITUTE BREACH OF CONTRACT. 8.5 City will defend and indemnify IBM and IBM's Subsidiaries if a third party makes a claim against IBM or its Subsidiaries based on an actual or alleged breach of City's representations and warranties set forth in Article 8.2. 8.6 Except for claims arising out of Article 7.0, and indemnification obligations arising under Article 8.5, neither party will be liable for any consequential damages, lost profits, lost savings, loss of anticipated revenue, or any exemplary, punitive, special or indirect damages, even if advised of their possibility. IBM's total cumulative direct damages will not exceed a cumulative total of One Hundred Thousand Dollars ($100,000). 8 9.0 General Provisions 9.1 Each party is an independent contractor. Neither party is, nor will claim to be, a legal representative, partner, franchisee, agent or employee of the other. Neither party will assume or create obligations for the other. 9.2 Except as otherwise provided herein, this Agreement does not confer any rights to use in advertising, publicity or other marketing activities any name, trade name, trademark, or other designation of either party hereto, including any contraction, abbreviation, or simulation of any of the foregoing, without prior written agreement, and each party agrees not to use or refer to this Agreement or its terms in any such activities without the express written approval of the other party. 9.3 All notices will be in writing and will be valid if sent by: a) registered or certified mail, return receipt requested, postage prepaid; b) by facsimile (provided the receipt of the facsimile is evidenced by a printed record of completion of transmission); or, c) by express mail or courier service providing a receipt of delivery. Notice will be effective upon receipt and addressed as follows: IBM Thomas J. Watson Research Center IBM Corporation 1101 Kitchawan Road Route 134 Yorktown Heights, NY 10598 Attn.: Manager, Business and Government Relations City City of Dubuque, Iowa 50 W. 13th Street Dubuque, IA 52001 Attn.: David Lyons 9.4 Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is due to acts of God, acts of the other party, fire, flood, natural catastrophe, acts of any government or of any civil or military authority, national emergencies, riots, war, insurrection, strikes, or any occurrence beyond the reasonable control of such party. 9.5 Each party agrees to comply and to reasonably assist the other in complying with applicable government export and import laws and regulations. Further, each party agrees that unless authorized by applicable government license or regulation, including but not limited to U.S. authorization, it will not directly or indirectly export or reexport, at any time, any technology, software and /or commodities furnished or developed under this Agreement, or any other agreement between the parties, or its direct product, to any prohibited country (including release of technology, software and /or commodities to nationals, wherever they may be located, of any prohibited country) as specified in applicable export, embargo, 9 and sanctions regulations. This section will survive after termination or expiration of this Agreement. 9.6 Except as expressly provided in this Agreement, neither party grants any licenses, either directly or indirectly, by implication or estoppel or otherwise, to either party under any patent, copyright or other intellectual property right of the other party. 9.7 Neither party may assign, or otherwise transfer, its rights or delegate its obligations under this Agreement without prior written consent of the other party. Any attempt to do so is void. 9.8 Except for claims arising out of Articles 3.0, 5.0, 7.0, or 8.5, neither party may bring an action arising out of this Agreement, regardless of form, more than one year after the cause of action has accrued. 9.9 Neither party relies on any promises, inducements or representations made by the other, or expectations of more business dealings, except as expressly provided in this Agreement. 9.10 Each party represents that it has, or will have appropriate agreements with its employees or others whose services the party may require to enable it to comply with all the provisions of this Agreement. 9.11 Each party may have similar agreements with others, and may design, develop, manufacture, acquire or market competitive products and services, and conduct its business in whatever way it chooses. Each party will independently establish prices and terms for its products and services. 9.12 If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby so long as the intent of the parties can be preserved. 9.13 This Agreement is governed by the laws of the State of New York, without regard to the conflict of laws provisions thereof. Any proceedings to resolve disputes relating to this Agreement will be brought only in a U.S. federal court if there is federal jurisdiction over such proceeding. The parties waive the right to trial by jury in any matter which arises under this Agreement. The United Nations' Convention on International Sales of Goods does not apply. 9.14 Any rights and obligations which by their nature survive and continue after any expiration or termination of this Agreement will survive and continue and will bind the parties and their successors and assigns, until such obligations are fulfilled. 10 9.15 This Agreement may only be amended by a writing signed by authorized representatives of the parties. No approval, consent or waiver which alters the terms of this Agreement will be enforceable unless signed by both parties. Failure to insist on strict performance or to exercise a right when entitled does not prevent a party from doing so later for that breach, or a future breach. 9.16 There are no intended third party beneficiaries to this Agreement. 9.17 This Agreement and Appendix A are the complete and exclusive agreement between the parties regarding the subject matter hereof and supersedes any prior oral or written communications or understandings between the parties related to the subject matter hereof. By signing below, the parties agree to the terms of this Agreement. INTERNATIONAL BUSINESS CITY OF DUBUQUE, IOWA MACHINES CORPORATION Name: Name: Title: Title: Date: Date: 11 Objective The objective of the project is to develop a Prototype Service for near real -time measurement of electric energy consumption that would enable electric utility customers in City of Dubuque to better control their consumption of electricity, and generate data that could be used for the analysis of consumption patterns for insights that could help electric utility customers reduce their consumption. Project Description APPENDIX A STATEMENT OF WORK City will identify volunteers among the electric utility customers in City to participate in this project. These volunteers will be required to allow the installation in their business or residence of advanced energy meters, and agree to allow their electric energy usage information to be provided to IBM in anonymized form for use in developing the prototype service. The community -wide metric information generated by this project can be used by City to begin estimating consumption baselines, and the aggregated data will also be shared with the volunteers so that they can compare and benchmark their personal usage with that of the entire aggregated volunteer community. IBM will develop the applications for processing and handling the Data for use by the Prototype Service. IBM will also develop the tools required to automatically feed the Data into the Prototype Service, and to be refreshed at an agreed upon rate, limited by the rate at which this Data is provided to IBM. IBM will also analyze the collected Data to identify patterns and insights that will be shared with City and the volunteers. Responsibilities of the Parties IBM: 1. Work on developing the Prototype Service that provides a Web portal for near real -time integrated sustainability monitoring that would: a. allow City management to visualize, interact, and understand the electrical energy consumption patterns and sustainability footprint of the volunteers participating in the project; b. allow City and participating volunteers to visualize, interact, and understand their electrical energy consumption patterns and sustainability footprint in comparison with that of the other volunteers participating in the project; and c. provide access to participating volunteers to the consumption patterns of other volunteers only in the aggregate, and not on an individual participant basis. 2. Work on developing Tools to perform: a. data processing and data management to prepare the Data and then enter it into the Prototype Service; b. exploratory analysis on the Data to extract consumption patterns and insights to be shared with City management and participating volunteers; and c. if data is available for some volunteers from both water consumption and electric energy consumption, work on developing tools that perform exploratory analysis on electrical energy and water resource consumption. 3. Make available for use by IBM resources for the project the following IBM technology: IBM Cloud Service IBM Smarter City Sustainability Model Software Infosphere Information Server DB2 Cognos Websphere Application Server 4. Provide City with written progress reports within thirty (30) days after the end of each calendar quarter, summarizing the work performed, the results achieved, and the resources assigned to work on the project during the prior quarter ( "Progress Reports "). 5. Provide a written report analyzing Citywide consumption patterns and sustainability footprints for the participating volunteers, and summarizing the results of the project ( "Summary Report"). 6. Demonstrate the Prototype Service to City and other Iowa government agencies as agreed by the parties. City: 1. Recruit up to one thousand (1,000) electric utility customer volunteers to participate in the project. 2. Work with City's major electric energy supplier, IPL, to install smart meters with two way communication capability for each of the volunteers by the end of June 2010. 3. Provide IBM with access to a data warehouse that will store electricity consumption meter data as frequently as one reading every fifteen minutes, on an anonymized basis. 4. Provide other available data, in an anonymized form, on the households of the volunteers participating in the project, such as the size of the house, the number of rooms, the number of windows and doors, the age of the house, appliances, and family size and ages. 5. Provide personnel to interface with volunteers to answer questions about the project, their service or their usage. 6. Work with IBM to analyze the results, and provide IBM with feedback on the results. Estimated Schedule IBM will provide the following reports: May 15, 2010 June 1, 2010 September 1, 2010 December 1, 2010 March 1, 2011 June 1, 2011 September 1, 2011 Readiness of the project, including project plan Progress of requirements gathered Progress made in identifying data sources, frequency of data updates Progress in developing tools for automated data gathering, and warehousing from smart meters Progress in development of the Prototype Service Progress on end to end integration of data from the meters into the Prototype Service Progress of the demonstration of the Prototype Service December 31, 2011 Project summary, included lessons learned regarding analysis of consumption data, and insight on how the Prototype Service was used END GRANT OF $1,400,000 TO The City of Dubuque, Iowa BY THE Iowa Power Fund Board CONTRACT NUMBER: 09- IPF -25 For the Smarter Sustainable Dubuque: Demonstration of Smart Grid Technology TABLE OF CONTENTS ARTICLE 1. IDENTITY OF THE PARTIES ARTICLE 2. CONTRACT DURATION ARTICLE 3. FUNDING Article 3.1 Funding Source Article 3.2 Reduction, Discontinuance or Alteration of Funding ARTICLE 4. DEFINITIONS; DOCUMENTS INCORPORATED BY REFERENCE; AND ORDER OF PRIORITY Article 4.1 Definitions Article 4.2 Documents Incorporated by Reference Article 4.3 Recipient's Financial Assistance Application on File Article 4.4 Order of Priority ARTICLE 5. AWARD TERMS Article 5.1 Article 5.2 Article 5.3 Article 5.4 Article 5.5 Article 6.1 Article 6.2 Article 6.3 Article 6.4 Article 6.5 Article 6.6 Description of the Project and Award Budget Award of Grant Use of Grant Funds Acknowledgment of Obligations Replication and Success Payments ARTICLE 6. CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS Documents Submitted Prior Costs Cost Variation Suspension of Disbursement Investment of Award Proceeds Disbursement Schedule; OEI Review and Approval of Quarterly Project Status Reports ARTICLE 7. REPRESENTATIONS AND WARRANTIES Article 7.1 Article 7.2 Article 7.3 Article 7.4 Article 7.5 Article 7.6 Article 7.7 Article 7.8 Article 7.9 Article 7.10 Article 7.11 Article 7.12 ARTICLE 8. COVENANTS Article 8.1 Article 8.2 Authority and Validity of Obligations Use of Proceeds Financial Reports No Material Adverse Change Full Disclosure; Recipient's Financial Assistance Application Trademarks, Franchises and Licenses Governmental Authority and Licensing Litigation and Other Controversies Other Contracts No Default Compliance with Laws Effective Date of Representations and Warranties Maintain Existence in Iowa Performance Obligations Contract #09- IPF -25 - 2 - Article 8.3 Maintenance of Properties Article 8.4 Taxes and Assessments Article 8.5 Insurance Article 8.6 Required Reports Article 8.7 Inspection and Audit Article 8.8 Compliance with Laws Article 8.9 Use of Award Proceeds Article 8.10 Notice of Proceedings Article 8.11 Accounting Records Article 8.12 Restrictions Article 8.13 No Changes in Recipient Operations Article 8.14 Indemnification Article 8.15 Intellectual Property ARTICLE 9. EVENTS OF DEFAULT AND REMEDIES Article 9.1 Notice of Events of Default Article 9.2 Events of Default Article 9.3 Notice of Default and Opportunity to Cure Article 9.4 Default Remedies Article 9.5 Expenses ARTICLE 10. MISCELLANEOUS Article 10.1 Timely Performance Article 10.2 State of Iowa Recognition Article 10.3 Choice of Law and Forum Article 10.4 Governing Law Article 10.5 Contract Amendments Article 10.6 Notices Article 10.7 Headings Article 10.8 Final Authority Article 10.9 Waivers Article 10.10 Counterparts Article 10.11 Survival of Representations Article 10.12 Severability of Provisions Article 10.13 Successors and Assigns Article 10.14 Termination Article 10.15 Integration Contract #09- IPF -25 - 3 - IOWA POWER FUND CONTRACT - Grant - RECIPIENT: City of Dubuque CONTRACT NUMBER: #09- IPF -25 AWARD DATE: February 10, 2010 THIS IOWA POWER FUND CONTRACT ( "Contract ") is made as of the Contract Effective Date by and between the Iowa Office of Energy Independence ( "OEI "), administrative entity for the Iowa Power Fund Board ( "Board ") and the City of Dubuque ( "Recipient "). WHEREAS, the Recipient submitted an application to the Iowa Power Fund Board requesting financial assistance in the financing of its Project as more fully described in Exhibit B, Description of the Project and Award Budget, (the "Project "); and WHEREAS, the Iowa Power Fund Board found the Project to meet the requirements established to receive financial assistance; and WHEREAS, the Board's Due Diligence Committee recommended and the Iowa Power Fund Board ( "Power Fund Board ") approved a financial assistance award from the Iowa Power Fund to the Recipient for the Project, subject to the terms and conditions set forth herein and referred to as the "Award "; and NOW THEREFORE, in consideration of the mutual promises contained herein and intending to be legally bound, the Recipient and the Power Fund agree to the following terms: Contract #09- IPF -25 - 4 - ARTICLE 1 IDENTITY OF THE PARTIES 1.1 Iowa Power Fund Board. The Board is a public instrumentality of the State established by 2007 Iowa Acts, Chapter 168, Section 6. The Board is charged with the responsibility of managing, overseeing and approving all awards of financial assistance from the Iowa Power Fund. The Board's address is Lucas State Office Building, 321 East 12th Street, Des Moines, Iowa 50319. 1.2 Iowa Office of Energy Independence. The Iowa Office of Energy Independence (OEI) is an agency of the executive branch of State government that provides administrative support to the Power Fund Board. OEI is established pursuant to 2007 Iowa Acts, Chapter 168, Section 2. OEI's address is Lucas State Office Building, 321 East 12 Street, Des Moines, Iowa 50319. 1.3 City of Dubuque. The City of Dubuque is an Iowa city established pursuant to Iowa Code Chapter 364. The City of Dubuque's address is 50 West 13th Street, Dubuque, Iowa 52001. ARTICLE 2 CONTRACT DURATION This Contract shall be in effect on the Contract Effective Date and remain in effect until all of Recipient's obligations and liabilities under this Contract have been satisfied and OEI has provided Recipient with written notice of final Contract closeout. ARTICLE 3 FUNDING 3.1 Funding Source. The sole source of funding for this Award is the Iowa Power Fund established in 2007 Iowa Acts, Chapter 168, Section 9. 3.2 Reduction, Discontinuance or Alteration of Funding. Any termination, reduction, or delay of funds available due, in whole or in part, to (i) lack of, reduction in, or a deappropriation of revenues previously appropriated by the legislature for this Award, or (ii) any other reason beyond the OEI's control may, in the OEI's sole discretion, result in the termination, reduction or delay of funds to the Recipient. ARTICLE 4 DEFINITIONS; DOCUMENTS INCORPORATED BY REFERENCE; AND ORDER OF PRIORITY 4.1 Definitions. The following terms apply to this Contract: "Award Date" means the date first stated in this Contract and is the date the Board approved the awarding of financial assistance to the Recipient for the Project. "Contract Effective Date" means the last date stated on the signature page of this Contract. "Project" means the description of the work and activities to be completed by the Recipient as outlined in Exhibit B, Description of the Project and Award Budget and Exhibit A, Recipient's Financial Assistance Application. "Project Completion Date" means the date stated in Exhibit B, Description of the Project and Award Budget. The Project Completion Date is the date by which all Project activities shall be satisfactorily completed. 4.2 Documents Incorporated by Reference. The following documents are incorporated by reference and considered an integral part of this Contract: Exhibit A - Recipient's Financial Assistance Application, Application #09 -08 -1224 Exhibit B - Description of the Project and Award Budget. Exhibit C- Memorandum of Understanding Between The City of Dubuque and the Interstate Light and Power Company for The Sustainable Dubuque AMI Pilot Project Exhibit D- Joint Development Agreement No. W1055610 Between the City of Dubuque and the International Business Machines Corporation Exhibit E- April 7, 2010 letter from Barry A. Lindahl, Esq., Dubuque City Attorney, to the Iowa Power Fund. Contract #09- IPF -25 - 5 - 4.3 Recipient's Financial Assistance Application on File. Due to its size, Exhibit A will not be attached to this Contract, but will be kept on file at the Iowa Office of Energy Independence. It shall, nevertheless, be considered an incorporated element of this Contract. 4.4 Order of Priority. In the'case of any inconsistency or conflict between the specific provisions of this document and the exhibits, any inconsistency or conflict shall be resolved according to the following order of priority: (a) Contract, Articles 1 -10. (b) Exhibit B - Description of the Project and Award Budget. (c) Exhibit A - Recipient's Financial Assistance Application # 09 -08 -1224 . (d) Exhibit C- Memorandum of Understanding Between The City of Dubuque and the Interstate Light and Power Company for The Sustainable Dubuque AMI Pilot Project (e) Exhibit D- Joint Development Agreement No. W1055610 Between the City of Dubuque and the International Business Machines Corporation (f) Exhibit E- April 7, 2010 letter from Barry A. Lindahl, Esq., Dubuque City Attorney, to the Iowa Power Fund. ARTICLE 5 AWARD TERMS 5.1 Description of the Project and Award Budget. The Board has approved an Award to the Recipient in the amount identified in Article 5.2 for the Project described in Exhibit B, Description of the Project and Award Budget. 5.2 Award of Grant. In consideration of the Recipient's completion of the Project in compliance with the terms and conditions of this Contract, the Board hereby awards to the Recipient to assist with the Project a Grant in an amount not to exceed One Million, Four Hundred Thousand Dollars (US$1,400,000) , payable in accordance with the Award Budget identified in Exhibit B, Description of the Project and Award Budget. 5.3 Use of Grant Funds. Grant Funds shall only be used for The City of Dubuque to create a Sustainability Service model for measurement and monitoring of city energy and water systems. The City of Dubuque and International Business Machines Corporation (IBM) will develop electric portion of the Sustainability Service model. This system will allow the City and utility to track electrical energy usage on a near -real time basis to allow comparison between individual customer's energy usage with other electric service customers usage, track the impact of utilization changes, and analyze the effectiveness of system design with incentives, which shall enable cross analytics with water and carbon utilization. The project will determine electrical consumption patterns as well as provide cross analytics for all related areas of energy consumption within the community The City will educate the public on the methods and benefits of reducing consumption of electricity. The City will randomly select 1000 households to participate in this Smart Grid demonstration program using AMI technology, and contract with IBM to research, measure and analyze the data. 5.4 Acknowledgement of Obligations. Recipient acknowledges and agrees that: (a) This Grant is made in consideration of Recipient's representations and warranties described in this Contract, and (b) Upon violation of such covenants and warranties, Recipient is obligated to immediately repay any amounts OEI determines Recipient received without fulfillment of Recipient's obligations under this Contract, plus applicable interest (6 %) and costs described in Article 9.4 Contract #09- IPF -25 - 6 - 5.5 REPLICATION AND SUCCESS SHARING PAYMENTS. As a condition of receiving this grant, recipient agrees to facilitate replication of the technology developed by the project and to facilitate success sharing payments if the technology developed by the project is commercially deployed. (a) Time Period. The terms of this paragraph shall remain in effect during the period of this agreement and for a period of three (3) years after the expiration of this agreement. During this Time Period, the recipient agrees to the following: 1. The recipient shall notify OEI and IBM in writing via US Mail, facsimile, or email within one (1) business day that the recipient has been contacted by a governmental entity that has requested to be referred to IBM to gain access to the Prototype Service referenced in paragraph 1.3 of Exhibit D. 2. The recipient shall notify OEI in writing via US Mail, facsimile or email that it has referred a governmental entity interested in accessing the Prototype Service to IBM pursuant to paragraph 1.3 of Exhibit D. The recipient shall provide said notice to OEI within 30 days of its referral of a governmental entity to IBM pursuant to paragraph 1.3 of Exhibit D. Recipient's notice to OEI shall include the name, address and contact information for the referred governmental entity and a copy of the written referral the recipient provided to IBM. 3. Success Sharing Payments as described in this paragraph may be applied to any referral of a governmental entity to IBM by the recipient, OEI or the Power Fund pursuant to paragraph 1.3 of Exhibit D if IBM has received the notice set out in subparagraph 5.5(a)(1) of this Agreement prior to the expiration of the Time Period described in this paragraph provided the Parties are able to secure a commercial agreement within 6 months of providing such notice. IBM will not unreasonably withhold such an agreement. (b) Events Triggering Payment. At the option of the Power Fund, the discount provided pursuant to section 1.3 of the Joint Development Agreement between the City of Dubuque and IBM may be modified to trigger a payment of up to 50% of that discount to the Power Fund. (c) Payment Amount. Success Sharing Payments pursuant to this section shall cease upon the recovery of a total of $1,400,000 by the Power Fund. ARTICLE 6 CONDITIONS TO DISBURSEMENT OF FUNDS; DISBURSEMENT TERMS The obligation of the OEI to make, continue or disburse funds under this Contract shall be subject to the following conditions precedent: 6.1 Documents Submitted. OEI shall have received each of the following documents, properly executed and completed, and approved by the OEI as to form and substance: (a) Contract. Fully executed Contract. (b) Project Financial Commitments. The Recipient shall have submitted documentation acceptable to OEI from the funding sources identified in Exhibit B committing to the specified financial involvement in the Project and received the OEI's approval of the documentation. The documentation shall include the amount, terms and conditions of the financial commitment, as well as any applicable schedules. (c) Other Required Documents. OEI shall have received such other contracts, instruments, documents, certificates and opinions as the OEI may reasonably request. Contract #09- IPF -25 - 7 - (d) Requests for Disbursement; Documentation of Expenditure by Other Funding Sources.. All disbursements of Award funds shall be subject to receipt by OEI of requests for disbursement, in form and content acceptable to OEI, submitted by the Recipient. All requests shall include documentation of costs that have been paid or costs to be paid immediately upon receipt of Award proceeds and documentation that the other funding sources identified in Exhibit B, Project Description and Award Budget, have been received and used for the intended purposes. costs. 6.2 Prior Costs. No expenditures made prior to the Award Date may be included as Project 6.3 Cost Variation. hi the event that the total cost of the Project is less than the amount specified in Exhibit B Eleven Million, Eighty Nine Thousand Dollars (US$ 11,089,000), the amount awarded hereby shall be reduced by multiplying the Award amount of One Million, Four Hundred thousand dollars (US$1,400,000), by a fraction, the numerator of which shall be the actual total cost of the Project as determined by OEI, and the denominator of which shall be Eleven Million, Eighty Nine Thousand Dollars (US$ 11,089,000). Any Grant monies disbursed in excess of such amount shall be immediately returned to OEI. Award Amount X Actual Total Project Cost = Reduced Amt of Grant Total Project Cost (as shown in Exhibit B) 6.4 Suspension of Disbursement. Upon the occurrence of an Event of Default (as defined in this Contract) by the Recipient, the OEI may suspend payments to the Recipient until such time as the default has been cured to the OEI's satisfaction. Notwithstanding anything to the contrary in this Contract, upon a termination of this Contract on account of an Event of Default by the Recipient, Recipient will no longer have the right to receive any disbursements after the effective date of default. 6.5 Investment of Award Proceeds. (a) In the event that the Award proceeds are not immediately utilized, temporarily idle Award proceeds held by the Recipient may be invested provided such investments shall be in accordance with State law, including but not limited to the provisions of Iowa Code chapter 12C concerning the deposit of public funds. Interest accrued on temporarily idle Award proceeds held by the Recipient shall be credited to and expended on the Project prior to the expenditure of other Award proceeds. (b) All proceeds remaining, including accrued interest, after all allowable Project costs have been paid or obligated shall be returned to the OEI within thirty (30) days after the Project Completion Date. Within ten (10) days of receipt of a written request from OEI, Recipient shall inform the OEI in writing of the amount of unexpended Award funds in the Recipient's possession or under the Recipient's control, whether in the form of cash on hand, investments, or otherwise. 6.6 Disbursement Schedule; OEI Review and Approval of Quarterly Project Status Reports. Exhibit B, Description of Project and Award Budget, includes a projected quarterly disbursement schedule. The dates listed therein are the dates when Recipient is eligible to request a disbursement, subject to satisfaction of all of the conditions to disbursement as outlined in Article 6.1, and it is not the date when funds will actually be disbursed. The time period to process disbursement requests ranges from 60 -90 days after OEI review and approval of each Quarterly Status Report required by Article 8.6. No funds shall be disbursed until OEI reviews and accepts the Quarterly Project Status Reports required in Article 8.6. OEI will review each Report to determine compliance with the requirements of this Contract. If OEI is not satisfied that the Recipient is making progress toward its performance goals, or if the documentation submitted with the Report is not acceptable, or if the level of participation by other investors is not consistent with the Exhibit B, or if the Report indicates that Recipient is not meeting any other contract requirement, OEI may issue a Notice of Default pursuant to §9.3. Contract #09- IPF -25 - 8 - ARTICLE 7 REPRESENTATIONS AND WARRANTIES The Recipient represents and warrants to the OEI as follows: 7.1 Authority and Validity of Obligations. The Recipient has full right and authority to enter into this Contract. The person signing this Contract has full authority to: a) Sign this Contract on behalf of the Recipient, and b) Obligate the Recipient to the performance of each and all of the obligations under the Contract. The Contract delivered by the Recipient has been duly authorized, executed and delivered by the Recipient and constitutes the valid and binding obligations of the Recipient and is enforceable against it in accordance with the terms. 7.2 Use of Proceeds. The Recipient hereby agrees to use Award proceeds only for the Project and for the activities described in Exhibit B, Description of the Project and Award Budget. Use of Award proceeds shall conform to the Budget for the Project as detailed in Exhibit B. The Recipient represents that there are legally enforceable commitments in place from the funding sources identified for the Project in Exhibit B. 7.3 Financial Reports. The Project financial information furnished by the Recipient to OEI as of the Contract Effective Date, fairly present the Project budget. 7.4 No Material Adverse Change. Since the Award Date, there has been no material changes to the Project as presented in Exhibit A, except as otherwise expressed herein. 7.5 Full Disclosure; Recipient's Financial Assistance Application. The statements and other information furnished to the OEI by Recipient in its Financial Assistance Application and in connection with the negotiation of this Contract do not contain any untrue statements of a material fact or omit a material fact necessary to make the material statements contained herein or therein not misleading. The OEI acknowledges that as to any projections furnished to the OEI, the Recipient only represents that the same were prepared on the basis of information and estimates it believed to be reasonable. 7.6 Trademarks, Franchises and Licenses. The Recipient owns, possesses, or has the right to use all necessary patents, licenses, franchises, trademarks, trade names, trade styles, copyrights, trade secrets, knowhow and confidential commercial and proprietary information to conduct its business as now conducted, without known conflict with any patent, license, franchise, trademark, trade name, trade style, copyright or other proprietary right of any other Person. As used in this Contract, "Person" means an individual, partnership, corporation, association, trust, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof. 7.7 Governmental Authority and Licensing. The Recipient has received all licenses, permits, and approvals of all Federal, state, local, and foreign governmental authorities, if any, necessary to conduct its business, in each case where the failure to obtain or maintain the same could reasonably be expected to have a material adverse effect. No investigation or proceeding which, if adversely determined, could reasonably be expected to result in revocation or denial of any material license, permit, or approval is pending or, to the knowledge of the Recipient threatened. 7.8 Litigation and Other Controversies. Other than the litigation described in Exhibit E, there is no litigation or governmental proceeding pending, nor to the knowledge of the Recipient threatened, against the Recipient which if adversely determined would result in any material adverse change in the Contract #09- IPF -25 - 9 - financial condition, properties, business or operations of the Recipient, nor is the Recipient aware of any existing basis for any such other litigation or governmental proceeding. 7.9 Other Contracts. The Recipient is not in default under the terms or any covenant, indenture or contract of or affecting either the Recipient or any of its properties, which default, if uncured, would have a material adverse effect on its financial condition, properties, business or operations. 7.10 No Default. No Default or Event of Default has occurred or is continuing. 7.11 Compliance with Laws. Other than the regulatory matters described in Exhibit E, the Recipient is in compliance with the requirements of all federal, state and local laws, rules and regulations applicable to or pertaining to the business operations of the Recipient and laws and regulations establishing quality criteria and standards for air, water, land and toxic or hazardous wastes or substances, non - compliance with which could have a material adverse effect on the financial condition, properties, business or operations of the Recipient. Other than the regulatory matters described in Exhibit E, the Recipient has not received notice to the effect that its operations are not in compliance with any of the requirements of applicable federal, state or local environmental or health and safety statutes and regulations or are the subject of any governmental investigation evaluating whether any remedial action is needed to respond to a release of any toxic or hazardous waste or substance into the environment, which non - compliance or remedial action could have a material adverse effect on the financial condition, properties, business or operations of the Recipient. 7.12 Effective Date of Representations and Warranties. The warranties and representations of this Article are made as of the Contract Effective Date and shall be deemed to be renewed and restated by the Recipient at the time each request for disbursement of funds is submitted to OEI. ARTICLE 8 COVENANTS OF RECIPIENT For the duration of this Contract, Recipient covenants with OEI that: 8.1 Maintain Project in Iowa. The Recipient shall at all times preserve and maintain the Project in Iowa. The Recipient will preserve and keep in force and affect all licenses, permits, franchises, approvals, patents, trademarks, trade names, trade styles, copyrights and other proprietary rights necessary to the proper conduct of its respective business. 8.2 Performance Obligations. By the Project Completion Date, Recipient shall complete the Project, make the total investment pledged for the Project and in accordance with the Award Budget as detailed in Exhibit B and comply with all other performance requirements described in this Contract. The Recipient shall promptly provide the OEI with written notice of any major changes that would impact the success of the Project. OEI will use the performance measures identified in Exhibit B to assess project completion. 8.3 Maintenance of Properties. The Recipient shall maintain, preserve and keep its properties in good repair, working order and condition (ordinary wear and tear excepted) and will from time to time make all needful and proper repairs, renewals, replacements, additions and betterments thereto so that at all times the efficiency thereof shall be fully preserved and maintained in accordance with prudent business practices. 8.4 Taxes and Assessments. The Recipient shall duly pay and discharge all taxes, rates, assessments, fees and governmental charges upon or against its properties, in each case before the same become delinquent and before penalties accrue thereon, unless and to the extent that the same are being Contract #09- IPF -25 -1 0 - contested in good faith and by appropriate proceedings and adequate reserves are provided therefore. 8.5 Insurance. The Recipient shall insure and keep insured with good and responsible insurance companies, all insurable property owned by it which is of a character usually insured by Persons similarly situated and operating like properties against loss or damage from such hazards or risks as are insured by Persons similarly situated and operating like properties; and the Recipient shall insure such other hazards and risks (including employers' and public liability risks) in good and responsible insurance companies as and to the extent usually insured by Persons similarly situated and conducting similar businesses. The Recipient will upon request of the OEI furnish a certificate setting forth in summary form the nature and extent of the insurance maintained pursuant to this Article. 8.6 Required Reports. (a) Review of Disbursement Requests and Reports. The Recipient shall prepare, sign and submit disbursement requests and reports as specified in this Contract in the form and content required by the OEI. The Recipient shall review all disbursement requests and verify that claimed expenditures are allowable costs. The Recipient shall maintain documentation adequate to support the claimed costs. (b) Reports. The Recipient shall prepare, sign and submit the following reports as specified in this Contract in the form and content required by the OEI: Quarterly Status Reports The Quarterly Project Status Reports will collect information from the Recipient about the status of the project. This report will collect information that includes, but is not limited to: A description of the use and effectiveness of the moneys granted; data such as project expenditures; any changes to the Recipient's benefits, ownership, structure, or control of the Recipient; amount of new money from non- governmental sources; progress toward meeting performance measures; financial data necessary to determine repayment amounts due under Article 5.5 and any other information required by the OEI. Further definition of the deliverables can be found in the Statement of Work of Exhibit C to this Agreement. Contract #09- IPF -25 Due Date • Readiness of the project, including project plan and overall Research progress May 15, 2010 Payment due on deliverables $75,000 • Performance report • Progress of requirements gathered and overall Research progress July 15, 2010 • Initial outreach, education and marketing plan • Project management plan • Criteria for selection of 1000 pilot recipients (including criteria for scientific validity) • Progress on the development of draft design of the research prototype Payment due on deliverables $200,000 contested in good faith and by appropriate proceedings and adequate reserves are provided therefore. 8.5 Insurance. The Recipient shall insure and keep insured with good and responsible insurance companies, all insurable property owned by it which is of a character usually insured by Persons similarly situated and operating like properties against loss or damage from such hazards or risks as are insured by Persons similarly situated and operating like properties; and the Recipient shall insure such other hazards and risks (including employers' and public liability risks) in good and responsible insurance companies as and to the extent usually insured by Persons similarly situated and conducting similar businesses. The Recipient will upon request of the OEI furnish a certificate setting forth in summary form the nature and extent of the insurance maintained pursuant to this Article. 8.6 Required Reports. (a) Review of Disbursement Requests and Reports. The Recipient shall prepare, sign and submit disbursement requests and reports as specified in this Contract in the form and content required by the OEI. The Recipient shall review all disbursement requests and verify that claimed expenditures are allowable costs. The Recipient shall maintain documentation adequate to support the claimed costs. (b) Reports. The Recipient shall prepare, sign and submit the following reports as specified in this Contract in the form and content required by the OEI: Quarterly Status Reports The Quarterly Project Status Reports will collect information from the Recipient about the status of the project. This report will collect information that includes, but is not limited to: A description of the use and effectiveness of the moneys granted; data such as project expenditures; any changes to the Recipient's benefits, ownership, structure, or control of the Recipient; amount of new money from non- governmental sources; progress toward meeting performance measures; financial data necessary to determine repayment amounts due under Article 5.5 and any other information required by the OEI. Further definition of the deliverables can be found in the Statement of Work of Exhibit C to this Agreement. Contract #09- IPF -25 • Progress made in identifying data sources, frequency of data updates and overall Research progress • Performance Report • Education and marketing updates • Project management updates Payment due on deliverables $200,000 September 15, 2010 • Progress in developing tools for automated data gathering, and warehousing from smart meters and overall Research progress • Performance report • Education and marketing updates • Project management updates • Evidence of the selection of 1000 pilot recipients. • Evidence of the installation of 1000 AMI meters Payment due on deliverables $225,000 Jan 15, 2011 • Progress on end to end integration of data from the meters into the Prototype Service and overall Research progress • Performance report • Education and marketing updates • Project management updates • Incentive programs offered including successes and failures • Electrical usage data, and other aggregate data being collected by the City of Dubuque or other involved parties as a result of this award. Payment due on deliverables $175,000 April 15, 2011 • Progress on end to end integration of data from the meters into the • Prototype Service and overall Research progress. • Education and marketing updates • Project management updates Payment due on deliverables $175,000 July 15, 2011 • Progress of the demonstration of the Prototype Service and overall Research progress • Education and marketing updates • Project management updates Payment due on deliverables $175,000 September 15, 2011 • Project summary, included lessons learned regarding analysis of consumption data, and insight on how the Prototype Service was used. • Electrical usage data, and other aggregate data being collected by the City of Dubuque or other involved parties January 15, 2012 Contract #09- IPF -25 -12- as a result of this award. Payment due on deliverables $175,000 (c) Additional Reports, Financials as Requested by the OEI. The OEI reserves the right to require more frequent submission of any of the above reports if, in the opinion of the OEI, more frequent submissions would help improve the Recipient's Project performance, or if necessary in order to meet requests from the Iowa General Assembly, the Department of Management or the Governor's Office. At the request of the OEI, Recipient shall submit its annual financial statements completed by an independent CPA, or other financial statements including, but not limited to, income, expense, and retained earnings statements. (d) Use of Reports. The OEI reserves the right to publish, copy, and distribute any reports submitted by the Recipient as part of this Contract. The Recipient shall not publish interim reports without the prior, written consent of the OEI. Nothing in this section shall be construed to limit the rights of the Recipient to publish the data or information in scholarly or professional journals as long as any copyright to be obtained is not prejudiced by such publication. There shall be no pre - release of data or findings connected with this Contract in scholarly or professional journals or through public presentations or news media until the Contract is completed, unless the OEI has given prior written approval for the release or the Recipient has notified the OEI of the release in advance. All reports, interim and final, published by either the Recipient or the OEI, shall give credit to the other party's participation in the Project. The Recipient shall not use the name of the Iowa Power Fund or the Iowa Office of Energy Independence for advertising, promotional, or publicity purposes without the prior consent of the OEI. 8.7 Inspection and Audit. The Recipient will permit the OEI and its duly authorized representatives to visit and inspect any of the Recipient's properties, corporate books and financial records of the Recipient related to the Project, to examine and make copies of the books of accounts and other financial records of the Recipient, and to discuss the affairs, finances and accounts of the Recipient with, and to be advised as to the same by, its officers, and independent public accountants (and by this provision the Recipient authorizes such accountants to discuss with the OEI and the OEI's duly authorized representatives the finances and affairs of the Recipient) at such reasonable time and reasonable intervals as the OEI may designate, but at least annually. 8.8 Compliance with Laws. (a) The Recipient will comply in all material respects with the requirements of all federal, state and local laws, rules, regulations and orders applicable to or pertaining to its properties or business operations including, but not limited to, all applicable environmental, hazardous waste or substance, toxic substance and underground storage laws and regulations, and the Recipient will obtain any permits, licenses, buildings, improvements, fixtures, equipment or its property required by reason of any applicable environmental, hazardous waste or substance, toxic substance or underground storage laws or regulations. (b) The Recipient shall comply in all material respects with all applicable federal, state, and local laws, rules, ordinances, regulations and orders applicable to the prevention of discrimination in employment, including the administrative rules of the Iowa Department of Management and the Iowa Civil Rights Commission which pertain to equal employment opportunity and affirmative action. (c) The Recipient shall comply in all material respects with all applicable federal, state and local laws, rules, ordinances, regulations and orders applicable to worker rights and worker safety. (d) The Recipient shall comply with the OEI's administrative rules, 350 Iowa Administrative Contract #09- IPF -25 - 13 - Code. 8.9 Use of Award Proceeds. The Recipient will use the Award proceeds extended under this Contract solely for the purposes set forth in this Contract. 8.10 Notice of Proceedings. The Recipient shall promptly notify the OEI of the initiation of any claims, lawsuits, bankruptcy proceedings or other proceedings brought against the Recipient which would adversely impact the Project. 8.11 Accounting Records. The Recipient is required to maintain its books, records and all other evidence pertaining to this Contract in accordance with generally accepted accounting principles and such other procedures specified by the OEI. These records shall be available to the OEI, its internal or external auditors, the Auditor of the State of Iowa, the Attorney General of the State of Iowa and the Iowa Division of Criminal Investigations at all times during the Contract duration and any extensions thereof, and for three (3) full years from the Agreement Expiration Date. 8.12 Restrictions. The Recipient shall not, without prior written disclosure to the OEI and prior written consent of the OEI, which shall not be unreasonably withheld, directly or indirectly assign, waive or transfer any of Recipient's rights, powers, duties or obligations under this Contract. 8.13 No Changes in Recipient Operations. The Recipient shall not materially change the Project or the nature of the Recipient and activities being conducted, or proposed to be conducted by Recipient, as described in the Recipient's approved application for funding, Exhibit A and Exhibit B of this Contract, unless approved in writing by the OEI prior to the change. 8.14 Indemnification. To the extent permitted by Iowa Code Chapter 670,the Recipient shall indemnify, defend and hold harmless the OEI, the State of Iowa, its departments, divisions, agencies, sections, commissions, officers, employees and agents from and against all losses, liabilities, penalties, fines, damages and claims (including taxes), and all related costs and expenses (including the reasonable value of the time spent by the Attorney General's Office, and the costs, expenses and attorneys' fees of other counsel retained by the indemnified parties and costs of investigation, litigation, settlement, judgments, interest and penalties), arising from or in connection with any of the following: a) Any claim, demand, action, citation or legal proceeding arising out of or resulting from the Project; b) Any claim, demand, action, citation or legal proceeding arising out of or resulting from a breach by the Recipient of any representation or warranty made by the Recipient in this Contract; c) Any claim, demand, action, citation or legal proceeding arising out of or related to occurrences that the Recipient is required to insure against as provided for in this Contract; and d) Any claim, demand, action, citation or legal proceeding which results from an act or omission of the Recipient or any of their agents in its or their capacity as an employer of a person. 8.15 Intellectual Property. (a) Recipient represents and OEI acknowledges that the technology, processes, or research developed or studied in the Project do and will involve patentable products or processes or otherwise protectable intellectual property such as copyright, trademark, or trade dress. Recipient acknowledges that one of the objectives of the Iowa Power Fund is to promote utilization across the State of the results of research, development, and commercialization activities related to energy independence funded in whole or in part by the Iowa Power Fund. (b) Intellectual Property terms and conditions will be governed by the terms of Exhibit C and Exhbit D to this Agreement. The terms will include, but are not limited to the provisions in Exhibit C Section 4 (Copyrights) and Section 5 (Inventions). In addition, the terms will include, but are not limited Contract #09- IPF -25 -14 - to the pricing concessions related to subsequent deployments of the Prototype Service set out in paragraph 1.3 of Exhibit D to this Agreement. ARTICLE 9 EVENTS OF DEFAULT AND REMEDIES 9.1 Notice of Events of Default. Recipient shall promptly notify OEI upon becoming aware of an actual or imminent Event of Default. 9.2 Events of Default. Any one or more of the following shall constitute an "Event of Default" hereunder: (a) Noncompliance with Covenants. Default in the observance or performance of any covenant set forth in Article 8, for more than five (5) business days; or (b) Noncompliance with Contract. Default in the observance or performance of any other provision of this Contract; or (c) Failure to Complete Project by Project Completion Date. If the Project, in the sole judgment of OEI, is not satisfactorily completed by the Project Completion Date. (d) Material Misrepresentation. Any representation or warranty made by the Recipient in this Contract or in any statement or certificate furnished by it pursuant to this Contract, or made in its Financial Assistance Application, or in connection with any of the above, proves untrue in any material respect as of the date of the issuance or making thereof; or (e) Adverse Change in Financial Condition. Any change shall occur in the financial condition of the Recipient which would have a material adverse effect on the ability of the Recipient to perform under this Contract; or (f) Failure to Make Timely or Satisfactory Progress. The OEI in good faith reasonably believes, after consideration of all the facts and circumstances then existing, that the prospect of the Recipient's satisfaction of the obligations under this Contract or the performance of or observance of the covenants in this Contract is or will be materially impaired; or the Recipient is not making substantial or satisfactory progress toward meeting the performance measures identified in Exhibit B; or the other funding sources investing in the Project have not been disbursed to Recipient or used for the intended purposes, both as identified in Exhibit B. (g) Failure to Submit Required Reports. The Recipient fails to submit complete reports by the required due dates as outlined in Article 8.6. Failure to submit the timely reports may, in the OEI's sole discretion, result in the termination, reduction or delay of funds to the Recipient. 9.3 Notice of Default and Opportunity to Cure. If the OEI has reasonable cause to believe that an Event of Default has occurred under this Contract the OEI shall issue a written Notice of Default to the Recipient, setting forth the nature of the alleged default in reasonable specificity, and providing therein a reasonable period time, which shall not be fewer than thirty (30) days from the date of the Notice of Default, in which the Recipient shall have an opportunity to cure, provided that cure is possible and feasible. 9.4 Default Remedies. Subject to the notice and cure provisions contained in Article 9.3, when an Event of Default has occurred and is continuing, OEI shall have the right to: (a) Terminate this Contract and all of the obligations of OEI under this Contract on the date stated in such notice, and Contract #09- IPF -25 - 15 - and (b) Suspend pending disbursement of funds and terminate further disbursement of Grant funds, (c) Declare the total amount of Grant funds disbursed to be due and payable, including any and all fees, charges, interest ( 6 %) and other amounts payable under this Contract. The total amount due shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind, all of which are expressly waived by Recipient, and (d) If the default is due to failure to submit timely reports, reduce the amount of any scheduled disbursement described in Exhibit B by 5% for each 30 day increment a required report is late. 9.5 Expenses. The Recipient agrees to pay to the OEI all expenses reasonably incurred or paid by the OEI including reasonable attorneys' fees (including the reasonable value of the time of the Attorney General's Office) and court costs, in connection with any Default or Event of Default by the Recipient or in connection with the enforcement of any of the terms of this Contract. 10.1 Timely Performance. The parties agree that the dates and time periods specified in this Contract including the timelines established for the Project and more fully described in Exhibit B, are of the essence to the satisfactory performance of this Contract. 10.2 State of Iowa Recognition. (a) If the Project involves reports and publications pertaining to the Project, the Recipient agrees to acknowledge the support of the Iowa Power Fund Board and the Office of Energy Independence with the following statement: "This (type of material) was prepared with the support of the Iowa Power Fund Board and the Iowa Office of Energy Independence. However, any opinions, findings, conclusions or recommendations expressed herein are those of the author(s) and do not necessarily reflect the views of the Iowa Power Fund Board or the Office of Energy Independence." (b) If the Project involves construction and there is signage recognizing the financial contributions made to the Project, the Recipient agrees to include the Iowa Power Fund Board and the Iowa Office of Energy Independence on the list of entities providing assistance. For example, a sign or plaque indicating that the Project was funded in part by an Award from the State of Iowa, Iowa Power Fund Board, and the Iowa Office of Energy Independence. 10.3 Choice of Law and Forum. ARTICLE 10 MISCELLANEOUS. (a) The laws of the State of Iowa shall govern and determine all matters arising out of or in connection with this Contract without regard to the conflict of law provisions of Iowa law. Any and all litigation commenced in connection with this Contract shall be brought and maintained solely in Polk County District Court for the State of Iowa, Des Moines, Iowa, or in the United States District Court for the Southern District of Iowa, Central Division, Des Moines, Iowa, wherever jurisdiction is appropriate. (b) This provision shall not be construed as waiving any immunity to suit or liability, in state or federal court, which may be available to the OEI, the State of Iowa or its board members, officers, employees or agents. 10.4 Governing Law. This Contract and the rights and duties of the parties hereto shall be governed by, and construed in accordance with the internal laws of the State of Iowa without regard to principles of conflicts of laws. Contract #09- IPF -25 - 16 - 10.5 Contract Amendments. Neither this Contract nor any documents incorporated by reference in connection with this Contract may be changed, waived, discharged or terminated orally, but only as provided below: (a) Writing required. The Contract may only be amended if done so in writing and signed by the Recipient and the OEI. Examples of situations requiring an amendment include, but are not limited to, time extensions, budget revisions, and significant alterations of existing activities or beneficiaries. (b) Board review. The Board will consider whether an amendment request is so substantial as to necessitate reevaluating the Board's original funding decision. An amendment may be denied by the Board if it substantially alters the circumstances under which the Project funding was originally approved. 10.6 Notices. Except as otherwise specified herein, all notices hereunder shall be in writing (including, without limitation by fax) and shall be given to the relevant party at its address, e-mail address, or fax number set forth below, or such other address, e-mail address, or fax number as such party may hereafter specify by notice to the other given by United States mail, by fax or by other telecommunication device capable of creating a written record of such notice and its receipt. Notices hereunder shall be addressed: To the Recipient: City of Dubuque Michael C. Van Milligen, City Manager 50 West 13th Street Dubuque, Iowa 52001 E-mail ctymgr @cityofdubuque.org Telephone: 563 -589 -4110 Facsimile: 563 -589 -4149 IBM Research Milind Naphade 19 Skyline Drive, Hawthorne, NY 10532 Email: naphade @us.ibm.com Telephone: 914- 784 -7032 Facsimile: 914 - 784 -7455 To the OEI at: Iowa Office of Energy Independence Brian Crowe, Project Manager 321 E. 12 Street Des Moines, Iowa 50319 E -mail: Brian.Crowe @iowa.gov Telephone: 515.725.2066 Facsimile: 515. 281.4225 Each such notice, request or other communication shall be effective (i) if given by facsimile, when such facsimile is transmitted to the facsimile number specified in this Article and a confirmation of such facsimile has been received by the sender, (ii) if given by e -mail, when such e-mail is transmitted to the e- Contract #09- IPF -25 - 17 - mail address specified in this Article and a confirmation of receipt of such e -mail has been received by the sender, (iii) if given by mail, five (5) days after such communication is deposited in the mail, certified or registered with return receipt requested, addressed as aforesaid or (iv) if given by any other means, when delivered at the addresses specified in this Article. 10.7 Headings. Article headings used in this Contract are for convenience of reference only and are not a part of this Contract for any other purpose. 10.8 Final Authority. The OEI shall have the authority to reasonably assess whether the Recipient has complied with the terms of this Contract. Any OBI determinations with respect to compliance with the provisions of this Contract shall be deemed to be final determinations pursuant to Section 17A of the Code of Iowa. 10.9 Waivers. No waiver by the OEI of any default hereunder shall operate as a waiver of any other default or of the same default on any future occasion. No delay on the part of the OEI in exercising any right or remedy hereunder shall operate as a waiver thereof. No single or partial exercise of any right or remedy by the OEI shall preclude future exercise thereof or the exercise of any other right or remedy. 10.10 Counterparts. This Contract may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 10.11 Survival of Representations. All representations and warranties made herein or in any other Contract document or in certificates given pursuant hereto or thereto shall survive the execution and delivery of this Contract and the other Contract documents and shall continue in full force and effect with respect to the date as of which they were made until all of Recipient's obligations or liabilities under this Contract have been satisfied. 10.12 Severability of Provisions. Any provision of this Contract which is unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. All rights, remedies and powers provided in this Contract or any other Contract document may be exercised only to the extent that the exercise thereof does not violate any applicable mandatory provisions of law, and all the provisions of this Contract and any other Contract document are intended to be subject to all applicable mandatory provisions of law which may be controlling and to be limited to the extent necessary so that they will not render this Contract or any other Contract document invalid or unenforceable. 10.13 Successors and Assigns. This Contract shall be binding upon the Recipient and its respective successors and assigns, and shall inure to the benefit of the OEI and the benefit of their respective successors and assigns. The Recipient may not assign its rights hereunder without the written consent of the OEI, which consent will not be unreasonably withheld. 10.14 Termination. This Contract can be terminated upon mutual, written agreement of the Recipient and the OEI. 10.15 Integration. This Contract contains the entire understanding between the Recipient and the OEI relating to the Project and any representations that may have been made before or after the signing of this Contract which are not contained herein, are nonbinding, void and of no effect. None of the Parties have relied on any such prior representation in entering into this Contract. Contract #09- IPF -25 - 18 - IN WITNESS WHEREOF in consideration of the mutual covenants set forth above and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties have entered into this Contract and have caused their duly authorized representatives to execute this Contract, effective as of the latest date stated below (the "Contract Effective Date "). Signature page to follow. FOR OEI: FOR RECIPIENT: BY: BY: Roya Stanley, Director Signature Date Date Contract #09- IPF -25 - 19 - Typed Name and Title LIST OF EXHIBITS Exhibit A - Recipients' Financial Assistance Application (on file with Office of Energy Independence), Application #09 -08 -1244 Exhibit B - Description of the Project and Award Budget Exhibit C- Memorandum of Understanding Between The City of Dubuque and the Interstate Light and Power Company for The Sustainable Dubuque AMI Pilot Project Exhibit D- Joint Development Agreement No. W1055610 Between the City of Dubuque and the International Business Machines Corporation Exhibit E- April 7, 2010 letter from Barry A. Lindahl, Esq., Dubuque City Attorney, to the Iowa Power Fund. Contract #09- IPF -25 - 20 - Exhibit A Recipient's Financial Assistance Application, Application # 09 -08 -1224 (on file with Office of Energy Independence) Contract #09- IPF -25 - 21 - Name of Recipients: Award Date: Project Completion Date: City of Dubuque Iowa February 10, 2010 December 31, 2011 PROJECT DESCRIPTION The City of Dubuque will create a Sustainability Service model for measurement and monitoring of city energy and water systems. The City of Dubuque and International Business Machines (IBM) will develop electric portion of the Sustainability Service model. This system will allow the City and utility to track electrical energy usage on a near -real time basis to allow comparison between individual customer's energy usage with other electric service customers usage, track the impact of utilization changes, and analyze the effectiveness of system design with incentives, which shall enable cross analytics with water and carbon utilization. The project will determine electrical consumption patterns as well as provide cross analytics for all related areas of energy consumption within the community. The City will educate the public on the methods and benefits of reducing consumption of electricity. The City will randomly select 1000 households to participate in this Smart Grid demonstration program through the installation and use of AMI technology, and contract with IBM to research, measure and analyze the data. If Interstate Power and Light Company fails to install and use AIM technology in 1000 households pursuant to Exhibit C, the City of Dubuque shall be responsible, including, but not limited to providing the necessary funding, to install AIM technology in a sufficient number of households so that the total number of households that have installed and used AIM technology pursuant to this Agreement shall not be less than 1000. PROJECT BUDGET SOURCE OF FUNDS AMOUNT TERMS USE OF FUNDS AMOUNT Iowa Power Fund $1,400,000 Grant Research and development of ISS $2,000,000 US DOE EECBG Funds $149,000 Grant City of Dubuque $7,690,000 Cash Installation of smart water meters and related ISS technology $8,839,000 Iowa Department of Natural $1,000,000 Forgivable Resources Clean Water SRF Loan City of Dubuque $200,000 Cash Salaries $200,000 Community Foundation of Greater Dubuque $250,000 Cash Marketing and community engagement $750,000 Interstate Power and Light $400,000 In -Kind Installation of AMI meters and related costs $400,000 TOTAL $ 11,089,000 TOTAL COST $ 11,089,000 Exhibit B Description of the Project and Award Budget Contract #09- IPF -25 - 22 - Contract #09- IPF -25 - 23 - OTHER FUNDING IN THE PROJECT SOURCE OF FUNDS USE OF FUNDS AMOUNT Iowa Power Fund Research and development of ISS $1,400,000 US DOE EECBG Funds Research and development of ISS $149,000 City of Dubuque Contract with for $850,000; $7,650,000 funds committed in City CIP to complete 3 year process of replacing all 22,000 Dubuque residential water meters with smart water meters $7,690,000 Iowa Department of Natural Resources Clean Water SRF Installation of smart water meters $1,000,000 City of Dubuque Salaries (1 FTE Smart Sustainability Dubuque Project Manager, .5 FTE Sustainability Coordinator, Administrative Support $200,000 Community Foundation of Greater Dubuque Community Engagement process (website, public meetings, supplies, marketing) $250,000 Interstate Power and Light Installation of AMI Pilot Meters in 1000 households $400,000 Total Other Funding $11,089,000 PERFORMANCE MEASURES Deliver quarterly progress reports to the Office of Energy Independence including updated project development timelines, project progress and implementation, job hours spent, receipts and invoices for reimbursements related work requested for reimbursement to the Office of Energy Independence. DISBURSEMENT DETAIL The milestones listed below are the deliverables required when Recipients are eligible to request a disbursement, subject to satisfaction of all of the conditions to disbursement as outlined in Article 6.1; No funds shall be disbursed until OEI reviews and approves of the Quarterly Project Status Reports required in Article 8.6. The schedule below is based on satisfactory completion of interim quarterly progress reports, Office of Energy Independence staff evaluation of the project, project site visits, and timely reporting of all project development timelines, project progress, job hours spent on the project by the City of Dubuque and International Business Machines on the project, tracking and reporting. Deliver quarterly progress reports by 15 days following every quarter that will include: Quarterly Status Reports The Quarterly Project Status Reports will collect information from the Recipient about the status of the project. This report will collect information that includes, but is not limited to: A description of the use and effectiveness of the moneys granted; data such as project expenditures; any changes to the Recipient's benefits, ownership, structure, or control of the Recipient; amount of new money from non - governmental sources; progress toward meeting performance measures; financial data necessary to determine repayment amounts due under Article 5.5 and any other information required by the OEI. Further definition of the deliverables can be found in the Statement of Work of Exhibit C to this Agreement. Contract #09- IPF -25 - 23 - Contract #09- IPF -25 - 24 - Due Date • Readiness of the project, including project plan and overall Research progress Payment due on deliverables $75,000 May 15, 2010 • Performance report • Progress of requirements gathered and overall Research progress • Initial outreach, education and marketing plan • Project management plan • Criteria for selection of 1000 pilot recipients (including criteria for scientific validity) • Progress on the development of draft design of the research prototype Payment due on deliverables $200,000 July 15, 2010 • Progress made in identifying data sources, frequency of data updates and overall Research progress • Performance Report • Education and marketing updates • Project management updates Payment due on deliverables $200,000 September 15, 2010 • Progress in developing tools for automated data gathering, and warehousing from smart meters and overall Research progress • Performance report • Education and marketing updates • Project management updates • Evidence of the selection of 1000 pilot recipients. • Evidence of the installation of 1000 AMI meters Payment due on deliverables $225,000 Jan 15, 2011 • Progress on end to end integration of data from the meters into the Prototype Service and overall Research progress • Performance report • Education and marketing updates • Project management updates • Incentive programs offered including successes and failures • Electrical usage data, and other aggregate data being collected by the City of Dubuque or other involved parties as a result of this award. Payment due on deliverables $175,000 April 15, 2011 Contract #09- IPF -25 - 24 - • Progress on end to end integration of data from the meters into the • Prototype Service and overall Research progress. • Education and marketing updates • Project management updates Payment due on deliverables $175,000 July 15, 2011 • Progress of the demonstration of the Prototype Service and overall Research progress • Education and marketing updates • Project management updates Payment due on deliverables $175,000 September 15, 2011 • Project summary, included lessons learned regarding analysis of consumption data, and insight on how the Prototype Service was used. • Electrical usage data, and other aggregate data being collected by the City of Dubuque or other involved parties as a result of this award. Payment due on deliverables $175,000 January 15, 2012 Contract #09- IPF -25 - 25 -