R2012-189 AUTHORIZING EXECUTION OF AGREEMENT FOR ENERGY PERFORMANCE CONTRACT PROJECT DEVELOPMENT

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6. Indemnity JCI and the City agree that JCI shall be responsible only for such injury, loss, or damage caused by the intentional misconduct or the negligent act or omission of JCI. To the extent permitted by law, JCI and the City agree to indemnify and to hold each other, including their officers, agents, directors, and employees, harmless from all claims, demands, or suits of any kind, including all legal costs and attorney's fees, resulting from the intentional misconduct of their employees or any negligent act or omission by their employees or agents. Neither JCI nor the City will be responsible to the other for any special, indirect, or consequential damages. 7. Insurance JCI agrees to the terms of the City's 2012 Energy Performance Contract Request for Proposals, General Requirements of the Successful Proposing Firm, Insurance Coverages. 8. Disputes If a dispute arises under this Agreement,the parties shall promptly attempt in good faith to resolve the dispute by negotiation. All disputes not resolved by negotiation shall be resolved in accordance with the Commercial Rules of the American Arbitration Association in effect at the time, except as modified herein. All disputes shall be decided by a single arbitrator. A decision shall be rendered by the arbitrator no later than nine months after the demand for arbitration is filed, and the arbitrator shall state in writing the factual and legal basis for the award. No discovery shall be permitted. The arbitrator shall issue a scheduling order that shall not be modified except by the mutual agreement of the parties. Judgment may be entered upon the award in the highest State or Federal court having jurisdiction over the matter. The prevailing party shall recover all costs, including attorney's fees, incurred as a result of this dispute. 9. Confidentiality This agreement creates a confidential relationship between JCI and City. Both parties acknowledge that while performing this Agreement, each will have access to confidential information, including but not limited to systems, services or planned services, suppliers, data, financial information, computer software,processes, methods, knowledge, ideas, marketing promotions, current or planned activities,research, development, and other information relating to the other party("Proprietary Information"). Except as authorized in writing both parties agree to keep all Proprietary Information confidential. JCI may only make copies of Proprietary Information necessary for performing its services. Upon cessation of services,termination, or expiration of this Agreement, or upon either party's request, whichever is earlier, both parties will return all such information and all documents, data and other materials in their control that contain or relate to such Proprietary Information. JCI and City understand that this is a confidential project and agree to keep and maintain confidentiality regarding its undertaking of this project. JCI shall coordinate its services only through the designated City representative and shall provide information regarding this project to only those persons approved by City. JCI will be notified in writing of any changes in the designated City representative. 10. Illinois Freedom of Information Act All documents and records in the possession of JCI, sub-consultants, sub-contractors and any other person employed by JCI, sub-consultants or sub-contractors to perform a governmental function on the City of Decatur's behalf and directly related to the governmental function are subject to the Illinois Freedom of Information Act. JCI shall agree to cooperate fully with the City to ensure the City's compliance with the Freedom of Information Act and agrees to hold the City harmless and indemnify it for any failure to so comply. Page 3 of 4