HomeMy WebLinkAboutexhibitMASTER AGREEMENT
FOR
DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES
WITH
FLORIDA POWER AND LIGHT COMPANY
THIS MASTER AGREEMENT (this "Agreement") is made
and entered into as of the «day» day of *month», 2004 (the
"Effective Date"), by and between Florida Power and Light
Company (the "Company") and The City of Miami (the
"Customer") (the Company and the Customer each being
referred to herein individually as a "Party" and collectively as
the "Parties"), with reference to the following:
RECITALS
A. The Company is in the business of providing demand side
management services for customers of Florida Power &
Light Company ("FP&L") pursuant to a Company initiated
program known as the Energy Effidency Services
Program (the "Program");
B. The Customer has agreed to participate in the Program by
considering the furnishing and upgrading of its radiates
with energy effident equipment and systems in order to
achieve potential electric demand and energy savings; and
C. Pursuant to this Agreement, the Parties wish to set forth
their understanding concerning certain energy efficiency
services (the "Services") to be provided by the Company
to the Customer under the Program.
NOW, THEREFORE, in consideration of the mutual
promises and agreements set forth herein, the Parties,
Intending to be legally bound, hereby agree as follows:
ARTICLE 1 SCOPE OF AGREEMENT AND TERM
1.01 Scope. Subject to the terms and conditions of this
Agreement, the Company shall furnish, and the Customer shall
purchase and receive, Services requested by the Customer
from time to time with respect to certain specified facilities of the— Phase 2 — Any and all audit costs will be applied toward this phase
Customer (each, a "Service Location") and with respect to and shall encompass the acquisition and installation of the selected
specific Energy Conservation Opportunities (each, an "ECO") conservation and facility(s)-improvement measures according to
identified at a Service Location. The Services to be furnished Schedules C and E.
by the Company with respect to each Service Location and with
respect to ECOs Identified at a Service Location shall be set forth in a
supplement to this Agreement (each, a "Supplemental Agreement")
which will be mutually agreed upon and executed by both Parties
prior to the Company commencing work at any designated Service
Location. Each Supplemental Agreement (a form of which Is
attached as Exhibit A to this Agreement) shall cover one or more
Service Locations of the Customer and shall consist of the following
forms and schedules:
Form of Supplemental Agreement
Schedule A - Specification of Service Location(s)
Schedule B - Form of Audit Request
Schedule C - Form of Agreement for Feasibility Study
Schedule D - Form of Engineering and Design Order
Schedule E - Form of Construction and Implementation Order
Schedule F - Form of Certificate of Final Acceptance
Schedule G - Form of Payment Agreement
Upon execution of a Supplemental Agreement or any Schedule
thereto by the Parties, such Supplemental Agreement or Schedule
shall be binding upon the Parties and shall be incorporated herein by
reference as part of this Agreement. In the event of any conflict
between this Agreement and a Supplemental Agreement or
Schedule thereto, the terms and provisions of this Agreement, as
amended from time to time, shall control, and in the event of any
conflict between or among a Supplemental Agreement and the
Schedules thereto, the document of the latest date mutually agreed
upon by the Parties shall control.
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The work to be performed involves a two -phased process.
Phase 1— the provision of an energy audit/study per Schedule C of
all the facilities being considered for the application of energy
conservation measures, as designated by the Customer. This audit
phase shall be self -funded by the Company and shall result in a
written report presented to the City.
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1.02 Term. This Agreement shall commence upon the
Effective Date and shall continue in effect for ten (10) years until
written notice of termination by either Party in accordance with
the provisions of Article 14 hereof; provided that upon such
written notice of termination, portions of this Agreement and of
one or more Supplemental Agreements previously entered into
by the Parties may remain in effect as set forth in Article 14,
The City will have the option to extend the term for one (1)
additional five (5) year period.
1.03 Interim Period. Subject to the following sentence, the
term of this Agreement shall commence with the date of
execution by the parties (the Effective Date). All energy savings
achieved during the Interim Period will be fully credited to the
Customer. Following execution, the Agreement shall be binding
on the parties. The period between execution of the Agreement
and ECO implementation acceptance by the Customer shall be
known as the "Interim Period'.
1.04 Incorporation by Reference. City of Miami RFQ 01-
02-224 for Energy Performance Savings Contracting Services,
and the Company's Response, are deemed as being
incorporated by reference herein as if set forth In full. These
documents are supplemental terms to this agreement. In the
event of an express conflict between this Agreement and these
documents this Agreement will control.
ARTICLE 2 ENERGY AUDIT AND FEASIBILITY
STUDY
2.01 Initiation of Audit. From time to time upon the
request of the Customer, the Company will meet with the
Customer's energy personnel to identify Service Locations to
be included in a Company assisted energy efficiency audit.
The Parties will agree upon mutually acceptable audit
procedures and schedules, identify energy savings
technologies to be reviewed, determine the payback criteria
desired by the Customer with respect to new installations, and
agree upon other matters with respect to the audit, all as set
forth in a Supplemental Agreement entered into by the Parties
at such time, which shall include an executed Schedule A
(Specification of Service Location(s)) and an executed
Schedule B (Audit Request). Al of the Services to be
provided by the Company In performing or assisting in such
audit shall be performed by the Company at no cost to the
Customer in accordance with the terms and conditions of
such Supplemental Agreement and Schedules.
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2.02 Audit Report. Upon completion of an audit conducted by
the Parties pursuant to Section 2.1, the Company shall submit to
the Customer an audit report (an "Audit Report") identifying
potential ECOs, if any, at the Customer's Service Location(s)
which the Company believes may be cost effective to implement
and which may meet the Customer's payback criteria, as set forth
In the Audit Request. The Company shall designate in the Audit
Report those ECOs, if any, for which It recommends that a detailed
feasibility study be performed, and the Customer shall have thirty
(30) days from receipt of the Audit Report to notify the Company
whether the Customer wishes to receive a feasibility study
proposal from the Company concerning such ECOs. If the
Customer fails to request such a proposal within the thirty (30) day
period, the Company's obligations under the Supplemental
Agreement covering the Service Location(s) of the audit shall
terminate, without further liability of either Party thereunder. If the
Customer requests a feasibility study proposal within such period,
then the Company shall submit such a proposal to the Customer,
which shall include a designation of the Services to be provided,
the technologies to be included in the study and the compensation
to be paid to the Company for such Services. The proposal also
shall Include a completed Schedule C (Agreement for Feasibility
Study) of the Supplemental Agreement, to be executed by the
Customer and returned to the Company within thirty (30) days of
the Customer's receipt of the proposal. If the Customer fails to
execute and return to the Company the Schedule C within such
period, the Company's obligations under the Supplemental
Agreement shall terminate, without further liability of either Party
thereunder. If the Customer executes and returns the Schedule C,
then the Company shall perform the feasibility study in accordance
with the terms thereof.
2.03 Feasibility Report. Pursuant to a feasibility study
performed by the Company as set forth In Section 2.2, the
Company shall recommend ECOs for Implementation at the
Service Location(s) surveyed based on a life -cycle cost analysis
and estimated energy savings for each ECO. The Company shall
prepare and submit to the Customer a written report (a "Feasibility
Report") specifying each recommended ECO and providing for
each an estimate of (a) the expected implementation cost, (b) the
anticipated life -cycle cost savings, and (c) the estimated timing for
implementation, all of which shall be estimates only, based on the
Company's reasonable assumptions. In the case of each ECO
examined in a Feasibility Report, the Company shall provide
sufficient information to determine whether the Customer's
payback criteria described in Schedule C (Agreement for
Feasibility Study) of the Supplemental Agreementare expected to
be met based on the Company's estimates, Subject to the
provisions of Schedule C, if the Feasibility Report submitted by the
Company does not identify at least one potential ECO which meets
the Customer's agreed upon payback criteria, the Customer
shall be under no obligation to pay the Company for the
Feasibility Report. The Company shall bill the direct cost
associated with the Feasibility Report plus reasonable
overhead and profit not to exceed five percent (5%) which is
acceptable to Customer.
2.04 Engineering and Design Order. The Customer shall
have thirty (30) days following receipt of a Feasibility Report
to determine if it wishes to proceed with the implementation of
any or all of the ECOs recommended by the Company and to
supply the Company with a list of the ECOs approved for
further action by the Company. If the Customer fails to supply
the Company with a list of such approved ECOs within such
thirty (30)-day period, the Company's obligations under the
applicable Supplemental Agreement shall terminate, without
further liability of the Company, and the Customer shall pay
the Company for the feasibility study in accordance with the
provisions of Schedule C of the Supplemental Agreement
(subject to the terms and conditions thereof). If, however, the
Customer wishes to proceed with the implementation of one
or more ECOs and provides the Company with a list of
approved ECOs in accordance with the foregoing, the
Company shall provide the Customer with a proposal to
develop the design and detailed cost estimate for each
approved ECO, which proposal shall include 'all Services to
.be performed by the Company in order to quote a definitive
fixed price for the installation of each such approved ECO and
the compensation to be paid to the Company for such
Services. The proposal also shall include 'a completed
Schedule D (Engineering and Design Order) of the
Supplemental Agreement, to be executed by the Customer
and returned to the Company within thirty (30) days of the
Customer's receipt of the proposal, If the Customer falls to
execute and return to the Company the Schedule D within
such period, the Company's obligations under the applicable
Supplemental Agreement shall terminate, without further
liability of the Company, and the Customer shall pay the
Company for the feasibility study in accordance with the
provisions of Schedule C of the Supplemental Agreement. If
the Customer executes and retums the Schedule D, then the
Company shall perform engineering and design services in
accordance with the terms thereof.
ARTICLE 3 DESIGN AND INSTALLATION
3.01 Design Services and Estimate. Unless otherwise set
forth in Schedule D, the Company shall prepare and develop,
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or cause to be prepared and developed, designs, specifications
and installation drawings for each approved ECO identified in
Schedule D and shall prepare, through solicitation of bids or
otherwise, a detailed cost estimate and proposed implementation
schedule for each such ECO. The Company shall coordinate its
design and engineering work with the Customer's energy
personnel, and a joint technical review shall be conducted with the
Customer, as set forth in Schedule D, when the design documents
are approximately 35% and 95% complete. Designs and
specifications shall comply with att applicable laws, codes,
standards, regulations and permits (if any) and shall be available
for inspection by the Customer at any lime during normal business
hours upon reasonable advance notice. Upon the completion of
design and development of a final cost estimate for each approved
ECO, the Company shall submit to the Customer a design
document (a "Design Document") and fixed -price installation
proposal (an "Installation Price Proposal"), as set forth in
Schedule D of the Supplemental Agreement.
3.02 Construction and Imolementatlon Order. If, on the
basis of the Company's submission, the Customer wishes to proceed
with the Installation and construction of one or more ECOs in
accordance with the Design Document and Installation Price
Proposal, the Customer shall notify the Company thereof within thirty
(30) days of the receipt of such submission, and the Parties shall
thereupon complete and execute a.Schedule E (Construction and
Implementation Order) of the Supplemental Agreement providing for
such work. The Schedule E shall include the Services to be
performed by the Company and the price to be paid by the Customer
with respect to each such installed ECO. Prior to executing a
Schedule E, the Company will consult with the Customer regarding
the selection of any third party contractors to be retained by the
Company to perform installation or construction work at the
Customer's Service Location(s) (each, an "Implementation
Contractor"), and the Company shall not select an Implementation
Contractor to which the Customer has a reasonable objection
(provided, however, that any increased cost resulting from the need
to select an alternative Implementation Contractor shall be bome by
the Customer). If the Customer does not wish to proceed with the
installation of any ECO in accordance with the Design Document and
Installation Price Proposal, or if the Parties fail to complete and
execute a Schedule E within thirty (30) days following the date of the
submission of the Design Document and Installation Price Proposal
to the Customer, then the Company's obligations under the
applicable Supplemental Agreement shall terminate, without further
liability of the Company, and the Customer shall pay the Company
for its Services in accordance with the provisions of Schedule D of
the Supplemental Agreement. If the Customer elects to proceed with
an ECO and the Parties enter into a Schedule E in accordance with
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the foregoing, then the Company shall provide construction and
installation services in accordance with the provisions thereof.
3.03 Elimination of Schedules. Notwithstanding any
provision in this Agreement to the contrary, the Parties may
elect, by mutual agreement, to eliminate and forego any of the
steps outlined above and set forth in Schedules B, C, and D of
the Supplemental Agreement; and, in lieu thereof, the Parties
may agree to enter directly into a Schedule E (Construction and
Implementation Order) on the basis of a fixed price proposal for
one or more ECOs submitted by the Company to the Customer
for the Service Location(s) set forth in Schedule A. Such an
election may occur, for example, in the case of a standard ECO
identified by the Company in an Audit Report. which Is of such a
nature that it does not require a feasibility study or design and
engineering services in order for the Company to provide an
estimate and quote a fixed -price proposal, or in order for the
Customer to request that the ECO be implemented. In such a
case, a Supplemental Agreement may consist of some but not
all of the Schedules listed in Section 1.1 of this Agreement, and,
upon entering Into a Schedule E of the Supplemental
Agreement, the Parties shall be deemed to have waived the
preceding provisions of this Agreement which are no longer
applicable.
3.04 financing. Financing for both Phase I and II shall be
arranged by the Company, and paid from energy and
operational savings, with 100% of the savings above the
guaranteed amount to be the sole property of the Customer.
There shall be no initial capital cost to the Customer. The
Customer, however, reserves the unconditional right to find
alternate funding should it so desire during the term of this
agreement. The design, acquisition, and installation of energy
measures should be structured so that the energy savings,
maintenance savings, and avoided capital expenditures
achieved by the installed energy measures are sufficient to
cover the entire 100 percent (100%) of all project costs for the
duration of this Agreement, in accordance with. 489.145.,
Florida Statutes ("F.S.1), as amended .Energy and maintenance
savings must result through efficiency improvements designed
to maintain existing or improved performance levels. in the
event that the actual savings are less than the guaranteed
savings, the Company shall provide cash reconciliation to the
Customer of the difference between guaranteed and actual
savings. If the actual savings are greater than the guaranteed
savings, the City will have complete ownership of any surplus
savings. The Company's guarantee shall be a first party direct
guarantee from the Company to the Customer. No third party
guarantee, such as a non -contractor insurance company, shall
be accepted. As set forth in Schedule E of the Supplemental
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Agreement, the Company may, if the Customer meets the
Company's credit criteria, provide the Customer the option of
obtaining Company furnished financing for installed ECOs, in which
case the Customer shall compensate the Company for its Services
with respect to such Installed ECOs by means of a monthly Service
Charge for a period of time (the "Payback Period") agreed to by the
Parties. if offered by the Company and requested by the Customer,
the terms and conditions of such Company furnished financing,
including the amount of the monthly Service Charge and term of the
Payback Period, shall be agreed to by the Parties and set forth in a
Schedule G (Payment Agreement) of the Supplemental Agreement,
which, together with Exhibit A (Customer Consent) to such Payment
Agreement, shall be executed by the Customer and retumed to the
Company concurrently with the execution and return of Schedule E
(Construction and Implementation Order) of the Supplemental
Agreement. The Customer acknowledges and agrees that the
Company, with the Customer's written consent, may transfer or
assign, for financing purposes, to one or more assignees, all or any
part of the Company's right to receive payments under any
Schedule G, and, in connection therewith, the Customer agrees, at
the request of the Company or any assignee, to execute and deliver,
to the extent permitted by applicable law, any and all consents,
acknowledgments, following the Customer's written concurrence to
such assignment.
Payment. Monthly payments shall be made to the Company or
altemate financing entity, based solely upon energy savings, for the •
term of this agreement. Such payments shall not exceed the total
energy and operational savings realized under this program for this
agreement.
Reports and Monitoring. The Company shall provide the
Customer with a measurement and verification plan that reflects the
energy utilization by the occupants of the facilities covered by the
agreement. The plan shall include but not be limited to regular
written reports to measure and verify the savings provided by the
Company to the Customer, and any and all projected savings.
These savings guarantees shall be monitored at least quarterly by
the Company and the Customer, and reconciled in writing on an
annual basis, commencing one year from the date of completion of
installation.
Agreement Responsibility. The Company shall be required to
assume total responsibility for all services offered in this Agreement,
and shall be considered the prime contractor and the sole point of
contact with regard to all contractual matters (including warranties
(excluding extended warranties), maintenance covered under an
FPL Maintenance Agreement, and guarantee monitoring).
3.05 Construction and Implementation Services Subject to
the provisions of Section 3.2, the Company may employ one or
more Implementation Contractors in the performance of
Services under Schedule E, which Implementation Contractors
shall be the sole responsibility of the Company and shall have
no direct contractual relationship with the Customer. In
accordance with Schedule E, the Company and its
Implementation Contractors shall (a) procure, construct and
install all materials, equipment and systems required to
implement each ECO in accordance with the Design
Documents, (b) provide and pay for all labor and support
services necessary to perform such work, (c) supply to the
Customer copies of any operation and maintenance manuals
available from the manufacturers, vendors and suppliers of
equipment or systems comprising a part of any installed ECO,
(d) provide on -site training for a reasonable number of the
Customer's designated operating personnel, if such training is
reasonably required or necessary for the proper operation and
maintenance of any complex equipment or system comprising a
part of any Installed ECO, and (e) arrange for the final
inspection and check-out of each installed ECO. In connection
with training provided by the Company, the Customer shall
make available training areas at the Customer's Service
Location(s), training aids and Customer's operating personnel
during normal business hours, as set forth in Schedule E. (f)
Company will hold harmless, defend and indemnify the
customer from any daims, actions or demands of
Implementation Contractors. Upon completion of construction
and installation, the Parties shall conduct a final inspection of
each Installed ECO and if the work is found to be complete, the
Customer shall execute and return to the Company a
Schedule F (Certificate of Final Acceptance) of the
Supplemental Agreement, within twenty (20) days following
receipt by the Customer of a notice of substantial completion
from the Company. If, upon inspection, the work is not found to
be substantially complete, or if any material defect or deficiency
exists, then the Customer shall so notify the Company as set
forth in Schedule E and the Company shall perform any
necessary corrections prior to the Customer executing and
retuming a Schedule F. The date upon which the Customer
Issues, or is deemed pursuant to Schedule E to Issue, a
Schedule F with respect to an ECO shall be referred to herein
as the "Final Acceptance Date" for such ECO. (g) The
Company shall be responsible for compliance with all applicable
codes, statutes, and permitting requirements. All engineering,
design, installation, and construction work shall be done by
contractors property licensed, certified, and bonded to perform
such work in the State of Florida.
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3.06 Energy Savings Guarantee. Company has formulated and
guaranteed the level of energy savings which will be achieved as a
result of the installation and operation of the Equipment and provision
of services provided for in this Agreement. The "Energy Savings
Guarantee' is set forth in Schedule C and in accordance with Exhibit
B entitled "Standards of Comfort." The energy savings guarantee
shall provide sufficient cash flow for the Customer to realize a
minimum 10% level of savings. Any savings realized which exceeds
the guaranteed amount shall be and remain the sole property of the
Customer.
3.07 Fees, The fees to be paid by the Customer for the
Construction Phase of this Agreement shall be calculated as follows:
Total Project Cost per Schedules C and E
Less FPL Rebates (FPL rebate assigned to Company as adjusted by
FPL) equals Cost of Project to Customer
Progress payments will be made to Company per Progress Payment
Schedule of Values provided in Schedule E.
3.08 Fees and Savings Actual energy savings achieved by
Company shall be sufficient to cover the amount guaranteed, as
adjusted by the baseline with respect to Company's services.
3.09 Billing Information Procedure. Billing shall occur only after the
start of the Effective Date as that term is defined In Section 1.2 of this
Agreement. Payments due to Company shall be calculated each
month during the Interim Period in the following manner.
3.09-1 Company shall submit detailed invoices to the
Company, in care of the Contract Administrator. The Customer
shall be afforded (30) days to review, comment, approve
payment of same, and pay the Company.
3.10 Fees for Maintenance. Equipment service and maintenance
performed by the Company and referenced in Schedule C will be
payable in accordance with the Financial Cash Flow Analysis Annual
Service Cost Column. The amount due will be the amount stated in
year 1, and then escalated by the Consumer Price Index with no cap.
3.11 Annual Review and Reconciliation. Within 60 days of the end
of each twelve-month period, Company and Customer shall review
the guaranteed and actual energy savings and any payments made
by Customer, and shall de the annual net savings and/or
payment figures. In the even at actual savings are less than the
guaranteed savings, the Company will pay the shortfall to the
Customer, in accordance with F.S. 489.145. Company shall make
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payments of any shortfalls to Customer within 45 days after the
savings guarantee is reconciled. Late payments shall accrue
simple interest of twelve (12%) percent per annum.
3.12 Verification of Energy Savings. If applicable, the
Design Documents shall set forth appropriate systems and
procedures for measuring and verifying the actual energy
savings resulting from the implementation of an ECO. At the
Customer's request, the Company shall assist the Customer in
measuring and verifying such energy savings with respect to
each ECO following the Final Acceptance Date. The
Company's compensation for such Services shall be included in
the compensation to be paid to the Company pursuant to
Schedule E.
ARTICLE 4 WARRANTY
4.01 General Warranty. The Company warrants to the
Customer that the Services performed by the Company under
this Agreement and under any Supplemental Agreement shall
be performed with the degree of skill and care that is required
by current good and sound professional procedures and
practices, and in conformance with generally accepted industry
standards prevailing at the time the Services are performed.
The Company further warrants that all equipment and materials
provided and installed by the Company In connection with the
Implementation of any ECO hereunder shall be new, shall be
free from .significant defects in design, engineering, materials,
construction and workmanship, and shall conform in all material
respects with all requirements of law and the contract
warranties, the final Design Documents applicable to such ECO
and all descriptions set forth therein, applicable engineering and
construction codes and standards, and all other requirements of
this Agreement and of the applicable Supplemental Agreement.
4.02 Equipment Warranty Company covenants and agrees
that all equipment installed as part of this Agreement is new, in
good and proper working condition and protected by
appropriate written warranties covering all parts. Company
further agrees to deliver to Customer for inspection and
approval all such written warranties; during the warranty period
described in Section 4.3, to pursue rights and remedies against
manufacturer and seller of the equipment under the warranties
in the event of equipment malfunction or improper or defective
function, and defects in parts, workmanship and performance;
to notify Customer whenever defects in equipment parts or
performance occur which give rise to such rights and remedies
and those rights and remedies are exercised by Company.
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4.03 Warranty Period. The warranty period for the warranties set
forth in Section 4.1 shall extend, with respect to each installed ECO,
for a period of two (2) years following the substantial completion date
for such ECO. The warranty period for any Services performed by
the Company hereunder or under any Supplemental Agreement
which do not result In the installation or full implementation of an
ECO shall extend for a period of one (1) year following the date of
completion of such Services.
4.04 Remedies. The Customer shall promptly notify the Company
in writing of the discovery during the applicable warranty period of
any breach of the Company's warranties under Section 4.1, including
any defects in the equipment or materials installed as part of an
ECO. As the Customer's sole and exdusive remedy for any such
breach of the Company's warranties, the Company shall, at Its own
cost and expense, as soon as reasonably possible following the
Company's receipt of notice of any breach of warranty or the
Company's otherwise obtaining knowledge of any breach of
warranty, perform any necessary services to correct any deficiencies
and repair or, If necessary, replace, rework and retest (if appropriate)
defective equipment and construction workmanship and/or provide at
the Company's expense any changes, modifications or additions to
the work which are necessary due to a failure to perform any
Services hereunder and fumish the equipment and materials in
accordance with the standards set forth in Section 4.1. All costs
incidental to the Company's rework and testing thereof shall be bome
by the Company. The Company shall use reasonable efforts to
perform such remedial actions and make any tests in such a manner
and at such a time so as to minimize disruption of normal operations
at the Customer's Service Location. If the Company fails to correct
defective or nonconforming Services or materials within a reasonable
time after written notice from the Customer, the Customer may
correct and, if necessary, retest the same at the Company's
expense.
4.05 Vendor Warranties. Without limiting the Company's
warranty set forth in Section 4.1, the Company, in procuring
materials and equipment for an ECO, shall use reasonable efforts to
obtain standard vendor warranties from the supplier or
Implementation Contractor for the benefit of the Company and the
Customer, and where practical shall attempt to obtain warranty
periods of longer than one (1) year from the substantial acceptance
date, if such extended warranty periods do not Increase the
Company's procurement costs. The Customer shall be entitled to
the benefit of any vendor or Implementation Contractor warranties
obtained which are better or of longer duration than those provided
by the Company hereunder. If any such warranties are for a period
longer than the Company's warranties, they shall be transferred to
the Customer at the end of the Company's warranty period
hereunder, and the Company shall thereafter act, at the Customer's
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request and expense, as liaison for the Customer with such
vendors or Implementation Contractors In prosecuting any
warranty claims.
4.08 Company Principally Responsible. Notwithstanding
Section 4.4, the Company shall have primary liability with
respect to all Company warranties set forth in Section 4.1,
including warranties with respect to materials and equipment,
whether or not any event or defect is also covered by a vendor
or Implementation Contractor warranty, and the Customer need
only look to the Company for corrective action pursuant to
Section 4.3; provided that the Company shall receive the benefit
of any vendor or Implementation Contractor warranties.
4.07 Warranty Disclaimers. There shall be no disclaimer of
implied warranties existing under the Uniform Commerdal Code
In accordance with Ch. 672, F.S. from the Company's products,
services, materials, equipment, supplies and Inventory used by
virtue of the Agreement.
4.08 Warranty Exclusions. The liabilities and obligations of
the Company under this Article 4 do not extend to any repairs,
adjustments, alterations, replacements or maintenance which
may be required as a result of wear and tear In the operation or
use of an installed ECO, or as a result of the Customer's failure
to operate or maintain an ECO in accordance with the operating
manuals or instructions supplied by the Company, or in
accordance with the training provided by the Company to
Customer's personnel.
4.09 No express warranties. Except as expressly provided
In this article 4, the company makes no express warranties or
guarantees, concerning the services or any economic savings.
The company makes no express warranties or guarantees of
any nature whatsoever concerning the actual reduction in the
customer's energy usage as a result of the installation and
operation of any economic savings, and the customer
acknowledges and agrees that any estimated savings,
estimated load reductions or other similar projections supplied
or made by the company shall be for informational purposes
only and shall not constitute a warranty or guarantee by the
company of the actual savings or load reduction, if any, which
may be experienced by the customer.
ARTICLE 5 STANDARDS OF COMFORT
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5.01 Company shall maintain the Equipment in a manner which will
provide the standards of heating, cooling, hot water, and lighting as
described in Exhibit B.
_ARTICLE 6 LIMITATION OF THE COMPANY'S
LIABILITY
6.01 No Operating or Maintenance Responsibility. Except as
otherwise specifically provided in Article 4, the Company shall have
no responsibility or liability with respect to any ECO after the
substantial completion date thereof, and the Customer shall be solely
responsible for the operation, maintenance and utilization of each
ECO after such date. Without limiting the generality of the foregoing,
no payment obligation of the Customer hereunder, or under any
Supplemental Agreement or Schedule, shall be affected by the
actual performance of any ECO following the Final Acceptance Date,
and the Service Charge to be paid by the Customer pursuant to
Schedule G of any Supplemental Agreement shall not be measured
or determined in any manner by the actual amount of energy savings
or load reduction resulting from the implementation or operation of
any ECO.
8.02 Consequential Damages. In no event shall the Company,
its officers, directors, partners, shareholders, employees or affiliates,
or any Implementation Contractor or Its employees or affiliates, be
liable to the Customer for special, indirect, exemplary, punitive or
consequential damages of any nature whatsoever connected with or
resulting from the Services or from performance or non-performance
of this Agreement or any Supplemental Agreement or Schedule,
including damages or claims in the nature of lost revenue, income or
profits, loss of use, or cost of capital, irrespective of whether such
damages are reasonably foreseeable and irrespective or whether
such claims are based upon negligence, strict liability, contract,
operation of law or otherwise.
6.03 Intent. Except in cases of willful misconduct, the Parties
intend that the waivers and disclaimers of liability, releases from
liability, limitations and apportionments of liability, and exclusive
remedy provisions expressed throughout this Agreement and In any
Supplemental Agreement or Schedule shall apply even in the event
of the fault, negligence (in whole or in part), strict liability or breach of
contract of the person released or whose liability is waived,
disclaimed, limited, apportioned or fixed by such remedy provision,
and shall extend to such person's affiliates and to its and their
partners, shareholders, directors, officers, employees, contractors
and agents. The Parties also Intend and agree that such provisions
shall continue in full force and effect notwithstanding the termination,
suspension, cancellation or rescission of this Agreement, any
eDit*Jiipirsds
Supplemental Agreement, Schedule or any other agreement
entered into pursuant hereto. No officer, director, employee,
agent or other individual representative of either Party shall be
personally responsible for any liability arising under this
Agreement or any Supplemental Agreement or Schedule.
8.04 Remedies. Where remedies are expressly afforded by
this Agreement or any Supplemental Agreement or Schedule
with respect to the Services provided by the Company, such
remedies are intended by the Parties to be the sole and
exclusive remedies of the Customer for the award of damages
from the Company arising out of or in connection with the
Services or this Agreement. The parties reserve any remedy
otherwise available at law or in equity, including, without
limitation, the ability to enforce the terms of the agreement such
as specific performance or to seek reformation or rescission of
thls agreement, as warranted and as allowed by laws of the
State of Florida.
ARTICLE 7 ACCESS AND INFORMATION
7.01 Access to Service Locations. Upon the request of the
Company, the Customer shall provide the Company and its
Implementation Contractors with reasonable access to the
Service Location(s) to enable the Company to perform all
Services hereunder and under any Supplemental Agreement
and to verify and confirm the operation of any Installed ECO
following the Final Acceptance Date, The Company also shall
have access to the Service Location(s) during the warranty
period specified In Article 4 for purposes of performing its
obligations thereunder. The Customer shall provide the
Company with storage and laydown areas at the Service
Location(s), as applicable, during the installation of ECOs and
shall make available any construction power and other utilities
required by the Company and its Implementation Contractors to
perform the Services. The Company and its Implementation
Contractors shall observe ail of the Customer's safety and
security procedures at the Service Location(s), to the extent
made known to the Company, and shall not unreasonably
disturb or interrupt the Customer's operations at such
location(s),
7.02 Information. The Customer shall promptly comply with
all reasonable requests by the Company for information
concerning the Service Location(s), as required by the'"
Company to perform the Services, and information to enable
the Company to determine the actual energy savings and load
reduction achieved at the Service Location(s) as a result of
ECO implementation. The Customer also shall provide the
Company with any information and other assistance reasonably
afflonamos
8
required to verify to the Florida Public Service Commission (the
"Commission") the demand and energy savings achieved and the
related costs thereof. The Customer agrees that the Company may
disclose such information obtained by the Company or provided by
the Customer pursuant to this Agreement or any Supplemental
Agreement to the Commission and to any other public authority
having jurisdiction.
ARTICLE 8 DOCUMENTS AND DATA
8.01 Ownership Rights. Any Audit Report, Feasibility Study,
Design Document or other report or document furnished or to be
furnished by the Company pursuant to this Agreement or any
Supplemental Agreement shall become the property of the
Customer, upon payment, and may be used by the Customer for the
operation, maintenance, repair or alteration of any ECO installed by
the Company. Notwithstanding the foregoing, the Customer shall not
acquire any rights or interest with respect to the Company's or its
Implementation Contractors' proprietary technology, processes or
computer software that may be used in connection with the Services
or the supply of equipment and materials hereunder.
8.02 Use of Documents After Termination. If any Supplemental
Agreement or Schedule is terminated, in whole or In part, by the
Customer prior to completion of the installation of any ECO, or the
Customer chooses not to proceed with the implementation of an
ECO as set forth herein, then the Customer shall be entitled to use
for its own purposes any Audit Report, Feasibility Study, Design.
Document or other documents furnished by the Company hereunder,
upon payment of the Company
ARTICLE 9 INSURANCE
9.01 Insurance to be Maintained by the Company. At any time
that the Company is performing Services under thls Agreement or
under any Supplemental Agreement at any Customer Service
Location, the Company shall keep and maintain, with Insurers of
recognized responsibility, the following Insurance, which shall Include
the minimum coverages and limits set forth below:
9.01.1 Worker-'s' Compensation Insurance covering all
of the Company's employees as required by law, with an amount
not less than $500,000 per occurrence.
9.01-2 Commercial General Liability Insurance,
including contractual liability, premises and operations, broad -
form property damage, products/completed operations,
independent contractor, and personal Injury coverages, with a
Mats rued"
limit of not Tess than $2,000,000 for each occurrence,
combined single limit ; and
9.01-3 Comprehensive Automobile Liability
Insurance, including coverage for liability arising out of the
use of owned, non -owned, leased or hired automobiles, for
both bodily injury and property damage In accordance with
state legal requirements, having not less than $2,000,000
combined single limit per occurrence.
9.01-4 Professional Liability — according to the
requirements for engineering design work in the State of
Florida.
Insurance policies to be carried under this agreement shall
not be materially changed or cancelled, without thirty (30)
days prior written notification to the Customer.
9.02 Policy Reauirements, Any insurance carried by the
Customer with respect to the Services of the Company shall be
deemed to be excess and not contributory insurance, and the
Company's insurance to be provided hereunder shall be
primary to the Customer's coverage for all purposes, despite
any conflicting provisions in the policies to the contrary. No
policy maintained by the Company hereunder shall be subject
to cancellation or reduction in coverage or amount, except upon
thirty (30) days prior written notice thereof (ten (10) days for
non-payment of premiums) to the Customer at its address set
forth in Section 17,1. The Company shall provide proof of
coverage to the Customer with respect to the insurance
required to be maintained hereunder at any lime upon the
Customer's request.
9.03 Imalamentation Contractor Insurance. The Company
shalt require such liability insurance of its implementation
Contractors performing services at a Service Location as shall
be reasonable and in accordance with industry practices in
relation to the work or other items being provided by each such
Implementation Contractor. Upon the Customer's request, the
Company shall provide the Customer evidence of the insurance
coverages carried by any Implementation Contractor.
9.04 Self -Insurance The Company reserves the right to self -
insure any obligations of Article 9.
ARTICLE 10 INDEMNIFICATION
9
&krarmAcualiara.aaotmnWuca■ra rnnslfplaoma.aw
10.01 The Company shall indemnify and hold harmless the
Customer and its officers, employees, agents and instrumentalities
from any and all liability, losses or damages, including attorneys' fees
and costs of defense, which the Customer or its officers, employees,
agents or instrumentalities may incur as a result of claims, demands,
suits, causes of actions or proceedings of any kind or nature arising
out of, relating to or resulting from the performance of this Agreement
by the Company or Its employees, agents, servants, partners
principals or subcontractors, except and solely to the extent such
injury, death, or damage is not caused by the Customer. Company
shah pay all claims and losses in connection therewith and shall
investigate and defend all claims, sults or actions of any kind or
nature In the name of the Customer, where applicable, including
appellate proceedings, and shall pay all costs, judgments, and
attomey's fees which may Issue thereon. Company expressly
understands and agrees that any insurance protection required by
this Agreement or otherwise provided by Company shall In no way
limit the responsibility to indemnify, keep and save harmless and
defend the Customer or its officers, employees, agents and
instrumentalities as hereln provided.
The Customer does hereby agree to indemnify and hold harmless
the Company to the extent and within the limitations of Section
768.28 Florida Statute, subject to the provisions of that Statute
whereby the Customer shall not be held liable to pay a personal
injury or property damage claim or judgment by any one person
which exceeds the sum of $100,000, or any claim or judgments or
portions thereof, which, when totaled with all other occurrence,
exceeds the sum of $200,000 from any and all personal injury or
property damage claims, liabilities, losses and causes of action
which may arise solely as a result of the negligence of the
Customer. However, nothing herein shall be deemed to indemnify
the Company from any Ilability or claim arising out of the negligent
performance or failure of performance of the Company or any
unrelated third party.
10.02 Survival. The obligations of the respective Parties under this
Article 10 shall survive the termination of the Agreement or of any
Supplemental Agreement with respect to any claims or Ilability arising
prior to such termination
ARTICLE 11 HAZARDOUS MATERIALS
11.01 The Customer shall have sole responsibility and liability with
respect to the proper identification, removal and disposal of any
hazardous materials (e.g., asbestos) or correction of any hazardous
condition at a Service Location which affects the Company's
performance of the Services hereunder or under any Supplemental
Agreement. If, during the course of performing the Services, the
Company becomes aware of any such hazardous materials or
hazardous condition, the Company shall report such matter to
the Customer immediately and before disturbing (or further
disturbing) such materials or condition. Work in the affected
areas shall be resumed by the Company only upon the written
direction of the Customer, when such materials have been
removed or such condition has been corrected, and then only if
such continuation of work shall not violate any applicable law or
permit
ARTICLE 12 TITLE. SECURITY INTEREST, TAXES,
CUSTOMER INSURANCE. AND RISK OF LOSS
12.01 Passage of Title, Subject to the provisions of Section
11.2, legal title to each installed ECO, including all equipment
and materials comprising a part thereof, shall pass to the
Customer upon the Final Acceptance Date for the ECO.
Notwithstanding the foregoing, the Customer shall bear all risk
of loss or damage of any kind with respect to all or any part of
an ECO located at a Service Location, whether installed or not,
and the Customer shall indemnify and pay the Company for the
repair or replacement of any ECO or component thereof stolen,
lost, destroyed or damaged at a Service Location, unless such
loss or damage is directly caused by the Company or an
Implementation Contractor retained by the Company. Loss or
damage to an ECO directly caused by the Company or its
Implementation Contractor shall be the responsibility of the
Company.
12.02 Security Interest. Subject to the laws concerning
municipal budgets and appropriations the Customer promises to
fund payments to the Company under this agreement.
12.03 Warranty of Title. Except as set forth in Section 11.2,
the Company warrants good title to all ECOs and components
thereof fumished or installed by the Company or its
Implementation Contractors, and the Company warrants that
title to such ECOs and components shall pass to and vest in the
Customer as set forth in Section 11.1 free and dear of all liens,
claims, charges, security interests, encumbrances and rights of
other parties arising as a result of the actions or failure to act of
the Company, its Implementation Contractors, or their
employees.
12.04 Customer Insurance. During and throughout the term
of this Agreement, the Customer agrees, to provide a certificate
of self-insurance coverage issued by its Risk Manager. Such
certificates shall provide at least 30 days prior written notice of
cancellation.
dilemmas
10
12.05 Taxes. The Company shall be responsible for the payment of
any required taxes or fees associated with this agreement. The
Company shall pay any sales and use taxes imposed on the ECOs
prior to the Company's delivery or installation of the ECOs, as
required by applicable law, subject to any sales and use tax
exemptions available to the Company and the Customer.
ARTICLE 13 FORCE MAJEURE
13.01 Neither the Company nor the Customer shall be considered
to be In default in the performance of its obligations under this
Agreement or under any Supplemental Agreement or Schedule,
except obligations to make payments with respect to amounts
already accrued, to the extent that performance of any such
obligation is prevented or delayed by any cause, existing or future,
which is beyond the reasonable control of, and not a result of the
fault or negligence of, the affected Party (a "Force Majeure Event").
If a Party is prevented or delayed in the performance of any such
obligation by a Force Majeure Event, such Party shall immediately
provide notice to the other Party of the circumstances preventing or
delaying performance and the expected duration thereof. Such
notice shall be confirmed in writing as soon as reasonably possible.
The Party so affected by a Force Majeure Event shall endeavor, to
the extent reasonable, to remove the obstacles which prevent
performance and shall resume performance of its obligations as soon
as reasonably practicable.
ARTICLE 14 CHANGES
14.01 The Customer shall have the right to request changes in the
Services (each, a "Change"), consisting of modifications or additions
to, or deletions from, any work to be performed or materials to be
provided by the Company pursuant to this Agreement, or any
Supplemental Agreement or Schedule thereto. A Change also may
result from any failure of the Customer, or its representatives or
agents, to fulfill Its obligations hereunder, which failure materially
adversely affects the Company's cost, schedule or performance
under this Agreement or any Supplemental Agreement or Schedule.
Should any Change cause an Increase or decrease in the cost of or
time required for the Company's performance, or otherwise affect
any provision of this Agreement or any Supplemental Agreement or
Schedule, an equitable adjustment shall be made to the Company's
compensation and any other provision of this Agreement or of any
Supplemental Agreement or Schedule which is thereby affected, by
mutual agreement of the Parties. The Company shall not be
obligated to proceed with or perform any Change requested by the
Customer hereunder until the Parties have agreed in writing upon
any such adjustments resulting from the Change. Except to the
extent a Change specifically results in an amendment or adjustment
a0ate_Pnepando
to one or more provisions of this Agreement or of any
Supplemental Agreement or Schedule, all provisions hereof and
thereof shall apply to all Changes, and no Change shall be
implied as a result of any other Change.
ARTICLE 15 TERMINATION AND DEFAULT
15.01 Termination for Convenience. Either Party may
terminate this Agreement or any Supplemental Agreement, in
its sole discretion, at any time, without further liability, upon ten
(10) days prior written notice to the other Party; provided,
however, that such termination shall not apply with respect to
any Services or work of the Company previously ordered by the
Customer under a Supplemental Agreement Schedule entered
into by the Parties on or prior to the termination date. With
respect to any such previously ordered Services or work,
Including any previously implemented ECO or ECO under
implementation, this Agreement and the applicable
Supplemental Agreement and Schedules entered into
thereunder, shall remain in full force and effect in accordance
with their terms, unless the Parties specifically agree in writing
to the contrary.
18.02 Termination for Cause
15.02.1 Termination by Customer for Company
Default. The Customer shall have the right to terminate this
Agreement and any Supplemental Agreement for cause if
(a) any proceeding is instituted against the Company
seeking to adjudicate the Company as bankrupt or
insolvent, or if the Company makes a general assignment
for the benefit of its creditors, or if a receiver is appointed on
account of the insolvency of the Company, or if the
Company files a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization,
winding up or composition or readjustment of debts and, In
the case of any such proceeding instituted against the
Company (but not by the Company) such proceeding is not
dismissed within sixty (60) days of such filing, or (b) the
Company substantially falls to perform its obligations
hereunder or under any Supplemental Agreement;
provided, In the case of clause (b), that the Customer first
has given the Company fifteen (15) days written notice of
default of any payment obligation or thirty (30) days written
notice of any other default, and the Company has failed to
cure the default (or, if the non-payment default cannot be
cured within thirty (30) days, the Company has not
commenced the cure within that period and diligently
eitatiams.
sArarmAcaugra.do¢om.M.land.na.om ArpUom..doa
11
proceeds therewith). In the case of such a termination by the
Customer, to the extent that the reasonable and necessary costs
of completing any Services previously ordered by the Customer
hereunder or under any Supplemental Agreement or Schedule,
including compensation for obtaining a replacement contractor or
for obtaining additional professional services required as a
consequence of the Company's breach, exceed those costs
which would have been payable to the Company but for .the
Company's breach, the Company shall pay the difference to the
Customer. The Company, In tum, shall be entitled to be paid an
amount (to the extent not already paid) equal to the sum of all of
its reasonable costs incurred in performing the Services up to the
termination date, induding all costs incurred with respect to any
Implementation Contractors; provided that the Company makes
available to the Customer all of the work product, equipment and
materials produced or obtained by the Company in performing
such Services. Notwithstanding the foregoing and
notwithstanding any other provisions set forth herein or In any
Supplemental Agreement or Schedule to the contrary, such a
termination by the Customer shall not affect or diminish In any
way any liability already incurred by the Customer pursuant to
any Schedule G (Payment Agreement) already entered into by
the Customer prior to the termination date, and each such
Schedule G shall remain in full force and effect.
15.02-2 Termination by the Comoanv for Customer
Default. The Company shall have the right to terminate this
Agreement and any Supplemental Agreement for cause If (a) the
Customer makes a general' assignment for the benefit of its
creditors, or if a receiver is appointed on account of the
insolvency of the Customer, or If the Customer files a petition
seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding up or
composition of or readjustment of debts and, In the case of any
such proceeding instituted against the Customer (but not by the
Customer) such proceeding is not dismissed within sixty (60)
days of such filing, or (b) if the Customer substantially fails to
perform Its obligations hereunder or under any Supplemental
Agreement, including any payment obligation; ptgvided, In the
case of dause (b), that the Company first has given fifteen (15)
days written notice of default of any payment obligation or thirty
(30) days written notice of any other default, and the Customer
has failed to cure the default (or, if the non-payment default
cannot be cured within thirty (30) days, has not commenced the
cure within that period and diligently proceeds therewith). In the
event of such a termination by the Company, the Company shall
be entitled, as its sole remedy, to be paid an amount equal to the
sum of (I) all amounts due and payable and not already paid
under any Supplemental Agreement or Schedule for Services
.n.l._Prpr.d.
performed by the Company prior to the termination date, (ii)
an amount equal to the sum of all of the Company's
reasonable costs and expenses incurred in performing
Services up to the termination date, to the extent the
Company's compensation for such Services Is not induded
In the amounts set forth in clause (i) of the foregoing, and
(Ili) all of the Company's reasonable costs and expenses of
termination, including cancellation charges and
demobilization costs assessed against the Company by its
implementation Contractors. Notwithstanding the foregoing
and notwithstanding any other provisions set forth herein or
in any Supplemental Agreement or Schedule to the
contrary, such a termination by the Company shall not in
itself affect or diminish In any way any liability already
Incurred by the Customer pursuant to any Schedule G
(Payment Agreement) already entered into by the Customer
prior to the termination date, and each such Schedule G
shall remain in full force and effect.
15.02-3 Payment. All amounts payable by either
Party pursuant to this Section 14.2 shall be due within thirty
(30) days following the submission by the other Party of an
invoice therefore, which invoice shall indude an Itemization
of costs with respect to any amounts measured on the basis
of reimbursable costs. Such reimbursable costs also shall
be subject to audit by the other Party, at the other Parts
expense upon reasonable advance notice; provided that
such audit shall be completed within sixty (60) days
following the submission of the invoice. Amounts not paid
by either Party to the other when due hereunder shall bear
interest, from the date payment was due to and including
the date of payment at a rate equal to the lesser of one
percent (1%) per month, or the maximum rate permitted by
applicable law (the "Delayed Payment Rate"),
ARTICLE 16 DISPUTES
16.01 Resolution by Arbitration. Any controversy, dispute or
claim between the Parties arising out of or relating to this
Agreement, or any Supplemental Agreement or Schedule, or
the breach thereof, which the Parties are unable to resolve by
consultation and negotiation shall be submitted to arbitration
and shall be settled by arbitration in accordance with the
Commercial Arbitration Rules (the "Rules") of the American
Arbitration Association ("AAA") then in effect and the provisions
of this Article. No suit at law which seeks to resolve any
controversy, dispute or daim between the Parties shall be
instituted by either Party, except where such suit is instituted to
appeal or confirm an arbitration award rendered pursuant to this
Article 15. Any controversy, dispute or claim submitted to
da.,,ons'
arbitration shall be settled by arbitration in Miami, Florida, unless
otherwise agreed by the Parties. Florida Law shall apply to
Resolution by arbitration. Any award entered pursuant to such
arbitration shall be binding on both Parties, and judgment upon the
award rendered or received may be entered in a court of competent
jurisdiction in the State of Florida. Exclusive jurisdiction for the entry
of judgment on any arbitration award relative to any controversy or
claim between the Parties shall lie in any court of appropriate subject
matter jurisdiction located in Florida, and the Parties hereby
expressly subject themselves to the personal jurisdiction of said court
for entry of any such judgment and for the resolution of any dispute,
action, or suit arising in connection with the entry of such judgment
12
16.02 Arbitration Proceedlna. The controversy, dispute or claim
to be arbitrated shall be referred to one (1) arbitrator to be selected
by the Parties by alternately striking from a list of nine (9) arbitrators
provided by the W. All decisions and awards shall be made by the
arbitrator In writing. After a notice of demand for arbitration has been
filed in accordance with the Rules, the Parties may, to the extent
permitted by the Rules, make discovery of any matter relevant to
such dispute before the hearing. Any costs associated with
arbitration under this Article 15, including but not limited to attorneys
fees and witness expenses, shall be paid by the Party originally
incurring the costs and the costs of the arbitrator shall be shared
equally by the Parties,
16.03 Pendency of Dispute. The existence of any dispute,
controversy or claim, under this Agreement, or any Supplemental
Agreement or Schedule, or the pendency of the dispute settlement or
resolution procedures set forth herein shall not in and of themselves
relieve or excuse either Party from its ongoing duties and obligations
hereunder or thereunder.
ARTICLE 17 ASSIGNMENT
17.01 Agreement Binding. This Agreement and each
Supplemental Agreement entered into by the Parties shall be binding
upon, and shall inure to the benefit of, the Parties and their
successors and permitted assigns.
17.02 Permitted Assignment. (a) Company may, with notice to
and consent of Customer, which consent may not be unreasonably
withheld, but acknowledging that the Agreement is considered to be
unique In nature to the abilities of the Company, delegate Its duties
and its performance under this Agreement, and/or utilize contractors,
provided that any assignee(s), designee(s), or contractors) shall
honor the terms of this Agreement and shall so bind itself. The
Customer, at its sole discretion, may require that such assignees,
.n.r._Prcr.rca.
designees, or the like, sign assignment and assumption
agreements satisfactory to the Customer.
17.03 No Third Party Beneficiaries. Except as otherwise
expressly provided herein, neither this Agreement nor any
Supplemental Agreement or Schedule, nor any term or
provision hereof or thereof, shall be construed as being for the
benefit of any party not a signatory hereto.
ARTICLE 18 NOTICES
18.01 In Writing. All notices, demands, offers or other written
communications required or permitted to be given pursuant to
this Agreement, or any Supplemental Agreement or Schedule,
shall be In writing signed by the Party giving such notice and
shall be mailed by U.S. Mail, postage prepaid, couriered or
faxed as follows:
If to the Company:
FPL
700 Universe Blvd.
Juno Beach, FL 33408-0420
Fax: (561) 691-7305
Tel.: (954) 691-7087
Attention: General Counsel
If to the Customer
City of Miami
Department of Capital Improvements
444 S.W. 2nd Ave., 8lh Floor
Miami«Customer_Cityn,
«33130Customer_Zipb
Fax: «(305)416-2153Customer_Faxs
Tel: «Customer_Telb
Attention: «Customer_Notice_Contactm
«FLCustomer_Stateb,
Each Party shall have the right to change the place to which
notices shall be sent or delivered or to specify one additional
address to which copies of notices may be sent, In either case
by similar notice sent or delivered In like manner to the other
Party.
18.02 Timing of Receipt. Notices delivered by mail shall be
deemed received three (3) working days after the date of the
postmark, and notices delivered by overnight courier shall be
deemed received on the date when left at the address of the
recipient. Notices sent by fax shall be effective the date faxed, if
a working day, or the following working day otherwise; provided
*Manama,
vornuNcuslave•dcgAoins\sunaialoma r ..am
13
that all faxes shall be confirmed by follow-up mail within three (3)
working days.
ARTICLE 19 GENERAL PROVISIONS
19.01 Entire Agreement, This Agreement, including the Exhibits
and Schedules attached hereto, sets forth the full and complete
understanding of the Parties relating to the subject matter hereof as
of the Effective Date, and supersedes any and all negotiations,
agreements and representations made or dated prior hereto with
respect to the subject matter of this Agreement Any actions or
Services described In thls Agreement which were performed or
implemented by the Parties prior to the Effective Date shall for all
purposes be deemed to have been performed under this Agreement.
19.02 Amendments. No change, amendment or modification of
this Agreement or any Supplemental Agreement or Schedule thereto
shall be valid or binding upon the Parties unless such change,
amendment or modification shall be In writing and duly executed by
both Parties.
19.03 Status of the Parties. The Company and its Implementation
Contractors shall be independent contractors with respect to the
Services performed hereunder and under any Supplemental
Agreement or Schedule, irrespective of whether such Implementation
Contractors • are approved by the Customer, and neither the
Company nor its Implementation Contractors, nor the employees of
either, shall be deemed 10 be the employees, representatives or
agents of the Customer. Nothing in this Agreement or any
Supplemental Agreement or Schedule shall be construed as
inconsistent with the foregoing independent contractor status or
relationship, or as creating or implying any partnership, joint venture,
trust or other relationship between the Company and the Customer.
19.04 Customer. The Customer hereby represents and warrants
to the Company that (a) the execution and delivery by the Customer
of this Agreement and the performance of Its obligations hereunder
have been duly authorized by ail requisite actions and proceedings ;
are not inconsistent with and do not and will not contravene any
provisions of the Customer's organizational documents or any
applicable law, rule or regulation; have been approved by all
necessary persons or entities; and do not and will not conflict with or
cause any breach or default under any agreement or instrument to
which the Customer is a party or by which it or any of its properties Is
bound; and (b) this Agreement has been duly executed and
delivered by the Customer and constitutes the valid and legally
binding obligation of the Customer, enforceable against the
Customer in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws and subject to
general equitable principles.
19.05 Company. The Company hereby represents and
warrants to the Customer that (a) the execution and delivery by
the Company of this Agreement and the performance of its
obligations hereunder have been duly authorized by all requisite
actions and proceedings by all requisite actions and
proceedings, do not and will not contravene any provisions of
the Company's organizational documents or any applicable law,
rule or regulation, do not and will not require any consent of any
person or entity which has not already been obtained and do
not and will not conflict with or cause any breach or default
under any agreement or instrument to which the Company is a
party or by which it or any of its properties is bound, and (b) this
Agreement has been duly executed and delivered by the
Company and canstitutes the valid and legally binding obligation
of the Company, enforceable against the Company in
accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar taws and
subject to general equitable principles.
19.06 Drafting interpretations and Costs. Preparation and
negotiation of this Agreement has been a joint effort of the
Parties and the resulting document shall not be construed more
severely against one.of the Parties than against the other. Each
Party shall be responsible for its own costs, including legal fees,
incurred in negotiating and finalizing this Agreement and any
Supplemental Agreement or Schedule.
19.07 Captions. The captions contained in this Agreement or
in any Supplemental Agreement or Schedule are for
convenience and reference only and in no way define, describe,
extend or limit the scope or intent of such document or the
intent of any provision contained therein.
19.08 SeverabilitvlDivlsible Contracts (a) The invalidity of
one or more phrases, sentences, clauses, Sections or Articles
contained in this Agreement or any Supplemental Agreement or
Schedule shall not affect the validity of the remaining portions
thereof so long as the material purposes of such document can
be determined and effectuated. (b) From time to time the
Company and the Customer may enter into one or more
supplements, schedules, or payment agreements related to the
subject matter of this Agreement. Each such supplement,
schedule, or payment agreement shall constitute a separate
and divisible contract which the Company may assign to one or
more assignees, in whole or in part, and each and every such
assignee of the Company shall be entitled to the benefits and
rights of the Company under this Agreement, and shall be
14
entitled to exercise the rights of the Company under this Agreement.
No assignee shall be responsible for any obligations of the
Company except as expressly assumed in writing by such assignee
in accordance with the terms and conditions of Section 16.2.
19.09 Further Assurances. The Company and the Customer each
agree to do such other and further acts and things, and to execute
and deliver such additional instruments and documents, as either
Party may reasonably request from time to time whether at or after
the execution of this Agreement, in furtherance of the express
provisions of this Agreement.
19.10 Applicable Law. This Agreement and each Supplemental
Agreement and Schedule thereof, shall be governed by, construed
and enforced in accordance with the laws of the State of Florida,
exclusive of conflicts of laws provisions.
19.11 Counterparts. This Agreement and any Supplemental
Agreement or Schedule may be signed In any number of
counterparts and each counterpart shall represent a fully executed
original as if signed by both Parties.
19.12 No Waiver. The failure of a Party to enforce, insist upon, or
comply with any of the terms, conditions or covenants of this
Agreement or any Supplemental Agreement or Schedule, or a
Party's waiver of the same in any Instance or instances shall not be
construed as a general waiver or relinquishment of any such terms,
conditions or covenants, but the same shall be and remain at all
times in full force and effect.
19.13 No Discrimination. Company shall not unlawfully
discriminate in providing its services under this agreement.
19.14 ADA Clause. In the course of providing any work, labor or
services funded by the City, Company (or its agents and
representatives, as applicable) shall affirmatively comply with all
applicable provisions of the Americans with Disabilities Act ("ADA"),
including Thies I & II of the ADA regarding non-discrimination on the
basis of disability, and related regulations, guidelines and standards
as appropriate. Additionally, Company will take affirmative steps to
ensure non-discrimination in employment of disabled persons.
19.15 OSHAIf applicable, the Company will allow Customer
Inspectors, agents or other representatives to monitor Company
(or its agents or representatives) for compliance with safety
precautions as required by federal, state or local laws, rules,
regulations, codes and ordinances. By performing these
inspections the Customer, its agents or representatives are not
assuming any liability under the laws, rules, regulations, codes or
ordinances. The Company shall have shall have no recourse from
the occurrence or non-occurrence or results of such inspection(s).
.nu-Parp.ma.
Upon issuance of a notice to proceed or following the
effective date the consultant shall contact Risk Management
at (305) 416-1700 to verify inspection scheduling.
19.18 Order of Precedence. If there is a conflict between or
among the provisions of this Agreement, the order of
precedence is as follows:
19.16-1 These terms and conditions
19.16-2 The Work Order
19.16.3 The Scope of Services
19.16-4 The City RFQ and any applicable
addenda
19.16.5 The Company's Proposal
IN WITNESS WHEREOF, the Parties hereto have
executed this Agreement by and through their duly authorized
representatives as of the Effective Date.
THE COMPANY:
Florida Power and Light Company
By:
aFPL_Signatory»
Its:
«FPL_Signatory_Title*
Authorized Corporate Officer
Attest
Corporate Secretary
(Affix Corporate Seal)
THE CUSTOMER:
((City of Miami, a Florida Municipal Corporation
By:
Joe Arriola
dilemma
15
Its: City Manager
Attest:
Priscilla Thompson, City Clerk
Insurance approved:
Dania Carrillo, Administrator
Risk Management Department
Approved as to Legal Form:
Jorge L. Fernandez, City Attomey
aDatsitipareds
EXHIBIT A
FARM OF SUPPLEMENTAL AGREEMENT
SUPPLEMENTAL AGREEMENT NO. T
FOR
DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES
WITH
FLORIDA POWER AND LIGHT
THIS SUPPLEMENTAL AGREEMENT NO. (this "Supplemental Agreement") is made and entered into as of the day of
, 2004(the "Effective Date"), by and between Florida Power and Light Company (the "Company") and the City of Miami
(the "Customer") (the Company and the Customer each being referred to herein individually as a "Party" and collectively as the
"Parties"), with reference to the following:
RECITAL
This Supplemental Agreement is entered Into pursuant to that certain Master Agreement for Demand Side Management and Energy
Efficiency Services dated as of , 2001, between the Company and the Customer (the "Master Agreement"). Capitalized
terms used herein without other definition shall have the meanings set forth in the Master Agreement
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein and in the Master Agreement, the
Parties, intending to be legally bound, hereby agree as follows:
1. DeslgnatLon of Service Locationfs) and Audit Request. This Supplemental Agreement shall cover the Customers Service
Locations) designated in Schedule A attached hereto. Pursuant to Section 2.1 of the Master Agreement, the Customer has requested the
Company to perform at no charge to the Customer, and the Company has agreed to perform, an energy efficiency audit at such Service
Location(s) in accordance with the provisions of the Master Agreement and in accordance with the terms and conditions of Schedule B
(Audit Request) attached hereto.
2. Other Services. Upon completion of the energy efficiency audit and submission by the Company of an Audit Report to
the Customer, the Customer may elect, in its sole discretion, to request additional Services from the Company at one or more of the
Service Locations designated in Schedule A, to be performed by the Company and paid for by the Customer in accordance with the
following Schedules attached hereto, each of which shall be entered into sequentially by the Parties in accordance with the provisions of
the Master Agreement:
Schedule C - Agreement for Feasibility Study
Schedule D - Engineering and Design Order
Schedule E- Construction and Implementation Order
Schedule F - Certificate of Final Acceptance
Schedule G - Payment Agreement
Notwithstanding the foregoing, it is expressly acknowledged and agreed by the Parties that, pursuant to Section 3.3 of the Master
Agreement. the Parties may elect by mutual written agreement to eliminate and forego Schedule C andlor Schedule D and, in lieu thereof,
enter directly into a Schedule E. In such case, the Parties shall be deemed to have waived the provisions of the omitted Schedule(s), as
set forth in Section 3.3 of the Master Agreement
3. Term. Subject to the provisions of the Master Agreement, this Supplemental Agreement shall remain in full force and effect for
so long as any obligation of either Party is outstanding and unperformed under any Schedule entered into by the Parties pursuant hereto.
Except as otherwise provided in the Master Agreement, the termination or expiration of this Supplemental Agreement or any Schedule
hereof shall not, in and of itself, affect the continuing validity and effectiveness of the Master Agreement.
4. Financial Statements. If the Customer requests, or intends to request, that the Company furnish financing for any ECO
installed by the Company, as set forth in Schedule E hereof and in Section 3.4 of the Master Agreement, the Customer shell provide the
Company, on or prior to the Effective Date of this Supplemental Agreement, copies of the Customer's audited financial statements for the
past three (3) years, and the Customer thereafter shall provide the Company with the current audited yearly financial statements of the
Customer within ( ) days following the end of each fiscal year of the Customer for the term of this Supplemental Agreement. To the
extent allowed by laws of the State of Florida, such financial statements shall be treated by the Company as confidential information and
shall not be disclosed by the Company to any third party, except as reasonably required to arrange financing for the Customer.
5. Master Agreement:, This Supplemental Agreement and each Schedule hereof shall be subject to the terms and
conditions of the Master Agreement, which shall control in the event of any conflict or inconsistency.
IN WITNESS WHEREOF, the Parties hereto have executed this Supplemental Agreement by and through their duly authorized
representatives as of the Effective Date.
THE COMPANY:
Florida Power and Light Company
By:
Its:
THE CUSTOMER:
By: Joe Arriola
Its: City Manager
Attest:
Priscilla Thompson, City Clerk
Insurance approved:
Dania Carrillo, Administrator
Risk Management Department
Approved as to Legal Form:
Jorge Fernandez, City Attomey
17
EXHIBIT B
STANDARD OF COMFORT
These guidelines shall be used to determine the following minimum standards of comfort:
SUPPLEMENTAL AGREEMENT NO. •Supplemental_No_s
SCHEDULE A
DESIGNATION OF SERVICE LOCATIONS
Pursuant to Supplemental Agreement No. Executed this «Execution_Days day of
«Supplemental_No_s dated as of «Supplemental_Date), «Execution_Months, «Execution_Yea►i by:
«Supplemental Years, between FPL Services (the
"Company") and «Customers (the 'Customer') (the
'Supplemental Agreement"), the Customer hereby
designates the following Service Location(s) of the THE CUSTOMER:
Customer fix purposes of Services to be provided by the
Company pursuant to the Supplemental Agreement: «City of Miami, a Florida Municipal Corporation
+Schedule A_Names
1
By: Joe Arriola
Its: «City Manager
Attest
Priscilla Thompson; City Clerk
SUPPLEMENTAL AGREEMENT NO. «Supplemental Nos
SCilEDUI,E B
AUDIT REQUEST
THIS SCHEDULE B OF SUPPLEMENTAL
AGREEMENT NO. «Supplemental Nov (this 'Schedule") is
made and entered Into as of the «Schedule_B_Date»,
«ScheduteB_Years by and between FPL SERVICES (the
'Company') and «Customer» (the 'Customer") (the Company
and the Customer each being referred to herein individually as a
'Party" and collectively as the "Parties'), with reference to the
following:
RECITAL
This Schedule is entered into pursuant to that certain
Master Agreement for Demand Side Management and Energy
Efficiency Services dated as of «OMA_Date), OMA Year -
between the Company and the Customer (the "Master
Agreement"), and that certain Supplemental Agreement No.
«Supplementa_No) dated as of «Supplemental_Date),
«SuPllemental Year), also between the Company and the
Customer (the "Supplemental Agreement"), Capitalized terms
used herein without other definition shall have the meanings set
forth in the Master Agreement,
NOW, THEREFORE, in consideration of the mutual
promises and agreements set forth herein and In the Master
Agreement, the Parties, intending to be legally bound, hereby
agree es follows:
1. Enerav Efficiency Audit. The Customer hereby
requests the Company to perform an energy efficiency audit of
each Service Location designated In Schedule A of the
Supplemental Agreement, in accordance with the terms and
conditions of the Master Agreement The Company agrees to
perform such an audit at no cost to the Customer, pursuant to
which the Company shall identify potential ECOs, if any, et each
such Service Location and shall describe its findings 10 the
Customer in an Audit Report as provided In the Master
Agreement Detailed specifications, if any, agreed upon by the
Parties with respect to the audit (including, but not limited to,
energy savings technologies to be reviewed, payback criteria
desired by the Customer, time schedules and other such
matters) are set forth in Appendix I attached hereto.
2. Customer Cooperation. The Customer shall use
reasonable efforts to assist the Company In performing the
Services contemplated by this Schedule, induding providing
Kschcduk B_Namc»
reasonable access to each Service Location, providing
information concerning each Service Location, making
appropriate Customer personnel available If requested by the
Company to assist the Company in performing such Services,
and taking any other actions the Company may reasonably
request from time to time to achieve the purposes and Intent of
this Schedule end the Master Agreement
3. Election to Proceed with ECOs. Upon submission
by the Company to the Customer of an Audit Report as set forth
above, the Customer, in Its sole discretion, may elect to proceed
with a detailed feasibility study for ECOs identified by the
Company in the Audit Report, as provided in Section 2.2 of the
Master Agreement. If the Customer does not elect to proceed
with any ECO recommended by the Company, the Supplemental
Agreement shall terminate without further liability of either Party.
IN. WITNESS WHEREOF, the Parties hereto have executed
this Schedule by and through their duly authorized
representatives as of the date first hereinabove written.
THE COMPANY:
FPL Services
By: RFPL_Signatory)
Its: «FPLSignatory_Title»
THE CUSTOMER:
City of Miami, «Customer Company)
By: Joe Arrfota
its: City Manager
Attest
Priscilla Thompson, City Clerk
SUPPLEMENTAL AGREEMENT Na uSupplemental_Nos
SONDULE 8
APPENDIX I • AUDIT SPECIFICATIONS
2
SUPPLEMENTAL AGREEMENT NO. «Supplemental No_»
SCHEDULE C
AGREEMENT FOR FEASIBILITY STUDY
THIS SCHEDULE C OF SUPPLEMENTAL
AGREEMENT NO. «Supplemental No_) (this
"Schedule") is made and entered into as of the
«Schedule C Date», «Schedule_C_Year» by and
between FPL SERVICES (the "Company") and
«Customer» (the "Customer') (the Company and the
Customer each being referred to herein individually
as a "Party" and collectively as the "Parties"), with
reference to the following:
RECITAL
This Schedule is entered into pursuant to
that certain Master Agreement for Demand Side
Management and Energy Efficiency Services dated
as of «OMA Date», «OMA Year» between the
Company and the Customer (the "Master
Agreement"), and that certain Supplemental
Agreement No. «Supplemental No » dated as of
Supplement Date-, «Supplement Year) also
between the Company and the Customer (the
"Supplemental Agreement"). Capitalized , terms
used herein without other definition shall have the
meanings set forth in the Master Agreement
NOW,
of the
mutual promisesTHEREFORE, consideration
and agreements set forthherein
and In the Master Agreement, the Parties, intending
to be legally bound, hereby agree as follows:
1, easlb l to . The Customer hereby
requests the Company to perform a feasibility study
with respect to the Service Location(s) numbered
Service Location No.— Schedule A of the
Supplemental Agreement, in accordance with the
terms and conditions of the Master Agreement. The
Company agrees to perform such a feasibility study
for the compensation set forth herein, and the
Company undertakes to prepare and submit to the
Customer a Feasibility Report with respect to
recommended ECOs at such Service Location(s) as
provided in the Master Agreement. Detailed
specifications, if any, agreed upon by the Parties for
the feasibility study (including, but not limited to,
energy savings technologies to be reviewed, the
Customer's payback criteria, time schedules and
other such matters) are set forth In Appendix I
attached hereto.
1
2. Customer Cosner ton. The Customer shall
use reasonable efforts to assist the Company in
performing the Services contemplated by this
Schedule, including providing reasonable access to
each Service Location, providing information
concerning each Service Location, making
appropriate Customer: personnel available if
requested by the Company to assist the Company in
performing such Services, and taking any other
actions the Company may reasonably request from
time to time to achieve the purposes and intent of this
Schedule and the Master Agreement.
3, fitcjim o Proce w th EC . Upon
submission by the Company to the Customer of a
Feasibility Report as set forth above, the Customer
shall have sixty (60) days to determine, in Its sole
discretion, If It wishes to proceed with the
implementation of any or all of the ECOs
recommended by the Company in the report and to
supply the Company with a list of the ECOs approved
for further action by the Company;t
that the Customer shall first obtain the approval of the
Company to proceed with less than fifty percent
(50%) of the recommended ECOs (as determined on
an estimated Implementation cost basis). If the
Customer fails to supply the Company with a list of
such approved ECOs within such thirty (30)-day
period, the Company's obligations under this
Schedule and the Supplemental Agreement shall
terminate, without further liability of the Company,
and the Customer shall be obligated to pay the
Company for the feasibility study in accordance with
the provisions of Section 4.2 of this Schedule lf,
however, the Customer wishes to proceed with the
implementation of one or more ECOs and provides
the Company with a list of approved ECOs in
accordance with the foregoing, then the Company
and the Customer shall enter into a Schedule D
(Engineering and Design Order) for such approved
ECOs in accordance with the provisions of
Section 2.4 of the Master Agreement.
4. Price and Payment.
4.1 Schedule C Price. Subject to the
provisions of Section 4.5 below, the Customer shall
pay to the Company the sum of
$«Schedule C Price» (the "Schedule C Price") for
all Services performed by the Company pursuant to
this Schedule. The Schedule C Price is the full
compensation for such Services and includes all
federal, state and local taxes, if any, assessed with
respect to the Services or with respect to the
furnishing of any items hereunder, The Customer will
not be liable for payment of any services not listed
upon or beyond the amounts set forth in Schedule C.
4.2 Payment on Termination. In the event
of a termination of the Company's obligations under
this Schedule and under the Supplemental
Agreement as set forth in Section 3 above, or as set
forth in Section 2.4 of the Master Agreement, the
Company shall provide an invoice to the Customer for
the full Schedule C Price, and the Customer shall be
obligated to pay such amount within forty five (45)
days following receipt of the invoice.
4.3 Deferral Election. In the event the
Customer elects to proceed with implementation of
one or more ECOs pursuant to Section 3 hereof, the
Customer shall notify the Company, on or before
executing a Schedule D (Engineering and Design
Order) with respect to such ECOs, of the Customer's
election to either (a) receive an invoice for the full
amount of the Schedule C Price, or (b) defer and
rollover payment of the Schedule C Price until such
time as compensation is payable to the Company
pursuant to Schedule D (or a subsequent schedule,
as set forth in Schedule D). If the Customer elects
the deferral option pursuant to clause (b) of the
foregoing, interest shall accrue on the unpaid balance
of the Schedule C Price at a rate equal to the lesser
of twelve percent (12%) per annum or the maximum
rate permitted by applicable law, beginning on the
date thirty (30) days following notice of the
Customer's election and payable in full at the time of
payment of the Schedule C Price. If the Customer
elects, pursuant to clause (a) of the foregoing, to
receive an invoice, or if the Customer fails to make a
timely election pursuant to the foregoing, the
Company shall issue an invoice for the full amount of
the Schedule C Price, and the Customer shall be
obligated to pay such amount within thirty (30) days
following receipt of the invoice.
4.4 Late Payments. Any overdue payment under
this Section 4 shall bear Interest at the Delayed
Payment Rate from the date such payment is due
until and including the date of payment.
4.5 Release from Payment Obligation,.
4.5.1 Notwithstanding any provision In
this Schedule to the contrary, the Customer shall
have no obligation hereunder to pay the Company for
the Services performed by the Company under this
Schedule if (a) the Feasibility Report submitted by the
Company pursuant to Section 1 does not identify at
least one potential ECO at a Customer Service
Location specified in Schedule A of the Supplemental
Agreement which meets the Customer's agreed upon
payback criteria of «Schedule C_Payback Years»
years or less, and (b) the Customer does not elect to
proceed further with any approved ECO as set forth
in Section 3. For purposes of the foregoing, the term
"payback criteria", with respect to an ECO, shall
mean the number of years obtained by dividing (i) the
total estimated implementation cost of the ECO, as
set forth in the Feasibility Report (including the
Schedule C Price specified in Section 4.1 hereof, but
excluding all financing costs associated with
implementation of the ECO), by (ii) the estimated
savings to the Customer from the installed ECO,
including energy savings, maintenance savings,
avoided capital costs, and other costs as applicable,
as set forth in the Feasibility Report. Ali such
estimates shall be made by the Company in its sole
professional judgment and shall be binding upon the
Customer for purposes of this Section 4.5.1.
4.5.2 In the event the Company determines,
prior to submission of the Feasibility Report to the
Customer, that the Company will not be able to
identify at least one potential ECO which meets the
Customer's agreed upon payback criteria as set forth
in Section 4.5.1 above, then the Company, in its sole
discretion, may elect by written notice to the
Customer to terminate the Supplemental Agreement
and this Schedule without further liability, unless the
Customer, within five (5) days following receipt of
such notice, elects in writing to waive the provisions
of Section 4.5.1 above and to pay to the Company
the Schedule C Price as otherwise set forth herein.
5. Disclaimer of Warranties. The
Customer acknowledges and agrees that the
Company makes no representation or warranty of
any kind with respect to the Services to be performed
by the Company or any other person pursuant or
relating to this Schedule, except as expressly set
forth in Article 4 of the Master Agreement.
IN WITNESS WHEREOF, the Parties hereto
have executed this Schedule by and through their
duly authorized representatives as of the date first
hereinabove written.
THE COMPANY:
FPL Services
By: «FPL Signatory»
Its: «FPL_Signatory Title»
THE CUSTOMER:
««City of Miami, a Florida Munidpal Corporation
s
By: «Joe Arriola
Its: «City Manager
Attest:
Priscilla Thompson, City Clerk
3
SUPPLEMENTAL AGREEMENT NO. «Supplemental_No_»
SCHEDULE C
APPENDIX I - FEASIBILITY STUDY SPECIFICATIONS
SUPPLEMENTAL AGREEMENT NO. «Supplemental No»
SCHEDULE D
ENGINEERING AND DESIGN ORDER
THIS SCHEDULE D OF SUPPLEMENTAL
AGREEMENT NO. «Supplemental_No» (this
"Schedule") is made and entered into as of the
«Schedule_D Date», «Schedule_D Year» by
and between FPL SERVICES (the "Company")
and «Customer» (the "Customer") (the
Company and the Customer each being referred
to herein individually as a "Party" and collectively
as the "Parties"), with reference to the following:
RECITAL
This Schedule is entered into pursuant to
that certain Master Agreement for Demand Side
Management and Energy Efficiency Services
dated as of «OMA Date)), OMA Year- between
the Company and the Customer (the "Master
Agreement"), and that certain Supplemental
Agreement No. «Supplemental No» dated es of
'.Supplemental Date», ((Supplemental Year*
also between the Company and the Customer
(the "Supplemental Agreement"). Capitalized
terms used herein without other definition shall
have the meanings set forth in the Master
Agreement.
NOW, THEREFORE, in consideration of the
mutual promises and agreements set forth
herein and in the Master Agreement, the Parties,
intending to be legally bound, hereby agree as
follows:
1. Design Services. The Customer
hereby requests the Company to prepare and
develop, or cause to be prepared and developed,
In accordance with the terms and conditions of
the Master Agreement, designs, specifications
and installation drawings for each approved ECO
identified in Appendix I attached hereto. In
connection therewith, the Company also shall
prepare through solicitation of bids or otherwise,
a detailed cost estimate and proposed
implementation schedule for each such
approved ECO. The Company agrees to
perform such Services for the compensation set
forth herein, and the Company undertakes to
prepare and submit to the Customer a completed
Design Document and Installation Price Proposal
for each such approved ECO as provided in the
Master Agreement. Detailed specifications, if any,
agreed upon by the Parties with respect to the
Services to be performed by the Company
hereunder (including, but not. limited to, design
specifications and preferred technologies to be
incorporated in the design) are set forth in
Appendix II attached hereto.
2. Customer Cooneration. The
Customer shall use reasonable efforts to assist
the Company in performing the Services
contemplated by this Schedule, including
providing reasonable access to the Customer's
Service Location(s), providing information
concerning the Service Location(s), making
appropriate Customer personnel available if
requested by the Company to assist the Company
in performing such Services, and taking any other
actions the Company may reasonably request
from time to time to achieve the purposes and
intent of this Schedule and the Master Agreement.
3. Review and Approval of Design
Document. The preparation of the Design
Document shall be coordinated with the
Customer, and the Company shall provide the
Customer with the opportunity to participate in a
joint technical review of the Design Document
when the design Is approximately 35% and 95%
complete. Within ten (10) days following the
Customer's receipt of the proposed final Design
Document, the Customer shall, if good cause
exists, notify the Company in writing of any
material deficiency in the document, whereupon
the Company shall promptly correct such
deficiency and resubmit a proposed final Design
Document to the Customer. If the Customer fails
to so notify the Company of any material
deficiency within such ten (10)-day period
following the submission or resubmission by the
Company of a proposed final Design Document,
then the Customer shall be deemed to have
.SchsduIe D Namew
accepted the Design Document in the form
received from the Company.
4. Election to Proceed Further with
ECOs. If, on the basis of the final accepted
Design Document and the Company's
Installation Price Proposal, the Customer wishes
to proceed with the installation and construction
of one or more ECOs in accordance therewith,
the Customer shall notify the Company thereof
within thirty (30) days following the receipt of the
final accepted Design Document, and the Parties
shall thereupon complete and execute a
Schedule E (Construction and Implementation
Order) of the Supplemental Agreement in
accordance with the provisions of Section 3.2 of
the Master Agreement If the Customer does not
wish to proceed with the installation of any ECO
in accordance with the Design Document, or if
the Parties fail to complete and execute a
Schedule E within such thirty (30)-day period,
then the Company's obligations under this
Schedule and the Supplemental Agreement shall
terminate, without further liability of the
Company, and the Customer shall be obligated
to pay the Company for all its Services
performed pursuant to the Supplemental
Agreement (to the extent not already paid for) in
accordance with the provisions of Section 5.2 of
this Schedule.
5. Price and Payment.
5.1 Schedule D price. The
Customer shall •a to the Com•an the sum of
(the "Schedule D Price") for all
Services performed by the Company pursuant to
this Schedule. The Schedule D Price is the full
compensation for such Services and includes all
federal, state and local taxes, if any, assessed
with respect to the Services or with respect to the
furnishing of any items hereunder.
5.2 Payment on Termination. In the
event of a termination of the Company's
obligations under this Schedule and under the
Supplemental Agreement as set forth in Section
4 above, or as set forth in Section 3.2 of the
Master Agreement, the Company shall provide
an invoice to the Customer for the full
Schedule D Price (together with any unpaid
Schedule C Price and interest thereon deferred
pursuant to Section 4.3 of Schedule C of the
Supplemental Agreement), and the Customer
shall be obligated to pay such amount within thirty
(30) days following receipt of the invoice.
5.3 Deferral Election. In the event the
Customer elects to proceed with the installation
and construction of one or more ECOs pursuant
to Section 4 hereof, the Customer shall notify the
Company, on or before executing a Schedule E
(Construction and Implementation Order) with
respect to such ECOs, of the Customer's election
to either (a) receive an invoice for the full amount
of the Schedule D Price (and unpaid Schedule C
Price, together with interest accrued thereon), or
(b) defer and rollover payment of the Schedule D
Price (and, if applicable, continue to defer the
Schedule C Price) until such time as
compensation is payable to the Company
pursuant to Schedule E (or a subsequent
schedule, as set forth In Schedule E). If the
Customer elects the deferral option pursuant to
clause (b) of the foregoing, Interest shall accrue
on the unpaid balance of the Schedule D Price
(and, if applicable, continue to accrue on the
Schedule C Price) at a rate equal to the lesser of
twelve percent (12%) per annum or the
maximum rate permitted by applicable law,
beginning on the date thirty (30) days following
notice of the Customer's election and payable In
full at the time of payment of the Schedule D Price
(and, if applicable, Schedule C Price). If the
Customer elects, pursuant to clause (a) of the
foregoing, to receive an invoice, or if the
Customer fails to make a timely election pursuant
to the foregoing, the Company shall issue an
invoice for the full amount of the Schedule D Price
(together with any unpaid Schedule C Price and
interest thereon), and the Customer shall be
obligated to pay such amount within thirty (30)
days following receipt of the invoice.
5,4 Late Payments. Any overdue
payment under this Section 5 shall bear interest at
the Delayed Payment Rate from the date such
payment is due until and including the date of
payment
IN WITNESS WHEREOF, the Parties hereto
have executed this Schedule by and through their
xschaduls b Namen
duly authorized representatives as of the date
first hereinabove written.
THE COMPANY:
FPL Services
By: «FPL_Signatory»
Its: «FPL_Signatory_Title»
THE CUSTOMER:
««City of Miami, a Florida Municipal Corporation
By: «Joe Arriola
Its: «City Manager
Attest:
Priscilla Thompson, City Clerk
Approved as to Legal Form:
Jorge L. Fernandez, City Attorney
«Schadula R Nams■
SUPPLEMENTAL AGREEMENT NO. «Suppiemental_No»
SCHEDULE D
APPENDIX 1- APPROVED ECOs
SUPPLEMENTAL AGREEMENT NO. «Supplemental No» •
SCHEDULE D
APPENDIX II - DESIGN SPECIFICATIONS
SUPPLEMENTAL AGREEMENT NO. «Supplemental No»
SCHEDULE E
CONSTRUCTION AND IMPLEMENTATION ORDER
THIS SCHEDULE E OF
SUPPLEMENTAL AGREEMENT NO.
«Supplemental_No» (this "Schedule") is made
and entered into as of the «Schedule E Date»,
«Schedule_E_Year», by and between FPL
SERVICES (the "Company") and «Customer»
(the "Customer+') (the Company and the
Customer each being referred to herein
individually as a "Party" and collectively as the
"Parties"), with reference to the following:
RECITAL
This Schedule is entered into pursuant to
that certain Master Agreement for Demand Side
Management and Energy Efficiency Services
dated as of «OMA__Date», «OMA Year», between
the Company and the Customer (the "Master
Agreement), and that certain Supplemental
Agreement No. «Supplemental No» dated as of
«Supplemental_Date», «Supplemental Year»,
also between the Company and the Customer
(the "Supplemental Agreement). Capitalized
terms used herein without other definition shall
have the meanings set forth in the Master
Agreement.
NOW, THEREFORE, In consideration of
the mutual promises and agreements set forth
herein and in the Master Agreement, the Parties,
intending to be legally bound, hereby agree as
follows:
1. Construction and
ImplementatIon Services. The Customer
hereby requests the Company to construct and
install each approved ECO identified in Appendix I
attached hereto, in accordance with the final
accepted Design Document prepared by the
Company pursuant to Schedule D of the
Supplemental Agreement. The Company agrees
to perform such Services for the compensation
set forth herein, subject to the terms and
conditions of the Master Agreement. Further
detailed specifications, If any, agreed upon by the
Parties with respect to the Services to be
«Schedule E Nameu
performed by the Company hereunder (including,
but not limited to, the designation of one or more
Implementation Contractors approved by the
Customer) are set forth in Appendix II attached
hereto. Additional terms and conditions, If any,
with respect .to the Services to be performed by
the Company hereunder or the approved ECOs to
be constructed and installed pursuant to this
Schedule are set forth in Appendix III attached
hereto.
2. Customer Cooperation. The
Customer shall use reasonable efforts to assist
the Company In performing the Services
contemplated by this Schedule, including
providing reasonable access to the Customer's
Service Location(s), providing information
concerning the Service Location(s), making
appropriate Customer personnel available if
requested by the Company to assist the Company
in performing such Services, and taking any other
lawful actions the Company may reasonably
request from time'to time to achieve the purposes
and intent of this Schedule and the Master
Agreement.
3. Inspections and Final
Acceptance. During the performance of Services
under this Schedule, the Customer shall have the
right to inspect the work of the Company or any
Implementation Contractor at any time upon
reasonable prior notice. Upon completion of
construction and installation of each ECO, the
Parties shall conduct a final inspection and if the
work Is found to be substantially complete, the
Customer shall execute and return to the
Company a Schedule F (Certificate of Final
Acceptance) of the Supplemental Agreement for
each such completed ECO, within twenty (20)
days following receipt by the Customer of a notice
of substantial completion from the Company. If,
upon inspection by the Customer, the work is not
found to be substantially complete, or if any
material defect or deficiency exists, then the
Customer shall so notify the Company within such
twenty (20)-day period, and the Company shall
promptly perform any necessary corrections and
repairs. When the Company has completed such
corrections and repairs, It shall again issue a
notice of substantial completion to the Customer,
and the foregoing procedure shall be repeated
until such time as the Customer shall execute and
return a Schedule F; provided, however, that a
failure of the Customer to respond altogether
within any such thirty (30)-day period following the
receipt of a notice of substantial completion from
the Company shall be deemed, for the purposes
of this Schedule, to constitute an issuance by the
Customer of a Schedule F with respect to the
ECO of which the Customer has been given
notice.
4. Training. If applicable pursuant
to the Master Agreement, the Company shall
provide on -site training for a reasonable number
of the Customer's operating personnel with
respect to completed ECOs, and the Customer
shall assist in such training, all as more fully
specified in Appendix Il. Unless otherwise
provided in Appendix II, such training shall be
conducted with respect to an ECO following the
Final Acceptance Date of the ECO.
5. Price and Payment.
5.1 Schedule E Price. The
Customer shall pay to the Company the sum of
$Schedule E Price- (the "Schedule E Price") for
all Services performed by the Company pursuant
to this Schedule. The Schedule E Price is the full
compensation for such Services and includes all
federal, state and local taxes, if any, including
sales, use and excise taxes, assessed with
respect to the Services or with respect to the
furnishing of equipment and materials hereunder.
5.2. Company Provided
Financing. If the Customer meets the
Company's credit criteria to the satisfaction of the
Company and wishes to obtain financing from the
Company for the Schedule E Price (along with any
unpaid Schedule C Price and interest thereon and
unpaid Schedule D Price and interest thereon
deferred pursuant to Section 4.3 of Schedule C
and/or Section 5.3 of Schedule D of the
Supplemental Agreement, such combined
amounts, together with the Schedule E Price,
being referred to collectively herein as the
"Supplemental Agreement Price"), then the
Parties, concurrently with the execution and
delivery of this Schedule, shall execute and deliver
a Schedule G (Payment Agreement) of the
Supplemental Agreement providing for payment
of such Supplemental Agreement Price over an
agreed -upon Payback Period set forth in
Schedule G, together with a Customer Consent
substantially in the form of Exhibit A to Schedule
G. Pursuant to the provisions of Schedule G,
such Payback Period shall commence on the
Final Acceptance Date of the last ECO to be
constructed and installed by the Company under
this Schedule (the "Last Final Acceptance
Date").
5.3 Lump Sum Payment.
If, on or before the Last Final Acceptance Date,
the Parties have not mutually executed and
delivered a Schedule G (Payment Agreement)
with respect to the full unpaid Supplemental
Agreement Price, together with a Customer
Consent substantially in the form of Exhibit A to
Schedule G, then, within thirty (30) days following
the Last Final Acceptance Date, the Company
shall provide an invoice to the Customer for all or
any portion of the Supplemental Agreement Price
not covered by an executed and delivered
Schedule G, and the Customer shall be obligated
to pay ' such amount within thirty (30) days
following receipt of the invoice. In the event the
Master Agreement and/or Supplemental
Agreement are terminated by either Party prior to
the Last Final Acceptance Date, all accrued and
unpaid Supplemental Agreement Price, together
with any additional amounts payable pursuant to
Article 14 of the Master Agreement, shall be paid
by the Customer to the Company within thirty (30)
days following the Customer's receipt of an
invoice therefor.
6. Disclaimer of Warranties. The
Customer acknowledges and agrees that the
Company makes no representation or warranty of
any kind with respect to the Services to be
performed by the Company or any other person,
including any Implementation Contractor,
pursuant or relating to this Schedule, except as
expressly set forth in Article 4 of the Master
Agreement or, if applicable, in any Appendix
attached to this Schedule.
IN WITNESS WHEREOF, the Parties
hereto have executed this Schedule by and
through their duly authorized representatives as of
the date first hereinabove written.
THE COMPANY:
FPL Services
By: «FPL Signatoryx
Its: «FPL Signatory_Title*
THE CUSTOMER:
««City of Miami, a Florida Municipal Corporation
By: «Joe Arriola
Its: «City Manager
Attest
Priscilla Thompson, City Clerk
SUPPLEMENTAL AGREEMENT NO. «Supplemental Nos
SCHEDULE E
APPEj4DIX I - APPROVED ECOs
SUPPLEMENTAL AGREEMENT NO. «Supplernentauo»
SCHEDULE E
APPENDI)S it - SERVICE SPECIFICATIONS
SUPPLEMENTAL AGREEMENT NO. «Supplemental�No))
SCHEDULE F
CERTIFICATE OF FINAL ACCEPTANCE
THIS SCHEDULE F OF
SUPPLEMENTAL AGREEMENT NO.
«Supplemental No» (this "Schedule") is made
and issued as of the «Schedule F Date»,
Schedule F Year-, by «Customer» (the
"Customer") for the benefit of FPL SERVICES
(the "Company"), with reference to the following:
RECITAL
This Schedule is issued pursuant to that
certain Master Agreement for Demand Side
Management and Energy Efficiency Services
dated as of «OMA Date», OMA Year-, between
the Customer and the Company (the "Master
Agreement"), and that certain Supplemental
Agreement No. «Supplemental_No» dated as of
«Schedule F_Date», Schedule F Year-, also
between the Customer and the Company (the
"Supplemental Agreement"): Capitalized terms
used herein without other definition shall have the
meanings set forth in the Master Agreement.
NOW, THEREFORE, intending to be
legally bound, the Customer hereby certifies as
follows:
1. Completion and Final
Accentance. The Customer has received a
notice of final acceptance and completion from
the Company for each of the ECOs specified in
Appendix I attached hereto, and the Customer
has inspected, or has had adequate opportunity to
inspect, each such ECO. The Customer hereby
acknowledges and agrees that (a) each such
ECO meets the requirements .of the Master
Agreement, the Supplemental Agreement and the
Design Documents applicable thereto, (b) each
such ECO is complete and ready for operation (or
in operation), and (c) the Final Acceptance Date
with respect to each such ECO has occurred.
Final Acceptance and the Final Acceptance Date
has irrevocably occurred with respect to each
ECO listed in Appendix I, provided however, that
the Customer has certain rights, and the
Company has certain obligation& set forth in this
Schedule, with respect to those- punch list items
listed in Appendix II.
2. Correction of Punch Llss
items. A list of Items to be completed or
corrected by the Company is listed in the punch
list attached as Appendix II hereto. The Company
agrees to completeor correct the items and work
listed in Appendix II within thirty (30) days from the
date of this Supplemental Agreement.. From time
to time after completion of work on punch list
items, the Company may provide the Customer
with one or more additional certificates of Final
Acceptance for the punch list items. Within
fourteen (14) days after receipt of such
certificates, • the Customer shall inspect such
punch list items for purposes of Final Acceptance,
and shall either (a) sign and return the certificate
of Final Acceptance as to such punch list items, or
(b) sign and retum the Final Acceptance
certificate which contains a written notice of non-
acceptance for incomplete punch list items which
have been previously identified on the punch list
(and which details the reasons for non-
acceptance, and any suggestions for cure of such
punch list Items), and which also constitutes Final
Acceptance for all other punch list items listed on
such Final Acceptance certificate. Failure of the
Customer to retum such Final Acceptance
certificate as outlined above within such fourteen
(14) day period shall automatically constitute
unconditional Final Acceptance as to all punch list
items.
3. Correction of Remaining
Punch List Items. As to any incomplete punch
list Items which the Customer has described
pursuant to Section 2(b) above, the Customer and
Company agree to promptly meet to discuss cure
of such incomplete punch list items. The
Company shall complete such punch list items
within fourteen (14) days after such meeting. The
Company shall then provide the Customer with
«Schedule F Nemes
final certificates of Final Acceptance for the
remaining punch list items. Within fourteen (14)
days after receipt . of such certificates, the
Customer shall inspect such punch list items for
purposes of Final Acceptance, and shall either (a)
sign and return the certificate of Final Acceptance
as to such punch list items, or (b) sign and return
the Final Acceptance certificate which provides
the Company with written notice of non-
acceptance for incomplete punch list Items (and
which details the reasons for non -acceptance),
and which also constitutes Final Acceptance for
all other punch list items listed on such Final
Acceptance certificate. Failure of the Customer to
retum such Final Acceptance certificate as
outlined above within such fourteen (14) day
period shall automatically constitute unconditional
Final Acceptance as to all punch list items. As to
any remaining punch list items existing after the
process described herein, the Customer shall
have the right to hire a licensed contractor of
Customer's choice to complete the remaining
punch list items, and the Company shall promptly
reimburse the Customer for all reasonably
incurred costs associated with such completion of
the remaining punch fist items. The Customer
shall also have the right to pursue legal action
directly against the Company for reimbursement
and payment for completion of such incomplete
punch list items as described in the process
herein.
4. Payment Unconditional. The
Customer acknowledges that, notwithstanding the
existence of any punch list items, this Schedule
constitutes Final Acceptance of all ECOs listed in
Appendix 1. The Customer hereby unconditionally
agrees to make payment to the Company for the
ECOs listed in Appendix I. The Customer's sole
recourse for the Company's failure to complete
the punch list items in accordance with this
Schedule is to pursue legal action directly against
the Company or its assigns.
5. Reliance. This Schedule and
the certifications of the Customer set forth herein
and on any certificate of Final Acceptance may be
relied on by the Company and by any assignee of
the Company in connection with the furnishing of
ECO financing to the Customer in accordance
with the provisions of the Master Agreement and
the Supplemental Agreement. Any assignee of
the Company shall be entitled to the rights, but not
the obligations, of the Company under this
Schedule.
6. ECO Responsibility. The
Company . assumes no responsibility for
performance or maintenance of the ECOs. ECOs
are to be insured by Customer. No vendor,
manufacturer, or other representative of an ECO
vendor, manufacturer, or distributor ("Vendor") is
an agent of Company and no Vendor or employee
of any Vendor Is authorized to waive, supplement
or otherwise alter any terms, conditions, or
agreement between the Company and the
Customer.
IN WITNESS WHEREOF, the Customer has
made and executed this Schedule by and through
its duly authorized representative as of the date
first herelnabove written.
THE CUSTOMER:
«Customer)
By: «Customer Signatory)
Its: «Customer Signatory_ Titles
«Schedule_F Name.
SUPPLEMENTAL AGREEMENT NO. «Supplemental Nay,
SCHEDULE F
APPENDIX 1- ACCEPTED ECOs
SUPPLEMENTAL AGREEMENT NO. «Supplemental_No»
SCHEDULE F
APPENDIX it - CERTIFICATE OF FINAL ACCEPTANCE/PUNCH LIST ITEMS
This Certificate of Final Acceptance applies to
the ECOs described in Schedule F, Appendix I,
and is entered into pursuant to, and subject to,
all terms and conditions set forth In Schedule F.
PUNCH LIST
[List items. If none, then expressly state
"NONE"]
IN WITNESS WHEREOF, the Customer
has made and executed this Certificate of Final
Acceptance by and through its duly authorized
representative as of the date set forth below.
THE CUSTOMER:
«Customer*
By: «Customer Signatory)
Its: «Customer Signatory_ Title*
Date:
SUPPLEMENTAL AGREEMENT NO. «Supplemental_No»
SCHEDULE G
PAYMENT AGREEMENT
THIS SCHEDULE G 0
SUPPLEMENTAL AGREEMENT NO
«SupplementalNo* (this "Schedule") is mad
and entered into as of the «Schedule_G_Dateb
«Scheduie_G Years, by and between FPL
SERVICES (the "Company) and «Customer»
(the "Customer") (the Company and the
Customer each being referred to herein
individually as a "Party" and collectively as the
"Parties"), with reference to the following:
RECITAL
This Schedule is entered into pursuant
to that certain Master Agreement for Demand
Side Management and Energy Efficiency
Services dated as of «OMA Dates,
«OMA Years, between the Company and the
Customer (the "Master Agreement"), and that
certain Supplemental Agreement No.
«Supplemental Nos dated as of
«Supplemental_Dates, «Supplemental Years,
also between the Company and the Customer
(the "Supplemental Agreement"). Capitalized
terms used herein without other definition shall
have the meanings set forth in the Master
Agreement.
NOW, THEREFORE, in consideration of
the mutual promises and agreements set forth
herein and in the Master Agreement, and for
other good and valuable consideration, the
receipt and adequacy of which are hereby
acknowledged, . the Parties, intending to be
legally bound, hereby agree as follows:
1. Service$. The Services for
which the Company Is entitled to receive
payment under this Schedule, upon acceptance
of such Services by the Customer pursuant to
Section 2 below, are described in Appendix I
attached hereto.
2. Acceptance of the Services.
The Parties hereby acknowledge and agree that
the Customer's obligations under this Schedule
F shall be conditioned solely upon the Customer's
. acceptance of the Services, as evidenced by the
e Customer's execution and delivery to the
, Company, or deemed execution and delivery, of a
Schedule F (Certificate of Final Acceptance) of
the Supplemental Agreement for each ECO
described in Appendix 1 (the date of such
certificate, or deemed issuance date, for the last
ECO listed in Appendix I being referred to herein
as the "Last Final Acceptance Date").
3. Enemy Service Charge.
3.1 Energy Service Charge
for Accepted Services. As payment in full to the
Company for such Services performed by the
Company and accepted by the Customer, the
Customer agrees to pay a monthly charge (the
"Energy Service Charge") as described in this
Section 3.
3.2Invoicing and Payment. The
Company shall invoice or cause the Customer to
be invoiced an Energy Service Charge of
$«ES Charges each month through the
Customer's electric utility bill. Each bill ,
comply with State of Florida's Prompt Payment
Act, S218.70, Fla. Stat. The Customer agrees to
execute and deliver to the Company and to
Florida Power & Light Company (the "Utility") a
consent to the Utility invoicing such Energy
Service Charges through the Customers electric
utility bill, substantially in the form of Exhibit A
hereto. Such invoicing will commence with the
first electric utility bill which occurs thirty (30) days
or more after the Last Final Acceptance Date, and
will continue for Written Months-
(«Numeral_Months») months thereafter unless,
prior to such date this Schedule is terminated
(a) In accordance with Section 4, Early
Termination, or (b) in accordance with Section 5,
Default by Customer. Invoicing will contain a
clear reference to Supplemental Agreement No.
«Supplemental No» for the convenience of the
Customer. If (1) the Uiillty is not permitted to or will
not invoice the Energy Service Charges as part of
sachedule O Namer
the Customer's electric utility bill, (i
Customer ceases to be a customer of the U
or (iii) the Company elects at any time by
notice to the Utility (with a copy provided t
let :
o
4. €air v Termination. The Customer may
terminate this Schedule at any time upon thirty
(30) days' prior written notice to the Company and
receipt by the Company or any designee or
assignee thereof of the amount set forth in
.Schedulee 0 Names
Appendix II attached hereto, applicable to the
date of such termination.
5. Termination for Default of the
Customer. In the event the Customer fails to
observe any provision of this Schedule, the
Company may, by written notice to the Customer
specifying the termination date (a "Notice of
Default"), terrninate this Schedule and
accelerate all amounts payable hereunder, and
on the termination date specified in the Notice of
Default, the Customer shall pay to the Company
the amount set forth in Appendix III attached
hereto, corresponding to such termination date,
together with any other amounts then payable
pursuant to this Schedule. The Customer shall
also pay to the Company or any designee or
assignee thereof, upon demand therefore, all
costs incurred or expended by the Company or
any designee or assignee thereof, including
reasonable fees and disbursements of counsel,
in connection with any such breach by the
Customer of any of its obligations under this
Schedule and any collection or other
enforcement proceedings arising out of any such
breach by the Customer, in each case, upon
demand therefore.
6. Representations and Warranties.
6.1 Customer. The Customer
hereby represents and warrants to the Company
that (a) the execution and delivery by the
Customer of this Schedule and the performance
of its obligations hereunder have been duly
authorized by all requisite actions and
proceedings, are not inconsistent with and do not
and will not contravene any provisions of the
Customer's organizational documents or any
applicable law, rule or regulation, do not and will
not require any consent of any person or entity
which has not already been obtained and do not
and will not conflict with or cause any breach or
default under any agreement or instrument to
which the Customer is a party or by which it or
any of its properties is bound, and (b) this
Schedule has been duly executed and delivered
by the Customer and constitutes the valid and
legally binding obligation of the Customer,
enforceable against the Customer in accordance
with its terms, except to the extent that
enforceability may be limited by applicable
bankruptcy, insolvency, reorganization,
moratorium or similar laws and subject to general
equitable principles.
6.2 Company. The Company hereby
represents and warrants to the Customer that
(a) the execution and delivery by the Company of
this Schedule and the performance of its
obligations hereunder have been duly authorized
by all requisite actions and proceedings, do not
and will not contravene any provisions of the
Company's organizational documents or any
applicable law, rule or regulation, do not and will
not require any consent of any person or entity
which has not already been obtained and do not
and will not conflict with or cause any breach of
default under any agreement or instrument to
which the Company is a party or by which it or any
of its properties is bound, and (b) this Schedule
has been duly executed and delivered by the
Company and constitutes the valid and legally
binding obligation of the Company, enforceable
against the Company In accordance with its items,
except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws and
subject to general equitable principles.
• 7. Disclaimer of Warranties. The
Customer acknowledges and agrees that the
Company makes no representation or warranty of
any kind with respect to the Services to be
performed by the Company or any other person
pursuant or relating to the Master Agreement or
the Supplemental Agreement, except as
expressly set forth in Article 4 of the Master
Agreement.
8. Successors and Aeolians;
Asslanment, This Schedule shall be binding
upon and Inure to the benefit of the Parties hereto
and their successors and permitted assigns. The
Customer acknowledges and agrees that,
pursuant to the Master Agreement, (a) the
Company may assign all or any portion of its
rights under this Schedule to one or more persons
or entities and on one or more occasions without
the consent of the Customer, and (b) the
Customer shall not assign or otherwise transfer
any of its rights, duties, liabilities or obligations
under this Schedule without the prior written
consent of the Company, which consent may not
be unreasonably. Any assignee of the Company
shall be entitled to all rights and benefits of the
.Schedule G Nemee
Company, set forth in the Master Agreement and
all Schedules thereto entered into between the
Customer and the Company.
IN WITNESS WHEREOF, the Parties
hereto have executed this Schedule by and
through their duly authorized representatives as
of the date first hereinabove written.
THE COMPANY:
FPL Services
By: «FPL Signatory*
Its: «FPL_SignatoryyTitle*
THE CUSTOMER:
«Customer»
By: «Customer Signatory*
Its: «Customer Signatory Title*
«Schedule G_Name»
SUPPLEMENTAL AGREEMENT NO. «Supplemental No»
SCHEDULE G
EXHIBIT A
CUSTOMER CONSENT
THIS CONSENT is made as of the
“Executed Day» . day of «Executed Month»,
“Executedyearn (the 'Effective Date"), by
«Customer► ("Customer") with reference to the
following:
REQITALS
A. The Customer and FPL Services
(the "Company") have entered into a Master
Agreement for Demand Side Management and
Energy Efficiency Services, dated as of
«OMA Date», «OMA Yearn (the 'Master
Agreement*), and certain related agreements,
including the Payment Agreement, dated as of
Payment Agreemt Date», «ScheduleG_Date»,
“Schedule G Year» "Payment
"Payment
Agreement"); and
B. Pursuant to Section 3.2 of the
Payment Agreement, the Company may cause
the Customer to be Invoiced for the energy
service charges payable pursuant to the Payment
Agreement by Florida Power & Light Company
('FP&L') through the Customer's monthly electric
utility bill;
NOW THEREFORE, in
consideration of the mutual promises and
agreements set forth in the Master Agreement
and in order to induce the Company to enter into
the Payment Agreement, the Customer hereby
consents to and acknowledges the following:
1. Consent to Invoicing by FP&L.
The Customer hereby (a) consents to FP&L
invoicing the Customer for all DSM Service
Charges specified in this Consent through the
Customer's monthly electric utility bill, (b) agrees
to promptly pay all such amounts to FP&L
pursuant to the terms and conditions of each such
electric utility bill and (c) agrees that from and
after receipt by the Customer of written notice
from the Company that the Company (or any
other person or entity designated In writing by the
Company) has assumed all of FP&L's invoicing
obligations, the Customer shall pay all invoiced
DSM Service Charges to the Company or to such
other person or entity specified In writing by the
Company.
2. Acknowledgment of QSI4
Service Charge$. The Customer hereby
acknowledges . its obligation to pay the following
energy service charges (the "DSM Service
Charges") pursuant to Article 3 of the Payment
Agreement and agrees to be invoiced for such
DSM Service Charges by FP&L:
Monthly DSM Service Charge: $
«MonthlyDSM Charge»
Total Number of Monthly DSM Service Charges:
«No OtMonthlyDSM_ChargesI
Estimated Commencement Date of FP&L
Invoices: «Commence_Date»,
'iCommence Year»
The Customer acknowledges and agrees that
each monthly DSM Service Char a invoiced
hereunder shall be payable within . days
of the date of the Invoice therefor, The Customer
further acknowledges and agrees that FP&L shall
apply all amounts received from the Customer as
follows: (OPTION B shall apply if neither option is
indicated): OPTION A [ ] first, against amounts
then owed by the Customer to FP&L and second,
against any DSM Service Charges and other
amounts then owed by the Customer to the
Company; OPTION B [ ] first, against any DSM
Service Charges and other amounts then owed by
the Customer to the Company and second,
against amounts then owed by the Customer to
FP&L. Any overpayment by the Customer of its
monthly utility bill, in excess of the amounts due
and payable thereunder, shall be applied against
subsequent amounts becoming due and payable
to FP&L, unless the Customer specifically directs
FP&L to apply such overpayment against
subsequently invoiced DSM Service Charges.
3. Reliance by the Comppnv and
FP&L. The Customer hereby agrees to be bound
by this Consent and acknowledges and agrees
that the Com n and FP&L ma rel u on this
Consent.
Ina
4,
Miscellaneous.
a. Amendments. No
change, amendment or modification of this
Consent shall be valid or binding unless such
change, amendment or modification shall be in
writing and duly executed by the Customer, the
Company and FP&L.
b. SevItrabllity. The
invalidity of one or more phrases, sentences,
clauses, Sections or subsections contained in this
Consent shall not affect the validity of the
remaining portions thereof so long as the material
purposes of this Consent can be determined and
effectuated.
c. Further Assurances.
The Customer agrees to do such other and
further acts and things, and to execute and deliver
such additional instruments and documents, as
either the Company or FP&L may reasonably
request from time to time whether at or after the
execution of this Consent, in furtherance of the
express provisions of this Consent.
d. Applicable Law. This
Consent shall be governed by, construed and
enforced in accordance with the laws of the State
of Florida, exclusive of conflicts of laws provisions.
e. Other Agreements.
This Consent shall be subject to the terms and
conditions of the Master Agreement and the
Payment Agreement, which agreements shall
control in the event of any conflict or
inconsistency.
IN WITNESS WHEREOF, the Customer has
executed this Consent by and through its duly
authorized representatives as of the Effective
Date.
By: «Customer Signatory),
its: «Customer Signatory Title),
SUPPLEMENTAL AGREEMENT NO. aSupplemental No_»
SCHEDULE G
APPENDIX 1- DESCRIPTION OF SERVICES
SUPPLEMENTAL AGREEMENT NO. «Supplemental No M
SCHEDULE G
APPENDIX II - EARLY TERMINATION
PAYMENT SCHEDULE
8
SUPPLEMENTAL AGREEMENT NO. «Supplemental_No_»
SCHEDULE G
APPENDIX III - DEFAULT TERMINATION
PAYMENT SCHEDULE
9