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HomeMy WebLinkAboutMaster AgreementMASTER 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 7th day of December 2004 (the "Effective Date'), by and between Florida Power and Ught Company (the "Company) and The City of Miami (the 'Customer') (the Company and the Customer each being referred to herein individually as a °Pally" 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 Efficiency Services Program (the "Program"); B. The Customer has agreed to participate in the Program by considering the furnishing and upgrading of its facilities with energy efficient 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 conceming 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 fumish, and the Customer shall purchase and receive, Services requested by the Customer from time to time with respect to certain specified facilities of the Customer (each, a "Service Location') and with respect to specific Energy Conservation Opportunities (each, an 'ECO") theta me" 1 identified at a Service Location. The Services to be furnished 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 Exhbit 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 Schedule Schedule Schedule Schedule Schedule Schedule A - Specification of Service Location(s) B - Form of Audit Request C - Form of Agreement for Feasibility Study D - Form of Engineering and Design Order E - Form of Construction and Implementation Order F - Form of Certificate of Final Acceptance 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. 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. Phase 2 — My and all audit costs will be applied toward this phase and shall encompass the acquisition and installation of the selected aDate_Preparetl" conservation and faciiity(s) improvement measures according to Schedules C and E. 1.02 Terri. This Agreement shall commence upon the Effective Date and shall continue in effect for ten (10) years until written notice of tenination by either Party in accordance with the provisions of Article 15 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 shall remain in effect as set forth in Article 15. 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 fime 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). All 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 dilemmas 2 Customer in accordance with the terms and conditions of such Supplemental Agreement and Schedules, 2.02 Audit Report. Upon completion of an audit conducted by the Parties pursuant to Section 2.01, 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 conceming 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 retums 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 2.02, 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 Agreement are expected to .n.le_hepa,eb 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/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 retumed to the Company within thirty (30) days of the Customer's receipt of the proposal. If the Customer fails to execute and retum 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. 3 ARTICLE 3 - DESIGN AND INSTALLATION 3.01 Design Services and Estimate. Unless otherwise set forth in Schedule D, the Company shall prepare and develop, 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 all applicable laws, codes, standards, regulations and permits (if any) and shall be available for inspection by the Customer at any time 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 Implementation 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 altemative 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 .Deu_Prspa,ed. 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 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 wart, 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 1.01 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.°), 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 Tess than the guaranteed savings, the Company shall provide cash reconciliation to the Adenoma. 4 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 shad 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 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 returned 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 alternate 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. <D Prepueds 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 (induding warranties (exduding extended warranties), maintenance covered under an FPL Maintenance Agreement, and guarantee monitoring). 3.05 Construction and implementation Services Subject to the provisions of Section 3.02, 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 claims, 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 retum 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 returning a Schedule F. The date upon which the Customer dleaama. 5 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 properly licensed, certified, and bonded to perform such work in the State of Florida. 3.06 Enemy 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. My 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 the Redtals 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 Customer, 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 anau eRP.Rd. 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 determine the annual net savings and/or payment figures. In the event that 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 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 Customers 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 oompensation 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 at 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 ddenemes 6 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 4.03, 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. 4.03 Warranty Period. The warranty period for the warranties set forth in Section 4.01 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 Companys warranties under Section 4,01, including any defects in the equipment or materials installed as part of an ECO. As the Customer's sole and exclusive 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 4.01. All costs incidental to the Company's rework and testing thereof shall be borne 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 4.01, the Company, in procuring materials and equipment for an ECO, shall use reasonable efforts to Amu Repud. 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 request and expense, as liaison for the Customer with such vendors or Implementation Contractors in prosecuting any warranty claims. 4.06 Company Principally Responsible. Notwithstanding Section 4.04, the Company shall have primary liability with respect to all Company warranties set forth in Section 4.01, induding 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 4.03; provided that the Company shall receive the benefit of any vendor or Implementation Contractor warranties. 4.07 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. 4.08 No Implied Warranties. Except as expressly provided in this article 4, the company makes no warranties or guarantees, express or implied, conceming the services or any ECO, and the company disclaims any warranty Implied by law, including implied warranties of merchantability or fitness for a particular purpose and implied warranties of custom or usage. The company makes no 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 ECO, and the customer acknowledges and ddeaamrs 7 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 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 rneasured or determined in any manner by the actual amount of energy savings or load reduction resulting from the implementation or operation of any ECO. 6.02 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 spedal, 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, induding damages or daims 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 sDam_Prepsreds 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 face and effect notwithstanding the termination, suspension, cancellation or rescission of this Agreement, any 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. 6.04 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 tams of the agreement such as specific performance or to seek reformation or rescission of this 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 all 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 ,dilemma. 8 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 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 disdose 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 fumished 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 perforating Services under this 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: •Due_Prepueds 9.01-1 Worker's Compensation Insurance covering all of the Companys 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, productsloompleted operations, independent contractor, and personal injury coverages, with a limit of not less than $2,000,000 for each occurrence, combined single limit; and 9.01-3 Comprehensive Automobile Liability Insurance, induding 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 — minimum of $1,000,000 Combined Single Limit per claim, with a $2,000,000 General Aggregate limit. 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 Requirements. 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 Companys 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 18.01. The Company shall provide proof of coverage to the Customer with respect to the insurance required to be maintained hereunder at any time upon the Customers request. 9.03 Implementation Contractor Insurance. The Company shall 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 eiknamo 9 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 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, induding 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 shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits 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 attorneys 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 herein 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 liability 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 *D.te Praparad. Supplemental Agreement with respect to any claims or liability 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 PASSAGE OF TITLE, APPROPRIATIONS, WARRANTY OF TITLE, CUSTOMER INSURANCE AND TAXES. 12.01 Passage of Title. Legal title to each installed ECO, induding 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 Appropriations. Subject to the laws conceming municipal budgets and appropriations the Customer promises to fund payments to the Company under this agreement 12.03 Warrantv of Title. The Company warrants good titie to all ECOs and components thereof furnished or installed by the Company or its Implementation Contractors, and the Company warrants that title to such ECOs and components shall pass to 10 and vest in the Customer as set forth in Section 12.01 free and clear of all liens, daims, 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. 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 dreumstances 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 mnee_eKp 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 spedfically results in an amendment or adjustment 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, howeverthat 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, induding 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. 15.02 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 11 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 11 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 fails to perform its obligations hereunder or under any Supplemental Agreement provided, in the case of dause (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 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, including 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 liabdity 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 hill force and effect 15.02-2 Termination by the Company 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 acoarnt 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 .Date neared. perform its obligations hereunder or under any Supplemental Agreement, including any payment obligation; provided, in the case of clause (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 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 dause (i) of the foregoing, and (ill) 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 15.02-3 shall be due within thirty (30) days following the submission by the other Party of an invoice therefore, which invoice shall include 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 12 16.01 Resolution by Arbitration. My controversy, dispute or daim 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 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 daim 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. 16.02 Arbitration Proceeding. The controversy, dispute or claim to be arbitrated shall be referred to are (1) arbitrator to be selected by the Parties by alternately striking from a list of nine (9) arbitrators provided by the AAA. 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. My costs associated with arbitration under this Article 16, 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 daim 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 contractor(s) shall honor the terms of this Agreement and shall so bind itself. The Customer, at its sole discretion, may require that such assignees, designees, or the tike, 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. NI notices, demands, offers or other written communications required or permitted to be given pursuant to this Agreement, a. any Supplemental Agreement or Schedule, shall be in writing signed by the Party giving such notice and shall be mailed by U.S. Mati, 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., 811 Floor Miami, FLFIFLFL 33130 Fax: (305) 416-2153 Tel: (305) 416.1287 Attention: Deputy Director Alma ma. 13 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 matt 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 recpient Notices sent by fax shall be effective the date faxed, if a working day, a the following working day otherwise; provided 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 this 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 Arnendmentft. 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 to 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 •Date-Preparem. 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; have been approved by at 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 tills 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 constitutes 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 laws and subject to general equitable principles. 19.06 Draftina 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, Induding 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. .mamma. 14 19.08 SeverabilitvlDivisible 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 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 17.02. 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, exdusive 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 tens, 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 CADA"), including Titles I & II of the ADA regarding non-discrimination on the .D.tePrepn.d., 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 OSHA If 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). 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. 19.16 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 19.16-2 19.16-3 19.16-4 addenda These terms and conditions The Work Order The Scope of Services The City RFQ and any applicable 19.16-5 The Company's Proposal dieoamea 15 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: Atellt A;dl Benn Brandt W / LG /4 H Its: Authorized Corporate Officer (Affix Corporate Seal) THE CUSTOMER: kJ, City of Miami, a F da Municipal Corpo By 'da Its: nager Attest. Priscilla Thompson, City C Insurance app Dania Carrillo, Administrator Risk Management Department iiAH/Grohj Approved as to Legal Fo Jorge L. Femandez, Cj Ant Prepared. EXHIBIT A FORM OF SUPPLEMENTAL AGREEMENT SUPPLEMENTAL AGREEMENT NO. 1 FOR DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES WITH FLORIDA POWER AND LIGHT THIS SUPPLEMENTAL AGREEMENT NO. 1 (this "Supplemental Agreement') is made and entered into as of the 7th day of December , 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 'Patty' 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 Servles dated as of Decem e 7 , 2004, 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. Designation of Service Location(s) and Audit Request. This Supplemental Agreement shall cover the Customer's Service Location(s) designated in Schedule A attached hereto. Pursuant to Article 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 dilemma 16 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 3.03 of the Master Agreement, the Parties may elect by mutual written agreement to eliminate and forego Schedule C and/or 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 3.03 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 3.04 of the Master Agreement, the Customer shall 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) .DRU_Prcp"nd. years, and the Customer thereafter shall provide the Company with the current audited yearly financial statements of the Customer within t An () 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. .rdeo,ma 17 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: \\( OtAA1.;-- Oennie$rendt /J, , i-oJJ Its: Authorized Corporate Officer USTOM By: • : Arriola Its: , Manager Attes\s., & Prisdllaompson, City Clerk Insurance ap Dania Carrillo, Administrator Risk Management Department Approved as to Legal F Jorge Fernandez, Ci EXHIBIT B STANDARD OF COMFORT HEATING VENTILATION & AIR CONDITIONING (HVAC) SYSTEMS The guidelines outlined in the American Society of Heating, Refrigeration and Air Conditioning Engineers (ASHRAE) Standard 55-2004 titled "Thermal Environmental Conditions for Human Occupancy', shall be adhered to in the design and installation of new HVAC equipment. LIGHTING SYSTEMS The illumination levels outlined in the Illuminating Engineering Society of North America (IESNA), Lighting Handbook, 2000 9� Edition, shall be adhered to for the design of new lighting systems as well as the retrofit of existing systems.