HomeMy WebLinkAboutExhibitJanuary 12, 2016
Review by RSR/ Law Dept.
Our matter no. # 15-3040
THIS EQUIPMENT TRIAL AGREEMENT ("Agreement"), effective this day of December,
2015 ("Effective Date"), is between ClearWorld, LLC, with offices located at 1613 Justin Rd,
Metairie, LA 70001 ("Supplier"), and City of Miami, with offices at 444 South West 2nd Ave
10th floor, Miami. FL 33130 ("City"). Supplier and City shall each be referred to as a "Party"
and collectively as the "Parties".
1. SCOPE OF AGREEMENT
This Agreement sets forth the terms and conditions under which City shall trial and evaluate
("Trial") certain PV solar panel equipment by Supplier and the associated documentation
(collectively, the "Equipment") provided by Supplier to City as specified in Attachment A,
which is incorporated herein by this reference. Supplier hereby grants to City a personal,
nontransferable and non-exclusive license to use the Equipment for the purpose described in
Section 4 during the Triad. The Equipment is provided to City under this Trial at no cost.
2. TERM OF AGREEMENT
The term of this Agreement shall commence on the Effective Date hereof and shall continue in
effect until the Trial Period in Section 3 is completed or the Agreement is earlier terminated as
provided in Section 12.
3. TRIAL PERIOD
Supplier shall deliver at no charge to City the Equipment on or before , 2016.. Upon
request, Supplier, at no cost to City, will provide technical advice or instructional support as is
reasonable and necessary to assist in the trialing of the Equipment by City. The Trial Period
shall commence on the completion of installation by Supplier of the Equipment, whichever
ClearWorld, LLC I 1.8553UN.LED1 1 1613 Justin Rd. I Metairie, LA 70001
occurs first, and shall continue for six (6) months ("Trial Period"). The Trial Period may be
extended by mutual agreement in writing by the Parties.
4. PURPOSE OF TRIAL
4.1 The purpose of the Trial is to determine whether the Equipment functions in
accordance with Supplier's published specifications and meets City's needs and functionality
requirements. If, upon completion of the Trial Period, City elects, at its sole and absolute
discretion, to purchase the Equipment, then City or a City Entity (as defined below) and
Supplier will negotiate a separate definitive agreement to purchase the Equipment along with
any- necessary installation and/or maintenance services that may be mutually agreed upon. -
The City shall not be obliged, however, to accept and execute such agreement unless it it is
on terms and conditions acceptable to the City, as determined by the City.
4.2 If, upon completion of the Trial Period, City determines, in its sole and absolute
discretion, not to purchase the Equipment, City can provide written notice to Supplier to
remove the Equipment within thirty (30) business days of the end of the Trial Period. If in the
event the City wishes to purchase the pilot at a cost of $4,000.00, the city will notify the
supplier of their intent in a letter and provide payment for unit within 30 days of notification
by letter. No other cost or charge except the $4,000 herein specified will be assessed or due
for the purchase of the pilot.
4.3 City will provide Supplier right of access to Equipment during the Trial Period.
Supplier will provide City at least one (1) business day advance notice ("ROA Notice") via
email or phone call to City of Supplier's need for right of access to Equipment.
Notwithstanding the forgoing, Supplier will not access Equipment during any period in which
Supplier's access would cause an adverse effect to City's reliable operations of its electric
system.
5. DEFECTS AND MODIFICATIONS
5.1 If Supplier is notified by City of any nonconformance or defect in the Equipment
during the Trial Period, Supplier shall, at no charge, promptly take such action as it may deem
necessary to correct such nonconformity or defect.
ClearWorld, LLC I 1.855.SUN.LED1 1 1613 Justin Rd. I Metairie, LA 70001
5.2 If, during the term of this Agreement, Supplier develops enhancement,
modifications, updates and/or fixes (collectively, "Modifications") to the Equipment (whether
or not as a result of any defect notices provided by City) and supplies such Modifications to
City, City agrees, for the remainder of the Trial Period, to use such Modifications with the
Equipment. Modifications may only be installed by either Party. Modifications that affect the
schedule or performance of specified Trial activities shall only be installed by mutual consent
of both Parties. No charge will be made for City's use of the Modifications under this
Agreement.
6. RIGHT OF WAIVER
No delay, failure or refusal on the part of any Party to exercise or enforce any right under this
Agreement shall impair such right or be construed as a waiver of such right or any obligation
of another Party, nor shall any single or partial exercise of any right hereunder preclude other
or future exercise of any right. The failure of a Party to give notice to the other Party of a
breach of this Agreement shall not constitute a waiver thereof. Any waiver of any obligation
or right hereunder shall not constitute a waiver of any other obligation or right, then existing
or arising in the future. Each Party shall have the right to waive any of the terms and
conditions of this Agreement that are for its benefit. To be effective, a waiver of any
obligation or right must be in writing and signed by the Party waiving such obligation or right.
7. TITLE, RESTRICTIONS, CONFIDENTIALITY AND USE OF INFORMATION
7.1 Title to the Equipment during the Trial Period shall remain in Supplier.
7.2 In the course of evaluating the Equipment and during the term of this Agreement it
will be necessary for one Party ("Disclosing Party") to release certain Confidential Information
(as defined below) to the other Party ("Receiving Party"),
7.3 "Confidential Information" shall mean all information, regardless of the form in
which it is communicated or maintained (whether oral, written, electronic or visual) and
whether prepared by Disclosing Party or otherwise, which is disclosed to Receiving Party,
regardless of whether such information is disclosed before or after the execution of this
Agreement, in connection with the Trial and including all records, reports, analyses, notes,
memoranda, documentation, data, specifications, diagrams, statistics, systems or software,
manuals, business plans, operational information or practices, processes (whether or not
patented, patentable or reduced to practice), customer lists, contractual arrangements with,
Clearworld, LLC I 1.855.SUN.LED1 1 1613 Justin Rd. I Metairie, LA 70001
and information about, the Disclosing Party's suppliers, distributors and customers, the
existence of the discussions between the Parties concerning the Trial, or other information
that are based on, contain or reflect any such Confidential Information. The City is subject to
the State of Florida Public Records Act,
("the Act") Chapter 119, Florida Statutes and the parties agree to comply with the Act as is
applicable. To the extent allowed by law for information made or received by the City, all
information received from the Disclosing Party shall be considered Confidential Information,
unless it is specifically designated as non-proprietary and non -confidential. For the avoidance
of doubt, Confidential Information specifically includes data disclosed by or through Supplier,
its affiliates, or their respective owners, officers, employees, members, or representatives.
7.4 _ Confidential Information. _shall not include: (i) information _which is or becomes_
publicly available other than as a result of a violation of this Agreement; (ii) information which
is or becomes available on a non -confidential basis from a source which is not known to the
Receiving Party to be prohibited from disclosing such information pursuant to a legal,
contractual or fiduciary obligation to the Disclosing Party; (iii) information which the Receiving
Party can demonstrate was legally in its possession prior to disclosure by the Disclosing Party;
or (iv) information which is developed by or for Receiving Party independently of the
Disclosing Party's Confidential Information; or (v) Information not exempt from disclosure and
held by the City pursuant to the Act
7.5 Confidential Information shall not be used for any purpose other than to analyze
and evaluate the Equipment or complete the Trial. To the extent allowed by law , confidential
Information shall be held in strict confidence by Receiving Party and shall not be disclosed
without prior written consent of Disclosing Party, except to those advisors, affiliates, agents,
assigns, attorneys, employees, directors, officers and/or members (all of which and whom are
collectively referred to as "Agents") with a need -to -know the Confidential Information for the
purposes of analyzing or evaluating the Equipment or implementing or completing the Trial.
Receiving Party shall be responsible for any breach of this Agreement by the Receiving Party
or its Agents. The Receiving Party shall use the same degree of care to protect the
Confidential Information as the Receiving Party employs to protect its own information of like
importance, but in no event less than a reasonable degree of care based on industry
standard.
7.6 In the event the Receiving Party is requested or required by legal or regulatory
authority to disclose any Confidential Information, the Receiving Party shall promptly notify
the Disclosing Party of such request or requirement prior to disclosure, if permitted by law, so
that Disclosing Party may seek an appropriate protective order. In the event that a protective
order or other remedy is not obtained, Receiving Party agrees to furnish only that portion of
the Confidential Information that it reasonably determines, in consultation with its counsel, is
ClearWorld, LLC I 1.855,SUN,LED1 1 1613 Justin Rd. I Metairie, LA 70001
consistent with the scope of the subpoena or demand, and to exercise reasonable efforts to
obtain assurance that confidential treatment will be accorded such Confidential Information.
Receiving Party will provide reasonable cooperation to Disclosing Party and its legal counsel
with respect to performance of the covenants undertaken pursuant to this Section 7.6.
7.7 The Receiving Party agrees that money damages would not be a sufficient remedy
for any breach of this Agreement and that Disclosing Party shall be entitled to seek injunctive
or other equitable relief to remedy or prevent any breach or threatened breach of this
Agreement. Such remedy shall not be the exclusive remedy for any breach of this
Agreement; but shall be in addition to all other rights and remedies available at law or in
equity.
7.8 Both Parties shall reproduce and include any applicable City or Supplier copyright
notices and proprietary legends on all copies of the Confidential Information, and mark all
media created by either Party during the Trial with a warning that Equipment is subject to the
restrictions contained in an agreement between Supplier and City and that the associated
Equipment is the property of Supplier.
7.9 Supplier shall, at its own expense, defend, indemnify and hold harmless City Entities
(defined below) from and against all liability, loss or damage (including attorneys' fees and
costs) assessed against or suffered by City Entities as a result of an allegation or claim of
noncompliance by Supplier with this Section 7.0. City entities include, without limitation, the
City, its directors, agents, agencies and instrumentalities, officers, and employees.
7.10 Section 7 is to be construed and interpreted as not to conflict the provision of the Florida
Public Records Act, Chapter 119, Florida Statutes, as amended.
8. RISK OF LOSS
Supplier shall have the risk of loss of or damage to the Equipment until the Equipment is
installed at City's designated location within the City of Miami limits.. City shall have the risk
of loss or damage to the Equipment during the Trial Period; provided, however, Supplier shall
continue to be responsible for claims, physical loss or damage to the Equipment arising or
resulting from Supplier's or its subcontractors' acts or omissions, and/or failure to comply with
the requirements of the Agreement or applicable laws, regulations or permitting
requirements.. Subject to the provisions of this Section 8, City shall compensate Supplier for
any loss or damage to the Equipment equal to the greater of (i) Supplier's cost to replace
such Equipment, or (ii) two thousand dollars ($2,000 USD), per each Equipment as defined in
Clearworld, LLC I 1.855.SUN.LED1 1 1613 Justin Rd. I Metairie, LA 70001
Attachment A. The City's duty to replace such equipment shall be at the supplier's actual cost
with no markup , fee, charge, restocking cost replacement premium, or other direct or
indirect damage added to it.
9. FORCE MAJEURE
9.1 Neither Party shall be held responsible for any delay or failure in the performance of
its obligations under this Agreement to the extent that such delay or failure is caused by fires,
strikes, embargoes, explosions, earthquakes, floods, wars, unusually severe weather
conditions, requirements of governments or other civil or military authorities, acts of God or
the public --enemy, inability to secure raw materials or transportation facilities despite its
commercially reasonably efforts to obtain such materials or facilities, acts or omissions of
third parties, or any other causes beyond such Party's reasonable control whether or not
similar to the foregoing ("force majeure conditions"); provided, however, that individual
occurrences shall not operate to relieve the Parties' obligations under this Agreement, which
are not impaired by such occurrences.
9.2 Notwithstanding an existing or anticipated force majeure condition, the affected
Party will use its commercially reasonable efforts to perform in accordance with the terms and
conditions of this Agreement and will in a timely manner provide the other Party with written
notice documenting the reasons for nonperformance. Accordingly, performance hereunder
shall only be suspended during the duration of and to the extent of such force majeure
condition.
10. INTELLECTUAL PROPERTY INDEMNIFICATION
10.1 Supplier agrees to protect, defend, hold harmless and indemnify City its agencies or
instrumentalities of City of Miami and their respective officers, directors, agents and
employees (all of which and whom are collectively referred to as "City Entities") from and
against any claim, damages, liabilities, losses and expenses arising out of any threatened,
alleged or actual claim that the Equipment or documentation violates any patent, trademark,
copyright, trade secret, proprietary right, intellectual property right, privacy or similar right of
any third party. Supplier shall pay all damages, settlements, expenses and costs, including
costs of investigation, court costs and attorney's fees, whether at the trial or appellate level,
and all other costs and damages to the City Entities.
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10.2 If any infringement or misappropriation claim with respect to the Equipment may be
or has been asserted, Supplier will permit City at Supplier's option and expense, to (i) procure
the right to continue using the Equipment, (ii) replace or modify the Equipment to eliminate
the infringement or misappropriation while providing functionally equivalent performance, or
(iii) terminate this Agreement.
11, GENERAL INDEMNIFICATION
11.1 Supplier agrees to protect, defend, hold harmless and indemnify City Entities from
and against any liabilities whatsoever resulting from or in connection with the Trial, including
in connection with theperformanceof the installation, Modification or removal activities by
Supplier, its employees, subcontractors or subcontractor employees (collectively, "Work"),
whether or not such Liabilities are due to or caused in whole or in part by negligence of City
Entities.
11.2 Subject to Sections 11.3 and 11.4, the limit of Supplier's indemnity obligation per
occurrence shall not exceed the sum of One Million Dollars ($1,000,000). If Supplier is insured
for liability with limits in excess of One Million Dollars ($1,000,000) for claims arising from a
single occurrence, Supplier's indemnity obligation shall extend up to but shall not exceed the
higher limits of that insurance.
11.3 The limits of Supplier's indemnity obligation under Section 11.2 shall not apply to or
limit Supplier's responsibility for attorneys' fees and costs under the Agreement. The selection
of counsel by Supplier or by its insurer to represent and defend City Entities shall be subject
to the prior written approval of the City Attorney.
11.4 The limits of Supplier's indemnity obligation contained in this Section 55.0 shall not
apply to Supplier's indemnity obligations under Sections 7 or 10.
12. DISCLAIMER AND LIMITATION OF LIABILITY
12.1 Supplier warrants and represents that Supplier owns or has right, title and interest
to the Equipment to license the Equipment to City.
ClearWorld, LLC I 1.855.SUN.LED1 1 1613 Justin Rd. I Metairie, LA 70001
12.2 Subject to the next sentence and except as expressly set forth herein, neither City
nor Supplier nor any City Entity, shall be liable to the other for consequential, special,
exemplary, indirect or incidental losses or damages under this Agreement, including Foss of
use, cost of capital, loss of goodwill, lost revenues or loss of profit, and City and Supplier each
hereby releases the other and each of such persons and entities from any such liability. The
foregoing exclusion shall not be construed to limit recovery under any indemnity under this
Agreement with respect to third party claims.
13. INSURANCE
-- 13.1 - Before commencing Workunderthe Agreement, Supplier shall procure and maintain
the following minimum insurance with insurance companies acceptable to City (insurers rated
"A-, VII" or higher by A.M. Best's Key Rating Guide are deemed acceptable) that are licensed
to do business in the State where the Work is performed or to be performed, or as may be
approved in writing by City from time to time:
13.1.1 Workers' Compensation Insurance for statutory obligations imposed by applicable
laws where the Work is performed, including, where applicable, the Alternate Employer
Endorsement, the United States Longshoremen's and Harbor Workers' Act, the Maritime
Coverage and the Jones Act; Employers' Liability Insurance, including Occupational Disease,
shall be provided with a limit of (i) One Million Dollars ($1,000,000) for bodily injury per
accident, (ii) One Million Dollars ($1,000,000) for bodily injury by disease per policy and (iii)
One Million Dollars ($1,000,000) for bodily injury by disease per employee.
13.1.2 Automobile Liability Insurance which shall apply to all owned, non -owned, leased
and hired automobiles in an amount with minimum limits of not less than One Million Dollars
($1,000,000) combined single limit per occurrence for bodily injury and property damage per
accident; and
13.1.3 General Liability Insurance, written on Insurances Services Office form CG 00 01
1204 (or equivalent) covering liability arising out of premises, operations, bodily injury,
property damage, products and completed operations and liability insured under and insured
contract (contractual liability), with minimum limits of One Million Dollars ($1,000,000) per
occurrence, which shall insure the performance of the contractual obligations assumed by
Supplier under the Agreement.
ClearWorld, LLC I 1.855.SUN.LED1 1 1613 Justin Rd. I Metairie, LA 70001
13.2 Except for the Workers' Compensation Insurance, City Entities shall be endorsed as
an additional insured on Supplier's insurance policies required to be maintained under the
Agreement and such policies shall provide for a waiver of subrogation in favor of City Entities.
All policies of insurance required to be maintained by Supplier hereunder shall provide for a
severability of interest clause and include a provision in such policies that Supplier's insurance
policies are to be primary and non-contributory to any insurance that may be maintained by
or on behalf of City Entities.
13.3 In the event that any policy furnished by Supplier provides for coverage on a
"claims made" basis, the retroactive date of the policy shall be the same as the effective date
of the Agreement, or such other date, as to protect the interest of City Entities. Furthermore,
for all policies furnished on a "claims made" basis, Supplier's providing of such coverage shall
survive the termination of the Agreement, until the expiration of the maximum statutory
period of limitations in the State of Florida for actions based in contract or in tort. If coverage
is on "occurrence" basis, Supplier shall maintain such insurance during the entire term of the
Agreement.
13.4 Supplier shall promptly provide evidence of the minimum insurance coverage
required under the Agreement in the form of an ACORD certificate or other certificate of
insurance acceptable to City. Upon City's request, Supplier shall provide City with complete
copies of all required insurance policies under the Agreement. If any of the required
insurance is cancelled or non -renewed, Supplier shall within thirty (30) days provide written
notice to City and file a new Certificate of Insurance or binder with City demonstrating to
City's satisfaction that the required insurance coverage to be maintained hereunder have
been extended or replaced. Neither Supplier's failure to provide evidence of minimum
coverage of insurance following City's request, nor City's decision to not make such request,
shall release Supplier from its obligation to maintain the minimum coverage provided for in
this Section 16.0.
14, TERMINATION
City may terminate this Agreement at any time by providing written notice to Supplier, upon
receipt of which Supplier shall schedule a mutually agreeable time not to exceed 45 days to
remove the Equipment from City's facilities.
15. SURVIVAL OF OBLIGATIONS
ClearWorld, LLC I 1.855,SUN.LED1 1 1613 Justin Rd. I Metairie, LA 70001
The respective obligations of Supplier and City under this Agreement, which by their nature
would continue beyond the termination or expiration of this Agreement, shall survive any such
termination or expiration, including without limitation, Sections 7, 10, 11 and 12.
16. CHOICE OF LAW AND VENUE; ATTORNEYS FEES .
16.1 The construction, interpretation and performance of this Agreement and all
transactions under it shall be governed by the law of the State of Florida.
16.2 Any disputes resulting in litigation between the Parties shall be conducted in the
state or federal courts of the State of Florida. Proceedings shall take place in the Circuit Court
for Miami- Dade County, the United States District Court for the Southern District of Florida in
Miami, FI. The Parties irrevocably waive any objection, which any of them may now or
hereafter have to the bringing of any such action or proceeding in such respective
jurisdictions, including any objection to the laying of venue based on the grounds of forum
non convenes and any objection based on the grounds of lack of in personal jurisdiction. The
parties will each bear their own attorney's fees..
16.3 EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE PARTIES ENTERING INTO THIS AGREEMENT.
17. PARAGRAPH HEADINGS
The Section headings contained herein are for convenience only and are not intended to affect
the meaning or interpretation of this Agreement.
18. COUNTERPARTS
This Agreement may be signed in counterparts and may be delivered by facsimile or
electronic means, each of which may be deemed an original, and all of which together
constitute one and the same agreement.
ClearWorld, LLC I 1.855.8UN.LED1 1 1613 Justin Rd. I Metairie, LA 70001
19. PUBLICITY
Supplier shall not issue any press or publicity release or otherwise release, distribute or
disseminate any confidential information for publication concerning this Agreement or the
participation of City or any City Entity in the transactions contemplated hereby without the
prior written consent of City; provided, however, that such limitation on disclosure shall not
apply to disclosures or reporting required by a governmental authority if Supplier informs City
of the need for such disclosure and, if reasonably requested by City, seeks, through a
protective order or other appropriate mechanism, to maintain the confidentiality of
Confidential Information.
20. INTERPRETATION
Each Party acknowledges that it has carefully reviewed this Agreement, that it has been
advised with regard to the subject matter hereof by legal counsel selected by such Party, and
that this Agreement and any uncertainty or ambiguity therein shall not be construed against
any one Party as drafter.
21. ASSIGNMENT
This Agreement may not be assigned by either Party unless prior written consent is obtained;
however, City may assign upon notice to Supplier this, Agreement (including the right to
enforce its terms) to a City agency or instrumentality at its sole discretion without consent.
This Agreement shall be binding upon the Parties and their successors and permitted assigns.
22. SEVERABILITY
If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present
or future laws, such provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never comprised a part of
this Agreement; and the remaining provisions of this Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement a provision as
similar in its terms to such illegal, invalid or unenforceable provision as may be possible and
be legal, valid and enforceable.
ClearWorld, LLC I 1.8553UN„LED1 1 1613 Justin Rd. I Metairie, LA 70001
23, ENTIRE AGREEMENT
This Agreement, including Attachments, shall constitute the entire Agreement between the
Parties with respect to the subject matter and supersedes all prior oral or written
understanding between the Parties concerning the subject matter of this Agreement. There
are no understandings or representations, express or implied, not expressly set forth in this
Agreement. This Agreement may only be modified or amended in a writing signed by duly
authorized representatives of both Parties,
[Remainder of Page Left Intentionally Blank]
Signatures on Following Page]
ClearWorld, LLC I 1.855.SUN.LED1 1 1613 Justin Rd. I Metairie, LA 70001
CLEARWORLD, LLC
By:
President
Attest
Corporate Secretary
(Affix Corporate Seal)
Approved as to legal form:
Victoria Mendez, City Attorney
Approved as to Insurance and Indemnity:
Ann -Marie Sharpe, Risk Management Director
Name:
Title:
President
CITY OF MIAMI
ZZ
Name:
City Manager
Attest:
City Clerk
Title:
ClearWorld, LLC I 1.855.SUN.LED1 1 1613 Justin Rd. I Metairie, LA 70001
Attest;
Corporate Secretary
(Affix Corporate Sea])
ATTACHMENT A
EQUIPMENT AND DOCUMENTATION
This Attachment A is attached to and part of the Equipment Trial Agreement ("Agreement")
effective , 2015, by and between ClearWorld, LLC ("Supplier") and City of Miami
("City").
e (1) One 240W OFF -GRID 24V 60AH Solar LED Lighting system with a 20' pole and base.
ClearWorld, LLC I 1.855.SUN.LED1 1 1613 Justin Rd. I Metairie, LA 70001