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ENERGY SAVINGS GUARANTEE FPL ENERGY SERVICES , INC , herein after referred to as "The COMPANY ' , guarantees that, during each Guarantee Report period during the Savings Guarantee Term , the Equipment shall be capable of producing Annual Energy Cost Savings (defined below) in an amount equal to or greater than Annual Guaranteed Savings (defined below) for such annual period , subject to the OWNER' s , herein after referred to as " OWNER" , operation of the Equipment per the Operating Plan , adjustments which the COMPANY is entitled to make per the terms of this Savings Guarantee , and all other terms of this Savings Guarantee . This Savings Guarantee only applies to the designated Equipment specified in this Savings Guarantee . Attachments and Exhibits to this Savings Guarantee are incorporated by reference . SECTION 1 . BASIC REQUIREMENTS OF THIS SAVINGS GUARANTEE (A) DEFINITIONS . Initially capitalized terms in this Savings Guarantee have the meaning described in Section 2 , and in the absence of such definition , as the context reasonably requires . (B) OWNER CONTROLLED VARIABLES AND OPERATING PLAN ( 1 ) For purposes of this Savings Guarantee, the OWNER represents, warrants, and agrees to operate the Equipment as required in the Operating Plan , to properly maintain (and replace , when necessary) the Equipment, to protect against and replace in the event of any casualty, and not to undertake any Changes which would adversely affect or reduce the Annual Energy Cost Savings . (2) In the event of any failure of the OWNER to operate per the Operating Plan or in the event of any Changes, the OWNER agrees to notify the COMPANY in writing within five ( 5) business days of any actual , anticipated , or intended variation from the Operating Plan or other Changes, whether before Substantial Completion or during the Savings Guarantee Term , which could impact any facility or Equipment to which this Savings Guarantee applies . Upon receipt of such a notice , or in any event if the COMPANY independently learns of any such Changes , COMPANY shall be entitled to adjust the Annual Energy Cost Savings to reflect Annual Energy Cost Savings to exclude any adverse impact of any such Changes. ( 3 ) Subject to the COMPANY preparing and submitting the annual Guarantee Report to the OWNER (with adjustments as described in this Savings Guarantee) , this Savings Guarantee is based upon M&V Option A as detailed in this Guarantee . (C ) UNDERSTANDING UTILITY BILLS ( 1 ) This Savings Guarantee and the Annual Energy Cost Savings in any Guarantee Report is not a representation , guarantee , or warranty that the actual dollar amount of utility bills of the OWNER will be reduced or lower than before, as so many other factors affect utility bills. This is only a guarantee that the Annual Energy Cost Savings will meet or exceed the Annual Guaranteed Savings during each respective annual measurement period during the Savings Guarantee Term if the Equipment is operated as required by the Operating Plan . As the OWNER has sole custody and control over the Equipment and any Changes , the COMPANY is permitted to adjust the Annual Energy Cost Savings so that the impact of any Changes are not attributed against COMPANY and so that the Annual Energy Cost Savings calculation is not adversely affected by Changes . (2 ) Cost savings , and actual utility bills , are two completely different concepts . Actual utility bills can be affected by many different reasons in the sole control of the OWNER , such as the OWNER changes in building occupancy , hours or times of day of use , the way that Equipment (or equipment not installed by the COMPANY) is operated ( hours , load level , environmental conditions , etc. ) , and maintenance . Actual utility bills can also be affected by increases in utility rates and government imposed taxes . Indian River County , Florida 1 Indian River County Phase 2 Phase 11 Rev . 10/09