HomeMy WebLinkAbout2008-263j
OVIi a /0,?
la -C.a
, 0Cf
MASTER AGREEMENT
FOR
DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES
(STATE GOVERNMENTAL ENTITIES)
THIS MASTER AGREEMENT is made and entered into as of August 19, 2008 (the "Effective Date"), by
and between FPL Energy Services, Inc., a Florida corporation, license No.QB0017858, and Indian River County, a
political subdivision of the State of Florida, with reference to the following:
RECITALS
A. Pursuant to Florida Statutes Section 489.145, known as the Guaranteed Energy Performance
Savings Contracting Act, the Customer issued a Request for Qualifications to the 12 entities listed as "Energy
Service Companies/Guaranteed Energy Performance Savings Contractors" currently approved under a State of
Florida Master Procurement. The Guaranteed Energy Performance Savings Contractors were selected in
compliance with Florida Statutes Section 287.055, the Consultants Competitive Negotiation Act;
B. The Customer formed a selection committee to review the submittals and short-listed 3 firms; on
June 3, 2008, the County Board of County Commissioners approved the selection of the Company to perform the
Services contemplated in this Master Agreement;
C. The Company is a guaranteed energy performance savings contractor as defined in Florida
Statutes section 489.145(3)(e); is licensed under Chapters 471, 481, and 489, Florida Statutes; and is in the business
of providing demand side management energy efficiency Services for its customers pursuant to a Company initiated
Program;
D. 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 water and energy
savings; and
E. Pursuant to this Master Agreement, the Parties wish to set forth their understanding concerning
certain Services which may be provided by the Company to the Customer under the Program.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending
to be legally bound, hereby agree as follows:
ARTICLE 1 — DEFINITIONS
1.1 Authorization Form means a form prepared by the Company for the purpose of identifying the
Customer's options for proceeding with the evaluation, design or installation of specific ECO's identified at one or
more Service Locations. An Authorization Form shall accompany each of the following types of documents
prepared by the Company under this Master Agreement, Feasibility Study Proposals and Feasibility Reports.
1.2 Chane means a request by the Customer that changes the Services, which may consist of
modifications or additions to, or deletions from, any Services to be performed or materials to be provided by the
Company arising under this Master Agreement.
1.3 Company means FPL Energy Services, Inc., a Florida corporation, including its successors and
assigns.
1.4 Confidential Information shall mean all information marked as "confidential" or "proprietary" by
an appropriate stamp, label, legend or other written notice thereon if transmitted electronically or other written form,
Page 1 of 20 Rev 08/15/08
and if disclosed orally by either the Company, then the Company shall confirm the oral or visual disclosure that
shall be considered Confidential Information in a written memorandum or e-mail transmittal to the Customer within
thirty (30) days after such visual or oral disclosure and whether prepared by the Company or otherwise which is
disclosed to the Customer or the Customer's agents in connection with this Master Agreement and including all
reports, analyses, notes or other information that are based on, contain or reflect any such Confidential Information;
however, Confidential Information shall not include the following: (a) information which is or becomes publicly
available other than as a result of a violation of this Master Agreement; (b) information which is or becomes
available on a non -confidential basis from a source which is not known to the Customer (after due inquiry) to be
prohibited from disclosing such information pursuant to a legal, contractual or fiduciary obligation to the Company;
or (c) information which the Customer can demonstrate was legally in its possession prior to disclosure by the
Company. The Company acknowledges that all undertakings by the Customer not to disclose Confidential
Information are subject to the provisions of Florida Public Records Act, Chapter 119, Florida Statutes, as may be
amended.
1.5 Customer means Indian River County, a political subdivision of the State of Florida.
1.6 Delayed Payment Rate means a rate of interest equal to one percent (1%) per month, which
applies to unpaid Feasibility Study Price, Implementation Price and other amounts which the Customer may
become obligated to pay to the Company under the terms of this Master Agreement.
1.7 Dispute means any dispute or disagreement that may arise between the Parties with respect to the
interpretation of any provision of this Master Agreement, the performance of either Party under this Master
Agreement, or any other matter that is in dispute between the Parties related to this Master Agreement.
1.8 ECO means an energy conservation opportunity identified by the Company at a specified Service
Location.
1.9 Feasibility Study means the Services performed by the Company, including the preparation of a
Feasibility Report, for the purpose of assisting the Customer in determining whether to proceed with Implementation
Services for the installation and construction of particular ECO's at specified Service Locations.
1.10 Feasibility Study Price means the compensation to be paid by the Customer to the Company for
conducting a Feasibility Study and issuing a Feasibility Report.
1.11 Feasibility Study Proposal means a written proposal within a Feasibility Study Authorization
Form as described in Article 3, prepared by the Company in consultation with the Customer specifying the particular
Services to be performed by the Company in conducting a Feasibility Study and preparing a Feasibility Report with
respect to ECO's identified at specified Service Locations.
1.12 Feasibility Report means the written report which is issued by the Company to the Customer to
summarize the Company's findings based upon a Feasibility Study of particular ECO's at specified Service
Locations.
1.13 Final Acceptance Date means the date on which any Punch List items for an ECO(s) is determined
by the Company and Customer as completed and stated as the effective date in the Notice of Final Acceptance.
1.14 Force Majeure Event means an event, including but not limited to, acts of God, fire, flood,
windstorm, war, terrorism, sabotage, revolution, acts of any government or governmental agency, strikes or other
labor difficulty, insurrection, riot, strikes, telecommunications failures, that neither the Company nor the Customer
shall be considered to be in default in the performance of its obligations arising under this Master Agreement, 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.
Page 2 of 20 Rev 08/15/08
1.15 Subcontractor means a third -party subcontractor who is retained by the Company to perform
installation or construction work at the Customer's Service Location(s) pursuant to a Customer -authorized
Implementation Services Authorization Form (as set forth in Section 4.1).
1.16 Implementation Price means the compensation to be paid by the Customer to the Company for
performing Implementation Services with respect to particular ECO's at specified Service Locations.
1.17 Implementation Services means the Services provided or proposed to be provided by the Company
to construct, install or otherwise implement one or more ECO's at specified Service Locations in accordance with
the terms of a Feasibility Report, which Services shall include, but not be limited to, (a) causing the procurement,
construction and installation of all materials, equipment and systems required to implement each ECO at a particular
Service Location, (b) providing and paying for all labor and support services necessary to perform such work, (c)
supplying 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) providing 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) arranging for the final inspection and check-out of each installed ECO.
1.18 Master Agreement means this Master Agreement for Demand Side Management and Energy
Efficiency Services, including any and all schedules and exhibits attached thereto, as may be amended from time to
time. The terms, conditions, representations, warranties and other provisions of this Master Agreement shall apply
by reference to each and every Feasibility Study Proposal, Feasibility Report, and any other written proposal,
document, notice or Authorization Form issued under the terms of this Master Agreement, as if such provisions were
set forth expressly therein.
1.19 Minor Deficiencies means, with respect to a particular ECO which has been determined by the
Company to be Substantially Complete, any construction, installation or other Implementation Services identified in
a Punch List which do not materially affect the ability of the ECO to properly operate and function in accordance
with its intended purpose pursuant to this Master Agreement and the terms and specifications contained in a
Customer -executed Implementation Services Authorization Form.
1.20 Notice of Substantial Completion means a written notice issued by the Company to notify the
Customer of the substantial completion of the installation of an ECO.
1.21 P4M means the Company or Customer identified in the opening paragraph of this Master
Agreement.
1.22 Parties means the Company and Customer identified in the opening paragraph of this Master
Agreement
1.23 Payback Criteria means, with respect to an ECO, the number of years obtained by dividing (i) the
total estimated implementation cost of the ECO (including the costs incurred by the Company under this Master
Agreement, but excluding all financing costs associated with implementation of the ECO), by (ii) the estimated
savings to the Customer from the installed ECO, including energy savings, maintenance savings, avoided capital
costs, and other avoided costs as applicable. All such estimates shall be made by the Company, in its sole
professional judgment, and shall be binding upon the Customer for purposes of this Master Agreement.
1.24 Person means any individual or entity of any type, including, but not limited to, corporations,
partnerships, business trusts, associations, governmental agencies, political subdivisions, state, district, college,
university, board or other organization.
1.25 Program means the demand side management Services provided by the Company for its customers
pursuant to a Company -initiated program known as the Energy Efficiency Services Program.
1.26 Punch List means, with respect to a particular ECO, a list of Minor Deficiencies provided by the
Customer to the Company prior to the Customer's receipt and execution of a Notice of Substantial Completion.
Page 3 of 20 Rev 08/15/08
1.27 Service Location means a facility legally owned or operated by the Customer at which the
Customer desires the Company to perform Services.
1.28 Services means the energy efficiency services provided by the Company to the Customer under
the Program and pursuant to the terms of this Master Agreement, including, but not limited to, the preparation of
Feasibility Proposals, Feasibility Studies and Implementation Services.
1.29 Substantial Com letion or Substantially Complete means, with respect to a particular ECO, that
level of construction and implementation which renders the ECO operational whereby Customer is able to obtain
beneficial use of the ECO, regardless of whether the ECO has one or more Minor Deficiencies, as determined within
the reasonable exercise of the Company's professional judgment.
1.30 Substantial Completion Date means the date or milestone set forth in a Feasibility Report that is
determined by the Company to be Substantially Complete.
1.31 Vendor means any vendor, manufacturer, or other representative of an ECO vendor, manufacturer,
or distributor utilized by the Company in providing Services in accordance with this Master Agreement.
ARTICLE 2 - SCOPE OF MASTER AGREEMENT AND TERM
2.1 Scope. Subject to the terms and conditions of this Master Agreement, the Company agrees to
furnish to the Customer, and the Customer agrees to purchase and receive from the Company, certain Services at the
Customer's specified Service Locations. The Parties shall agree upon the Services that the Company will furnish to
the Customer with respect to each Service Location and with respect to ECO's identified at particular Service
Location prior to the Company commencing work at any designated Service Location as set forth in an
Authorization Form which accompanies one or more Feasibility Study Proposals and Feasibility Reports, as set forth
in Articles 3 and 4 of this Master Agreement. Each of the various proposals, documents and forms referenced in this
Master Agreement shall adopt and incorporate the terms and conditions of this Master Agreement as if such terms
and conditions were expressly set forth within such proposals, documents and forms. Unless expressly stated in a
Change Order in accordance with Article 14 below, where the terms and conditions of any schedules or exhibits
thereto are inconsistent with the terms and conditions of this Master Agreement, the terms of this Master Agreement
shall govern the terms and conditions of the Service. In the event the terms and conditions of Change Orders
conflict, the most recently executed Change Order shall govern the terms and conditions of the Service.
2.2 Term. This Master Agreement shall commence upon the Effective Date and shall continue in
effect for a period of five (5) years with automatic twelve (12) month annual renewals until written notice of
termination by either Party in accordance with the provisions of Article 15 herein; provided that upon such written
notice of termination, portions of this Master Agreement shall remain in effect as set forth in Articles 7 and 15.
ARTICLE 3— FEASIBILITY STUDY AND REPORT
3.1 Preparation of Feasibility Study Authorization Form by Company. The Company may prepare
and deliver to the Customer a Feasibility Study Authorization Form, which identifies any potential ECO's that the
Company believes, in its sole professional judgment, may provide appropriate justification to proceed with the
preparation of a Feasibility Study. Each Feasibility Study Proposal shall include a designation of the Services to be
provided, the technologies to be included in the proposed Feasibility Study and the Feasibility Study Price. A sample
copy of a Feasibility Study Authorization Form is attached to this Master Agreement as Schedule A.
3.2 Authorization to Proceed with Feasibility Study. Unless otherwise mutually agreed to by the
Parties in writing, a Feasibility Study Authorization Form must be executed by the Customer and delivered to the
Company within sixty (60) days after the Customer's receipt of the Feasibility Study Authorization Form to
authorize the Company to proceed with the Feasibility Study. Upon the Company's timely receipt of a properly
completed Feasibility Study Authorization Form wherein the Customer requests a Feasibility Study for any or all of
the ECO's identified in the Feasibility Study Authorization Form, then the Company shall prepare and submit a
Page 4 of 20 Rev 08/15/08
Feasibility Study to the Customer. If the Customer elects to not authorize a Feasibility Study, or if the Customer fails
to deliver to the Company an executed Feasibility Study Authorization Form within the sixty (60) day period
provided by this Section 3.2, the Company shall have no duty or obligation to conduct a Feasibility Study with
respect to any of the ECO's at the Service Locations identified in the Feasibility Study Authorization Form.
3.3 Feasibility Report. Pursuant to a Customer -authorized Feasibility Study performed by the
Company in accordance with a Feasibility Study Authorization Form, the Company shall recommend ECO's for
implementation at any Service Locations 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 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 are expected to be met
based on the Company's estimates.
3.4 Authorization to Proceed with Feasibility Report. Each Feasibility Report will include an
Implementation Services Authorization Form, as defined below in Section 4.1, which must be executed by the
Customer and delivered to the Company within sixty (60) days after the Customer's receipt of the Feasibility Report
to authorize the Company to proceed with the preparation of an implementation of the Feasibility Report in
accordance with Article 4. If the Customer timely delivers to the Company an executed Implementation Services
Authorization Form, the Company will proceed with preparing any implementation of the Feasibility Report
authorized by the Customer on the Implementation Services Authorization Form; provided, however, that if the
Customer elects to proceed with less than fifty percent (50%) of the recommended ECO's (as determined on an
estimated implementation cost basis) identified in a Feasibility Report, the Company shall have the ability to refuse
to proceed with preparation and implementation identified in a Feasibility Report for any ECO's that the Customer
elects to proceed. Each Implementation Services Authorization Form accompanying and referencing a Feasibility
Report will include an option allowing the Customer to defer payment of the Feasibility Study Price in accordance
with Section 3.5.3 if the Customer elects to proceed with additional Implementation Services.
3.5 Feasibility Study Price and Payment Terms.
3.5.1 Feasibility Study Price. Except as otherwise provided in Section 3.5.3, the Customer
shall pay to the Company the Feasibility Study Price which is included in a Customer -executed Feasibility Study
Authorization Form for all Services performed by the Company in conducting a Customer -authorized Feasibility
Study and issuing a Feasibility Report. The Feasibility Study Price is the full compensation for the Services
performed by the Company in conducting a Company -authorized Feasibility Study and rendering a Feasibility
Report and includes all federal, state and local taxes, if any, assessed with respect to the Services or with respect to
the furnishing of any items under the Feasibility Study.
3.5.2 Payment Upon Failure to Authorize Additional Services. If the Customer elects to not
proceed with Implementation Services or fails to deliver to the Company a completed and executed Implementation
Services Authorization Form within sixty (60) days of the Customer's receipt of a Feasibility Report, the Company
shall have no duty or obligation to proceed with any Implementation Services with respect to the ECO's identified
in the Feasibility Report, and the Company shall provide an invoice to the Customer for the full Feasibility Study
Price determined in accordance with Section 3.5.1 and included in the Feasibility Study Authorization Form. The
Customer shall pay the total amount of the invoice in full within sixty (60) days following the Customer's receipt of
the invoice.
3.5.3 Deferral Election. In the event the Customer elects to proceed with Implementation
Services for one or more ECO's pursuant to Section 3.4, the Customer shall elect on the Implementation Services
Authorization Form accompanying and referencing a Feasibility Report to either (a) receive an invoice for the full
amount of the Feasibility Study Price, or (b) defer and roll-over payment of the Feasibility Study Price until such
time as compensation is payable to the Company pursuant to Article 4 for Implementation Services. If the Customer
elects to receive an invoice pursuant to clause (a) of this Section 3.5.3, or if the Customer fails to make a timely
election pursuant to the foregoing, the Company shall issue an invoice for the full amount of the Feasibility Study
Price, and the Customer shall pay such amount within thirty (30) days following receipt of the invoice.
Page 5 of 20 Rev 08/15/08
3.5.4 Late Payments. Any overdue payment under Article 3 shall bear interest at the Delayed
Payment Rate from the date such payment is due until and including the date of payment.
3.5.5 Release from Obligation to Pay Feasibility Study rice. Notwithstanding any provision in
Section 3.5.1 to the contrary, the Customer shall have no obligation hereunder to pay the Company for a Feasibility
Study or Feasibility Report performed by the Company if (a) the Feasibility Report submitted by the Company does
not identify at least one potential ECO at a Customer Service Location specified in the Customer -executed
Feasibility Study Authorization Form which meets the agreed upon Payback Criteria as set forth in the Feasibility
Study Authorization Form, or (b) the Customer does not elect to proceed further with any recommended ECO as set
forth in Section 3.4.
3.5.6 Notice of Termination of Feasibility Study by the Company. In the event the Company
determines, prior to submission of the Feasibility Report to the Customer, that the Company will not be able to
identify at least one potential ECO that meets the agreed upon Payback Criteria as set forth in the Feasibility Study
Authorization Form, then the Company, in its sole discretion, may elect by written notice to the Customer to
terminate its duties and obligations to complete and deliver the Feasibility Report, unless the Customer, within five
(5) days following receipt of such notice, elects in writing to waive the provisions of Section 3.5.5 and to pay to the
Company the Feasibility Study Price as otherwise set forth in Section 3.5.1.
ARTICLE 4 — INSTALLATION AND IMPLEMENTATION
4.1 Authorization to Proceed with Implementation Services. Each Feasibility Report will be
referenced and incorporated into an Implementation Services Authorization Form which must be executed by the
Customer and delivered to the Company within sixty (60) days after the Customer's receipt of the Feasibility Report
to authorize the Company to proceed with the Implementation Services identified in the Feasibility Report. A
sample copy of an Implementation Services Authorization Form is attached to this Master Agreement as Schedule
B. If the Customer timely delivers to the Company an executed Implementation Services Authorization Form, the
Company will proceed with conducting the Implementation Services specified in the Feasibility Report. If the
Customer elects to not authorize the Implementation Services or if the Customer fails to deliver to the Company an
executed Implementation Services Authorization Form within the sixty (60) day period provided by this Section 4. 1,
the Company shall have no duty or obligation to perform any Implementation Services with respect to any of the
ECO's at the Service Locations identified in the Feasibility Report, and the Customer shall pay the Company for the
Feasibility Study prepared for such ECO.
4.2 Substantial Completion and Final Acceptance.
4.2.1 Inspections and Notice of Substantial Completion. During the performance of
Implementation Services under this Article 4, the Customer shall have the right to conduct reasonable inspections of
the work of the Company or any Subcontractor at any time upon reasonable prior notice. Upon Substantial
Completion of construction and installation of each ECO in accordance with a Customer -authorized Feasibility
Report, the Company shall deliver a Notice of Substantial Completion to the Customer. A sample copy of a Notice
of Substantial Completion is attached to this Master Agreement as Schedule C. The Customer shall have delivered a
list of any Punch List items and any potential material defect or deficiency prior to the Customer executing a Notice
of Substantial Completion.
4.2.2 Correction of Material Defects or Deficiencies. Prior to receiving a Notice of Substantial
Completion, the Customer agrees it has identified and delivered written notification to the Company any and all
potential material defect or deficiency in an ECO. If the Customer determines that a material defect or deficiency
exists, Customer shall promptly notify Company in writing pursuant to Section 218.735(7)(a)(1), Florida Statutes,
and thereafter the Company shall cause any necessary corrections to be made to remedy the material defect or
deficiency. If for any reason the Customer fails to deliver written notification to the Company of a material
deficiency or defect in an ECO following the Company's acknowledgment by Customer that the ECOs are
Substantially Complete and received the Customer's Notice of Substantial Completion, the Customer shall thereby
be deemed to have irrevocably acknowledged and agreed that (a) each ECO meets the requirements of the Master
Agreement and the Customer -executed Implementation Services Authorization Form, and (b) each such ECO is
Page 6 of 20 Rev 08/15/08
complete and ready for operation. Notwithstanding the foregoing, in the event the Customer later discovers any
additional Minor Deficiencies in the Services following the Substantial Completion Date, the Customer's sole
recourse and exclusive remedy for the Company's failure to complete any Minor Deficiencies identified in the
Punch List items in accordance with this Master Agreement is to seek its sole and exclusive remedy in accordance
with Article 5, Warranty.
4.2.3 Correction of Punch List Items. Prior to receiving a Notice of Substantial Completion,
the Customer agrees it will identify and deliver to the Company a Punch List which lists one or more Minor
Deficiencies in an ECO. Following such identification and receipt of a Punch List, the Company shall work
diligently to complete or correct such items and work listed in the Punch List within a reasonable time period. Upon
completion of any Punch List items, the Company shall deliver a written notification of Punch List completion to the
Customer.
4.2.4 Payment Unconditional Upon Substantial Completion. The Customer acknowledges that,
notwithstanding the existence of any Minor Deficiencies, regardless of their inclusion in a Punch List, the Customer
unconditionally agrees to make payment to the Company for the ECO's listed in a Notice of Substantial Completion
once the ECO's are Substantially Complete in accordance with the applicable Implementation Services
Authorization Form. The Customer acknowledges that, upon the Substantial Completion Date of an ECO, the
Customer's payment obligation set forth in the Feasibility Report for the ECO (notwithstanding the existence of
Minor Deficiencies or the failure of the Company to properly complete or correct such Minor Deficiencies), is
absolute, unconditional and irrevocable and shall not be affected by any circumstance whatsoever, including,
without limitation, any set-off, abatement, counterclaim, suspension, recoupment, reduction, rescission, defense or
other right. The Customer's sole recourse and exclusive remedy for the Company's failure to complete any Minor
Deficiencies identified in the Punch List items in accordance with this Master Agreement is to seek its sole and
exclusive remedy in accordance with Article 5, Warranty.
4.2.5 Notice of Final Acceptance. Upon (i) the Customer's execution of the Notice of
Substantial Completion, and in accordance with the process set forth in Section 4.3.2 to correct any material defects
or deficiencies identified by the Customer, and (ii) the Company's completion of Minor Deficiencies identified in
Punch List as set forth in Sections 4.2.3 and 4.2.4, the Company shall deliver a Notice of Final Acceptance to the
Customer to execute. A sample of a Notice of Final Acceptance is attached to this Master Agreement as Schedule
D. Subject to the requirements of Florida Statutes section 218.70 et. seq. ( the "Local Government Prompt Payment
Act") the Customer acknowledges that the Customer unconditionally agrees to make final payment to the Company
for the ECO's listed as of the Final Acceptance Date, or are deemed to be, complete in accordance with this Master
Agreement. The Customer acknowledges that, upon the Final Acceptance Date of an ECO, the Customer's payment
obligation of the remaining ten percent (10%) of the Implementation Price set forth in the Feasibility Report for the
ECO, is absolute, unconditional and irrevocable and shall not be affected by any circumstance whatsoever,
including, without limitation, any set-off, abatement, counterclaim, suspension, recoupment, reduction, rescission,
defense or other right. The Customer's exclusive recourse for any claim regarding the Implementation Services
following the Final Acceptance Date is to seek its sole and exclusive remedy in accordance with Article 5,
Warranty.
4.2.6 Reliance. The provisions of Article 4 may be relied on by the Company and by any
assignee of the Company in connection with the furnishing of ECO financing to the Customer in accordance with
the provisions of the Master Agreement. Any assignee of the Company shall be entitled to the rights, but not the
obligations, of the Company under this Article 4.
4.2.7 ECO Responsibility. Unless otherwise mutually agreed to by the Parties, the Company
assumes no responsibility for performance or maintenance of ECO's, which are to be insured by the Customer. No
Vendor is an agent of Company, and no Vendor or employee of any Vendor is authorized to waive, supplement or
otherwise alter any terms, conditions, or agreement between the Company and the Customer.
4.2.8 Training. If applicable, and if set forth in a Customer -authorized implementation of a
Feasibility Report pursuant to a Customer -authorized Implementation Services Authorization Form, the Company
shall provide on-site training for a reasonable number of the Customer's operating personnel with respect to
completed ECO's, and the Customer shall assist in such training, all as more fully specified in the Feasibility Report.
Page 7 of 20 Rev 08/15/08
Unless otherwise provided in the Feasibility Report, such training shall be conducted with respect to an ECO
following the Substantial Completion Date of the ECO.
4.3 Implementation Price and Payment.
4.3.1 Implementation Price. The Customer shall pay to the Company the Implementation Price
set forth in a Feasibility Report for all Implementation Services performed by the Company pursuant to a Customer
authorized Implementation Services Authorization Form. The Implementation Price is the full compensation for
such Implementation Services and includes all federal, state and local taxes, if any, including sales, use and excise
taxes, assessed with respect to the Implementation Services or with respect to the furnishing of equipment and
materials thereunder.
4.3.2 Implementation Price Payment. Subject to the requirements of the Local Government
Prompt Payment Act, within thirty (30) days following the Substantial Completion Date or as otherwise set forth in
the draw schedule attached to the Implementation Authorization Form, the Company shall provide an invoice to the
Customer for all or any portion of the Implementation Price, in accordance with Section 4.2.5, together with any
unpaid Feasibility Study Price for such ECO(s), and the Customer shall be obligated to pay the total of such amounts
within thirty (30) days following receipt of the invoice. In the event the Master Agreement is terminated by either
Party prior to the Substantial Completion Date, all accrued and unpaid Feasibility Study Price and Implementation
Price, including any unpaid interest accrued upon such amounts, shall be paid by the Customer to the Company
within thirty (30) days following the Customer's receipt of an invoice therefore.
4.3.3 Late Payment. Any overdue payment under Section 4.4 shall bear interest at the Delayed
Payment Rate from the date such payment is due until and including the date of payment.
4.4 Identification of Energy Savings. As applicable and in accordance with applicable laws, the
Company shall set forth appropriate systems and procedures for measuring and verifying the actual energy savings
resulting from the Implementation Services of an ECO, which shall be set forth in an applicable Feasibility Report.
4.4.1 Energy Savings Guarantee. As set forth in and in accordance with the applicable
Implementation Services Authorization Form, the Company has formulated and, subject to the adjustments provided
for in Section 4.1.2, has guaranteed the annual level of energy and operations savings to be achieved as a result of
the installation and operation of the ECO and provision of Services provided for in this Master Agreement.
4.4.2 Annual Review and Reimbursement/Reconciliation. The Company shall provide to the
Customer an annual reconciliation of the guaranteed energy cost savings. If at the end of any calendar year during
the guarantee period as specified in the applicable Implementation Services Authorization Form, the ECO has failed
to achieve the specified annual energy savings guarantee, and, upon written request by the Customer, which shall be
given no earlier than the end of such year and no later than forty-five (45) days thereafter, the Company will pay the
Customer the difference between the annual amount guaranteed and the amount of actual energy and operations
savings achieved at the Location in accordance with the provisions of the applicable Implementation Services
Authorization Form. The Company shall remit such payments to the Customer within forty-seven (47) days of
written notice by the County of such monies due. When the total energy savings in any one calendar year during the
guarantee period exceed the energy savings guarantee as set forth in Implementation Services Authorization Form,
and are in addition to those monies due the Company for compensation for Services rendered as set forth in
Implementation Services Authorization Form, such excess savings shall first be applied to reimburse the Company
for any payment the Company made to Customer to meet the applicable ECO' guarantee for previous years in which
the energy savings fell short of the applicable ECO' Energy Savings Guarantee under the terms as set forth in the
applicable Implementation Services Authorization Form. Any excess savings not needed to reimburse the Company
for prior year shortfalls shall be allocated to the Customer.
4.5 Bonds. On or before the Company commences Implementations Services at an ECO, the
Company shall provide the Customer a one hundred percent (100%) performance bond and a labor and materials
payment bond pursuant to Section 255.05, Florida Statutes, in an aggregate amount of not less than the
Implementation Price. The Company's obligations to maintain a performance bond and a labor and materials
Page 8 of 20 Rev 08/15/08
payment bond pursuant to Section 255.05, Florida Statutes, shall extend thirty (30) days beyond the Final
Acceptance Date.
ARTICLE 5 - WARRANTY
5.1 General Warranty. The Company warrants to the Customer that the Services performed by the
Company under this Master Agreement shall be performed with the degree of skill and care that is required by
current good and sound professional procedures and practices, and in conformance with generally accepted industry
standards prevailing at the time the Services are performed. The Company further warrants that all equipment and
materials provided and installed by the Company in connection with the implementation of any ECO hereunder shall
be new, be free from significant defects in design, engineering, materials, construction and workmanship, as
reasonably determined by the Customer, and conform in all material respects with all requirements of applicable
law, 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 Master Agreement and of any
applicable Customer -authorized Implementation Services Authorization Form.
5.2 Warranty Period. The warranty period for the warranties set forth in Section 5.1 shall extend, with
respect to each installed ECO, for a period of one (1) year commencing thirty (30) days following the Substantial
Completion Date for such ECO.
5.3 Remedies. The Customer shall promptly notify the Company in writing of the discovery during
the applicable warranty period of any claim against the Company's warranties under Section 5. 1, 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 claim against 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 claim against any warranty or the Company's
otherwise obtaining knowledge of any claim of warranty, cause the repair (or as Company determines appropriate
the replacement, rework and/or retest) of defective equipment and construction workmanship and/or provide at the
Company's expense any changes, modifications or additions to the work which the Company determines necessary
due to a failure to perform any Services hereunder and furnish the equipment and materials in accordance with the
standards set forth in Section 5.1. All costs directly associated with 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 a timely manner and at such times so as to minimize disruption of normal operations at the Customer's
Service Location.
5.4 Vendor Warranties. Without limiting the Company's warranty set forth in Section 5.1, the
Company, in procuring materials and equipment for an ECO, shall use reasonable efforts to obtain customary and
standard Vendor warranties from the supplier or Subcontractor for the benefit of the Company and the Customer.
The Customer shall be entitled to the benefit of any Vendor or Subcontractor 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 under Section 5.3.
5.5 Company Principally Responsible. Notwithstanding Section 5.4, the Company shall have primary
liability with respect to all Company warranties set forth in Section 5.1, including warranties with respect to
materials and equipment, whether or not any event or defect is also covered by a Vendor or Subcontractor warranty,
for the warranty period set forth in Section 5.3, and the Customer need only look to the Company for corrective
action during the warranty period set forth in Section 5.3. Upon the expiration of the warranty period set forth in
Section 5.3, Customer shall look to the applicable Vendor or Subcontractor to the extent such Vendor or
Subcontractor provides a warranty beyond the warranty period in Section 5.3.
5.6 Warranty Exclusions. The liabilities and obligations of the Company under this Article 5 do not
extend to any repairs, adjustments, alterations, replacements or maintenance which were not prior approved in
writing by the Company or may be required as a result of wear and tear in the operation or use of an 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
Page 9 of 20 Rev 08/15/08
personnel. The Parties will work together to address any bona fide emergency action that may be necessary to be
taken by the Customer; provided, however, any action taken by the Customer without the Company prior written
consent shall be subject to the limitations in this Article 5.
5.7 NO IMPLIED WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 5,
THE COMPANY MAKES NO WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, CONCERNING
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. UNLESS OTHERWISE EXPRESSLY
STATED IN A FEASIBILITY REPORT ATTACHED TO AN IMPLEMENTATION AUTHORIZATION FORM
OR AS REQUIRED UNDER CHAPTER 489, FLORIDA STATUES, 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 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.
5.8 Survival. Notwithstanding anything to the contrary, the obligations of the Parties under Sections
5.1 through 5.7 shall survive the termination or expiration of this Master Agreement.
ARTICLE 6 - LIMITATION OF LIABILITY
6.1 No Operating or Maintenance Responsibility. Except as otherwise specifically provided in Article
5, 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
arising under this Master Agreement shall be affected by the actual performance of any ECO following the
Substantial Completion Date.
6.2 Disclaimer of Consequential Damages. Neither Party shall be liable to the other Party for special,
indirect, consequential, incidental, extemporary, or punitive damages, even if the Party has been advised that such
damages are possible. No Party shall be liable for lost profits, lost revenue, or lost institutional operating savings.
6.3 Limitation of Liability. Except in cases where a court of competent jurisdiction has determined
willful misconduct on the part of a Party, each Party's total liability under this Master Agreement shall not exceed
the Feasibility Study Price or Implementation Price, as the case may be, for the Services that have given rise to the
Dispute.
6.4 Intent. Except for each Party's indemnification obligations under this Agreement, each Party's
total aggregate liability under this Master Agreement shall not exceed the total cost of the Services rendered and
paid for by the Customer giving rise to the Dispute. The guaranteed savings that are set forth in an applicable
Implementation Services Authorizations Form do not constitute a debt, liability, or obligation of the Customer.
Except in cases of willful misconduct, the Parties intend that the waivers and disclaimers of liability, releases from
liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this
Master Agreement shall apply even in the event of the fault, negligence (in whole or in part), strict liability or breach
of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such
remedy provision, and shall extend to such person's affiliates and to its and their partners, shareholders, directors,
officers, employees, contractors and agents. The Parties also intend and agree that such provisions shall continue in
full force and effect notwithstanding the termination, suspension, cancellation or rescission of this Master
Agreement. No officer, director, employee, agent or other individual representative of either Party shall be
personally responsible for any liability arising under this Master Agreement.
Page 10 of 20 Rev 08/15/08
6.5 Remedies. Where remedies are expressly afforded by this Master Agreement 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 liabilities of the Company arising out of or in connection with the Services or this Master
Agreement, notwithstanding any remedy otherwise available at law or in equity.
6.6 Survival. Notwithstanding anything to the contrary, the obligations of the Parties under Sections
6.1 through 6.5 shall survive the termination or expiration of this Master Agreement.
ARTICLE 7 - ACCESS AND INFORMATION
7.1 Customer Cooperation. The Customer shall use reasonable efforts to assist the Company in
performing the Services contemplated by this Master Agreement, including providing reasonable access to the
Customer's Service Location(s), providing information concerning the Service Location(s), making appropriate
Customer personnel available if requested by the Company to assist the Company in performing such Services, and
taking any other actions the Company may reasonably request from time to time to achieve the purposes and intent
of this Master Agreement.
7.2 Access to Service Locations. Upon the request of the Company, the Customer shall provide the
Company and its Subcontractors with reasonable access to the Service Location(s) to enable the Company to
perform all Services hereunder and to verify and confirm the operation of any installed ECO following the
Substantial Completion Date. The Company also shall have access to the Service Location(s) during the warranty
period specified in Article 5 for purposes of perforniing its obligations thereunder. The Customer shall provide the
Company with adequate 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
Subcontractors to perform the Services. The Company and its Subcontractors 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 disturb or interrupt the Customer's operations at such location(s).
7.3 Requests for 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 demand and energy savings achieved and the related costs thereof. The Customer agrees that the
Company may disclose such information obtained by the Company or provided by the Customer pursuant to this
Master Agreement or any supplemental Master Agreement to the Florida Public Service Commission and to any
other public authority having jurisdiction.
7.4 Nondisclosure and Use of Confidential Information. Confidential Information shall not be used
for any purpose other than to analyze, implement or complete the Program. Confidential Information shall be held
in strict confidence by the Customer and shall not be disclosed without prior written consent of the Company, except
to the Customer's employees with a need to know the Confidential Information for the purpose of performing work
related to the Program. The Customer shall require all of its agents receiving the Confidential Information to be
bound by the terms of Sections 7.1 through 7.7 of this Master Agreement.
7.5 Required Disclosure. In the event that the Customer is requested or required by legal or regulatory
authority to disclose any Confidential Information or as otherwise required pursuant to the provisions of the Florida
Public Records Act, Chapter 119, Florida Statutes, the Customer shall promptly notify the Company of such request
or requirement prior to disclosure so that the Company may seek an appropriate protective order, at the sole cost of
Company and/or waive compliance with the terms of this Master Agreement. In the event that a protective order or
other remedy is not obtained, or the Company waives compliance with the provisions hereof, the Customer agrees to
furnish only that portion of the Confidential Information that it reasonably determines, in consultation with its
counsel, is 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. Notwithstanding anything to
the contrary, the Parties and their agents may disclose to any and all persons, without limitation of any kind, the tax
Page 11 of 20 Rev 08/15/08
treatment and tax structure of the Program and all materials of any kind (including opinions or other tax analyses)
that are provided to either Party relating to the tax treatment and tax structure of the Program.
7.6 Intentionally Deleted.
7.7 Survival. Notwithstanding anything to the contrary, the obligations of the Parries under Sections
7.1 through 7.7 shall survive the termination or expiration of this Master Agreement.
ARTICLE 8 - DOCUMENTS AND DATA
8.1 Ownership Rights. Any Feasibility Study, Feasibility Report or other report or document
furnished or to be furnished by the Company pursuant to this Master Agreement constitute Confidential Information
and shall remain the sole and exclusive property of the Company and may only be used by the Customer through the
grant of a limited license for the operation, maintenance, repair or alteration of any ECO installed by the Company.
The Customer shall not acquire any rights or interest with respect to the Company's or its Subcontractors'
proprietary technology, know-how, processes or computer software or any other intellectual property that may be
used in connection with the Services or the supply of equipment and materials hereunder. The Customer
acknowledges that the Company provides Services to other companies and agrees that nothing in this Master
Agreement will be deemed or construed to prevent the Company from carrying on such business. In particular, the
Customer agrees that, notwithstanding anything to the contrary set forth herein, as part of the Company's provision
of the Services hereunder, the Company may utilize software, methodologies, tools, specifications, models, samples
and documentation, the Company's Confidential Information, as well as copyrights, trademarks, service marks,
ideas, concepts, know-how, techniques, knowledge or data, which have been originated, developed or purchased by
the Company or by third parties under agreements to provide services for such third parties.
8.2 No Use of Documents After Termination. If any Feasibility Study, Feasibility Report or other
document prepared by the Company under this Master Agreement 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 not be entitled to use any such document for
any purpose whatsoever, and the Customer shall promptly return all originals, copies, discs, and other forms of data
to Company. To the extent that the Customer fails to comply with its obligations under this Section 8.2 and
Company incurs damages, Customer shall indemnify and hold Company harmless with respect to all claims, actions,
liabilities and costs (including reasonable attorneys' fees and costs of litigation) arising out of any unauthorized use
by the Customer.
ARTICLE 9 - INSURANCE
9.1 Insurance to Be Maintained by the Company. At any time that the Company is performing
Services under this Master Agreement at any Customer Service Location, the Company shall keep and maintain,
with insurers of recognized responsibility, the following insurance, which shall include the coverages and limits set
forth below:
9.1.1 Worker's Compensation Insurance covering all of the Company's employees as required
by law;
9.1.2 Commercial General Liability Insurance, including contractual liability, premises and
operations, broad -form property damage, products/completed operations, independent contractor, and personal
injury coverages, with a limit of not less than $1,000,000 for each occurrence, combined single limit;
9.1.3 Commercial Automobile Liability Insurance, including coverage for liability arising out
of the use of owned, non -owned, leased or hired automobiles, for both bodily injury and property damage in
accordance with state legal requirements, having not less than $1,000,000 combined single limit per occurrence.
Anything to the contrary notwithstanding, the Company may self insure any requirement of this Section 9.1; and
Page 12 of 20 Rev 08/15/08
9.1.4 The Company does not maintain errors or omission coverage and is self funded for
claims based on errors and omissions as well as business-related automobile insurance. Upon request by the
Customer, the Company will provide the Customer with a copy of the financial statements of its parent company,
FPL Group, Inc.
The Company will endeavor, using its commercially reasonable efforts, to secure the General Commercial Liability
Insurance coverage set forth in Section 9.1.2 above from its Subcontractors.
9.2 Customer Insurance. During and throughout the term of this Master Agreement and until all
amounts payable to the Company pursuant to this Master Agreement are paid in full, the Customer shall maintain, as
of the date of installation of each ECO, (i) comprehensive property insurance, including all risk physical damage
insurance, on each ECO with replacement cost coverage; and (ii) comprehensive liability insurance for bodily
injury, death, and property damage in the amount of $1,000,000 with coverage in excess of the $100,000 or
$200,000 waiver of sovereign immunity provided for in Section 768.28(5), Florida Statutes, and the indemnity
obligation of Customer shall extend up to but shall not exceed the higher limits of such insurance. The Company
shall be named as an additional insured and as a lost payee as it relates to Customer's comprehensive liability
insurance policy up to the limits of the Customer's liability under Section 10.1.2 of this Master Agreement and
policy shall be endorsed to be primary to any insurance maintained by the Company; provided, however, nothing
herein shall be deemed to have waived any defense of sovereign immunity beyond what the Customer is permitted
to assume in accordance with Section 768.28, Florida Statutes. The Customer shall provide the Company and its
assignees with insurance certificates which provide evidence of the insurance coverage under this Master
Agreement, in form and substance reasonably satisfactory to the Company and its assignees. Such certificates shall
provide at least twenty (20) days prior written notice of cancellation or material change, with the exception of ten
(10) days for nonpayment of premiums, to each additional insured and loss payee named therein.
ARTICLE 10 - INDEMNIFICATION
10.1 Personal Injury/Property Damage Indemnity Obligations.
10.1.1 Company's Indemnity Obligation. The Company shall hold and save the Customer, and
its respective officers and employees harmless against liabilities, damages, losses, and costs, including, but not
limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful
conduct of Company and persons employed or utilized by the Company in the performance of the Services under
this Master Agreement. Notwithstanding the foregoing, the Company's indemnification and hold harmless
obligation under this Section 10.1.1 shall (i) be limited to Two Million Dollars ($2,000,000) per occurrence, and (ii)
not include any liabilities, damages, losses, and costs arising from any negligent act, error or omission of the
Customer, its employees or agents.
10.1.2 Customer's Indemnity Obligation. The Customer agrees to be fully responsible and liable
to the extent provided by Section 768.28, Fla. Stat., for the negligent acts or omissions of the Customer, its
employees and agents and agrees to be liable for any damages proximately caused by said acts or omissions.
Nothing herein is intended to serve as a waiver of the Customer's sovereign immunity. Nothing herein shall be
construed as consent by the Customer to be sued by third parties in any manner arising out of this Master
Agreement.
10.2 Employee Claims. In any and all claims against a Party, its affiliates or contractors and their
respective directors, partners, shareholders, officers, agents and employees (collectively, the "Indemnitee") by an
employee of the other Party (the "Indemnitor") or of anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable, the indemnification obligations stated in Section 10.1 shall not be
limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for
the indemnifying Party under any applicable worker's compensation law, disability law, or other employee benefit
law.
10.3 Defense of Claims. An Indemnitor shall have the right to defend an Indemnitee by counsel
(including insurance counsel) of Indemnitor's selection reasonably satisfactory to the Indemnitee, with respect to
Page 13 of 20 Rev 08/15/08
any claims within the indemnification obligations hereof. The Parties shall give each other prompt written notice of
any asserted claims or actions indemnified against hereunder and shall cooperate with each other in the defense of
any such claims or actions. No Indemnitee shall settle any such claims or actions without prior written consent of
the Indemnitor.
10.4 Payment. In the event that either Party is required to make an indemnity payment under this
Article 10, such Party shall promptly pay the Indemnitee the amount so determined. The amount owing to the
Indemnitee shall be the amount of such Indemnitee's actual out-of-pocket loss or expense, net of any insurance or
other recovery paid to such Indemnitee. If there should be a dispute as to the amount or manner of determination of
any indemnity obligation, the Indemnitor shall nevertheless pay when due such portion, if any, of the obligation as is
not subject to dispute. Upon the payment in full of any claim, the Indemnitor making payment shall be subrogated
to the rights of the Indemnitee against any person with respect to the subject matter of such claim.
10.5 Survival. The obligations of the respective Parties under this Article 10 shall survive the
termination or expiration of this Master Agreement with respect to any claims or liability arising prior to such
termination.
ARTICLE 11 - HAZARDOUS MATERIALS
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 under this Master Agreement. If, during the
course of performing the Services, the Company becomes aware of any such hazardous materials or hazardous
condition, the Company shall promptly report such matter to the Customer 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 notice from the Customer that 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. The Customer shall, to the
fullest extent permitted by law, indemnify, defend and hold harmless the Company and its Subcontractors with
respect to any liability, cost or expense of whatever nature incurred as a result of any such hazardous materials or
hazardous condition.
ARTICLE 12 - TITLE, RISK OF LOSS, SECURITY INTEREST AND TAXES
12.1 Passage of Title. Upon the Company's receipt of full payment for Services performed under each
Implementation Services Authorization Form, legal title to each installed ECO, including all equipment and
materials comprising a part thereof, shall pass to the Customer upon the Substantial Completion Date for the ECO.
The Company agrees to use reasonable measures to prevent damage or risk of loss of any ECO located at a Service
Location. Notwithstanding anything contained herein to the contrary, 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 hold the Company harmless from and pay 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 Subcontractor retained by the Company. Loss or damage to an ECO directly caused
by the Company or its Subcontractor shall be the responsibility of the Company. The Customer hereby releases and
waives, and will cause its insurers to release and waive, any right of subrogation against the Company and each of
its Subcontractors.
12.2 Warranty of Title. The Company warrants good title to all ECO's and components thereof
furnished or installed by the Company or its Subcontractors, and the Company warrants that title to such ECO's and
components shall pass to and vest in the Customer as set forth in Section 12.1 free and clear of all liens, claims,
charges, security interests, encumbrances and rights of other parties arising as a result of the actions or failure to act
of the Company, its Subcontractors, or their employees.
12.3 Taxes. The Customer agrees to pay any taxes and assessments, whether real or personal, which
are now or hereafter imposed or assessed by any governmental authority, whether it be federal, state or local, with
Page 14 of 20 Rev 08/15/08
respect to the installation, delivery, sale, use, operation or maintenance of the ECO's, and to make all filings in
respect of any such taxes and assessments. The Company shall have no obligation or liability with respect to any
property tax nor with respect to any income, excess profits, or revenue tax charged or levied against the Customer as
a result of this Master Agreement. Except as otherwise provided under Section 12.4, the Company shall pay any
sales and use taxes imposed on the ECO's prior to the Company's delivery or installation of the ECO's, as required
by applicable law, subject to any sales and use tax exemptions available to the Company and the Customer.
12.4 Direct Purchase Procedure.
12.4.1 Administrative guidelines governing the taxability of materials purchased for public
works contracts, such as the Services under this Master Agreement, are contained in Rule 12A-1.094, Florida
Administrative Code.
12.4.2 The exemption in Florida Statutes Section 212.08(6) is a general exemption for sales
made directly to the Customer, who is a State of Florida governmental entity. A determination whether a particular
transaction is properly characterized as an exempt sale to a governmental entity such as the Customer or a taxable
sale to or use by a contractor such as the Company shall be based on the substance of the transaction, rather than the
form in which the transaction is cast. The determination of whether the substance of a particular transaction is a
taxable sale to or use by a contractor such as the Company or an exempt direct sale to a governmental entity such as
the Customer, based on all of the facts and circumstances surrounding the transaction as a whole, is ultimately made
by the Florida Department of Revenue.
12.4.3 The conditions that must be met to satisfy the requirements of Rule 12A-1.094, Florida
Administrative Code, and establish that the Customer rather than the Company is the purchaser of materials,
include:
12.4.3.1 The Customer must execute the purchase orders for the tangible personal
property involved in the contract, which must include the Customer's consumer certificate of exemption number.
The Company may present the Customer's purchase orders to the Vendors of the tangible personal property;
12.4.3.2 The Customer must acquire title to and assume liability for the tangible personal
property at the point in time when it is delivered to the Service Location until the time it is incorporated as real
property;
12.4.3.3 Vendors must directly invoice the governmental entity for supplies;
12.4.3.4 The Customer must directly pay the Vendors for the tangible personal property;
and
12.4.3.5 The Customer must assume all risk of loss or damage for the tangible personal
property involved in the contract, as indicated by the Customer's acquisition of, or inclusion as the insured party
under, insurance on the building materials.
ARTICLE 13 - FORCE MAJEURE
If a Party is prevented or delayed in the performance of any such obligation by a Force Majeure Event,
such Party shall immediately provide notice to the other Party of the circumstances preventing or delaying
performance and the expected duration thereof. Such notice shall be confirmed in writing as soon as reasonably
possible. The Party so affected by a Force Majeure Event shall endeavor, to the extent reasonable, to remove the
obstacles which prevent performance and shall resume performance of its obligations as soon as reasonably
practicable. Notwithstanding the foregoing, the occurrence of a Force Majeure Event shall not relieve the Customer
is payment obligations for Services rendered set forth in Article 3, Feasibility Study and Report and Article 4,
Installation and Implementation.
Page 15 of 20 Rev 08/15/08
ARTICLE 14 - CHANGES
Upon receiving such a request, the Company may at its sole option prepare and deliver a proposed Change
Order to the Customer listing the price of the Changes. If the Customer fails to return an executed Change Order, a
sample copy of which is attached to this Master Agreement as Schedule E, the Company shall have no obligation to
complete the Changes. 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 Master Agreement. Should any Change cause a material increase or decrease in the cost of
or time required for the Company's performance, or otherwise affect any provision of this Master Agreement, the
Company may propose an appropriate adjustment. The Company shall not be obligated to proceed with or perform
any Change requested by the Customer hereunder until the Parties have agreed in writing upon any such adjustments
resulting from the Change. Except to the extent a Change specifically results in an amendment or adjustment to one
or more provisions of this Master Agreement, all provisions of this Master Agreement shall apply to all Changes,
and no Change shall be implied as a result of any other Change.
ARTICLE 15 - TERMINATION AND DEFAULT
15.1 Termination for Convenience. Either Party may terminate this Master Agreement, in its sole
discretion, at any time, without further liability, upon ten (10) days prior written notice to the other Party; provided,
however, that such termination shall not apply with respect to any Services or work of the Company previously
ordered by the Customer under an Authorization Form executed by the Customer on or prior to the termination date.
With respect to any such previously ordered Services or work, including any previously implemented ECO or ECO
under implementation, this Master Agreement and the applicable Customer -authorized proposals, shall remain in
full force and effect in accordance with their terms, unless both Parties specifically agree in writing to the contrary.
15.2 Termination for Cause.
15.2.1 Termination by Either Party for Default. A Party shall have the right to terminate this
Master Agreement or a Customer -authorized Implementation Services Authorization Form for cause if. (a) any
proceeding is instituted against a Party seeking to adjudicate such Party as bankrupt or insolvent, or if such Party
makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of the insolvency
of such Party, or if a Party files a petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding up or composition or readjustment of debts and, in the case of any such
proceeding instituted against such Party (but not by such Party) such proceeding is not dismissed within sixty (60)
days of such filing; (b) the Customer fails to perform any payment obligation under this Master Agreement and fails
to cure such obligation within ten (10) days written notice from the Company; or (c) a Party substantially fails to
perform any non-payment obligation under this Master Agreement and fails to cure or commence and diligently
proceed to cure such obligation within thirty (30) days written notice from the other Party. Subject to Article 6, in
the case of such a termination by a Party, to the extent that the reasonable and necessary costs of completing any
Services previously ordered by the non -defaulting Party under this Master Agreement, including compensation for
obtaining a replacement contractor or for obtaining additional professional services required as a consequence of the
defaulting Party's breach, exceed those costs which would have been payable to the defaulting Party but for the
defaulting Party's breach, the defaulting Party shall pay the difference to the non -defaulting Party. The Customer
shall pay the Company an amount (to the extent not already paid) equal to the sum of all of the Company's
reasonable costs incurred in performing the Services up to the termination date, including all costs incurred with
respect to any Subcontractors; 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 (except any and all
intellectual property of the Company or third parties).
15.2.2 Payment. All amounts payable by either Party pursuant to Sections 15.1 and 15.2 shall
be due within thirty (30) days following the submission by the other Party of an invoice therefor, which invoice shall
include in reasonable detail an itemization of costs with respect to any amounts measured on the basis of
reimbursable costs. Reimbursable costs also shall be subject to audit by the other Party, at the other Party's expense
upon reasonable advance notice; provided that such audit shall be completed within sixty (60) days following the
Page 16 of 20 Rev 08/15/08
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 the Delayed Payment Rate.
ARTICLE 16 - DISPUTES
16.1 No Set -Off. Anything to the contrary notwithstanding, all payments under this Master Agreement
shall be made without set-off or deduction. Any payment not made by the date required by the Master Agreement
shall bear interest from the date on which such payment was due and payable through and including the date such
payment is actually received at the Delayed Payment Rate. If, as a result of a Dispute settled in favor of Customer, a
refund is owed to Customer, then the amount of the overpayment shall bear interest from the date on which such
payment was received by the Company through and including the date that the overpayment is refunded by the
Company at an annual rate equal to the Delayed Payment Rate.
16.2 Pendency of Dispute. The existence of any Dispute, controversy or claim under this Master
Agreement, or the pendency of the Dispute settlement or resolution procedures set forth in this Master Agreement,
shall not in and of themselves relieve or excuse either Party from its ongoing duties and obligations hereunder or
thereunder.
16.3 Alternative Dispute Resolution Process. Upon the written request of either Party, the Parties
will meet for the purpose of resolving such Dispute. The Parties agree to discuss the problem and negotiate in good
faith to attempt to resolve the Dispute. No formal proceedings may be commenced until either Party concludes in
good faith that resolution of the Dispute through continued informal negotiations does not appear likely. Disputes
that cannot be settled to in a manner described via informal discussions may be settled, but shall not be obligated to,
mutually agree to non-binding mediation. Mediation must occur within twenty (20) business days after the Parties
agree to submit the dispute to mediation, and the duration of the mediation shall be limited to one (1) business day.
The Parties shall mutually select an independent mediator experienced in commercial information system contract
disputes, and each Party shall designate a representative(s) to meet with the mediator in good faith in an effort to
resolve the Dispute. The specific format of the mediation shall be left to the discretion of the mediator and the
designated Party representatives.
ARTICLE 17 - ASSIGNMENT
17.1 Master Agreement Binding. This Master Agreement and each Customer -authorized Feasibility
Study and implementation of a Feasibility Report pursuant to a Customer -authorized Implementation Services
Authorization Form entered into by the Parties shall be binding upon, and shall inure to the benefit of, the Parties
and their successors and permitted assigns.
17.2 Permitted Assignment. (a) The Customer may not assign this Master Agreement without the prior
written consent of the Company. No such assignment by the Customer or consent by the Company to the
Customer's assignment shall release the Customer of any of its obligations under this Master Agreement or any
associated supplements or Schedules. (b) The Company may, without notice to the Customer, assign this Master
Agreement, any supplements, or Schedules, and any of the Company's rights hereunder or thereunder (i) in the event
of a merger, acquisition or divestiture, the Company may assign to an entity or individual acquiring greater than fifty
percent (50%) of the assets or voting securities of the Company and provided such assignee assumes the Company's
obligations under this Master Agreement and the Company provides the Customer of such assignment and
assumption, or (ii) to a third party financing institution upon notice to the Customer. Notwithstanding such
assignment, the Company shall remain liable and responsible to the Customer for all of the Company's obligations
and other performance requirements set forth in this Master Agreement and all exhibits, appendices, Schedules,
supplements, and attachments hereto. No assignee shall be responsible for any obligations of the Company unless
and until the Customer receives express written notice from such assignee which expressly states that such assignee
has assumed the obligations of the Company, and assumption of any of the Company's obligations shall not bind
any other assignee unless such assignee also expressly assumes such obligations in a written notice issued to the
Customer. Any assignee shall have the right (but not the obligation) to cure any default or breach by the Company
of its obligations to the Customer in accordance with the terms of this Master Agreement. No curing of any defaults
or breaches by any assignee shall be construed as an assumption by any assignee of any of the obligations,
Page 17 of 20 Rev 08/15/08
covenants, or Master Agreements of the Company. (c) Any assignment which does not comply with the provisions
of this Section 17.2 shall be null and void.
17.3 No Third Party Beneficiaries. Except as otherwise expressly provided herein, this Master
Agreement nor any term or provision or obligation arising hereof or hereunder, shall be construed as being for the
benefit of any Party not a signatory hereto.
17.4 Timing of Receipt. Notices sent by mail shall be given as of four (4) business days after the date
of the postmark, and notices delivered by overnight courier shall be deemed received on the date when left at the
address of the recipient. Notices sent by fax shall be effective the date faxed, if a business day, or the following
business day otherwise.
ARTICLE 18 - GENERAL PROVISIONS
18.1 Entire Master Agreement. This Master Agreement, including the Schedules attached hereto and
any exhibits attached thereto, 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 Master Agreement. Any actions or Services
described in this Master 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 Master Agreement.
18.2 Amendments. No change, amendment or modification of this Master Agreement or Schedule or
exhibits 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.
18.3 Status of the Parties. The Company and its Subcontractors shall be independent contractors with
respect to the Services performed hereunder irrespective of whether such Subcontractors are approved by the
Customer, and neither the Company nor its Subcontractors, nor the employees of either, shall be deemed to be the
employees, representatives or agents of the Customer. Nothing in this Master Agreement 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.
18.4 Customer & Company. The Parties hereby represents and warrants to the other Party that (i) the
execution and delivery by a Party of this Master Agreement and the performance of its obligations hereunder have
been duly authorized by all requisite actions and proceedings; are not inconsistent with and do not and will not
contravene any provisions of a Party's organizational documents or any applicable law, rule or regulation; have been
approved by all necessary persons or entities; and do not and will not conflict with or cause any breach or default
under any agreement or instrument to which a Party is a party or by which it or any of its properties is bound; and
(ii) this Master Agreement has been duly executed and delivered by the Parties and constitutes the valid and legally
binding obligation of each Party, enforceable against the other Party 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.
18.5 Drafting Interpretations and Costs. Preparation and negotiation of this Master Agreement has
been a joint effort of the Parties and the resulting document shall not be construed more severely against one of the
Parties than against the other. Each Party shall be responsible for its own costs, including legal fees, incurred in
negotiating and finalizing this Master Agreement.
18.6 Captions. The captions contained in this Master Agreement 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.
18.7 Severability/Divisible Contracts. (a) The invalidity of one or more phrases, sentences, clauses,
Sections or Articles contained in this Master Agreement 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) Each Customer -
Page 18 of 20 Rev 08/15/08
authorized proposal for Services under this Master 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 Master Agreement, and shall be
entitled to exercise the rights of the Company under this Master 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 17.2.
18.8 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 Master Agreement, in furtherance of the express
provisions of this Master Agreement.
18.9 Applicable Law and Venue. This Master Agreement shall be governed by, construed and enforced
in accordance with the laws of the State of Florida, exclusive of conflicts of laws provisions. 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 Indian River County, Florida or the United States District Court for the
Southern District of Florida.
18.10
Counterparts. This Master Agreement may
be
signed in any number of counterparts and each
counterpart shall
represent a fully executed original as if
signed
by
both Parties.
18.11 Waiver of Jury Trial. 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 HERON, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS MASTER AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, OR STATEMENTS WHETHER ORAL OR PARTY HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THIS MASTER AGREEMENT.
18.12 No Waiver. The failure of a Party to enforce, insist upon, or comply with any of the terms,
conditions or covenants of this Master Agreement, or a Party's waiver of the same in any instance or instances shall
not be construed as a general waiver or relinquishment of any such terms, conditions or covenants, but the same
shall be and remain at all times in full force and effect.
18.13 Notices. All notices, demands, offers or other written communications required or permitted to be
given pursuant to this Master Agreement shall be in writing signed by the Party giving such notice and shall be
mailed by U.S. Mail, postage prepaid, via courier or faxed as follows:
If to the Company:
FPL Energy Services, Inc.
6001 Village Boulevard
West Palm Beach, Florida 33407
Fax: (561) 681-3088
Tel.: (561) 681-3079
Attention: DAC Manager Engineering & Construction
If to the Customer:
Indian River County
Attn: Lynn Williams, Facilities Manager
180127 1h Street, Vero Beach, FL 32960-3365
Phone: (772) 226- 3491
Facsimile: (772) 226-3495
Each Party shall have the right to change the place to which notices shall be sent or delivered or to specify additional
addresses to which copies of notices may be sent, in either case by similar notice sent or delivered in like manner to
the other Party.
Page 19 of 20 Rev 08/15/08
IN WITNESS WHEREOF, the Parties hereto have executed this Master Agreement by and through their
duly authorized representatives as of the Effective Date.
Authorized By the Company:
FPL Energy Services, Inc.,
a Florida corporation
BY:
NAME: Gregory WHanlon
TITLE: Vice Pres jdent & General Manager
DATE: PZ Loe
Attest: J. K. Barton, Clerk
Byoe- L-.� /0
X � -Z&e&
eputy Clerk
r rgr Approved Qa1e
Authorized By the Customer:
INDIAN RIVER COUNTY
BOARD OF COUNTYs.;,,,
COMMISSIONERS'
12tH 1.4 P4 C Lit JAii I Jr .
Rr4L. Bowdrij, Cha -=an'
Approved bye C.'August 1911'2008
11
Approved:
oseph IA. Baird
County Administrator
Approved as to form and legal
sufficiency:
E. Fell
Senior Assistant County Attorney
Page 20 of 20
Rev 08/15/08