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Agenda 05/13/2008 Item #16C 2 Agenda Item No. 16C2 May 13, 2008 Page 1 of 55 EXECUTIVE SUMMARY Recommendation to approve a Master Agreement for Demand Side Management and Energy Efficiency Services with Florida Power & Light Company for Public Utilities Division participation in a guaranteed energy performance savings program at numerous major facilities. Guaranteed annual savings are greater than the cost of implementation of energy savings measures. Potential maximum one time financial impact is $52,344.00, if the County does not consent to the implementation of the identified energy savings measures. OBJECTIVE: To realize savings on electrical power costs while upgrading facilities and providing utility services to meet customer demand. CONSIDERATION: Florida Power & Light Company (FPL) is under term contract number 24-973- 320-X with the State of Florida to provide services to municipal, educational, and state agencies in accordance with Florida Statute 489.145, "Guaranteed Energy Performance Savings Contracting Act," (Attachment A). This process is specific in regard to cost effectiveness and the required savings guarantees that FPL will provide before any energy savings measures are implemented. The Public Utilities Division (PUD) proposes to enter into a partnership with FPL under a Master Agreement to identify, design and install specific guaranteed Energy Conservation measureslOptions (ECOs). The PUD proposes a feasibility review of the four treatment plants and numerous major pumping facilities. Through discussions with other county divisions, it was decided that the PUD will initially participate in this FPL program with the other divisions to follow, as deemed appropriate. The action to add other county divisions will require future Board of County Commissioners (Board) approval. This request is for Board approval of both the Master Agreement and the Schedule A, Feasibility Study Authorization Form. The results of the Feasibility Study will summarize the costs associated with each identified ECO and provide an estimate of the annual energy cost savings. The ECOs will be examined and sufficient information provided to determine whether they met the PUD payback criteria of 10 years or less and a total payback energy savings greater than the cost of the ECO implementation. FPL will provide an annual reconciliation report of the guaranteed energy cost savings. If the reconciliation reveals a shortfall in annual energy cost savings, FPL will be liable for that shortfall. As outlined in Florida Statute 489.145, the guaranteed energy performance savings program procedures and contract provisions are specific and follow well developed national standards. Through the use of approved Schedules attached to the Master Agreement, FPL will be granted authorization to implement the steps of the specific process. Further details on the FPL energy efficiency services contracting process steps are included as Attachment B to this executive summary. Authorization of Schedule B will require a new Board approval for the implementation of the specific ECOs identified through the Feasibility Study, the savings guarantee provisions, and the financing details of the project required for meeting the program and Florida Statute 489.145 requirements. While FPL will assist the PUD in obtaining the best available financing arrangement, the PUD will incur this cost and carry the debt on the PUD financial balance sheet. In this current action the Board is requested to delegate to staff the authority to execute Schedule C, Notice of Substantial Completion; Schedule D, Final Acceptance; and Schedule E, Change Order Form; consistent with County Purchasing Policy and Administrative Procedures in effect at that time. Executive Summary FPL Master Agreement - PUD Energy Efficiency Page 2 Agenda Item No. 16C2 May 13, 2008 Page 2 of 55 FPL has successfully implemented this program for municipalities (Sarasota County; the Cities of Venice and Sarasota, others); school districts (Dade, Lee, and others); and other federal and Florida state agencies. The Collier County Manager encourages staff to look for efficiencies (cost saving measures) throughout the organization (Attachment C). This FPL program is an initiative to support this energy savings cost outcome. fl' LEGAL CONSIDERATIONS: This FPL Master Agreement and the associated Schedules for Demand Side Management and Energy Efficiency Services have been reviewed and found sufficient by the County Attorney's Office. FISCAL IMPACT: Potential guaranteed annual savings will be realized in the County Water-Sewer District Operating Budget (Fund 408). The potential one time maximum financial impact is $52,344.00 in Projects 71007 and 73071, Energy Efficiency, if the County does not consent to implementation of any of those measures. Staff has reviewed the scope and cost breakdown associated with the Feasibility Study, and concludes that the cost is fair and reasonable and represents a best value for the PUD. Funding is available in and is consistent with the FY08 Capital Budget approved by the Board on September 20, 2007. The source of funding is the Water User Fee Fund (412) and Wastewater User Fee Fund (414). GROWTH MANAGEMENT IMP ACT: The project is consistent with and furthers the goals, objectives, and policies of the Collier County Growth Management Plan. RECOMMENDATION: That the Board of County Commissioners, as the Ex-officio Governing Board of the Collier County Water-Sewer District: . authorize the Board Chairman to execute the Master Agreement and Schedule A, Feasibility Study Authorization Form; . authorize staff the authority to execute Schedule C, Notice of Substantial Completion; Schedule D, Final Acceptance; and Schedule E, Change Order Form; consistent with County policy and procedures, PREPARED BY: Karen B. Guliani, P.E., Principal Project Manager, Public Utilities Engineering Department. Attachment A Agenda Item No. 16C2 May 13, 2008 Page 3 of 55 489.145 Guaranteed energy performance savings contracting.-- (1) SHORT TITLE.--This section may be cited as the "Guaranteed Energy Performance Savings Contracting Act." (2) LEGISLATIVE FINDINGS.--The Legislature finds that investment in energy conservation measures in agency facilities can reduce the amount of energy consumed and produce immediate and long-term savings. It is the policy of this state to encourage agencies to invest in energy conservation measures that reduce energy consumption, produce a cost savings for the agency, and improve the quality of indoor air in public facilities and to operate, maintain, and, when economically feasible, build or renovate existing agency facilities in such a manner as to minimize energy consumption and maximize energy savings, It is further the policy of this state to encourage agencies to reinvest any energy savings resulting from energy conservation measures in additional energy conservation efforts. (3) DEFINITIONS.--As used in this section, the term: (a) "Agency" means the state, a municipality, or a political subdivision. (b) "Energy conservation measure" means a training program, facility alteration, or equipment purchase to be used in new construction, including an addition to an existing facility, which reduces energy or operating costs and includes, but is not limited to: ,. Insulation of the facility structure and systems within the facility. 2. Storm windows and doors, caulking or weatherstripping, multi glazed windows and doors, heat-absorbing, or heat-reflective, glazed and coated window and door systems, additional glazing, reductions in glass area, and other window and door system modifications that reduce energy consumption. 3. Automatic energy control systems. 4. Heating, ventilating, or air-conditioning system modifications or replacements. 5. Replacement or modifications of lighting fixtures to increase the energy efficiency of the lighting system, which, at a minimum, must conform to the applicable state or local building code. 6. Energy recovery systems. 7. Cogeneration systems that produce steam or forms of energy such as heat, as well as electricity, for use primarily within a facility or complex of facilities. 8. Energy conservation measures that provide long-term operating cost reductions or significantly reduce Btu consumed. 9. Renewable energy systems, such as solar, biomass, or wind systems. 10. Devices that reduce water consumption or sewer charges. 11. Storage systems, such as fuel cells and thermal storage. At'tachment A Executive Summary - FPL Master Agreement Eage 2 of 4 12. Generating technologies, such as microturbines. Agenda Item No. 16C2 May 13, 2008 Page 4 of 55 13. Any other repair, replacement, or upgrade of existing equipment. (c) "Energy cost savings" means a measured reduction in the cost of fuel, energy consumption, and stipulated operation and maintenance created from the implementation of one or more energy conservation measures when compared with an established baseline for the previous cost of fuel, energy consumption, and stipulated operation and maintenance. (d) "Guaranteed energy performance savings contract" means a contract for the evaluation, recommendation, and implementation of energy conservation measures, which, at a minimum, shall include: 1. The design and installation of equipment to implement one or more of such measures and, if applicable, operation and maintenance of such measures. 2. The amount of any actual annual savings that meet or exceed total annual contract payments made by the agency for the contract. 3. The finance charges incurred by the agency over the life of the contract. (e) "Guaranteed energy performance savings contractor" means a person or business that is licensed under chapter 471, chapter 481, or this chapter, and is experienced in the analysis, design, implementation, or installation of energy conservation measures through energy performance contracts. (4) PROCEDURE5.-- (a) An agency may enter into a guaranteed energy perfonmance savings contract with a guaranteed energy performance savings contractor to significantly reduce energy or operating costs of an agency facility through one or more energy conservation measures. (b) Before design and installation of energy conservation measures, the agency must obtain from a guaranteed energy performance savings contractor a report that summarizes the costs associated with the energy conservation measures and provides an estimate of the amount of the energy cost savings. The agency and the guaranteed energy performance savings contractor may enter into a separate agreement to pay for costs associated with the preparation and delivery of the report; however, payment to the contractor shall be contingent upon the report's projection of energy cost savings being equal to or greater than the total projected costs of the design and installation of the report's energy conservation measures. (c) The agency may enter into a guaranteed energy performance savings contract with a guaranteed energy performance savings contractor if the agency finds that the amount the agency would spend on the energy conservation measures will not likely exceed the amount of the energy cost savings for up to 20 years from the date of installation, based on the life cycle cost calculations provided in s. 255.255, if the recommendations in the report were followed and if the qualified provider or providers give a written guarantee that the energy cost savings will meet or exceed the costs of the system. The contract may provide for installment payments for a period not to exceed 20 years. (d) A guaranteed energy performance savings contractor must be selected in compliance with s. 287.055; except that if fewer than three firms are qualified to perform the required Attachment A Agenda Item No. 16C2 May 13, 2008 Page 5 of 55 Executive Summary - FPL Master Agreement blge 3 of 4 services, the requirement for agency selection of three firms, as provided in s. 287.D55(4)(b), and the bid requirements of s. 287.057 do not apply. (e) Before entering into a guaranteed energy performance savings contract, an agency must provide published notice of the meeting in which it proposes to award the contract, the names of the parties to the proposed contract, and the contract's purpose. (f) A guaranteed energy performance savings contract may provide for financing, including tax exempt financing, by a third party. The contract for third party financing may be separate from the energy performance contract. A separate contract for third party financing must include a provision that the third party financier must not be granted rights or privileges that exceed the rights and privileges available to the guaranteed energy performance savings contractor. (g) In determining the amount the agency will finance to acquire the energy conservation measures, the agency may reduce such amount by the application of any grant moneys, rebates, or capital funding available to the agency for the purpose of buying down the cost of the guaranteed energy performance savings contract. However, in calculating the life cycle cost as required in paragraph (c), the agency shall not apply any grants, rebates, or capital fundi ng. (5) CONTRACT PROVISIONS.-- (a) A guaranteed energy performance savings contract must include a written guarantee that may include, but is not limited to the form of, a letter of credit, insurance policy, or corporate guarantee by the guaranteed energy performance savings contractor that annual energy cost savings will meet or exceed the amortized cost of energy conservation measures. (b) The guaranteed energy performance savings contract must provide that all payments, except obligations on termination of the contract before its expiration, may be made over time, but not to exceed 20 years from the date of complete installation and acceptance by the agency, and that the annual savings are guaranteed to the extent necessary to make annual payments to satisfy the guaranteed energy performance savings contract. (c) The guaranteed energy performance savings contract must require that the guaranteed energy performance savings contractor to whom the contract is awarded provide a 1 DO-percent public construction bond to the agency for tts faithful performance, as required by s. 255.05. (d) The guaranteed energy performance savings contract may contain a provision allocating to the parties to the contract any annual energy cost savings that exceed the amount of the energy cost savings guaranteed in the contract. (e) The guaranteed energy performance savings contract shall require the guaranteed energy performance savings contractor to provide to the agency an annual reconciliation of the guaranteed energy cost savings. If the reconciliation reveals a shortfall in annual energy cost savings, the guaranteed energy performance savings contractor is liable for such shortfall. If the reconciliation reveals an excess in annual energy cost savings, the excess savings may be allocated under paragraph (d) but may not be used to cover potential energy cost savings shortages in subsequent contract years. /-- (f) The guaranteed energy performance savings contract must provide for payments of not less than one-twentieth of the price to be paid within 2 years from the date of the complete installation and acceptance by the agency, and the remaining costs to be paid at least quarterly, not to exceed a 20-year term, based on life cycle cost calculations. Executive Summary - FPL MAster Agreement Page 4 of 4 (g) The guaranteed energy performance savings contract may extend beyond the fiscal year in which it becomes effective; however, the term of any contract expires at the end of each fiscal year and may be automatically renewed annually for up to 20 years, subject to the agency making suffident annual appropriations based upon continued realized energy savings. Agenda Item No. 16C2 May 13, 2008 Page 6 of 55 Attachment A -_/ (h) The guaranteed energy performance savings contract must stipulate that it does not constitute a debt, liability, or obligation of the state. (6) PROGRAM ADMINISTRATION AND CONTRACT REVIEW.--The Department of Management Services, with the assistance of the Office of the Chief Financial Officer, may, within available resources, provide technical assistance to state agencies contracting for energy conservation measures and engage in other activities considered appropriate by the department for promoting and facilitating guaranteed energy performance contracting by state agencies. The Office of the Chief Financial Officer, with the assistance of the Department of Management Services, may, within available resources, develop model contractual and related documents for use by state agencies. Prior to entering into a guaranteed energy performance savings contract, any contract or lease for third-party financing, or any combination of such contracts, a state agency shall submit such proposed contract or lease to the Office of the Chief Financtal . Officer for review and approval. History.--s. 1, ch. 94-112; s. 1, ch. 2001-81; s. 510, ch. 2003-261. \ Attachment B to Executive Summary FPL Master Agreement - PUD Energy Efficiency Page I of 2 Agenda Item No. 16C2 May 13, 2008 Page 7 of 55 . Attachment B Energy Efficiency Services Contracting Process Steps: '- .. Feasibility Study (Schedule A): .. Scope detennined through coordinated effort of County staff and FPLS engineers. . Defines an engineering grade evaluation of those Energy Conservation Opportunities (ECOs) that have been identified in an initial walk through of facilities and have been selected for further review. .. Analyze utility consumption patterns, operating schedules, maintenance programs, equipment effectiveness, life expectancies, utility rates, and other applicable parameters to generate baseline operating costs for targeted ECOs. .. Typically requires 30-40% of engineering design for ECOs to provide sufficient documentation for developing firm, fixed pricing and to specify savings projections that can be expected, and guaranteed, for selected ECOs. .. Full study to include combination of ECOs bundled to take full advantage of alternative funding sources and comply with statute required accountabilities (net savings meet, or exceed ALL costs). .. Study will include evaluation of funding alternatives, included competitive assessment of financial resources. .. Full engineering evaluation of savings potential for each measure. Generate the extent to which FPLS can guarantee savings and develop metrics and scheduling by which savings will be demonstrated. U.S. Dept of Energy protocol is basis for monitoring and savings verification plan. .. Construction and Implementation (Schedule B): .. Based on approved ECMs by county staff, FPLS will assemble development team to include design engineers, project managers, construction managers and any required ancillary resources required to provide accountable implementation and schedule compliance. .. Develop full equipment and labor specifications and administer appropriate competitive process to ensure best quality and pricing for labor and materials, .. Provide professional implementation and project oversight and fully commission entire process to ensure that the design intent is realized through the end product. ,.... Attachment B to Executive Summary FPL Master Agreement - PUD Energy Efficiency Page 2 of 2 Agenda Item No. 16C2 May 13, 2008 Page 8 of 55 . . Financing (Schedule B): . Administer best available financing arrangements to include benefits of: }- FPLS volume of State, Municipal and Educational funding arrangements }- County tax exempt status }- Financial security risk associated with FPLS history of successes and founding organization of the National Association of Energy Service Companies (NAESCO) }- Financial stability of host organization, FPL Group . Administer County requirements for installment basis... ie. payment as line item on FPL electric bill. . Provide amortized installments less than or equal to conservative savings projections from implemented ECMs. . . Performance Guarantee (Schedule B): . Provide guarantee of perfonnance of implemented ECMs according to industry standard Monitoring and Verification Protocol. FPLS employs the Department of Energy's International Performance Measurement and Verification Protocol (IPMVP). . Assess appropriate level of M&V based on technology specifications, level of performance risk, administrative cost of verification and assessment of risk. . Provide contracted guarantee and remediation plan. . -, , Agenda Item No. 16C2 May 13, 2008 Page 9 of 55 AttachmentC COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS DEPARTMENT OF FACILITIES MANAGEMENT MEMORANDUM DATE: January 3, 2008 TO: Occupants of BCC Owned or Leased Buildings FROM: Skip Camp, CFM, Director Department of Facilities Management REFERENCE: Energy Savings The County Manager continues to encourage us to look for efficiencies (cost-saving measures) throughout the organization. This is especially important in light of the (1) the national economic trends, (2) current oil prices (3) state imposed revenue limits and the upcoming referendum (4) the water restrictions in many parts of the Country including South Florida and (5) sustainability ("green") initiatives. All these things (and others) have and will put a strain on our budgets. In an effort to address this situation, staff members are brainstorming a number of ideas that will save additional tax dollars. In order for these ideas I savings to be fully realized, each one of us will need to do hislher part. Everyone must take responsibility and make the necessary sacrifices that may result from implementing some of these initiatives. We must step forward and set the example by fully understanding and supporting the positive outcomes these changes will provide for our fellow employees and citizens of Collier County ( and the environment). 1. Parking Deck. The new large parking deck (the one by the Courthouse) will be closed each weekday at 10:00 PM. That means that no one will be able to get into the deck after 10:00 PM. The gates will come down and further vehicular traffic will be prohibited from entering. You will still be able to get to your car and exit the structure. At midnight the majority oflights in the facility will be turned off with the exception of the lighting in the elevators and the stairwells which will be on 2417. The deck will reopen at 6:00 AM. On weekends, the deck will be closed - there is plenty of on-grade parking near the buildings on Saturday and Sunday. The savings from this program is estimated to be between $12,000 and $18,000 annually. Additionally, we are encouraging our employees to park on Floors 5 and 6. This provides additional security (via card access) for our employees and allows the public to park on the lower floors. Of course from a distance perspective, there is no walking distance difference whether you park on the second floor or the fifth floor if you take the elevators. 2. Air Conditioning. Over the past year, the County has reset most of its air conditioning thermostats to 76 degrees with few exceptions. Over the next couple of months, staff will be Attachment C Executive Summary FPL Master Agreement-PUn Energy Efficiency Page Z of Z readjusting these temperatures so that common areas like hallways and restrooms will a higher temperature. Agenda Item No. 16C2 May 13, 2008 Page 10 of 55 operate at 3. Water. The Main Government Complex is served by the City of Naples Water Department. The Complex uses an average of 225,000 gallons of water per day, everyday of the week (it is a 24n operation - remember the jail). In addition to high water usage, the rates charged by the City of Naples just increased substantiallv. To combat this rate increase, the County is currently constructing an irrigation quality water system that will reduce the use of expensive potable water. The irrigation quality water will be used for outside irrigation and for the chilled water plant (air conditioning). We are installing waterless urinals as money permits. These units save 40,000 gallons of water each per year. Additionally, the new urinals are much better than the first generation units which sometimes were associated with bad odors. Staff is also developing a capital replacement plan for replacing old inefficient toilets with units that use less water. 4. Paper Products and Green Cleaning. The County has converted to "green" cleaning. What does this mean? First, all the products used in County facilities to clean the buildings are now certified "green"; they are environmentally friendly. Secondly, they are safer for people. The County has also changed to "green" paper products. This means that the paper towels (the new brown ones) are recycled products. They are not as soft BUT do the job, are no more expensive and are much more environmentally friendly. This is one of those examples where we sacrifice for the betterment of mother earth. The TP is from recycled materials and is actually no different in "softness" than regular, non-green TP. 5. Lights Off. When you leave or are gone from your desk for more than 15 minutes, turn off your lights. This is especially important when you leave for the day. At night turn off your equipment, such as your computer, monitors, label makers, card scanners, document scanners and other equipment. If you put all these items on a power bar you have only one switch to turn off and on when you leave and return. 6. Lights On. The older folks will remember something called an "incandescent light bulb". Well, they will be a thing of the past by the year 2012 (in other countries by 2010). They will be replaced by "compact fluorescent - high efficiency bulbs (CFL). They cost more upfront but instead oflasting months, they last five years. County staff will be replacing the old Thomas Edison bulbs with CFLs as they burn out. First it was the downfall of the eight-track tape player, then Nehru jackets (with the peace medallion), the record player, the sometime soon - typewriter and now the incandescent light bulb - all in the name of progress. 7. Please pass this on to those without access to computers. If you have suggestions on how to save money, energy, or water, please send us an email at skipcamp(lV,colliergov.net or damongonzales(lV,colliergov.net. Thank you. Page 1 of2 Agenda Item No. 16C2 May 13, 2008 Page 11 of 55 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16C2 Recommendation to approve a Master Agreement for Demand Side Management and Energy Efficiency Services with Florida Power & Light Company (FP&L) for Public Utilities Division participation in a guaranteed energy performance savings program at numerous major facilities. Meeting Date: 5/13/2008 9:00:00 AM Prepared By Karen B. Guliani, P .E. Senior Project Manager Date Public Utilities Public Utilities Engineering 1/9/20084;28;43 PM Approved By Karen B. Guliani, P.E. Senior Project Manager Date PubliC Utilities Public Utilities Engineering 1/31/200811 ;01 AM Approved By Donald Edwards Operations Manager Date Public Utilities Wastewater 1/31/20081 :07 PM Approved By G. George Yilmaz WasteWater Director Date Public Utilities WasteWater 2/4/2008 1 :51 PM Approved By Pamela Libby Water Operations Manager Date Public Utilities Water 2/5/2008 1 :43 PM Approved By Paul Mattausch Water Director Date Public Utilities Water 2/5/20083:32 PM Approved By Dianna Perryman Contract Specialist Date Administrative Services Purchasing 2/6/20089:19 AM Approved By Thomas Wides Operations Director Date Public Utilities Public Utilities Operations 2/8/20084:50 PM Approved By Jeffrey A. Walker, CPCU, ARM Risk Management Director Date Administrative Services Risk Management 2/19/2008 9 :41 AM file:/IC:IAgendaTestIExportll 07-Mav%20 13, %2020081 l6.%20CONSENT%20AGENDA 1 I 6... 51712008 Page 20f2 Agenda Item No. 16C2 May 13, 2008 Page 12 of 55 Approved By Scott R. Teach Assistant County Attorney Date County Attorney County Attorney Office 21191200810:48 AM Approved By Phil E. Gramatges, P .E. Sr. Project Manager Date Public Utilities Public Utilities Engineering 412312008 10:44 AM Approved By James W. DeLany Public Utilities Administrator Date Public Utilities Public Utilities Administration 4125120082:17 PM Approved By OMS Coordinator OMS Coordinator Date County Manager's Office Office of Management & Budget 412812008 10:23 AM Approved By Steve Carnell Purchasing/General Svcs Director Date Administrative Sen/ices Purchasing 4129120085:14 PM Approved By John A. Yonkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 51212008 1 :06 PM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office SI512008 3:35 PM file:/IC:\AgendaTest\Export\l 07-May%20 13,%202008\16.%20CONSENT%20AGENDA \ 16... 5/7/2008 Agenda Ilem No. 16C2 May 13, 2008 Page 13 of 55 MASTER AGREEMENT FOR DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES (STATE GOVERNMENTAL ENTITIES) THIS MASTER AGREEMENT is made and entered into as of the_ day of ,2008 (the "Effective Date"), by and between FPL Services, LLC, a Florida limited liability company, ("Company") license No. QB25878, and The Board of County Commissioners of Collier County, Florida, ("Customer") as the governing board of Collier County and as ex-officio the governing board of the Collier County Water-District. The County is a political subdivision of Florida. The Water-Sewer District is a Special District per Chapter 2003-353, Laws of Florida, a Special Act. RECITALS A. The Company is in the business of providing demand side management energy efficiency Services for its customers pursuant to a Company initiated Program; B. The Customer has agreed to participate in the Program by considering the furnishing and upgrading of its facilities with energy efficient equipment and systems in order to achieve potential energy savings; and c. 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 pmpose 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 Chamle 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 and assigns. Comoanv means FPL Services, LLC, a Florida limited liability company, including its successors 1.4 Confidential Information shall mean, subject to Chapter 119 and Chapter 286, Florida Statutes, 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, 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. th) 2008, FPL Services, LLC, All Rights Reserved Page 1 of 20 Rev. 04/18108 Agenda Item No. 16C2 May 13, 2008 Page 14 of 55 1.5 Customer means the Board of County Commissioners of Collier County, Florida, as the governing board of Collier County and as ex-officio the governing board of the Collier County Water-District. 1.6 Delaved Payment Rate means a rate of interest equal to one-and-oneRhalf percent (}Ih%) 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 Demand Side Management means the installation of certain ECOs by the Company to support a reduction in the demand for electric consumption as specified Service Locations. 1.8 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. 1.9 Location. ECO means an energy conservation opportunity identified by the Company at a specified Service 1.10 Enenry Efficiency Services means those ECOs installed at certain a Customer Service Location(s) to support energy and operational efficiencies at said Service Location(s). 1.11 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. 1.12 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. 1.13 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.l4 summanze the Locations. Feasibilitv Report means the written report which is issued by the Company to the Customer to Company's findings based upon a Feasibility Study of particular ECO's at specified Service 1.15 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 afFinal Acceptance. 1.16 Force Maieure 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. 1.17 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). 1.18 Implementation Price means the compensation to be paid by the Customer to the Company for performing Implementation Services with respect to particular EeO's at specified Service Locations. 1.19 Implementation Services means the Services provided or proposed to be provided by the Company to construct, install or othef\Vise implement one or more ECO's at specified Service Locations in accordance with :hl2008, FPL Services, LLC, All Rights Reserved Page 2 of 20 Rev. 04/t 8108 Agenda Item No. 16G2 May 13, 2008 Page 15 of 55 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 EGO. and (e) arranging for the final inspection and check-out of each installed ECO. 1.20 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. 1.21 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. 1.22 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. 1.23 Agreement. flrr!y means the Company or the Customer identified in the opening paragraph of this Master 1.24 Agreement Parties means the Company and the Customer identified in the opening paragraph of this Master 1.25 Pavback 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 EGO), 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. 1.26 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. 1.27 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. 1.28 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. 1.29 Service Location means a facility legally owned or operated by the Customer at which the Customer desires the Company to perform Services. 1.30 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. @2008, FPL Services, LLC, All Rights Reserved Page 3 of 20 Rev. 04/t 8/08 Agenda Item No. 16C2 May 13, 2008 Page 16 of 55 1.31 Substantial Completion or Substantiallv Complete means, with respect to a particular ECO, that level of construction and implementation which renders the ECO operationat, regardless of whether the ECO has one or more Minor Deficiencies, as determined within the reasonable exercise of the Company's professional judgment. 1.32 Substantial Completion Date means the date or milestone set forth in a Feasibility Report that is determined by the Company to be Substantially Complete. 1.33 Veodar means any vendor, manufacturer, or other representative of an Eca 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 Scone. 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 contlict, the most recently executed Change Order shall govern the terms and conditions of the Service. 2.2 Tenn. This Master Agreement shall commence upon the Effective Date and shall continue in effect for a period of five (5) years. Upon mutual agreement of the Parties in an amendment signed by both Parties, this Master Agreement may be extended for an additional twelve (12) month period or as otherwise agreed upon; 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 Feasibilitv Studv Authorization Form bv 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 tile Feasibility Study Price. The Feasibility Study AuthOlization Form is attached to this Master Agreement as Schedule A. 3.2 Authorization to Proceed with Feasibilitv 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 ninety (90) 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 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 ninety (90) 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 ilJ 2008, FPL Services, LLC, All Rights Reserved Page 4 of 20 Rev.04/t8/08 Agenda Item No. 16C2 May 13, 2008 Page 17 of 55 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 cos~ (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 ECG 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 Feasibilitv Studv Price and Pavment Terms. 3.5.1 Feasibility Studv 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 Pavment Uoon 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 ninety (90) 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 ninety (90) days following the Customer's receipt of the invoice or as otherwise required to be in compliance with Section 218.70, Florida Statutes, otherwise known as the Florida Prompt Payment Act. 3.5.3 Deferral Election. In the event the Customer elects to proceed with Implementation Services for one or more ECQ'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 an election pursuant to the foregoing within ninety (90) days of receipt of the Feasibility Study Report, the Company shall issue an invoice for the full amount of the Feasibility Study Price, and the Customer shall pay such amount within ninety (90) days following receipt of the invoice. 3.5.4 Late Pavments. 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. <02008, FPL Services, LLC, All Rights Reserved Page 5 of 20 Rev. 04/18/08 Agenda Item No. 16C2 May 13, 2008 Page 18 of 55 3.5.5 Release from Obligation to Pay Feasibility Study Price. Notwithstanding any provision in Section 3.5. t to the contral)', 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 bv 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 ninety (90) 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 ~. 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 ninety (90) 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 ECa 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 Matelial 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 ECa. Following such identification and receipt of any material defect or deficiency, the Company shall determine in the reasonable exercise of its sole professional judgment whether the alleged defect or deficiency is material. If the Company determines that a material defect or deficiency exists, then 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 Eea following the Customer's receipt of a Notice of Substantial Completion, the Customer shall thereby be deemed to have ilTevocably acknowledged and agreed that (a) each ECa meets the requirements of the Master Agreement and the Customer-executed Implementation Services Authorization Form, and (b) each such ECa is complete and ready for operation. Ci 2008, FPL Services, LI.C, All Rights Reserved Page 6 of 20 Rev. 04/18/08 Agenda Item No. 16C2 May 13, 2008 Page 19 of 55 4.2.3 Correction of Punch List Items. Prior to receiving a Notice of Substantial Completion, the Customer agreed it has identified and delivered to the Company a Punch List which lists one or more Minor Deficiencies in an EeO. 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, which the Company determines in the reasonable exercise of its professional judgment are necessary or appropriate for completion of an ECO, the Company shall deliver a written notification of Punch List completion to the Customer. 4.2.4 Pavment Unconditional Uoon Substantial Comoletion. 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, or are deemed to be, Substantially Complete. The Customer acknowledges that, upon the Substantial Completion Date of an ECO, the Customer's payment obligation of ninety percent (90%) of the Implementation Price 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 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 ;Q.. 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 Resoonsibility. 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 othetwise 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 ECQ's, and the Customer shall assist in such training, all as more fully specified in the Feasibility Report. Unless otherwise provided in the Feasibility Report, such training shall be conducted with respect to an ECG following the Substantial Completion Date of the ECO. 4.3 Implementation Price and Pavment. rD 2008, FPL Services, LLC, All Rights Reserved Page 7 of 20 Rev. 04/18/08 Agenda Item No. 16C2 May 13, 2008 Page 20 of 55 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. Within thirty (30) days following the Substantial Completion Date or as otherwise set forth in the drew 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 inyoice or as otherwise required to be in compliance with Section 218.70, Florida Statutes, otherwise known as the Florida Prompt Payment Act. 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 therefor. 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, 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. ARTICLE 5 - WARRANTY 5.1 General Warrantv. The Company warranto;; 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, 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 (I) year 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 incidental to the Company's rework and testing thereof shall be borne by the Company. The Company shall use reasonable efforts to perform such remedial actions and make any tests in a timely manner and at such times so as to minimize disruption of normal operations at the Customer's Service Location. ~ 2008, FPL Services, LLC, All RighLS Reserved Page 8 of20 Rev. 0411 8/08 Agenda Item No. 16C2 May 13, 2008 Page 21 of 55 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 EeG, 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 hereunder. 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, and the Customer need only look to the Company for corrective action pursuant to Section 5.3; provided that the Company shall receive the benefit of any Vendor or Subcontractor warranties. 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 personnel. 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 A ITACHED TO AN IMPLEMENTATION AUTHORIZATION FORM, 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 WARRANfY OR GUARANTEE BY THE COMPANY OF THE ACTUAL SAVINGS OR LOAD REDUCTION, IF ANY, WHICH MAY BE EXPERIENCED BY THE CUSTOMER. ARTICLE 6 - LIMITATION OF LIABILITY 6.1 No Operating or Maintenance Responsibilitv. 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 Consequential Damages. Neither Party shall be liable to the other Party for special, indirec~ consequential 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 A2e:ree:ate Liability. Except in cases where a court of competent jurisdiction has determined willful misconduct on the part of the Company. the Company'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. to 2008, FPL Services. LLC, All Rights Reserved Page 9 of 20 Rev. 04/18/08 Agenda Item No. 16C2 May 13, 2008 Page 22 of 55 6.4 Intent. Except in cases of willful misconduct, the Parties intend that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Master Agreement shall apply to such 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. 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. 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 performing 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 ECO's 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). The Company will provide an implementation schedule to the Customer in advance of the start of construction to identify potential scheduling conflicts at which time the implementation schedule will be adjusted to accommodate the Customers operation. 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 its agents 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 unless disclosure is otherwise required under Chapter 119, Florida Statutes. 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. The Customer shall be responsible for any material breach of this Master Agreement by Customer or its agents. rO 2008, FPL Services, LLC, All Rights Reserved Page to of20 Rev. 04/I 8/08 Agenda Item No. 16C2 May 13, 2008 Page 23 of 55 7.5 Required Disclosure. In the event that the Customer is requested or required by legal or regulatory authority to disclose any Confidential Information, the Customer shan promptly notify the Company of such request or requirement prior to disclosure so that the Company may seek an appropriate protective order 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 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 Disclosure to Third Party Lender. The Customer hereby acknowledges and agrees that the Company may disclose financial information that has been provided by the Customer to the Company for the purpose of assisting the Customer in obtaining financing for Implementation Services that would be provided under this Master Agreement. 7.7 Survival. Notwithstanding anything to the contrary, the obligations of the Parties under Sections 7.t through 7.7 shall survive the termination 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, to the fullest extent permitted by applicable law, be obligated to indemnify, defend and hold harmless the Company and its Subcontractors with respect to all claims, actions, liabilities and costs (including attorneys' fees and costs of litigation) arising out of any unauthorized use by the Customer. ARTICLE 9 - INSURANCE 9.1 Insurance to Be Maintained bv 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: by law; 9.1.1 Worker's Compensation Insurance covering all of the Company's employees as required rg 2008, FPL Services, LLC, All Rights Reserved Page 11 of 20 Rev. 04/1 8/08 Agenda Item No. 16C2 May 13, 2008 Page 24 of 55 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; and 9.1.3 Commercial Automobile Liability Insurance, including coverage for liability arising out of the use of owned, non-o\Vlled, 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. 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 $t,OOO,OOO with coverage in excess of the $tOO,OOO or $200,000 waiver of sovereign immunity provided for in Section 768.28(5), Florida Statutes, but aM the indemnity obligation of Customer shall not extend beyond the statutory limitations set forth in Section 768.28, Florida Statutes. The Company and its assignees shall be named as additional insureds and as loss payees, as their interests appear under this Master Agreement, and each policy shall be endorsed to be primary to any insurance maintained by the Company. 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. The Customer shall have the right at to self-insure any obligations in connection with its performance under the Master Agreement, provided the Customer provides the Company with documentation to the Company's satisfaction to demonstrate the Customer's ability to fulfill its obligations for loss or damage up to the amount of insurance required under this Section 9.2. ARTICLE 10 - INDEMNIFICATION 10.1 Indemnity Obligations. The Company shall hold the Customer, its officers, agents, and employees harmless against claims by third parties for bodily injury (including death) and tangible personal property damage resulting solely and exclusively from the Company's negligence. The Company shall not be responsible for damages whether resulting in whole or in part from the Customer's negligence. To the fullest extent permitted by law, in accordance with and limited by Section 768.28, Florida Statutes, Customer shall hold harmless, indemnify and defend the Company against all liability, claims, judgments or costs for injury to, or death of any person or persons, for the loss or damage to any property, and for the imposition of any penalties, fines or other assessments by any governmental agency arising out of the use, ownership of each and any Service Location, operation or performance of the terms of this Master Agreement., and resulting from any negligence or failure to act by Customer, or any of its employees, agents, representatives or those in it~ care and custody. 10.2 EmoJovee 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 cmptoyee 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, except that the limitations set forth in Section 768.28, Florida Statues, shall apply. 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 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. ~ 2008, FPL Services, LLC, All Rights Reserved Page 12 of20 Rev. 04/18/08 Agenda Item No. 16C2 May 13, 2008 Page 25 of 55 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 and as otherwise limited by law and as specified in this Article 10. 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 to shall survive the termination 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, removat 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 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. Subject to the provisions of Section 12.2, 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. Notwithstanding the foregoing, the Customer shall bear all risk of loss or damage of any kind with respect to all or any part of an ECO located at a Service Location, whether installed or not, and the Customer shall indemnify and pay the Company for the repair or replacement of any ECO or component thereof stolen, lost, destroyed or damaged at a Service Location, unless such loss or damage is directly caused by the Company or an 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. Each of the Parties' hereby releases and waives, and will cause its insurers to release and waive, any right of subrogation against the Party. t2.2 Security Interest. (a) Notwithstanding the provisions of Section 12.1, following the Substantial Completion Date and passage of title to the Customer, the Company or its assignee shall have a purchase money security interest (to the extent permitted by law) in each installed Eeo and the components thereof to secure the compensation payable to the Company under the Master Agreement until paid in full. The Customer agrees (to the extent permitted by law) to execute and deliver all documents requested by the Company or its assignee to protect and maintain such purchase money security interest. (b) In addition to the purchase money security interest rights described in (a) above, as security for the prompt, complete, and faithful performance when due of each obligation of the Customer under this Master Agreement, the Customer hereby grants to the Company a security interest in and to all of the right, title, and interest of the Customer in and to (I) any and all ECO's furnished and/or installed by the Company under this Master Agreement (including ECO's listed in any schedules, exhibits, change orders, and appendices hereto), and all accessions, accessories, parts, additions and attachments now or hereafter attached thereto or used in connection with such ECO's, whether now or in the future owned by the Customer; (2) all replacements of any such ECO's described in subsection (1) above, whether now or in the future owned by the Customer; and (3) all products and proceeds of any of the foregoing ECO's described in (1) and (2) above ((1) through (3), collectively the "Collateral"). The Customer grants to the Company all of the rights of a secured party under applicable law, including but not limited to tlle applicable provisions of the Uniform Commercial Code as in effect from time to time. The Customer agrees (to the extent permitted by law) to execute and deliver all documents requested by the Company or its assignee to protect and maintain such security interest, and to provide any other ~. 2008, FPL Services, LLC, All Rights Reserved Page t3 of 20 Rev. 04118/08 Agenda Item No. 16C2 May 13, 2008 Page 26 of 55 information required by part 5 of Article 9 of the Uniform Commercial Code of the State of Florida, or such other jurisdiction, for the sufficiency of filing office acceptance of any financing statement or amendment. The Customer hereby irrevocably authorizes the Company at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that indicate the Collateral. 12.3 Warranty of Title. Except as set forth in Section 12.2, 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. 12.4 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 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. 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 sates and use tax exemptions available to the Company and the Customer. The Company will coordinate with the Customer to in an effort to mitigate applicable sales tax associated with that the procurement equipment under this Master Agreement. 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 petfonnance 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 set forth in Article 3, Feasibility Study and Report and Article 4, Installation and Implementation. ARTICLE 14 - CHANGES Upon receiving such a request, the Company may at its sole option prepare and deliver a proposed written order pursuant to this Article 14 signed by the Company and the Customer authorizing a Change ("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. Notwithstanding the foregoing, the Parties may agree to use an alternative form of a Change Order. 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 \\rriting 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 Change Orders and no Change shall be implied as a result of any other Change. No Change Order shall be effective unless such Change Order is executed by a duly authorized person for the Company and the following person with the corresponding title for the Customer: (a) Change equal to 10% of the Implementation Price of an applicable Implementation Services Authorization Form, but not greater than $100.000.00: ({d 2008, FPL Services, LLC, All Rights Reserved Page 14 of20 Rev. 04118/08 Agenda Item No. 16C2 May 13, 2008 Page 27 of 55 (i) Customer project manager identified in the Implementation Services Authorization Form; (ii) Customer contract specialist; and (iii) Customer project manager's director. (b) Change equal to 10% of the Implementation Price of an applicable Implementation Services Authorization Form, but greater than $100,000.00: (i) Customer project manager identified in the Implementation Services Authorization Form; (ii) Customer contract specialist; (Hi) Customer project manager's director; and (iv) Customer project manager's division administrator. (c) Change greater than 10% of the Implementation Price of an applicable Implementation Services Authorization Form: (i) Customer project manager identified in the Implementation Services Authorization Form; (ii) Customer contract specialist; (iii) Customer project manager's director; (iv) Customer project manager's division administrator; (v) Office of the County Attorney; and (vi) The Board of County Commissioners. Notwithstanding the foregoing, the Parties may mutually agree in a written amendment to this Master Agreement signed by both Parties to modify those persons which are authorized to execute Change Orders. ARTICLE IS-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; orovided. 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. 152 Termination for Cause. t5.2.I Termination bv 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 to 2008, FPL Services, LLC, All Rights Reserved Page 15 of 20 Rev. 04/18/08 Agenda Item No. 16C2 May 13, 2008 Page 28 of 55 obligation within thirty (30) days written notice from the Company or as otherwise required to be in compliance with Section 218.70, Florida Statutes, otherwise known as the Florida Prompt Payment Act; 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 petforming 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 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 oveIlJayment 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 infornml 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 representativc(s) to meet \\'ith 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 BindimL This Master Agreement and each Customer~authorized Feasibility Study and implementation of a Feasibility Report pursuant to a Customer.authorized Implementation Services tJ 2008, FPL Services, LLC. All Rights Reserved Page 16 of20 Rev. 04/18/08 Agenda Item No. 16C2 May 13, 2008 Page 29 of 55 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 Assilrnment. (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. 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, 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 Receiot. 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 a<; 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 iudependent contractors with respect to the SeJVices 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 02008, FPL Services, LLC, All Rights Reserved Page 17 of20 Rev. 04118/08 Agenda Item No. 16C2 May 13, 2008 Page 30 of 55 (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 Draftine Interoretations 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 Caotions. 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 SeverabihtviDlvislble 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- 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 benefit" 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. Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County or Broward County, Florida, which courts have sole and exclusive jurisdiction on all such matters. 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 Jurv 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 LITIGA nON 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: IQ 2008. FPL Services, LLC, All Rights Reserved Page 18 of20 Rev. 04/18/08 Agenda Item No. 16C2 May 13, 2008 Page 31 of 55 If to the Companv: FPL Services, LLC PO BOX 14000 Juno Beach, FL 33408-0420 Fax: (561) 691-7611 TeL: (561) 681-3079 Attention: Manager Engineering & Construction If to the Customer: Board of County Commissioners, Collier County, Florida 3301 East Tamiami Trail Naples, FL 34112 Fax: (239) 252-5378 TeL: (239) 252-2540 Attention: Administrator, Public Utilities Division Each Party shall have the right to change the place to which notices shall he 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. [SIGNATURES ON FOLLOWING PAGE] rg 2008, FPL Services, LLC, All Rights Reserved Page 19 of 20 Rev. 04/18/08 Agenda Item No. 16C2 May 13, 2008 Page 32 of 55 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 Services, LLC, a Florida limited liability company BY: NAME: Dennis Brandt TITLE: Vice President DATE: ATTEST: DWIGHT E. BROCK, Clerk By: Deputy Clerk BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA, AS THE GOVERNING BOARD OF COLLIER COUNTY AND AS EX-OFFICIO THE GOVERNING BOARD OF THE COLLIER COUNTY WATER-SEWER DISTRICT. By: TOM HENNING, Chairman Approved at to form and legal sufficiency: By: Assistant County Attorney @2008,FPL Services, LLC, All Rights Reserved Page 20 of 20 Rev. 04/18108 Agenda Item No. 16C2 May 13, 2008 Page 33 of 55 SCHEDULE A FEASIBILITY STUDY AUTHORIZATION FORM Proiect Name: Collier County Public Utilities Division Service Location: See Scope Companv: FPL Services, LLC Customer: Board of County Commissioners of Collier County COffioanv Representative: Name: Address: Telephone: E-mail: Customer Representative: Name: Address: Telephone: Facsimile: E-mail: David Russell, P.E. FPL Services, LLC PO Box 14000 700 Universe Boulevard Juno Beach, Florida 33408 (561) 681-3079 david_russell ~r@fPl.com Karen B. Guliani, P.E. Public Utilities Engineering Departmept 3301 E. Tamiami Trail Naples, FL 34112 239-252-6083 239-530-6460 karenguliani@colliergov.oet I. AUTHORIZATION: This Feasibility Authorization Form ("Form") is issued by the Company to the Customer pursuant to that certain Master Agreement for Demand Side Management and Energy Efficiency Services ('''Master Agreement"), effective as of _ day of ,20_" This Form authorizes the Company to commence Services as described herein pursuant to the terms and conditions of the Master Agreement. This Form is not intended as a Change and in no way amends, varies or modifies the Master Agreement. Any alternate, different or additional terms or conditions referenced by the Customer in subsequent correspondence from the Customer are hereby rejected and will not become part of this Form or other the Master Agreement unless expressly set forth and incorporated herein. In order for the Company to commence Service set forth in this Form, the Customer is required to sign this Form. Capitalized term.,; used herein without other definition shall have the meanings set forth in the Master Agreement. This Form consists of this Feasibility Study Authorization Form and the following attachments, which are incorporated into this Form by this reference: (i) Exhibit A-Feasibility Study, and (ii) Exhibit B-Feasibility Study Price. II. SCOPE OF WORK: The Company shall prepare a Feasibility Report which shall set for the Services reccommended ECO(s) for the implementation at the Service Location identifed above, as more particularly described in the Feasibility Study, attached hereto and made a part hereof as Exhibit A. The Feasibility Study shall include savings guarantee provisions in accordance with Florida Statute 489.145. III. FEASIBILITY STUDY PRICE: Subject to Section 3.5 of the Master Agreement, the Customer shall compensate the Company for the Services provide in connection with the creation and development of the Feasibility Report for the price set forth in Exhibit B. This Form is being provided by the Company to the Customer, acknowledging acceptance of the Services specified in this Form, and the Master Agreement, which is incorporated herein. The Customer has examined and carefully ~. 2008, FPL Services, LLC, All Rights Reserved Schedule A Page I of 5 Agenda Item No. 16C2 May 13, 2008 Page 34 of 55 studied all of this Form, including the Master Agreement and all exhibits, appendices, specifications, terms and conditions thereto and hereby agrees to be bound by any and all terms, conditions, and obligations set forth therein. THIS FORM IS HEREBY ISSUED BY THE COMPANY TO THE CUSTOMER ON THIS DAY OF , 200_ ("Effective Date"). IN WITNESS WHEREOF, the Parties have executed this Form as of the Effective Date. Authorized By the Company: FPL Services, LLC, a Florida limited liability company Acknowledged by the Customer: Board of County Commissioners, Collier County, FL Public Utilities Division BY: NAME: Dennis Brandt TITLE: Vice President DATE: BY: NAME: TITLE: DATE: Approved at to form and legal sufficiency: By: , (Type name) Assistant Collier County Attorney @ 2008, FPL Services, LLC, All Rights Reserved Schedule A Page 2 of 5 Agenda Item No. 16C2 May 13, 2008 Page 35 of 55 EXHIBIT A FEASIBILITY STUDY Project Name: Collier County Public Utilities Division ECD: Various Energy Conservation Opportunities The target payback period shall be ten (10) years for the sum of proposed ECOs in this Scope of Services. The Company will identify and to the extent possible and pass through for the Customer's benefit any extended warranites provided by the equipment manufacturers for any ECOs that would be installed under applicable Implementation Services. The Scope of Services includes the following: North Water Treatment Plant: . Investigate replacement of membranes (12 mgd nanofiltration at North Plant and 8 mgd RO at both plants). . Investigate high efficient motor replacement opportunities. . Investigate variable frequency drive applications. . Investigate replacement of aging packaged air conditioning systems (approximately 8 units). . Investigate replacement ofhigb bay lighting fixtures (approximately 25 fixtures). . Investigate occupancy sensors, day-lighting and/or photocells. . Investigate compact fluorescent and T -8 retrofit opportunities. . Investigate possible solar photovoltaic or other applicable renewable application. . Investigate possible solar or heat recovery water heating application. South Water Treatment Plant: . Investigate replacement of membranes (12 mgd nanofiltration at North Plant and 8 mgd RO at both plants). . Investigate high efficient motor replacement opportunities. . Investigate variable frequency drive applications. . Investigate replacement of aging packaged air conditioning systems (approximately 8 units). . Investigate replacement of high bay lighting fixtures (approximately 25 fixtures). . Investigate occupancy sensors, day-lighting and/or photocells. . Investigate compact fluorescent and T -8 retrofit opportunities. . Investigate possible solar photovoltaic or other applicable renewable application. . Investigate possible solar or heat recovery water heating application. North Waste Water Treatment Plant: . Investigate variable frequency drive application for blowers. . Investigate low flow water closets and faucets, etc. . Investigate replacement of aging packaged air conditioning systems (approx. 10 units). . Investigate replacement of high bay fixtures. . Investigate occupancy sensors, day-lighting and/or photocells. . Investigate compact fluorescent and T -8 retrofit opportunities. . Investigate possible solar photovoltaic or other applicable renewable application. . Investigate possible solar or heat recovery water heating application. South Waste Water Treatment Plant: . Investigate variable frequency drive application for blowers. . Investigate low flow water closets and faucets, etc. . Investigate replacement of aging packaged air conditioning systems (approx. 10 units). . Investigate replacement of high bay fixtures. . Investigate occupancy sensors, day-lighting and/or photocells. . Investigate compact fluorescent and T -8 retrofit opportunities. . Investigate possible solar photovoltaic or other applicable renewable application. . Investigate possible solar or heat recovery water heating application. @2008, FPL Services, LLC, All Rights Reserved Schedule A Page 3 of 5 Agenda Item No. 16C2 May 13, 2008 Page 36 of 55 Pumping Stations to be assessed in the following priority order: 1. Raw Water Booster Pump Station 2. Carica Road Facility 3. Manatee Road Facility 4. Isles of Capri Facility 5. Goodland Facility 6. Vanderbilt Drive Booster Station The following two items will be included in the evaluation of each of the listed pumping stations: . Investigate high efficient motor replacement opportunities. . Investigate variable frequency drive applications. e 2008, FPL Services, LLC, All Rights Reserved Schedule A Page 4 of 5 Agenda Item No. 16C2 May 13, 2008 Page 37 of 55 SCHEDULE A EXHIBIT B FEASIBILITY STUDY PRICE BCO Price: $52,344 Payment Schedule/Payment Deferral Option: Payment will be invoiced in full upon completion of the Feasibility study after 60 days from date of acceptance. As an option to Collier County Government, payment will be deferred upon execution of Schedule B, Implementation Services Agreement, of this contract. Address for Invoice: see Customer Contact Information Retainage Terms: N/A Additional Final Payment Conditions: N/A to 2008, FPL Services, LLC, All Rights Reserved Schedule A Page 5 of 5 Agenda Item No. 16C2 May 13, 2008 Page 38 of 55 )> SCHEDULES B. Co D AND E ARE SAMPLE COPIES ONLY AND ARE NOT AUTHORIZED AT THIS TIME. )> ALL SCHEDULES ARE REOUlRED TO BE IMPLEMENTED AND TO BE IN COMPLIANCE WITH THE COLLIER COUNTY PURCHASING POLICY AND ADMINISTRATIVE PROCEDURES IN EFFECT AT THE TIME SUCH SCHEDULES ARE AUTHORIZED. CHANGES WILL THEN BE MADE TO EACH SAMPLE SCHEDULE TO ASSURE THEY ARE IN COMPLIANCE. SCHEDULE B (SAMPLE COPY ONLY) IMPLEMENTATION SERVICES AUTHORIZATION FORM Proiect Name: Collier County Public Utilities Division Service Location: See Scope Companv: FPL Services, LLC Customer: Board of County Commissioners of Collier County Company Representative: Name: Address: David Russell, P.E. FPL Services, LLC PO Box 14000 700 Universe Boulevard Juno Beach, florida 33408 (561) 681-3079 (561) david _ russelljr@fp1.com Telephone: Facsimile: E-mail: Customer Reoresentative: Name: Address: Telephone: Facsimile: E-mail: Karen B. Guliani, P .E. Public Utilities Engineering Department 3301 E. Tamiami Trail Naples, fL 34112 239-252-60R3 239-530-6460 karenguliani@)colliergov.net I. AUTHORIZATION: This Implementation Services Authorization Form ("Form") is issued by the Company to the Customer pursuant to that certain Master Agreement for Demand Side Management and Energy Efficiency Services ("Master Agreement"), effective as of _ day of , 20_. This Form authorizes the Company to commence Services as described herein pursuant to the terms and conditions of the Master Agreement. This Form is not intended as a Change and in no way amends, varies or modifies the Master Agreement. Any alternate, different or additional terms or conditions referenced by the Customer in subsequent correspondence from the Customer are hereby rejected and will not become part of this Form or other the Master Agreement unless expressly set forth and incorporated herein. In order for the Company to commence Service set forth in this Form, the Customer is required to sign this Form. Capitalized terms used herein without other definition shall have the meanings set forth in the Master Agreement. This Form consists of this Implementation Services Authorization Form and the following attachments, which are incOlporated into this Form by this reference: (i) Exhibit A - Feasibility Report, (ii) Exhibit B - Implementation Price and (iii) Exhibit C - Energy Service Charge Option. II. SCOPE OF WORK: The Company shall implement the Feasibility Report which shall set for the Services recommended ECO(s) and the implementation at the Service Location identifed above, as more particularly described in the Feasibility Report, attached hereto and made a part hereof as Exhibit A. III. IMPLEMENTATION SERVICES PRlCE: ~ 2008, FPL Services, LLC, All Rights Reserved Schedule B Page I of 10 Agenda Item No. 16C2 May 13, 2008 Page 39 of 55 Subject to Section 3.5 of the Master Agreement, the Customer shall compensate the Company for the Services provide in connection with the implementation of a Feasibility Report and any deferral payment obligations due for the Company's implementation and delivery of the ECO(s) at the Service Locations indentified in the Feasibility Report to the Customer, which shall be set forth in Exhibit B. MASTER AGREEMENT Schedule B Page 4 of 6 rev. 3-14-05 Agenda Item No. 16C2 May 13, 2008 Page 40 of 55 The Customer and the Company may elect to enter into a separate payment agreement if the Customer chooses to fulfil its payment obligations hereunder via an energy service charge option in accordance with the terms set fort in Exhibit B, which is made part hereof as Exhibit C. IV. CUSTOMER COOPERATION: The Customer shall use reasonable efforts to assist the Company in petfonning the Services contemplated by this Form, including providing reasonable access to each Service Location, providing information concerning each Service Location, making appropriate Customer personnel available if requested by the Company to assist the Company in performing such Services, and taking any other actions the Company may reasonably request from time to time to achieve the purposes and intent of this Schedule and the Master Agreement. This Form is being provided by the Company to the Customer, acknowledging acceptance of the Services specified in this Form, and the Master Agreement, which is incorporated herein. The Customer has examined and carefully studied all of this Form, including the Master Agreement and all exhibits, appendices, specifications, terms and conditions thereto and hereby agrees to be bound by any and all terms, conditions, and obligations set forth therein. THIS FORM IS HEREBY ISSUED BY THE COMPANY TO CUSTOMER ON THIS DAY OF ,200_ ("Effective Date"). IN WITNESS WHEREOF, the Parties have executed this Form as of the Effective Date. Authorized By the Company: FPL Services, LLC, a Florida limited liability company Acknowledged by the Customer: Board of County Commissioners, Collier County, FL Public Utilities Division BY: NAME: Dennis Brandt TITLE: Vice President DATE: BY: NAME: TITLE: DATE: Approved at to form and legal sufficiency: By: , (Type name) Assistant Collier County Attorney rg 2008, FPL Services, LLC, All Rights Reserved Schedule B Page 2 of 10 Agenda Item No. 16C2 May 13, 2008 Page 41 of 55 SCHEDULE B (SAMPLE COPY ONLY) EXIllBIT A FEASIBILITY REPORT Project Description: [PROVIDE GENERAL DESCRIPTION OF PROJECT] Service Location: Scope of Services: [ATTACH DETAILED SCOPE OF SERVICES] Procurement Services: [SPECIFY ANY PROCUREMENT OBLIGATIONS] ~ 2008, FPL Services, LLC, All Rights Reserved Schedule B Page 3 of 10 Agenda Item No. 16C2 May 13, 2008 Page 42 of 55 SCHEDULE B (SAMPLE COPY ONLY) EXHIBIT B IMPLEMENTATION PRICE ECO Price: Payment SchedulelPayment Deferral Option: Form of Invoice: Address for Invoice: Retainage Terms: Additional Final Payment Conditions: ~ 2008, FPL Services, LLC, All Rights Reserved Schedule B Page 4 of 10 Agenda Item No. 16C2 May 13, 2008 Page 43 of 55 SCHEDULE B (SAMPLE COPY ONLY) EXHIBIT C ENERGY SERVICE CHARGE PAYMENT OPTION 1. Ener(!\' Service Char!!e for Accented Services. As payment in full to the Company for such Services performed by the Company and accepted by the Customer, the Customer agrees to pay a monthly charge (the "Energy Service Charge") as described in this Section 3. 2. Invoicing: and Payment. The Company shall invoice or cause the Customer to be invoiced an Energy Service Charge of $ each month through the Customers electric utility bilL The Customer agrees to execute and deliver to the Company and to Florida Power & Light Company (the "Utility") a consent to the Utility invoicing such Energy Service Charges through the Customer's electric utility bill, substantially in the form of AppendIx I hereto. Such invoicing will commence with the first electric utility bill which occurs thirty (30) days or more after the effective date of the Substantial Completion Date, and will continue for (-'> months thereafter unless, prior to such date this Form is terminated in accordance with (i) Article 15, Termination and Default in the Master Agreement, (ii) Section 4 herein, Early Termination or (iii) Section 5 herein, Termination for the Default of the Customer herein. If (i) the Utility is not permitted to or will not invoice the Energy Service Charges as part of the Customer's electric utility bill, (ii) the Customer ceases to be a customer of the Utility, or (iii) the Company elects at any time by written notice to the Utility (with a copy provided to the Customer) to assume the obligations of the Utility for such invoicing, the Customer agrees that the Company or any other Person or entity designated in writing by the Company to the Customer, may invoice the Customer for the Energy Service Charges, and the Customer shall pay such invoiced Energy Service Charges to the Company or to any such other Person or entity, as the Customer may be directed in writing by the Company; provided, that upon assignment of this Exhibit C to Schedule B by the Company to any assignee, such assignee shall have the right to invoice the Customer for such Energy Service Charges and to instruct the Customer to direct payments of such amounts to any other person or entity, and the Customer shall remit payments as so instructed by such assignee. Each Energy Service Charge shall be payable within twenty one (21) days from the date of the invoice. Any amounts payable pursuant to this Exhibit C to Schedule B which are not received by the person or entity to which such payment\; are payable pursuant to this Exhibit C to Schedule B on the date when due, shall bear interest from the due date thereof until and including the date of payment at a rate per month equal to one and one half percent (1.5%) or, ifless, the maximum rate permitted by applicable law. 3. Payments Final. The Customer acknowledges and agrees that the Company may assign this Exhibit C to Schedule B to one or more assignees and that pursuant to any such assignment, the Customer shall make all payments required under this Exhibit C to Schedule B as directed by any such assignee or assignees. The Customer's obligation to pay the Energy Service Charges and all other amounts payable hereunder to each such assignee shall be absolute, unconditional and irrevocable and shall not be affected by any circumstance what"loever, including, without limitation, (a) any set-off, abatement, counterclaim, suspension, recoupment, reduction, rescission, defense or other right that the Customer may have against the Company, the Utility, any Vendor or manufacturer of any equipment, systems or other part installed pursuant to the performance of any accepted Services or any part thereof, any contractor of the Company or any other person or entity for any reason whatsoever, (b) any defect in or failure of title, merchantability, condition, design, compliance with specifications, operation or fitness for use of all or any part of any equipment, systems or other part installed pursuant to the performance of any accepted Services or any defect in the design, workmanship or services relating to any accepted Services or the Master Agreement, (c) any damage to, or removal, abandonment, requisition, taking, condemnation, loss, theft or destruction of all or any part of any equipment, systems or other part installed pursuant to the performance of any accepted Services or any interference, interruption, restriction, curtailment or cessation in the use or possession of any equipment, systems or other part installed pursuant to the performance of any accepted Services by the Customer or any person or entity for any reason whatsoever or of whatever duration, (d) any insolvency, bankruptcy, reorganization or similar proceeding by or against any of the Company, the Utility or any other person or entity, (e) the invalidity, illegality or unenforceability of this Exhibit C to Schedule B or the Master Agreement or any other a,greement or instrument referred to herein or therein or any other infirmity herein or therein or any lack of right, power or authority of the Customer, the Company, the Utility or any other person or entity to enter into this Exhibit C to Schedule B or the Master Agreement or to perform the obligations hereunder or thereunder or consummate the transactions contemplated hereby or thereby or any Force Majeure Event, impossibility, frustration or failure of consideration, (t) the breach or failure of any warranty or representation or ~ 2008, FPL Services, LLC, All Rights Reserved Schedule B Page 5 of 10 Agenda Item No. 16C2 May 13, 2008 Page 44 of 55 covenant made in this Exhibit C Schedule B or in the Master Agreement or in any other agreement or instrument referred to herein or therein, by any of the Customer, the Company or any other person or entity, or (g) any other circumstance or event whatsoever, whether or not similar to any of the foregoing. To the extent permitted by applicable law, the Customer hereby waives any and all rights which it may now have or which at any time hereafter may be conferred upon it, by statute or otherwise to terminate, cancel, quit or surrender this Exhibit C to Schedule B, except in accordance with the express terms hereof. If for any reason whatsoever this Exhibit C to Schedule B shall be terminated in whole or in part by operation of law or otherwise, except as specifically provided herein, the Customer nonetheless agrees to the maximum extent permitted by law, to pay to any such assignee or assignees of the Company, an amount equal to each Energy Service Charge due and owing, at the time such payment would have become due and payable in accordance with the terms hereof had this Exhibit C to Schedule B not been terminated in whole or in part. Each payment of the Energy Service Charges made by the Customer hereunder shall be final and the Customer shall not seek or have any right to recover all or any part of such payment from any such assignee or assignees of the Company for any reason whatsoever. Notwithstanding the foregoing, nothing contained herein shall be construed to affect any obligation of the Company to the Customer or to waive any rights the Customer may have to pursue any claim against the Company or any Vendor or Subcontractor of the Company pursuant to the Master Agreement. 4. Earlv Termination The Customer may terminate this Exhibit C to Schedule B at any time upon thirty (30) days' prior written notice to the Company and receipt by the Company or any designee or assignee thereof of the amount set forth in Aooendix II attached hereto, applicable to the date of such termination. 5. Termination for Default of the Customer. In the event the Customer fails to observe any provision of this Form, the Company may, by written notice to the Customer specifying the termination date (a "Notice of Default"), terminate this Form and accelerate all amounts payable hereunder, and on the termination date specified in the Notice of Default, the Customer shall pay to the Company the amount set forth in Appendix III attached hereto, corresponding to such termination date, together with any other amounts then payable pursuant to this Form. The Customer shall also pay to the Company or any designee or assignee thereof, upon demand therefor, all costs incurred or expended by the Company or any designee or assignee thereof, including reasonable fees and disbursements of counsel, in connection with any such breach by the Customer of any of its obligations under this Form and any collection or other enforcement proceedings arising out of any such breach by the Customer, in each case, upon demand therefor. iC 2008, Fl'L Services, LLC, All Rights Reserved Schedule B Page 6 of 10 Agenda Ilem No. 16C2 May 13, 2008 Page 45 of 55 SCHEDULE B (SAMPLE COPY ONLY) EXHIBIT C APPENDIX I CUSTOMER CONSENT THIS CONSENT is made as of the this _ day of Customer with reference to the following: , 200_ (the "Effective Date"), by the RECITALS WHEREAS, the Customer and FPL Services, LLC (the "Company") have entered into a Master Agreement for Demand Side Management and Energy Efficiency Services, dated as of this _ day of 200_ (the "'Master Agreement"), and certain related agreements, including the Implementation SelVices Authorization Form, dated as of this ~ day of , 200_ ("Form"); and WHEREAS, pursuant to Section 2 of the Exhibit C to Schedule B of the Form, the Company may cause the Customer to be invoiced for the Energy Service Charges payable pursuant to the Form by Florida Power & Light Company ("Utility") through the Customer's monthly electric utility bill; NOW THEREFORE, in consideration of the mutual promises and agreements set forth in the Master Agreement and in order to induce the Company to enter into the Form, the Customer hereby consents to and acknowledges the following: I. Consent to Invoicin~ bv Utilltv. The Customer hereby (a) consents to Utility invoicing the Customer for all DSM Service Charges specified in this Consent through the Customer's monthly electric utility bill, (b) agrees to promptly pay all such amounts to Utility pursuant to the terms and conditions of each such electric utility bill and (c) agrees that from and after receipt by the Customer of written notice from the Company that the Company (or any other person or entity designated in writing by the Company) has assumed all of Utility's invoicing obligations, the Customer shall pay all invoiced DSM Service Charges to the Company or to such other person or entity specified in writing by the Company. 2. Acknowled~ement of DSM Service Char~es. The Customer hereby acknowledges its obligation to pay the following energy service charges (the "DSM Service Charges") pursuant to Section 2 of Exhibit C to Schedule Band agrees to be invoiced for such DSM Service Charges by Utility: Monthly DSM Service Charge: $ <<Monthly _DSM _Charge)) Total Number of MontWy DSM Service Charges: "No _ OC Monthly _DSM _Charges>> Estimated Commencement Date of FP&L Invoices: <<Commence_Date>>. <<Commence _Year>> The Customer acknowledges and agrees that each monthly DSM Service Charge invoiced hereunder shall be payable within twenty one (21) days of the date of the invoice therefore or as otherwise required to be in compliance with Section 218.70, Florida Statutes, othenvise known as the Florida Prompt Payment Act, and that any amounts payable pursuant to any such invoice which are not received by the person or entity to which such payments are payable pursuant to such invoice on the date when due, shall bear interest from the due date thereof until and including the date of payment at a rate per month equal to one and one half percent (1.5%) or, if less, the maximum rate permitted by applicable law, such late payments when received to be applied first to the payment of accrued interest and then to the payment of outstanding DSM Service Charges. The Customer further acknowledges and agrees that Utility shall apply all amounts received from the Customer as follows: (OPTION B shall apply if neither option is indicated): OPTION A [ ] first, against amounts then owed by the Customer to Utility and second, against any DSM Service Charges and other amounts then owed by the Customer to the Company; OPTION B [ ] first, against any DSM Service ~ 2008, FPL Services, LLC, All Rights Reserved Schedule B Page 7 of 10 Agenda Item No. 16C2 May 13, 2008 Page 46 of 55 Charges and other amounts then owed by the Customer to the Company and second, against amounts then owed by the Customer to Utility. Any ~'2008, FPL Services, LLC, All Rights Reserved Schedule B Page 4 of 10 Agenda Item No. 16C2 May 13, 2008 Page 47 of 55 overpayment by the Customer of its monthly utility bill, in excess of the amounts due and payable thereunder, shall be applied against subsequent amounts becoming due and payable to Utility, unless the Customer specifically directs Utility to apply such overpayment against subsequently invoiced DSM Service Charges. 3. Reliance by the Company and Utility. The Customer hereby agrees to be bound by this Consent and acknowledges and agrees that the Company and Utility may rely upon this Consent. IN WITNESS WHEREOF, the Customer has executed this Consent by and through its duly authorized representatives as of the Effective Date. Authorized By the Company: FPL Services, LLC, a Florida limited liability company Acknowledged by the Customer: Board of County Commissioners, Collier County, FL Public Utilities Division BY: NAME: Dennis Brandt TITLE: Vice President DATE: BY: NAME: TITLE: DATE: Approved at to form and legal sufficiency: By: , (Type name) Assistant Collier County Attorney SCHEDULE B (SAMPLE COPY ONLY) EXHIBIT C APPENDIX II EARLY TERMINATION OF CUSTOMER CONSENT ~ 2008, FPL Services, LLC, All Rights Reserved Schedule B Page 9 of to SCHEDULE B (SAMPLE COPY ONLY) EXHIBIT C APPENDIX III DEFAULT TERMINATION PAYMENT SCHEDULE @2008, FPL Services, LLC, All Rights Reserved Schedule B Page 10 of 10 Agenda Item No. 16C2 May 13, 2008 Page 48 of 55 Agenda Item No. 16C2 May 13, 2008 Page 49 of 55 SCHEDULE C (SAMPLE COPY ONLY) NOTICE OF SUBSTANTIAL COMPLETION (SAMPLE COPY) Proiect Name: Collier County Public Utilities Division Service Location: Companv: FPL Services, LLC Customer: Board of County Commissioners of Collier County Company Reoresentative: Name: Address: Telephone: E-mail: Customer Representative: Name: Address: David Russell, P.E. FPL Services, LLC PO Box 14000 700 Universe Boulevard Juno Beach, Florida 33408 (561) 681-3079, Facsimile:(561) david _ russelljr@fpl.com Karen B. Guliani, P.E. Public Utilities Engineering Department 3301 E. Tamiami Trail Naples, FL 34112 Telephone: 239-252-6083, Facsimile: 239-530-6460 E-mail: karenguliani@colliergov.net EFFECTIVE DA IE OF SUBSTANTIAL COMPLETION: ("Effective Date") This Notice of Substantial Completion certificate is issued by the Company to the Customer pursuant to that certain Master Agreement for Demand Side Management and Energy Efficiency Services ("Master Agreement"), effective as of _ day of , 20~. Initial capitalized words used herein but not defined shall have the meaning ascribed to such words in the Master Agreement. The Customer certifies that as of the Effective Date written above, the Completion of the Services required pursuant to the above-mentioned Implementation Service Authorization Form effective as of date of accordance with the Master Agreement. Company has achieved Substantial Service Location pursuant to the 20_, all in strict A list of Punch List items to be completed or corrected by the Company is attached hereto as Exhibit A. In accordance with Section 4.2 of the Master Agreement, the Company will complete or correct the Punch List items listed in Exhibit &. The Services have been reviewed by the Customer and based on that review and the information provided by the Company, the Customer has executed this Notice of Substantial Completion, without modifYing the Parties obligations under the Master Agreement. IN WITNESS WHEREOF, the Company and Customer have made and executed this Notice of Substantial Completion by and through their duly authorized representatives as of the Effective Date written above. Authorized By the Company: FPL Services, LLC, a Florida limited liability company Acknowledged by the Customer: Board of County Commissioners, Collier County, FL Public Utilities Division BY: NAME: Dennis Brandt TITLE: Vice President DATE: BY: NAME: TITLE; DATE: Approved at to form and legal sufficiency: By: , (Type name) Assistant Collier County Attorney SCHEDULE C (SAMPLE COpy ONLY) @ 2008, FPL Services, LLC, All Rights Reserved Schedule C Page 2 of 2 Agenda Item No. 16C2 May 13, 2008 Page 50 of 55 EXHIBIT A PUNCHLIST [INSERT PUNCHLIST ITEMS TO BE COMPLETED] ifJ 2008, fPL Services, LLC, All Rights Reserved Schedule B Page 4 of 10 Agenda Item No. 16C2 May 13, 2008 Page 51 of 55 SCHEDULE D (SAMPLE COPY ONLY) FINAL ACCEPTANCE CERTIFICATE (SAMPLE COPY) Proiect Name: Collier County Public Utilities Division Service Location: Companv: FPL Services, LLC Customer: Board of County Commissioners of Collier County Company Representative: Name: Address: Telephone: E-mail: Customer Representative: Name: Address: David Russell, P.E. FPL Services, LLC PO Box 14000 700 Universe Boulevard Juno Beach, Florida 33408 (561) 681-3079, Facsirnile:(561) david Jusselljr@tpLcom Telephone: E-mail: Karep B. Guliani, P.E. Public Utilities Engineering Department 3301 E. Tamiami Trail Naples, FL 34112 239-252-6083, Facsimile: 239-530-6460 karenguliani@colliergov.net EFFECTIVE DATE OF FINAL ACCEPTANCE: ("Effective Date") This Final Acceptance Certificate ("Certificate") is issued by the Company to the Customer pursuant to that certain Master Agreement for Demand Side Management and Energy Efficiency Services effective as of ~ day of , 200~ between the Customer and the Company (the "Master Agreement"). Initial capitalized words used herein but not defmed shall have the meaning ascribed to such words in the Master Agreement. The Customer certifies that as of the Effective Date written above, the Company has achieved final completion of the Services required pursuant to the above-mentioned Service Location in pursuant to the Implementation Service Authorization Form effective as of date of ,20 ,all In stnct accordance with the Master Agreement This Certificate and the certifications of the Customer set forth herein and on any Certificate may be relied on by the Company and by any assignee of the Company in connection with the furnishing of the Implementation Services financing to the Customer in accordance with the provisions of the Ma....ter Agreement Any assignee of the Company shall be entitled to the rights, but not the obligations, of the Company under this Schedule. This Form is being provided by the Company to the Customer, acknowledging acceptance of the Services specified in this Form, and the Master Agreement, which is incorporated herein. The Customer has examined and carefully studied all of this Form, including the Master Agreement and all exhibits, appendices, specifications, terms and conditions. IN WITNESS WHEREOF, the Parties have executed this Certificate as of the Effective Date. Authorized By the Company: FPL Services, LLC, a Florida limited liability company Acknowledged by the Customer: Board of County Commissioners, Collier County, FL Public Utilities Division BY: NAME: Dennis Brandt TITLE: Vice President DATE: BY: NAME: TITLE: DATE: Approved at to form and legal sufficiency: By: , (Type name) Assistant Collier County Attorney !Q 2008, FPL Services, LLC, All Rights Reserved Schedule D Page I of I Agenda Item No. 16C2 May 13, 2008 Page 52 of 55 SCHEDULE E (SAMPLE COPY ONLY) CHANGE ORDER (SAMPLE COPY) Project Name: Collier County Public Utilities Division Service Location: Comoanv: FPL Services, LLC Customer: Board of County Commissioners of CoIlier County ECO NO.: DATE OF THIS CHANGE ORDER: ("Effective Date") CHANGE ORDER NUMBER: This Contract Change Order ("Change Order") by and between the Customer and the Company, with reference to the above indicated Service Locations and ECO(s). This Change Order is issued pursuant to that certain Master Agreement for Demand Side Management and Energy Efficiency Services effective as of _ day of ,200_, between the Customer and the Company (the "Master Agreement"). Capitalized terms used herein without other defmition shall have the meanings set forth in the Master Agreement This Change Order is dated and effective as of the Contract Change Effective Date issued pursuant to the above indicated Service Locations and ECO(s). The Company and the Customer hereby authorize the following modifications and changes to the [Feasibility Study referenced in the Feasibility Study Authorization Form effective as of this _ day of , 200~[Feasibility Report referenced in the Implementation Services Authorization Form effective as of this _ day of ,200~[Master Agreement]: (I) ADDITIONAL SERVICES AUTHORIZED. The Customer hereby authorizes the Company to perform the following additional items of work (in addition to all other Services described in the Master Agreement) and the [Feasibility Price](Implementation Price] is increased accordingly by the amount set forth in the table made a part of this Change Order: (describe additional work fullv). ADD (the "Additional Services") [The Substantial Completion Date and the effective date of the anticipated Final Acceptance Date are hereby extended for a period of (~ days in order for the Customer to perform the Additional Services.][IT IS UNDERSTOOD THAT THE SUBSTANTIAL COMPLETION DATE AND THE FINAL ACCEPTANCE DATE DO NOT REQUIRE EXTENSIONS ON ACCOUNT OF THE ADDITIONAL SERVICES.] OR iC. 2008, FPL Services, LLC, All Rights Reserved Schedule E Page 1 of 3 Agenda Item No. 16C2 May 13, 2008 Page 53 of 55 (2) WORK DELETED FROM THE COMPANY'S SERVICES. The Customer hereby authorizes the Company to remove/delete the following items of work from the scope of the [Feasibility Study][Feaslbllity Report] [Feasibility Price], and decrease the [Feasibility Price][Implementation Price] accordingly by the amount set forth in the table made a part of this Change Order: (describe deleted work fullv). DELETE (the "Deleted Services") [The Substantial CompletIon Date and the Final Acceptance Date are hereby reduced by _ days as a result of the Deleted Services.][IT IS UNDERSTOOD THAT THE SUBSTANTIAL COMPLETION DATE AND THE FINAL ACCEPTANCE DATE DO NOT REQillRE REDUCTIONS ON ACCOUNT OF THE DELETED SERVICES.] ORIGINAL SUBSTANTIAL COMPLETION DATE: ORIGINAL FINAL ACCEPTANCE DATE: CURRENT SUBSTANTIAL COMPLET1ON DATE BY PRIOR CONTRACT CHANGES: FINAL ACCEPTANCE DATE: BY PRIOR CHANGES ORDER REVISED SUBSTANTIAL COMPLETION DATE (if applicable): REVISED FINAL ACCEPTANCE DATE (if applicable): ORIGINAL IMPLEMENTATION PRICE IN FEASIBILITY REPORT: $ AMOUNT OF PRIOR CHANGE ORDERS (if applicable): $ ADDITIONAL IMPLEMENTATION PRICE (due to change order)(if applicable): $ REDUCED IMPLEMENTATION PRICE (due to change order)(ifapplicable): $ REVISED IMPLEMENTATION PRICE: $ It is hereby understood that, upon authorization of this Change Order by the Customer, the Company shall implement the above-referenced Change(s). The above adjustments to the Substantial Completion Date, the Final Acceptance Date, and/or Implementation Price will constitute a full and complete settlement for the Change(s} and all issues related thereto. Except as set forth in this Change Order, and in any other contract changes and written amendments signed by the Customer, the Master Agreement shall remain in full force and effect. Changes in the Services, Implementation Price, Substantial Completion Date or the Final Acceptance Date may be authorized only by a Change Order duly executed by each Party's designated representative. Without a duly executed Change Order, the original scope of Services under the applicable Implementation Services Authorization Form shall remain in full force and effect. 'D 2008, FPL Services, LLC, All Rights Reserved Schedule E Page 2 of 3 Agenda Item No. 16C2 May 13, 2008 Page 54 of 55 This Change Order is being provided by the Company to the Customer, acknowledging acceptance of the modification(s) specified in this Change Order, and the Master Agreement, which is incorporated herein. The Customer has examined and carefully studied all of this Change Order, including the Master Agreement and all exhibits, appendices, specifications, terms and conditions thereto and hereby agrees to be bound by any and all terms, conditions, and obligations set forth therein. THIS CHANGE ORDER IS HEREBY ISSUED BY COMPANY TO THE CUSTOMER AS OF THE EFFECTIVE DATE INDICA TED ABOVE. Authorized By the Company: Acknowledged by the Customer: FPL Services, LLC, Board of County Commissioners, Collier County, FL a Florida limited liability company Public Utilities Division BY: NAME: Dennis Brandt TITLE: Vice President DATE: BY: NAME: TITLE: DATE: i:' 2008, FPL Services, LLC, All Righl<; Reserved Schedule E Page 3 of 3 N(X)lO U}~~ o - ;~ Z~cD EiOOl :&:2cr '" '0 c: cD OJ <( aN 0- ~ 1l ~ ~ ... r ~ I ~ " ~a; fL ~ ~ ~ ;; ~ " ................. I I ,......., ._'.. ~ 0> ~ " , fL ,,~ " M . " s ~ ,. ....... i--....,' i' ......... ~ N c'J ~ 0 ~ I [ ~ .. _M ,- , ~~ ~ . ~ m 0 '" ~ 11 ~ ~ ~ , ~ .... 12. . 1;; m ... , ~ ~ N . ;; ~ . '" . .. m . C ~ . 0 ~ :" ~flu-u e ~ E .. "- ~ "- E J! "- E siP ~ !!'. ,;; " " . ~ ::> .. .. . 0: ~ ~ E '.J C '5 E .. II '0' ~ ii . '5 a: 1) E " cr w w .. '" . I~ I~ '" G ~ G ~ ~ ~ ~ G ~ ~ ~ ~ = ~ ~ 11' ~ = If ,m m [I - ~ 0- '" ~ ill :i; 0 0 ~ '2 ~ " ~ ~ ~ 0 i~ ~ g g 1'2 g g "- . M ~ ~ = = ~ 1; M " " 0- ~ ~ ~ ill .. ii ii " f! ;;; ~ ~ .. 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