The URL can be used to link to this page

Agenda 09/27/2011 Item #16C29/27/2011 Item 16.C.2. ~ EXECUTIVE SUMMARY Recommendation to approve Exhibit A-I Contract Amendment 3 of the Master Agreement for Demand. Side Management and Energy Efficiency Services Agreement with Florida Power & Light Company to change the scope of an energy conservation option and decrease the contract amount by $148,820.02. OBJECTIVE: To realize savings on electrical power costs while upgrading facilities and providing utility services to meet customer demand. CONSIDERATIONS: Florida Power & Light Company (FPL) is under a five-year term contract, number 973-320-08.1, 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." This process is specific in regard to cost effectiveness and the required savings guarantees that FPL will provide before any energy conservation options/measures (ECOs) are implemented. The Public Utilities Division (PUD) included this FPL program in its efforts to implement efficiency improvements to ensure cost containment in our short- and long-term fmancial planning. ~ As part of the American Recovery and Reinvestment Act (ARRA), Collier County received formula grant funding from the U.S. Department of Energy's (DOE) Energy Efficiency and Conservation Block Grant (EECBG) Program. PUD staff submitted all the ECO's identified in FPL's Phase 1 study to receive funding. ECO-l "Lighting Retrofits" and ECO.2 "Occupancy Sensors" were selected to receive $209,077 (approximately 50 percent of the total implementation cost); and ECO-3 "Solar Photovoltaic (PV) Panels at the South County Regional Water Treatment Plant (SCRWTP)" was selected to receive $160,084.02 (100 percent of the total implementation cost). -- On July 29, 2010, DOE pedormed a monitoring review' site visit during the design phase of ECO-3. During the site visit, DOE pointed out that the cost per watt for the Solar PV Panel Project was more than twice the industry standard. After reviewing the cost breakdO\vn with FPL and evaluating of the payback period for ECO-3, staff believes that it should not be pursued. The payback period of the project exceeds the life expectancy of the panels, and the Water Department, through its User Fee Fund (412), would need to purchase replacement panels. Approving Exhibit A-I, Contract Amendment 3, of the Master Agreement with FPL, will enable a change of scope of ECO-3 for Solar PV Panels at the SCRWTP from implementation to designing the project for $11 ,264.00, and removing the associated construction cost of $148,820.02. This amendment provides the best value for the county by having a design for a Solar PV Panel array at the SCRWTP that can be constructed at a future date when implementation costs are less. This amendment will not negatively impact the county's compliance with the grant terms or future eligibility. The total $160,084.02 of allocated EECBG funds was removed from the project by a budget amendment authorized by the Board of County Commissioners on February 8, 2011. The $11,264.00 for design will be funded by theexistin8 ~ project budget with Water User Fee Funds (412). Packet Page -1598- ---.. ---- ---- 9/27/2011 Item 16.C.2. FISCAL IMPACT: Changing the scope of ECO-3 is the best value for the county. Funding amendments were included in the EECBG Modification on February 8, 2011 (Agenda Item 16 E 4). LEGAL CONSIDERATIONS: This item is legally sufficient for Board action and requires a majority vote. - JBW GROWTH MANAGEMENT IMPACT: The project is consistent with and furthers the goals, objectives, and policies of the 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 Chairman to execute Exhibit A- I Contract Amendment 3 of the Master Agreement with FPL. Prepared By: Nathan Beals, Project Manager, Public Utilities Planning and Project Management Department. Packet Page -1599- 9/27/2011 Item 16.C.2. COLLIER COUNTY .-.. Board of County Commissioners Item Number: 16.C.2. Item Summary: Recommendation to approve Exhibit A-I Contract Amendment 3 of the Master Agreement for Demand Side Management and Energy Efficiency Services Agreement with Florida Power & Light Company to change the scope of an energy conservation option and decrease the contract amount by $148,820.02. Meeting Date: 9/27/2011 Prepared By Name: Nathan Beals Title: Project Manager, Associate,Public Utilities Engine 8/26/2011 2:18:44 PM Approved By ,-..... Name: ParkerNicole Title: Contracts Specialist,Purchasing & General Services Date: 8/31/2011 8:25:05 AM Name: WiclesTom Tilie.DireclCJr - Operalions D:nc: C)/1/2C111 5:05:IJ Pfvl - PLi[J.lilililit's Fina Name: HapkeMargie Title: VALUE MISSING Date: 9/6/2011 10:36:00 AM Name: Paul Mattausch Title: Director - Water, Water Date: 9/7/2011 9:04:57 AM Name: ChmelikTom Title: Project Manager, Principal,Public Utilities Engine Date: 9/7/2011 9:09:57 AM Name: CromerAaron Title: Project Manager, Principal,Public Utilities Engineering ,-..... Packet Page -1600- 9/27/2011 Item 16.C.2. ~ Date: 9/9/2011 12:47:33 PM Name: Carnell Steve Title: Director - Purchasing/General Services,Purchasing Date: 9/9/2011 1:15:22 PM Name: FoordMarlene Title: Grant Development & Mgmt Coordinator, Grants Date: 9/9/2011 4:00:31 PM Name: YilmazGeorge Title: Director - Wastewater, Wastewater Date: 9/] 2/201] ] 1 :28:36 AM Name: WhiteJennifer Title: Assistant County Attorney,County Attorney Date: 9/] 2/20] 1 ] 1 :39:04 AM Name: GreenwaldRandy Title: Management/Budget Analyst,Office of Management & B Date: 9/]3/20]] 3:42:55 PM ~ Name: UsherSusan Title: ManagementlBudget Analyst, Senior,Office of Manage Date: 9/18/2011 10:32:00 AM Name: KlatzkO\\Jcff Title: COLlnty Anorney_ Date: 9.]9/20]] 11::'2:01 .~\lVi Name: OchsLeo Title: County Manager Date: 9/19/2011 4:49:27 PM ~ Packet Page -1601- Retn: CLBRK TO THE BOARD INTBROFFICE 4TH FLOOR EXT 7240 ilbbl~, UK: ltJbU PG: 9/27/2011 Item 16.C.2. RBCORDBD in the OFFICIAL RECORDS of COLLIER COUNTY. F1 KUC lU! jb1.UO 05/15/2008 at 01:58PM D~IGHT B. BROCK. CLBRK 16~C:, ,2 ~ MASTER AGREEMENT FOR DEMAND SIDE MANAGEMEN'F<AND ENERGY EFFICIENCY SERVICES (STATE GOVERNMENTAL ENTITIES) THIS MASTER AGREEMENT is made and entered into as of the~ day of H Ai, 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; rn c: o 'M ~ CJ :J H ~ rn c: 'M 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. H CD Cl.. 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: ~ H CD u H o ARTICLE 1 - DEFINITIONS .U u m x 1.1 Authorization Form means a form prepared by the Company for the purpose of identifying the Customer's options for proceeding with the evaluation, design or installation of specific ECG's identified at one or more Service Locations. An Authorization Fonn shall accompany each of the following types of documents prepan::d by the Company under this M2.ster Ag['~ement: Feasibility Study Proposals and Feasibility Reports. ..j) -I 1.2 Change means a request by the Customer that changes the S:::rvices, which may consist of modifications or additions to, or deletions from, any Services to be performed or materials to be provided by tile 0~.........................,..., n..,....;,.,~..-..~ ~~..-..r10.... +l"l~" l\;f....C"1-oT" ^ ~=C>.T'>"'\a11.+ vUl_HpUU)' aJ..LCHli5 UJ..lU-v.l UJ.J.;:) l.Y,HL':'LI...I.L .iJc5.l vv.lli\'",d..1.L.. ;.) - ,-j o CD o H o u Q) :c 1.3 and assigns. Conroany means FPL Services, LLC, a Florida limited liability company, including its successors (J) l.J :) . 1.4 Confidential Information shall mean, subject to Chapter 119 and Chapter 286, Florida Statutes, all information marked as "confidentiaF' 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. ~ 1) ~ II :J ~ :J :J II C " @ 2008, FPL Services, LLC, All Rights Reserved Page 1 of20 Rev. 04/18/08 Packet Page -1602- ~ 9/27/2011 Item 16.C.2. UK: 4jbU PG: ,B~~ 16C2~1' 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 Delayed Payment Rate means a rate of interest equal to one-and-one-half percent (1 Y2%) 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 Energy Efficiencv 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 Studv 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 Coinpany 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. 1.14 Feasibility Report means the written report which is issued by the Company to the Customer to SlL'TIlTilll1Ze the Company's [mdings based upon a Feasibi1i1y Study of pmucuhr ECO's at specified Service L,ocations. 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 ECQ's at specified Service Locations. ~ 1.19 lm;plementation Services means the Services provided or proposed to be provided by the Company to construct, install or otherwise implement one or more ECO's at specified Service Locations in accordance with ~ 2008, FPL Services, LLC, All Rights ReselVcd Page 2 of 20 Rev. 04/18/08 Packet Page -1603- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2900 16C2 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 ECD 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 ECD, (d) providing on-site training for a reasonable number of the Customer's designated operating personnel, if such training is reasonably required or necessary for the proper operation and maintenance of any complex equipment or system comprising a part of any installed ECO, and ( e) arranging for the fmal inspection and check-out of each installed ECD. ---... 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 ECD 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 ofan ECD. 1.23 Agreement. ~ 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 ECG, the number of years obtained by dividing (i) tile total estimated implementation cost of the ECG (including L.1.e costs incurred by the Company under this Master Agreement, but excluding all financing costs associated with implementation of the ECG), by (ii) the estimated savings to the Customer from the L'LSwlled EeG, including energy savings, maintenance savings, avoided capital costs, and other avoid::,d costs as applicable. All such estinlates shall be made by the Company, in its soie 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. ---... \0 2008, FPL Services, LLC, All Rights Reserved Page 3 of 20 Rev. 04/18/08 Packet Page -1604- ---.. 9/27/2011 Item 16.C.2. OR: 4360 PG: 2901 16C2 1.31 Substantial Completion or Substantially Complete means, with respect to a particular ECO, that level of construction and implementation which renders the ECO operational, regardless of whether the ECO has one or more Minor Deficiencies, as detennined 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 Vendor means any vendor, manufacturer, or other representative of an ECO vendor, manufacturer, or distributor utilized by the Company in providing Services in accordance with this Master Agreement ARTICLE 2 - SCOPE OF MASTER AGREEMENT AND TERM ..-.. 2.1 Scope. Subject to the terms and conditions of this Master Agreement, the Company agrees to furnish to the Customer, and the Customer agrees to purchase and receive from the Company, certain Services at the Customer's specified Service Locations. The Parties shall agree upon the Services that the Company will furnish to the Customer with respect to each Service Location and with respect to ECO's identified at particular Service Location prior to the Company commencing work at any designated Service Location as set forth in an Authorization Form which accompanies one or more Feasibility Study Proposals and Feasibility Reports, as set forth in Articles 3 and 4 of this Master Agreement. Each of the various proposals, documents and forms referenced in this Master Agreement shall adopt and incorporate the terms and conditions of this Master Agreement as if such terms and conditions were expressly set forth within such proposals, documents and forms. Unless expressly stated in a Change Order in accordance with Article 14 below, where the terms and conditions of any schedules or exhibits thereto are inconsistent with the terms and conditions of this Master Agreement, the terms of this Master Agreement shall govern the terms and conditions of the Service. In the event the terms and conditions of Change Orders conflict, the most recently executed Change Order shall govern the terms and conditions of the Service. 2.2 Term. This Master Agreement shall commence upon the Effective Date and shall continue in effect for a period offive (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. i~J~.TI(=LE, 3- FI~~:\SIBfLITl,.? S':rLJD'.r~ .A.J~~.D' riliPOI::I 3.1 PreDaration of Feasibilitv Study Authorization Form bv Comoany. The Company may prepare and deliver to the Customer a Feasibility Study AuthoriZation Form, which identifies any potential Eeo's that thc Company believes, in its sole professional judgment, may provide appropriate justification to proceed with the preparation of a Feasibility Study. Each Feasibility Study Proposal shall include a designation of the Services to be provided, the technologies to be included in the proposed Feasibility Study and the Feasibility Study Price. The Feasibility Study Authorization Form is attached to this Master Agreement as Schedule A. ~ 3.2 Authorization to Proceed with Feasibility Study. Unless otherwise mutually agreed to by the Parties in writing, a Feasibility Study Authorization Form must be executed by the Customer and delivered to the Company within 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. @ 2008, FPL Services, LLC, All Rights Reserved Page 4 of20 Rev. 04/18/08 Packet Page -1605- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2902 16G2 ~ 3.3 Feasibility Report. Pursuant to a Customer-authorized Feasibility Study performed by the Company in accordance with a Feasibility Study Authorization Form, the Company shall recommend ECO's for implementation at any Service Locations surveyed based on a life-cycle cost analysis and estimated energy savings for each ECO. The Company shall prepare and submit to the Customer a Feasibility Report specifying each recommended ECO and providing for each an estimate of (a) the expected implementation cost, (b) the anticipated life-cycle cost savings, and (c) the estimated timing for implementation, all of which shall be estimates only, based on the Company's reasonable assumptions. In the case of each ECO examined in a Feasibility Report, the Company shall provide sufficient information to determine whether the Customer's Payback Criteria are expected to be met based on the Company's estimates. 3.4 Authorization to Proceed with Feasibility Report. Each Feasibility Report will include an Implementation Services Authorization Form, as defined below in Section 4.1, which must be executed by the Customer and delivered to the Company within sixty (60) days after the Customer's receipt of the Feasibility Report to authorize the Company to proceed with the preparation of an implementation of the Feasibility Report in accordance with Article 4. If the Customer timely delivers to the Company an executed Implementation Services Authorization Form, the Company will proceed with preparing any implementation of the Feasibility Report authorized by the Customer on the Implementation Services Authorization Form; provided. however. that if the Customer elects to proceed with less than fifty percent (50%) of the recommended ECO's (as determined on an estimated implementation cost basis) identified in a Feasibility Report, the Company shall have the ability to refuse to proceed with preparation and implementation identified in a Feasibility Report for any ECO's that the Customer elects to proceed. Each Implementation Services Authorization Form accompanying and referencing a Feasibility Report will include an option allowing the Customer to defer payment of the Feasibility Study Price in accordance with Section 3.5.3 if the Customer elects to proceed with additional Implementation Services. 3.5 Feasibility Study Price and Payment Terms. 3.5.1 Feasibility Study Price. Except as otherwise provided in Section 3.5.3, the Customer shall pay to the Company the Feasibility Study Price which is included in a Customer-executed Feasibility Study Authorization Form for all Services performed by the Company in conducting a Customer-authorized Feasibility Study and issuing a Feasibility Report. The Feasibility Study Price is the full compensation for the Services performed by the Company in conducting a Company-authorized Feasibility Study and rendering a Fcasibility Report and includes all federal, state and local taxes, if any, assessed with respect to the Services or with respect to tbe fumishing of any items under tile Feasibility Study. ~ 3.5.2 Payment UDon Failme to Authorize Additional Services. if tlle Customcl ejects to Dot proceed \vi.tll Implementation Services or fails to deliver to the Company a completed and executed Implementation Services Author.tZution 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 EeG'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 mown 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 ECO's pursuant to Section 3.4, the Customer shall elect on the Implementation Services Authorization Form accompanying and referencing a Feasibility Report to either (a) receive an invoice for the full amount of the Feasibility Study Price, or (b) defer and roll-over payment of the Feasibility Study Price until such time as compensation is payable to the Company pursuant to Article 4 for Implementation Services. If the Customer elects to receive an invoice pursuant to clause (a) of this Section 3.5.3, or if the Customer fails to make 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. ~ @ 2008, FPL Services, LLC, All Rights Reserved Page 50f20 Rev. 04/18/08 Packet Page -1606- 9/27/2011 Item 16.C.2. vn I "ltJvv L \J I f..}VJ ~ 16C2 '1~ 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. 3.5.5 Release from Dbligation to Pay Feasibility Study Price. Notwithstanding any provision in Section 3.5.1 to the contrary, the Customer shall have no obligation hereunder to pay the Company for a Feasibility Study or Feasibility Report performed by the Company if (a) the Feasibility Report submitted by the Company does not identify at least one potential ECD 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 ECD 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 ECD 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 ECQ's at the Service Locations identified in the Feasibility Report, and the Customer shall pay the Company for the Feasibility Study prepared for such ECG. 4.2 Suhstantiai ConJDletion and Final /\CCeDtan;:;e. 4.2.1 Inspections and Notice of Substantial Comoletion. 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 ECD in accordance with a Customer-authorized Feasibility Report, the Company shall deliver a Notice of Substantial Completion to the Customer. A sample copy of a Notice of Substantial Completion is attached to this Master Agreement as Schedule C. The Customer shall have delivered a list of any Punch List items and any potential material defect or deficiency prior to the Customer executing a Notice of Substantial Completion. ~ 4.2.2 Correction of Material Defects or Deficiencies. Prior to receiving a Notice of Substantial Completion, the Customer agrees it has identified and delivered written notification to the Company any and all potential material defect or deficiency in an ECD. 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 forrany reason the Customer fails to deliver written notification to the Company of a material deficiency or defect in an ECD following the Customer's receipt of a Notice of Substantial Completion, the Customer shall thereby be deemed to have irrevocably acknowledged and agreed that (a) each ECD meets the requirements of the Master Agreement (0 2008, FPL Services, LLC, All Rights Reserved Page 6 of 20 Rev. 04/18/08 Packet Page -1607- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2904 16C2~~ and the Customer-executed Implementation Services Authorization Form, and (b) each such ECO is complete and ready for operation. -- 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 ECO. Following such identification and receipt of a Punch List, the Company shall work diligently to complete or correct such items and work listed in the Punch List within a reasonable time period. Upon completion of any Punch List items, 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 Payment Unconditional Upon Substantial Completion. The Customer acknowledges that, notwithstanding the existence of any Minor Deficiencies, regardless of their inclusion in a Punch List, the Customer unconditionally agrees to make payment to the Company for the ECO's listed in a Notice of Substantial Completion once the ECO's are, or are deemed to be, Substantially Complete. The Customer aclmowledges 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 Acceotance. 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 aclmowledges that the Customer unconditionally agrees to make fmal 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 aclmowledges 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 EeO, is absolute, unconditional and inevocable and shall not be affected by any circumstance whatsoever, including, \Tv'ithout limitation, uny set-off: abatement, counterclaim:> suspension, recOUpnleJlt, reduction~ rescissjon. 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, W"rr"nnr ,. -.....................1. 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, ofthe Company under this Article 4. 4.2.7 ECO Responsibility. Unless otherwise mutually agreed to by the Parties, the Company assumes no responsibility for performance or maintenance of ECO's, which are to be insured by the Customer. No Veudor is an agent of Company, and no Vendor or employee of any Vendor is authorized to waive, supplement or otherwise alter any terms, conditions, or agreement between the Company and the Customer. 4.2.8 Training. If applicable, and if set forth in a Customer-authorized implementation of a Feasibility Report pursuant to a Customer-authorized Implementation Services Authorization Form, the Company shall provide on-site training for a reasonable number of the Customer's operating personnel with respect to completed ECO's, and the Customer shall assist in such training, all as more fully specified in the Feasibility Report. Unless otherwise provided in the Feasibility Report, such training shall be conducted with respect to an ECO .-- following the Substantial Completion Date of the ECO. (0 2008, FPL Services, LLC, All Rights Reserved Page 7 of 20 Rev. 04/18/08 Packet Page -1608- 4.3 Imp1ementatiOIl. Price and Payment. 9/27/2011 Item 16.C.2. OR: 4360 PG: 2905 16C2 ~ 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 Pavment. 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 ECD(s), and the Customer shall be obligated to pay the total of such amounts within thirty (30) days following receipt of the invoice or as otherwise required to be in compliance with Section 218.70, Florida Statutes, otherwise lrnown 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 Pavment. 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 Energv 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 ECD, which shall be set forth in an applicable Feasibility Report. ARTICLE 5 - WARRANTY 5.1 General Warranty. The Company warrants to the Customer that the Services performed by the Company under this Master Agreement shall be performed \vith 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 perfoffiled. The Company fmtber 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 sis'1J.ificant defects in desib'11, engineering, materials, construction and workmanship, and conform in all material respects \'lith 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 ECD, for a period of one (1) year following the Substantial Completion Date for such ECD. 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 ECD. 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 lrnowledge of any claim of warranty, cause the repair (or as Company determines appropriate the replacement, rework and/or retest) of defective equipment and construction worlananship 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 @ 2008, FPL Services, LLC, All Rights Reserved Page 8 of 20 Rev. 04/18/08 Packet Page -1609- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2906 16C2f~ a timely manner and at such times so as to minimize disruption of nonnal operations at the Customer's Service Location. 5.4 Vendor Warranties. Without limiting the Company's warranty set forth in Section 5.1, the Company, in procuring materials and equipment for an ECO, shall use reasonable efforts to obtain customary and standard Vendor warranties from the supplier or Subcontractor for the benefit of the Company and the Customer. The Customer shall be entitled to the benefit of any Vendor or Subcontractor warranties obtained which are better or of longer duration than those provided by the Company herennder. 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 Comoanv 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 DISCL.AIl\.1S 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 ATIACHED TO AN IMPLEMENTATION AUTHORIZATION FORM, THE CmvfPANY ^,1AKES NO WARRANTIES OR GUARANTEES OF ANY NATURE \VHATSOEVER CONCERNING THE ACTUAL REDUCTION IN THE CUSTOMER'S E}.,TERGY USAGE AS A RESULT OF THE INSTALLATION AND OPERATION OF ANY ECO, AND TI-IE CUSTOMER ACK,"'\fOWLEDGES AND AGREES THAT Al,ry ESTITvLA.. TED SAVINGS, ESTIT,1A TED LOAD REDUCTIONS OR OTHER SIMILAR PROJECTIONS SupPLIED OR TyfADE BY THE COlviPAN'{ SHALL BE FOR n,,'FORJvlATIONi\L P1:..TR.POSES ONLY AND SHALL NOT CONSTITUTE A IN ARRANTY OR GUARANTEE BY THE CONIPANY OF THE ACTUAL SAVINGS OR LOlill REDUCTION, IF ANY, WHICH MAY BE EXPERIENCED BY THE .-....... '-'T T~"""'r....""" If'I'n LU':' I ViVID.!:\.. ARTICLE 6 - LIMITATION OF LIABILITY 6.1 No Operating or Maintenance Responsibility. Except as otherwise specifically provided in Article 5, the Company shall have no responsibility or liability with respect to any ECO after the Substantial Completion Date thereof, and the Customer shall be solely responsible for the operation, maintenance and utilization of each ECO after such date. Without limiting the generality of the foregoing, no payment obligation of the Customer arising under this Master Agreement shall be affected by the actual performance of any ECO following the Substantial Completion Date. 6.2 . Consequential Damages. Neither Party shall be liable to the other party for special, indirect, 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 Aggregate Liability. Except in cases where a court of competent jurisdiction has determined ~ willful misconduct on the part of the Company, the Company's tota11iability under this Master Agreement shall not @ 2008, FPL Services, LLC, All Rights Reserved Page 9 of 20 Rev. 04/18/08 Packet Page -1610- :,~.""""""""~.-.:i::.>';~'~;'~.i.~_~:;o.;.:'- ',c.;.;, '~:';';;.'.i;;' ","_""-":''';';;':'';'''';",.","_',i,.,;;:.~...::.'ii",,"1..;J;,'i,'~,',,;:-,',';'''-'-'''' -';_~.' 9/27/2011 Item 16.C.2. L~. ~~vv ~Y. w~VI ~ 16C2 f~ exceed the Feasibility Study Price or Implementation Price, as the case may be, for the Services that have given rise to the Dispute. 6.4 Intent. Except 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 perfonning 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 perfonning such Services, and taking any other actions the Company may reasonably request from time to time to acbieve 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 laydovm areas at tbe 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 perfonn 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 lmown to tlle Company, and shall not unreasonably disturb or interrupt the Customer's operations at such location(s). The Company "rill 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 w:ill 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 detennine the actual energy savings and load reduction achieved at the Service Location(s) as a result of ECO implementation. The Customer also sball provide the Company with any information and other assistance reasonably required to verify to the Florida Public Service Commission the demand and energy savings acbieved 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 sball 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 perfonning 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 ~ 2008, FPL Services, LLC, All Rights Reserved Page 10 of 20 Rev. 04/18/08 Packet Page -1611- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2908 Sections 7.1 through 7.7 of this Master Agreement The Customer shall be responsible for any matel ~a~ 02 this Master Agreement by Customer or its agents. r\,...-, 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 shall 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 7.1 through 7.7 shall survive the termination of this Master Agreement. ARTICLE 8 - DOCUMENTS AND DATA 8.1 Ownership Rights. .AIJ.y 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 agTees 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 InfOlmation, 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 Conwany. At any time that the Company is performing Services under this Master Agreement at any Customer Service Location, the Company shall keep and maintain, ~ @ 2008, FPL Services, LLC, All Rights Reserved Page 11 of20 Rev. 04/18/08 packetpage-1612- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2909 ~ 16C2 with insurers of recognized responsibility, the following insurance, which shall include the coverages and limits set forth below: 9.1.1 Worker's Compensation Insurance covering all of the Company's employees as required by law; 9.1.2 Commercial General Liability Insurance, including contractual liability, premises and operations, broad-form property damage, products/completed operations, independent contractor, and personal injury coverages, with a limit of not less than $1,000,000 for each occurrence, combined single limit; and 9.1.3 Commercial Automobile Liability Insurance, including coverage for liability arising out of the use of owned, non-owned, leased or hired automobiles, for both bodily injury and property damage in accordance with state legal requirements, having not less than $1,000,000 combined single limit per occurrence. Anything to the contrary notwithstanding, the Company may self insure any requirement of this Section 9.1. ---.. 9.2 Customer Insurance. During and throughout the term of this Master Agreement and until all amounts payable to the Company pursuant to this Master Agreement are paid in full, the Customer shall maintain, as of the date of installation of each ECO, (i) comprehensive property insurance, including all risk physical damage insurance, on each ECO with replacement cost coverage; and (ii) comprehensive liability insurance for bodily injury, death, and property damage in the amount of $1,000,000 with coverage in excess of the $100,000 or $200,000 waiver of sovereign immunity provided for in Section 768.28(5), Florida Statutes, but ana 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 often (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 fi.Jlfill its obligations for loss or damage up to the amount of insurance required under this Section 9.2. ARTICLE l(l - INDEMJ\ilJi'ICATION 10.1 Indemnitv Obbmtions. 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, froes 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 its care and custody. 10.2 Emplovee 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 "Iudemuitee") by an employee of the other Party (the "Iudemnitor") 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. @ 2008, FPL Services, LLC, All Rights Reserved Page 12 of 20 Rev. 04/18/08 Packet Page -1613- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2910 16C 10.3 D,fens, of Clallm. An Indonnrito, .wI bavo the right to defend on Indemoito' by oouns~ (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. .~ 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 10 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, removal and disposal of any hazardous materials (e.g., asbestos) or correction of any hazardous condition at a Service Location which affects the Company's performance of the Services under this Master Agreement. If, during the course of performing the Services, the Company becomes aware of any such hazardous materials or hazardous condition, the Company shall promptly report such matter to the Customer and before disturbing (or further ~ disturbing) such materials or condition. Work in the affected areas shall be resumed by the Company only upon the written notice from the Customer that such materials have been removed or such condition has been corrected, and then only if such continuation of work shall not violate any applicable law or permit. The Customer shall indemnify, defend and hold hannless the Company and its Subcontractors with respect to any liability, cost or e:\.-pense of whatever nature incurred as a result of any such hazardous materials or hazardous condition. AETICLE 12 - TITLE. RISK OF LOSS. SECURIT'i' I\'TEREST 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. 12.2 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 ECO 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 descnbed 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 (1) 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 ~ @ 2008, FPL Services, LLC, All Rights Reserved Page 13 of 20 Rev. 04/18/08 Packet Page -1614- ---- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2911 16C2 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 the 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 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 govemmental 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 sales 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 Parry is prevented or delayed in tJle performance of any sucb obligation by a Force Majeure Event, ,.Uell P3J-ty shall immediately provide notice to the other Party of the circumstances preventing or delaying perroTInance and the expected dmation thereof. Such notice shall be confirmed in \wiring as soon as reasonably possible. The P3.1.ty so affected by a Force Majeme Event shall endeavor, to the extent reasonable, to remove tile obstacles which prevent performance and shall resume performance of its obligations as soon as reasonably practicable. Notwithstanding the foregoing, the occurrence of a Force Majeme Event shalInot 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 writing upon any such adjustments @ 2008, FPL Services, LLC, An Rights Reserved Page 14 of20 Rev. 04/18/08 PacketPage-161S- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2912 16 C 2 ~ 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 FonD, but not greater than $100,000.00: (i) Customer project manager identified in the Implementation Services Authorization Form; (ii) Customer contract specialist; and (ill) Customer project manager's director. (b) Change equal to 10% of the Implementation Price of an applicable Implementation Services Authorization FonD, but greater than $100,000.00: (i) Customer project manager identified in the Implementation Services Authorization Form; (ii) Customer contract specialist; (iii) 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; (ij) Customer contract specialist; C-lIstoln::~'T pFJject DIQnager"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 15 - TERMINATION AND DEFAULT 15.1 Termination for Convenience. Either Party may terminate this Master Agreement, in its sole discretion, at any time, without further liability, upon ten (10) days prior written notice to the other Party; provided, however, that such termination shall not apply with respect to any Services or work of the Company previously ordered by the Customer under an Authorization Form executed by the Customer on or prior to the termination date. With respect to any such previously ordered Services or work, including any previously implemented ECO or ECO under implementation, this Master Agreement and the applicable Customer-authorized proposals, shall remain in full force and effect in accordance with their terms, unless both Parties specifically agree in writing to the contrary. --. @ 2008, FPL Services, LLC, All Rights Reserved Page 15 of20 Rev. 04/18/08 Packet Page -1616- OR.9/27/2011 Item 16.C.2. ~oJvv I. v. ,,,..I..W ---- 16C2 i~~ 15.2 Tennination for Cause. 15.2.1 Termination by Either party for Default. A party shall have the right to terminate this Master Agreement or a Customer-authorized Implementation Services Authorization Form for cause if: (a) any proceeding is instituted against a party seeking to adjudicate such party as ban1crupt 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 banlcruptcy, insolvency, reorganization, winding up or composition or readjustment of debts and, in the case of any such proceeding instituted against such Party (but not by such Party) such proceeding is not dismissed within sixty (60) days of such filing; (b) the Customer fails to perform any payment obligation under this Master Agreement and fails to cure such obligation within 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 performing the Services up to the termination date, including all costs incurred with respect to any Subcontractors; provided that the Company makes available to the Customer all of the work product, equipment and materials produced or obtained by the Company in performing such Services (except any and all intellectual property of the Company or third parties). ~ 15.2.2 Payment. All amounts payable by either Party pursuant to Sections 15.1 and 15.2 shall be due within thirty (30) days following the submission by the other Party of an invoice therefor, which invoice shall include in reasonable detail an itemization of costs with respect to any amounts measured on the basis of reimbursable costs. Reimbursable costs also shall be subject to audit by the other Party, at the other Party's expense upon reasonable advance notice; provided that such audit shall be completed within sixty (60) days following the 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 1 (i - DISPUTES 16.1 No Set-Off. Anything to the contrary notwithstanding, all payments under tins IVlaster Agreement shall be made without set-off or deduction. Any payment not made by the date required by the Master Agreement shall bear interest from the date on which such payment was due and payable through and including the date such payment is actually received at the Delayed Payment Rate. If, as a result of a Dispute settled in favor of Customer, a refund is owed to Customer, then the amount of the overpayment shall bear interest from the date on which such payment was received by the Company through and including the date that the overpayment is refunded by the Company at an annual rate equal to the Delayed Payment Rate. 16.2 Pendency of Dispute. The existence of any Dispute, controversy or claim under this Master Agreement, or the pendency of the Dispute settlement or resolution procedures set forth in this Master Agreement, shall not in and of themselves relieve or excuse either Party from its ongoing duties and obligations hereunder or thereunder. 16.3 Alternative Dispute Resolution Process. Upon the written request of either Party, the Parties will meet for the purpose of resolving such Dispute. The Parties agree to discuss the problem and negotiate in good faith to attempt to resolve the Dispute. No formal proceedings may be commenced until either Party concludes in good faith that resolution of the Dispute through continued informal negotiations does not appear likely. Disputes ____. that cannot be settled to in a manner described via informal discussions may be settled, but shall not be obligated to, mutually agree to non-binding mediation. Mediation must occur within twenty (20) business days after the Parties agree to submit the dispute to mediation, and the duration of the mediation shall be limited to one (1) business day. @ 2008, FPL Services, LLC, All Rights Reserved Page 16 of 20 Rev. 04/18/08 Packet Page -1617- 9/27/2011 Item 16.C.2. OR: 436n JGC' ~14.. . 1 b ~,~~ The Parties shall mutually select an independent mediator experienced in commercial information system contract disputes, and each Party shall designate a representative(s) to meet with the mediator in good faith in an effort to resolve the Dispute. The specific fonnat of the mediation shall be left to the discretion of the mediator and the designated Party representatives. ARTICLE 17-ASSIGNMENT 17.1 Master Ae:reement Binding. This Master Agreement and each Customer-authorized Feasibility Study and implementation of a Feasibility Report pursuant to a Customer-authorized Implementation Services Authorization Form entered into by the Parties shall be binding upon, and shall inure to the benefit of, the Parties and their successors and permitted assigns. 17.2 Permitted Assignment. (a) The Customer may not assign this Master Agreement without the prior written consent of the Company. No such assignment by the Customer or consent by the Company to the Customer's assignment shall release the Customer of any of its obligations under this Master Agreement or any associated supplements or Schedules. (b) The Company may, without notice to the Customer, assign this Master Agreement, any supplements, or Schedules, and any of the Company's rights hereunder or thereunder. 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 othenvise 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. 1/.4 rrilnlng of R~ceiDt. }~'otices sent. by ITlail shall be giV5I1 as of four ,\4) busir:ess after the d::rtC'. of the postmark, and notices delivered by overnight cou.l-ier shall be deemed received on the elate when left at the address of the recipient. Notices sent by fax shall be effective the elate faxed, if a business day, or the following business day otherwise. ARTICLE 18 - GENERAL PROVISIONS 18.1 Entire Master Ae:reement. This Master Agreement, including the Schedules attached hereto and any exhibits attached thereto, sets forth the full and complete understanding of the Parties relating to the subject matter hereof as of the Effective Date, and supersedes any and all negotiations, agreements and representations made or dated prior hereto with respect to the subject matter of this Master Agreement. Any actions or Services described in this Master Agreement which were performed or implemented by the Parties prior to the Effective Date shall for all purposes be deemed to have been performed under this Master Agreement. 18.2 Amendments. No change, amendment or modification of this Master Agreement or Schedule or exhibits thereto shall be valid or binding upon the Parties unless such change, amendment or modification shall be in writing and duly executed by both Parties. 18.3 Status of the Parties. The Company and its Subcontractors shall be independent contractors with respect to the Services performed hereunder irrespective of whether such Subcontractors are approved by the Customer, and neither the Company nor its Subcontractors, nor the employees of either, shall be deemed to be the --- @ 2008, FPL Services, LLC, All Rights Reserved Page 17 of20 Rev. 04/18/08 Packet Page -1618- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2915 ~ 16G2 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 & Comoany. The Parties hereby represents and warrants to the other Party that (i) the execution and delivery by a Party of this Master Agreement and the performance of its obligations hereunder have been duly authorized by all requisite actions and proceedings; are not inconsistent with and do not and will not contravene any provisions of a Party's organizational documents or any applicable law, rule or regulation; have been approved by all necessary persons or entities; and do not and will not conflict with or cause any breach or default under any agreement or instrument to which a Party is a party or by which it or any of its properties is bound; and (ii) this Master Agreement has been duly executed and delivered by the Parties and constitutes the valid and legally binding obligation of each Party, enforceable against the other Party in accordance with its terms, except to the extent that enforceability may be limited by applicable banlauptcy, insolvency, reorganization, moratorium or similar laws and subject to general equitable principles. 18.5 Drafting Interpretations and Costs. Preparation and negotiation of this Master Agreement has been a joint effort of the Parties and the resulting document shall not be construed more severely against one of the Parties than against the other. Each Party shall be responsible for its own costs, including legal fees, incurred in negotiating and fInalizing this Master Agreement. 18.6 Captions. The captions contained in this Master Agreement are for convenience and reference only and in no way defme, descnbe, extend or limit the scope or intent of such document or the intent of any provision contained therein. ~ 18.7 Severability/Divisible Contracts. (a) The invalidity of one or more phrases, sentences, clauses, Sections or Articles contained in this Master Agreement shall not affect the validity of the remaining portions thereof so long as the material purposes of such document can be determined and effectuated. (b) Each Customer- authorized proposal for Services under this Master Agreement shall constitute a separate and divisible contract which the Company may assign to one or more assignees, in whole or in part, and each and every such assignee of the Company shall be entitled to the benefIts and rights of the Company under this Master Agreement, and shall be entitled to exercise the rights of the Company under this Master Agreement. No assignee shall be responsible for any obligations of the Company except as expressly assumed in ,'VTiting by such assignee in accordance with the tc:m1S and conditions of Section 17.2. 18.8 Further Assurancc:s. The Company and the Customer each agrce to do wch other and further acts and things, and to execute and deliver such additional instruments a...'ld docillnents, as either Party may reasonably request from time to time whether at or after the execution of this Master Ab'Teement, 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 Jury Trial. EACH OF TIIE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TIIE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HERON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH TIllS MASTER AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS WHETHER ORAL OR PARTY HERETO. TillS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO TIllS MASTER AGREEMENT. @ 2008, FPL Services, LLC, All Rights Reserved Page 18 of20 Rev. 04/18/08 packetPage-1619- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2916 16C2 --- 18.12 No Waiver. The failure of a Party to enforce, insist upon, or comply with any of the tenns, conditions or covenants of this Master Agreement, or a Party's waiver of the same in any instance or instances shall not be construed as a general waiver or relinquishment of any such terms, conditions or covenants, but the same shall be and remain at all times in full force and effect. 18.13 Notices. All notices, demands, offers or other written communications required or permitted to be given pursuant to this Master Agreement shall be in writing signed by the Party giving such notice and shall be mailed by U.S. Mail, postage prepaid, via courier or faxed as follows: If to the COlllpanv: FPL Services, LLC PO BOX 14000 Juno Beach, FL 33408-0420 Fax: (561) 691-7611 Tel.: (561) 681-3079 Attention: Manager Engineering & Construction IHo 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 be sent or delivered or to specify additional addresses to which copies of notices may be sent, in either case by similar notice sent or delivered in like manner to the other Party. [SIGNATURES ON FOLLOWING PAGE] --.. -. @ 2008, FPL Services, LLC, All Rights Reserved Page 19 of 20 Rev. 04/18/08 Packet Page -1620- ,-" '~~ 9/27/2011 Item 16.C.2. OR: 4360 PG: 2917 16C2 IN WITNESS WHEREOF, the Parties hereto have executed this Master Agreement by and through their du1y authorized representatives as of the Effective Date. ---- . .;:,.:.'.\; l:.:.:;::;; ill::/:,. BOARD OF COUNTY COMMISSIONERS, COL~tkJ{ COUNTY, '>'/-;. FLORIDA, AS THE GOVERNING BOARD O~:COtLIER COUNTY. -:::. ~L~:?t~E [~~ TIIE a.o~~~~ OF TIlE .~# q:!.n -- ---. . By: V-- TOM HENN1NG, Chairman i\PProv~.. ,n... ,0 fOIm al.i1/cfi2 (G .>gal../ j.l ffiCiCI.ley: >> R //,J' J . ~V'" ['if f,'. I[~/L-. ~~- .5 q-,1f- 1(. U...:. ('L Assistant County Attorney '/.';;!\ I", ~ @ 2008, FPL Services, LLC, All Rights Reserved Page 20 of 20 Rev. 04/18/08 Packet Page -1621- t '" 9/27/2011 Item 16.C.2. OR: 4360 PG: 2918 16C2 ~ SCHEDULE A FEASffiILITY STUDY AUTHORIZATION FORM Proiect Name: Collier County Public Utilities Division Service Location: See Scope Comoany: FPL Services, LLC Customer: Board of County Commissioners of Collier County Companv Representative: Name: David Russell, P .E. Address: FPL Services, LLC PO Box 14000 700 Universe Boulevard Juno Beach, Florida 33408 (561) 681-3079 david_russell jr@fp1.com Telephone: E-mail: Customer Representative: Name: Address: Telephone: Facsimile: E-mail: KarenB. Guliani, P.E. :public Utilities Engineering Department 3301 E. Tamiami Trail Naples, FL 34112 239-252-6083 239-530-6460 kareliguliani@colliergov.net 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 vvay amends, varies or modifies the Master Agreement. Any alternate, different or additional temlS or conditions referenced by tile Customer in subsequent correspondence from the Customer are hereby rejected and 'Will not becomc part of this Form or other tile Master Agreement unless expressly set forth and incorporated herein. In order for the Company to conmlence Service set forth in this Form, the Custom:.::r is required to sign this Fonn. Capitalized terms used herein witiloUt other definition shall have the meanings set forth in the Master Agreement. This Form consists of this Feasibiiity Study Authorization Form and the followillg attachments, \vhich are . incorporated into this Form by this reference: (i) Exhibit A-Feasibility Study, and (ii) Exhibit B-Feasibility Study Price. n. 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. ill. FEASffiILITY 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 C!:i 2008, FPL Services, LLC, All Rights Reserved Schedule A Page 1 of 5 Packet Page -1622- 9/27/2011 Item 16.C.2. OR: 4360 PG: 2919 ~ studied all of this Form, including the Master Agreement and all exln"bits, appendices, specifications, terms and conditions thereto and hereby agrees to be bound by any and all terms, conditions, and obligations set forth therein. TIllS FORM IS HEREBY ISSUED BY THE CO:MP ANY TO THE CUSTOMER ON THIS , 9A Y OF ,200_ ("Effective Date"). 1 0 C 2 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 BY' ,~~ NAME: Greg H on TITLE: Vice pre~ige~~ DATE: S'/Ic7-. <-(i .' Acknowledged by the Customer: Board of County Commissioners, Collier County, FL Public Utilities ivision . fi~ ~;z.) Assistant Collier County Attorney ATTEST;' ."r.'g'{),. fO...' , :.,.>'W '., II ) ~ IDWIGHT.~,~'BROCK.O(&l.\ . ,'.3;",' . ,-::,...,\~!;.> . ';11, By: .,' . i./' / r'I_f/i _. C- o' ,. ~O:, A~. ,. . ,. ,- ..~~, U ~ .., , . 'i...aii,/ .j ".,.. '.. . ........... a " GftItb OIl,: ,. , ' v , ~\ " 'J ~. \_". 3 . -... @ 2008, FPL Services, LLC, All Rights Reserved Schedule A Page 2 of 5 Packet Page -1623- ( " 9/27/2011 Item 16.C.2. OR: 4360 PG: 2920 16C2 ---... EXIDBIT A FEASffiILITY STUDY Project Name: Collier County Public Utilities Division ECO: Various Energy Conservation Oooortunities 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 Trea1ment Plant: . Investigate replacement of membranes (12 mgd nanofiltration atNorth 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. South Water Trea1ment 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. l> Investigate compact fluorescent and T -8 retrofit opportunities. " Investigate possible solar photovoltaic or other applicable renewable application. " Investigate possible solar or heat recovery Viator 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 Trea1ment 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. o Investigate possible solar or heat recovery water heating application. ~ @ 2008, FPL Services, LLC, All Rights Reserved Schedule A Page 3 of 5 Packet Page -1624- ---.. ~ ~ , , 9/27/2011 Item 16.C.2. OR: 4360 PG: 2921 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 16C2 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. @ 2008, FPL Services, LLC, All Rights Reserved Schedule A Page 4 of 5 Packet Page -1625- , , 9/27/2011 Item 16.C.2. OR: 4360 PG: 2922 16C2 ~ F...,..J . "',; SCHEDULE A EXHIBIT B FEASmILITY STUDY PRICE Eeo Price: $52,344 Payment SchedulelPayment Deferral Option: Payment will be invoiced in full upon completion of the Feasibility study after 60 days from date of acceptance. .Ai; 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 ---- ~ @ 2008, FPL Services, LLC, All Rights Reserved Schedule A Page 5 of 5 Packet Page -1626- ...-. ~ ...-. , , 9/27/2011 Item 16.C.2. OR: 4JbU PG: ,~l3 16C2 ~ SCHEDULES B. C. D ANDE ARE SAMPLE COPIES ONLY AND ARE NOT AUTHORIZED AT THIS TIME. ~ ALL SCHEDULES ARE REQUIRED 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. r'~J SCHEDULE B (SAMPLE COPY ONLY) IMPLEMENTATION SERVICES AUTHORIZATION FORM Proiect Name: Collier County Public Utilities Division Service Location: See Scope Company: FPL Services, LLC Customer: Board of County Commissioners of Collier County Companv Representative: Name: David Russell, P.E. Address: FPL Services, LLC PO Box 14000 700 Universe Boulevard Juno Beach, Florida 33408 (561) 681-3079 (561) davidJUssell jr@fpl.com Telephone: Facsimile: E-mail: Customer Representative: Name: KarenB. Guliani, P.E. Address: Public Utilities Engineering Department 3301 E. Tamiami Trail Naples, FL 34112 239-252-6083 239-530-6460 karenguliani@collicrgov.net Telephone: Facsimile: E-mail: 1. A1.JTHORIZATlOl-J: This implementation Services Authorization Form ("Foml'.') is issued. by the Company to the Customer pUISUaTIl to that certain Master Agreement for Demand Side Management and Energy Efficiency Services ("Master Agreement"), effective as of ~ day of , 20_, TIus Form authorizes the Company to COill.'11ence Services as described herein pursuant to the terms and conditions of the Master Agreement. This FornI 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 incorporated 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 PRICE: @ 2008, FPL Services, LLe, All Rights Reserved Packet Page -1627-~e 1 of10 r .. 9/27/2011 Item 16.C.2. OR: 4360 PG: 2924 16C2 .-..... 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 Packet Page -1628- 6 rev. 3-14-05 ~, ---- ~ ., 9/27/2011 Item 16.C.2. OR: 4360 PG: 2925 16C2 r,;" 1 ..,11 , . 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 Exlnbit B, which is made part hereof as Exhibit C. IV. CUSTOMER COOPERATION: The Customer shall use reasonable efforts to assist the Company in performing 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: Greg Hanlon TITLE: Vice President DATE: BY: NAME: TITLE: DATE: Approved at to foml and legal sufficiency: By: , (1~)~Je' DUHle) Assistant Collier County Attorney ~ 2008, FPL Services, LLC, All Rights Reserved Packet Page -1629-:e 2 of 10 SCHEDULE B (SAMPLE COpy ONLY) EXHIBIT A FEASIBILITY REPORT Project Description: [PROVIDE GENERAL DESCRIPTION OF PROJECT] Service Location: Scope of Services: [ATTACH DETAll..ED SCOPE OF SERVICES] Procurement Services: [SPECIFY ANY PROCUREMENT OBLIGATIONS] iCi 2008, FPL Services, LLC, All Rights Reserved Packet Page -1630- 'e 3 of 10 -' 9/27/2011 Item 16.C.2. UK: ~jbU ~G: ~~Lb 16C2 ~ ~ .-.... ...-.... ~ ~ " BCD Price: Payment Schedule/Payment Deferral Option: Form of Invoice: Address for Invoice: Retainage Terms: Additional Final Payment Conditions: @ 2008, FPL Services, LLC, All Rights Reserved SCHEDULE B (SAMPLE COPY ONLY) EXHIBIT B IMPLEMENTATION PRICE Packet Page -1631- e 4 of 10 9/27/2011 Item 16.C.2. OR: 4360 PG: 2927 16C2 oJ 9/27/2011 Item 16.C.2. OR: 4360 PG: 2928 16C2 ,--- SCHEDULE B (SAMPLE COPY ONLY) EXHIBIT C ENERGY SERVICE CHARGE PAYMENT OPTION 1. Ener!!V Service Chal1!e for Accepted 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. Invoicinl! and Pavrnent. The Company shall invoice or cause the Customer to be invoiced an Energy Service Charge of $ each month through the Customer's 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 bili, 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 SubstaIitia1 Completion Date, and will continue for L-J 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 (ill) 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 Exb1bit 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 payments 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 (L5~o) or, ifless, the maxiJ1um rate permitted by applicable law. ---- ~ P~r'Vmcnts :FiIu~L '"[he Custoiller acl=rJov\,ledgcs and agrees that the COn1pan)r ll12Y assign tills 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 whatsoever, 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, worlananship 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 agreement 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, (f) the breach or failure of any warranty or representation or ---- @ 2008, FPL Services, !.Le, All Rights Reserved PacketPage-1632-e50flO I' 9/27/2011 Item 16.C.2. OR: 4360 PG: 2929 16C2,r~~~ ,,-., 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 Exlnbit 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 Exlnbit 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 Fonn, 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 Aooendix ill 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. --- @ 2008, FPL Services, LLC, All Rights Reserved Packet Page -1633- ;e 6 of 10 .( 9/27/2011 Item 16.C.2. OR: 4360 PG: 2930 .-" SCHEDULE B (SAMPLE COPY ONLY) 16C2 EXHIBIT C APPENDIX. I CUSTOMER CONSENT TIllS 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 hnplementation Services Authorization Form, dated as of this _ day of ,200_ ("Form"); and WHEREAS, pursuant to Section 2 of the Exlnbit 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 aclmowledges the following: ---- 1. Consent to Invoicin!! bv Utility. 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 t.lJ.e Company) bas assumed all of Utility's invoicing obligations, the Customer shall pay all invoiced DSM Service Charges to the Company or to sHcll other person or entity specified in "Titing by the Company. 2. Acknowled!!ement of DSM Service Chan'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 Monthly DSM Service Charges: <<No _ OCMonthly _ DSM _Charges)) Estimated Commencement Date ofFP &L Invoices: <<Commence .-Date)), <<Commence_Year)) The Customer aclmowledges 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, otherwise lmown 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 pursnant to such invoice on the date when due, shall bear interest from the due date thereof until and including the date ofpaym.ent at a rate per month equal to one and one halfpercent (1.5%) or, ifless, 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 aclmowledges 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 (g 2008, FPL Services, LLC, All Rights Reserved Packet Page -1634~~ 7 oflO ~ .---.. --. 9/27/2011 Item 16.C.2. OR: 4360 PG: 2931 16C2 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 Packet Page -1635- ____ _u__ __ 3e 4 of 10 9/27/2011 Item 16.C.2. OR: 4360 PG: 2932 16C2 ..-..... 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 bv the Company and Utilitv. 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: Greg Hanlon 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 A.Pl'El\'DLX II: I~AJ:{L '~i'T TEPJVID\:.A IrION O'V CEJST(}I\'lliI~ C(}],.:SE)'\rrr --- @ 2008, FPL Services, LLC, AIl Rights Reserved Packe~~!_~~:l~?~:~ 9 ofl0 ~ ~'c ~ SCHEDULE B (SAMPLE COPY ONLY) EXHIBIT C APPENDIX ill DEFAULT TERMINATION PAYMENT SCHEDULE <9 2008, FPL Services, LLC, All Rights Reserved Packet Page -1637- : 10 of 10 9/27/2011 Item 16.C.2. OR: 4360 PG: 2933 16G2 9/27/2011 Item 16.C.2. OR: 4360 PG: 2934 -. SCHEDULE C (SAMPLE COPY ONLY) NOTICE OF SUBSTANTIAL COMPLETION (SAMPLE COPY) Proiect Name: Collier County Public Utilities Division Service Location: Company: FPL Services, LLC Customer: Board of County Commissioners of Collier County Companv Representative: Name: David Russell, P .E. Address: FPL Services, LLC PO Box 14000 700 Universe Boulevard Juno Beach, Florida 33408 Telephone: (561) 681-3079, Facsimile:(561) E-mail: david_russell.Jr@fp1.com Customer Representative: Name: Karen B. Guliani, P .E. Address: Public Utilities Engineering Department 3301 E. Tamiami Trail Naples, FL 34112 Telephone: 239-252-6083, Facsimile: 239-530-6460 E-mail: karenguliani@colliergov.net EFFECTNE DATE 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 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 Substantial Completion of the Services required pursuant to the above-mentioned Service Location pursuant to the Implementation Service Authorization Form effective as of date of , 20_, all in strict accordance with the Master Agreement. 16C2 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 lVlastcr Agreement, the Company ,,,,ill complete or corrcct the Punch List items listed in E}~hibit fl. The Services have been re,.iewed 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: TITLE: DATE: BY: NAME: Greg Hanlon TITLE: Vice President 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 Packet Page -1638- e 2 of2 ---.., ~ .-.. 9/27/2011 Item 16.C.2. OR: 4360 PG: 2935 EXHIBIT A 16C2 PUNCHLlST (INSERT PUNCHLIST ITEMS TO BE COMPLETED] @ 2008, FPL Services, LLC, All Rights Reserved Packet Page -1639- 4 of 10 SCHEDULE D (SAMPLE COPY ONLY) 9/27/2011 Item 16.C.2. OR: 4360 PG: 2936 16G2 ~ FINAL ACCEPTANCE CERTIFICATE (SAMPLE COPY) Proiect Name: Collier County Public Utilities Division Service Location: Co:rqpany: FPL Services, LLC Customer: Board of County Commissioners of Collier County Companv Reoresentative: Name: David Russell, P.E. Address: FPL Services, LLC PO Box 14000 700 Universe Boulevard Juno Beach, Florida 33408 (561) 681-3079, Facsimile:(561) david Jusse1Ur@fp1.com Telephone: E-mail: Customer Reoresentative: Name: KarenB. Guliani, P.E. Address: Public Utilities Engineering Department 3301 E. Tamiami Trail Naples, FL 34112 239-252-6083, Facsimile: 239-530-6460 karenguliani@colliergov.net Telephone: E-mail: EFFECTIVE DATE OF FINAL ACCEPTANCE: ("Effective Date'1 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 strict accordance with the Master !~greement. lhis Cenificate and the eertillcatiotlS of the Customer set fOnh herein and on any Certificate may be relied on by the Company and by any assignee of the Company in comlection with the furnishing of the implementation Services financin.g to the Customer in accordance Virith 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 Schedule. This Form is being provided by the Company to the Customer, acIrnowledging 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 AcIrnowledged by the Customer: Board of County Commissioners, Collier Cmmty, FL Public Utilities Division BY: NAME: Greg Hanlon 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 Packet Page -1640- e 1 of 1 " 9/27/2011 Item 16.C.2. OR: 4360 PG: 2937 "-'. 1:6C2 SCHEDULE E (SAMPLE COpy ONLY) CHANGE ORDER (SAMPLE COPY) Proiect Name: Collier County Public Utilities Division Service Location: Company: FPL Services, LLC Customer: Board of County Commissioners of Collier County ECO NO.: DATE OF TillS CHANGE ORDER: ("Effective Date") CHANGE ORDER NUMBER: TIris 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 definition 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 , 20.0.-1 [Feasibility Report referenced in the Implementation Services Authorization Form effective as of this _ day of , 20.0J[Master Agreement]: -- (1) 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 fully). I ADD I ! (the "Additional Services") .--. [The Substantial Completion Date and the effective date of the anticipated Final Acceptance Date are hereby extended for a period of L> 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 (Cl 2008, FPL Services, LLC, All Rights Reserved Packet Page -1641- e 1 of3 9/27/2011 Item 16.C.2. -OR:-_H436o-PG: 293~"-. 16G2 (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] [Feasibility 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: (descnbe deleted work fully). -- ('.j 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 REQUIRE REDUCTIONS ON ACCOUNT OF THE DELETED SERVICES.] ~ ORIGINAL SUBSTANTIAL COMPLETION DATE: - ORIGINAL FINAL ACCEPTANCE DATE: CURRENT SUBSTA..NTIAL COMPLETION DATE BY PillOR CON 1 Rl\.CT I CHANGES: FINAL ACCEPTANCE DATE: BY PRIOR CHA.NGES ORDER ! i I REVISED SlJBSTAi'\lTlAL COMPLETION DATE (ifapplicabk): I i I REVISED FINAL ACCEPTANCE DATE (if applicable): I I ORIGINAL IMPLEMENTATION PRICE IN FEASIBILITY" REPORT: $ I AMOUNT OF PRIOR CHANGE ORDERS (if applicable): $ ADDITIONAL IMPLEMENTATION PRICE (due to change order)(ifapplicable): $ 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 du1y executed Change Order, the original scope of Services under the applicable Implementation Services Authorization Form shall remain in full force and effect. -. ~ 2008, FPL Services, LLC, All Rights Reserved Packet Page -1642- ~ 2 of3 9/27/2011 Item 16.C.2. OR: 4360 PG: 2939 ~ This Change Order is being provided by the Company to the Customer, acknowledging accePtlj~ G 12 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. TIIIS CHANGE ORDER IS HEREBY ISSUED BY COMPANY TO THE CUSTOMER AS OF THE EFFECTIVE DATE INDICATED 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: TITLE: DATE: BY: NAME: Greg Hanlon TITLE: Vice President DATE: ~ ~ i!:i 2008, FPL Services, LLC, All Rights Reserved '30f3 Packet Page -1643- ' 9/27/2011 Item 16.C.2. *** OR: 4360 PG: 2940 *** 16C2 ~ Waiver of Subroaation The last paragraph (Recovery From Others) is deleted from Part One of the Policy. The last paragraph (Recovery From Others) is deleted from Part Two of the policy. As required by written contract. ---- E::ndorsemenl Effective: Policy No.: Named Insured: 1010112007 EWCOO8020 Collier County Government Countersigned MIDWEST EMPLOYERS CASUALlY COMPANY [),- X.~ ~~ 7: .J~L-. Secretary President This endorsement forms part of the policy to whlch allached. effective on the inception date of the policy unless otherwise stated hereln. 10-30 (1-93) ~ Dale Printed: 0510512008 Packet Page -1644- 9/27/2011 Item 16.C.2. ATTACHMENT 3 ~ SCHEDULE B TO FPL MASTER AGREEMENT IMPLEMENTATION SERVICES AUTHORIZATION FORM Proiect Name: Collier County Public Utilities Division Service Location: See Scope Company: FPL Services, LLC Customer: Board of County Commissioners of Collier County Company Representative: Name: David Russell, P.E. Address: FPL Services, LLC PO Box 14000 700 Universe Boulevard Juno Beach, Florida 33408 (561) 681.3079 (561) 681-3085 david_russell jr@fpl.com Telephone: Facsimile: E-mail: Customer Representative: Name: Address: Telephone: Facsimile: E-mail: Karen B. Guliani, P .E. Public Utilities Planning and Project Management Department 3301 E. Tamiami Trail Naples, FL 34112 239-252-6083 239-530-6460 karengul iani@colliergov.net 1. AUTHORIZATION: ~, This Implementation Services Authorization Form ("Forni") is issued by the Company to the Customer pursuant to that certain Master Agreement for Demal}d Side Mana~,ement and Energy Efficiency Services ("Master Agreement"), effective as of c2 g' day of /1 piLI L ,20!?J, 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 othcr the Master Agreement unless expressly set forth and incorporated herein. 1n order for the Company to commence Service set forth in this Form, the Customer is required to sign this Forni, Capitulized t'~rrrl~) u~;cd herein ',1,'itnoul other dcfin!tion shall ha,,:e. the rneaning~ set forth i.11 the Iv) aster A greem en\. This Form consists of this lmplementlliioll Services Authorization Form and the following attachments, which arc incorporated into this Fonn by this reference: (1) Exhibit i~ - Feasibility F___eport, (i1) Exhibit B - IrnpleI11entatioll 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 PRICE: 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. ~ <!:) 2008, FPL Services, LLC, All Rights Reserved Schedule B Page 1 of 4 Packet Page -1645- 9/27/2011 Item 16.C.2. 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 performing 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 \>e bound by any and all terms, conditions, and obligations set forth therein. THIS FORM IS HEREBY ISSUED BY THE COMPANY TO CUSTOMER ON THIS ;2. f? DAY OF fi jJ (2/ L- , 200'1 ("Effective Date"). I - 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 Co un Commissioners, Collier County, FL Public Utiliti ivision ~~ BY, ~ 7~ NAME: Gri'g H nlq TITLE: Vice President / DATE: <//.-.;;/ //(:; "/ BY: NAME: TITLE: DATE: Donna Fiala ~ Chairman, Board of Commissione~ Appro\'cstat to f0I111 and legal sufficiency: By: ATTEST ~~~ r,..... ;.- I , Attest IS tQ CN~~.;-.. . f~.tllr. Oft I . (~'.: ." .. :~:, \/~~)-~';'. , . ' 0)' . . . \' t (Joa . rf;.) . ~ @ 2008, FPL Services, LLC, All Rights Reserved Schedule B Page 2 of 4 Packet Page -1646- 9/27/2011 Item 16.C.2. ~ SCHEDULE B EXHIBIT A FEASIBILITY REPORT Project Description: A summary description follows. Detailed specification s are included in the referenced Feasibility Study Report. South County Regional Water Treatment Plant (SCRWTP) ECG - 1: Lighting Retrofit The field investigation identified 717 lighting fixtures of which 613 fixtures have been included in the lighting retrofit. ECO - 2: Occupancy Sensors For this facility, 24 rooms were selected for the installation of occupancy sensors. South County Water Reclamation Facility (SCWRF) ECO - I: Lighting Retrofit The field investigation identified 679 lighting fixtures of which 363 fixtures have been included in the lighting retrofit. ECO - 2: Occupancy Sensors For this facility, 16 rooms were selected for the installation of occupancy sensors. North County Regional Water Treatment Plant (NCRWTP) ECG - 1: Lighting Retrofit The field investigation identified 40] lighting fixtures of which 37] fixtures have been included in the lighting retrofit. ~ ECO - 2: Occupancy Sensors For this facility> 16 rooms were selected for the installation of occupancy sensors. North County Water Reclamation Facility (NCWRF) ECO - ]: Lighting Retrofit The field investigation identified 1,199 lighting fixtures of which 712 fixtures have been included in the lighting rctroflt. ECO - 2: Occupancy Sensors Furihis ,33 rucn-ns \\H.::'tc ~;c~I(;cte.:3 for th~' in::t,il1atiur: ()f ',):>2up<inc':-.' scn~;(}:'~:, Service Locations: . South Count)' Regional Water Treatment Plant . South County Water Reclamation Facility . North County Regional Water Treatment Plant . North County Water Reclamation Facility Scope of Services: Detailed specifications are included in the referenced Feasibility Study Report. The following exclusions are also included within the Feasibility Study Report. ~ Exclusions include the following: . Existing compact fluorescent light fixtures. . Existing LED exit signs. . Existing Track lighting with dimming control. . Existing Decorative Lighting. . Surface mounted wall-pack fixtures containing HID lamps and Magnetic ballast. . Exterior Lighting. <02008, FPL Services, LLC, All Rights Reserved Schedule B Page 3 of 4 Packet Page -1647- ECO-l & ECO-2 Total Price: $351,812 9/27/2011 Item 16.C.2. -. SCHEDULE B EXHIBIT B IMPLEMENTATION PRICE Payment Schedule/Payment Deferral Option: Payment upon completion and acceptance by Collier County il:J 2008, FPL Services, LLC, All Rights Reserved ---- -. Schedule B Page 4 of 4 PacketPage-1648- 9/27/2011 Item 16.C.2. ~, EXHIBIT A-I Coutract Amendment 2 "MASTER AGREEMENT FOR DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES (State Governmental entities)" This amendment, dated June 30, 2010 to the referenced agreement shall be by and between the parties to the original agreement, by and between FPL Services, LLC, to be referred to as "Company", and Collier County, Florida, (to be referred to as "Customer"). Statement ofUuderstanding RE: Master Agreement for DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES (State Governmental entities)" The following changes to the above referenced Agreement have been mutually agreed to by the Company and the Customer. The additions to the existing language in the Agreement are shown herein by underlining: deletions from the Agreement are shown by striketMeughG. In order to clarify the scope of services in accordance with updated pricing, the following language is hereby added to: SCHEDULE B, IMPLEMENTATION SERVICES AUTHORIZATION FORM, Exhibit A- Feasibility Report ~ EC03 . Location - South County Regional Water Treatment Plant (SCR WTP) . Feasibility Study reference- o Report Section 4 - Energy Conservation Measures o Appendix D - Drawings o Appendix M - Miscellaneous ECM Analvsis o ADpenclix N - :rv1isceJlaneous ECM Specs DescriDtion - Installaijon of a 1rid-Gonnecled 8~400 '<\7 2tt (I)C~) :2Tound-Ulounted nh(Jto\i'olt:,~ic svstem with 42-200 Watt (nominal) PV panels. one inverter and one recording tvpe kWh meter. The svstem will be a fixed tilt system mounted on galvanized steel framing and concrete. It 'Nil! be c011l1ected to the facility's electric system via an existing panel/breaker. SCHEDULE B, IMPLEMENTATION SERVICES AUTHORIZATION FORM, Exhibit B- Implementatiou Price; ECQ-1 & ECQ-2 & ECQ-3 Total Price: $351,212 $571.628.60 ~ Packet Page -1649- 9/27/2011 Item 16.C.2. ~ All other terms and conditions of the agreement shall,remain in force. sh~) GO-... . c:>,':J <:>: IN WITNESS WHEREOF, the Comp(\nl' and ttte Cush.mlrhave each, respectively, by an authorized person or agent, hereunder set their hands and seals on the date(s) indicated below. ATTEST: ~ By: Dated: Approved as to form and Legal sufficiency: ~ -D "\2) \r~~*:s~ JcnniferB. Whi,e r\ssisrant County Artorney CONSULTANT ~~ FPL Services, LL By: Title: Dated: Greg Hanlon VP& 7jlrer OWNER: BOARD OF COUNTY COMMISSIONERS COLLIER~LOEID~ By: & W. Fred W. Coyle, Chairman ~ ---- Packet Page -1650- 9/27/2011 Item 16.C.2. .~ EXHIBIT A-I Contract Amendment 3 "MASTER AGREEMENT FOR DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES (State Governmental entities)" This amendment, dated ,2011 to the referenced agreement shall be by and between the parties to the original agreement, by and between FPL Services, LLC, to be referred to as "Company", and Collier County, Florida, (to be referred to as "Customer"). .\J.II..""'.....'"._.w;,...,.." Statement of Understanding RE: Master Agreement for DEMAND SIDE MANAGEMENT AND ENERGY EFFICIENCY SERVICES (State Governmental entities)" I,'''' The following changes to the above referenced Agreement have been mutually agreed to by the Company and the Customer. The additions to the existing language in the Agrecmeilt are shown herein by underlining; deletions from the Agreement are shown by strilcetAroughs. In order to clarify the scope of services and resultant updated pricing, the following language is hereby modified in: SCHEDULE B, IMPLEMENTATION SERVICES AUTHORIZATION FORM, Exhibit A- Feasibility Report, change from installation to design as follows: ~ EC03 · Location - South County Regional Water Treatment Plant (SCR WTP) · Feasibility Study reference ~ o Report Section 4 - Energy Conservation Measures o Appendix D - Drawings o Appendix 1\1 - Miscellaneous ECM Analysis o Appendix N - [v1isceIlaneous EeM Specs · Description !;~=':~,:lot-iBfl-DesiQn uf d grid-col1ne:ted 8,JGO \),/att (DC) ground-moLli1t::d pl1010\,o]taic system with 42-200 \Van (nominal) PV panels, one invener 2nd on';:, recordlllg 'YP(' !;Wh meter. The system will be a fixed tilt system mounted on galvanized steel framing and concrete, It will be connected to the facility's electric system via an existing panel/breaker. ECO 3 Design Cost: $ 1 1.264.00 ECO 3 Total Cost: $160.084.02 ECO 3 Net pricinf; reduction: ($148,820.02) SCHEDULE B, IMPLEMENTATION SERVICES AUTHORIZA nON FORM, Exhibit B- Implementation Price is revised as follows; ECO-1 & ECO-2 & ECO-3 Total Price: $571,&28.60 1.4:22.808.58 ~ Packet Page -1651- 9/27/2011 Item 16.C.2. ~ All other terms and conditions of the agreement shall remain in force. IN WITNESS WHEREOF, the Company and the Customer have each, respectively, by an authorized person or agent, hereunder set their hands and seals on the date(s) indicated below. COMPANY ATTEST: FPL Services, LLC Corporate SecretarylWitness By: Dated: By: Title: Dated: ._.;,:....~......-.'"'*.',....".. '.........,... ATTEST: CUSTOMER: Dwight E. Brock, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: Fred W. Coyle, Chairman Approved as to form and Legal sufficiency: ~: I Jennifer B. White ~ /'"ssistant County Attorney c;;S(:;J ,---- Packet Page -1652-