R19-12811
2.
3
4
5
6
7
8
9
10
11
12
13,
14
15
16
17
18
19
201
21
22
23
24
25
26
27
28
RESOLUTION NO. R19-128
A RESOLUTION OF THE CITY OF BOYNTON
BEACH, FLORIDA AUTHORIZING THE CITY
MANAGER TO SIGN MASTER LIGHTING SERVICE
AGREEMENT WITH FPL ENERGY SERVICES, INC.
(FPLES) FOR LIGHTING ASSOCIATED WITH THE
SITE IMPROVEMENTS IN TOWN SQUARE; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City received three (3) quotes to provide public outreach and
informational services for the Central Seacrest Corridor - Phase 2 Neighborhood
Improvements project; and
WHEREAS, as part of the Town Square project it is necessary to install new street
lighting, parking lot lighting and walkway lighting as part of the site improvements; and
WHEREAS, under the FPL Energy Services' LED lighting Service agreement, all
design/engineering work; labor for installation for the 46 fixtures and the light poles, and
other materials noted in project scope, 10 -year product warranty and 10 -year maintenance
are included in the 120 -month service fees stated on the attached proposal; and
WHEREAS, since FPL owns and maintains 90% of all street lighting in the City,
in order to provide the flexibility to install security cameras, Wi-Fi hot spots, banners, and
accessories on the proposed light poles the City must execute an agreement with FPL
Energy Services, Inc. (FPLES); and
WHEREAS, upon recommendation of staff, the City Commission of the City of
Boynton Beach does hereby approve and authorize the City Manager to sign a Master
Lighting Service Agreement with FPL Energy Services, Inc., in the estimated annual
amount of $77,690.40.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
C:\Users\StanzioneT\App Data\Local\Microsoft\Windows\INetCache\IE\8RGLJJDT\Master_Lighting_Service_Agreement_with_F
PLES_(Town_Square)= _Reso docx
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed
as being true and correct and are hereby made a specific part of this Resolution upon
adoption hereof.
Section 2. The City Commission of the City of Boynton Beach, Florida, hereby
approves and authorizes the City Manager to sign a Master Lighting Service Agreement
with FPL Energy Services, Inc., in the estimated annual amount of $77,690.40, a copy of
which is attached hereto as Exhibit "A".
Section 3. That this Resolution shall become effective immediately.
PASSED AND ADOPTED this � day of November, 2019.
CITY OF BOYNTON BEACH, FLORIDA
YES NO
Mayor — Steven B. Grant
Vice Mayor — Justin Katz
Commissioner — Mack McCray ✓
Commissioner — Christina L. Romelus
Commissioner — Ty Penserga
ATTEST:
VOTE S�
C stal Gibson, MMC
City Clerk.
`04
(Corporate Seal)
C:\Users\StanzioneT\AppData\Local\MicrosRl\ ;d \l\l, tCache\IE\8RGLJJDT\Master_Lighting_Service_Agreement_with_F
PLES_(Town Square)_ _Reso.docx �""�"
SCHEDULE C
Statement of Work No. 1
Project Name: City Of Boynton Beach — Town Square
Service Location: 100 East Boynton Beach Blvd.
Bo nton Beach, FL. 33435
System Description:
FPL Energy Services, Inc.
Customer:
City of Boynton Beach
FPLES Representative:
Christian Pruitt
Customer
Representative:
Andrew Mack
Address:
6001 Village Blvd., West Palm
Beach, Florida 33407
Address:
100 E. Boynton Beach Blvd.
Boynton Beach, FL. 33435
Telephone:
(561) 386-5761
Telephone:
(561) 742-6201
Facsimile:
Facsimile:
Email:
Christian. Pruitt@fpl.com
Email:
MackA@bbfl.us
This Statement of Work ("SOW"), effective as of the 6'h of November, 2019 ("SOW Effective Date") is made subject to and
will be governed by certain Master Lighting Services Agreement ("Master Agreement") effective as of the Bch of November,
between Customer and FPL Energy Services, Inc. ("FPLES"), the terms of which are incorporated herein by reference.
Capitalized terms not otherwise defined herein have the meaning set forth in the Master Agreement.
If the Parties intend for a term of this SOW to modify, amend or supersede a term of the Master Agreement for Services to
be performed under this SOW, then the Parties must specifically reference in this SOW the specific term in the Master
Agreement that is being modified, amended or superseded and the intention of the Parties to modify, amend or supersede
such term by the SOW provision.
1. Scope and Specifications of System:
New Fixture
Description
Holophane Bern LED Fi)
Holophane West Liberty Cro
Holophane West Liberty Cro
Hapco Smart Trac Anchor Base Pole (no GFCI)
21 N/A
N/A
N/A
N/A
!nsor
wired accessories)
wired accessories)
id holes, wire, poles &
hand hole for each
Hapco Smart Trac Anchor Base Pole (Top GFCI) 17 N/A
Hapco Smart Trac Anchor Base Pole
Holophane Outdoor Pole S(
Hapco Smart Trac Large Locking Cam (fo
Hapco Smart Trac Small Locking Cam (foi
Provide Labor and install Concrete bases, ha
fixtures. Scope includes connecting at the
fixture location
(Bottom GFCI)
ng
9
N/A
N/A
N/A
!nsor
wired accessories)
wired accessories)
id holes, wire, poles &
hand hole for each
9
12
17
NIA
N/A
N/A
NIA
NIA
Wind Loads & Engineeri
NOTE: The City of Boynton Beach is responsible for required permits, conduit install, stub up, connecting to/providing
circuit breakers or lighting controls.
2 After removal, existing fixtures
N will be disposed of by FPLS, or
Elwill be retained by Customer at the following location:
3. FPLES Responsibilities for Construction and Installation of the System. FPLES shall provide
(i) Poles
(ii) Lighting fixtures
(iii) Mounting arms and brackets
(iv) Miscellaneous material
(v) Consumables
(vi) All required labor to install the System.
4. Service Fees
Monthly Service Fee: $6,474.20
5. Customer Responsibilities; The Customer shall:
(i) Provide reasonable access to each Service Location
(ii) Make appropriate Customer personnel available if requested by the Company to assist the Company in
performing Services
(iii) Provide access to electrical and water service
(iv) Provide on site laydown area storage containers.
(v) Provide on site location for dumpsters.
IN WITNESS WHEREOF, the Parties have executed this SOW as of the Effective Date.
FPL ENERGY S ES, INC.
By:
Name: Troy Rice
Title: VP & GM
CITY OF BOYNTON BEACH
By , ..�
Name: T,nri T,aVPrri PrP
Title: City Manager
SOW EXHIBIT 1
Equipment Warranties
10 -year Equipment Warranty is included in the Service plan.
Prepared by and after recording
Return to:
FPL Energy Services, Inc.
Attn: Rex Noble
6001 Village Blvd.
West Palm Beach, Florida
33407
SOW EXHIBIT 2
FARFMFNT
KNOW ALL MEN BY THESE PRESENTS that , whose address for notices is
("Grantor") in consideration of the payment of $1.00 and other good and
valuable consideration, the adequacy and receipt of which is hereby acknowledged, grant and give to FPL Energy Services, Inc.,
a Florida corporation, its affiliates, licensees, successors, and assigns, whose address for notices is 6001 Village Blvd., West Palm
Beach, Florida 33407 (' FPLES"), a non-exclusive easement forever for the construction, operation, maintenance, repair, and
replacement of lighting facilities (including poles, cables, wires, conduits, lamps, lenses, photocells, luminaires and appurtenant
equipment) to be installed from time to time, with the right to reconstruct, inspect, alter, improve, add to, enlarge, change the nature
or physical characteristics and the size of, remove, and relocate such facilities or any of them upon, across, over, and under an
easement described as follows:
See attached Exhibit "A" ("Easement Area");
Together with all rights and privileges necessary or convenient for the full enjoyment or the use thereof for the herein described
purposes, including, but not limited to, the right of ingress and egress to the Easement Area at all times over the adjoining land of
Grantor; the right to clear the land and keep it cleared of all trees, undergrowth and other obstructions within the Easement Area;
the right to trim and cut and keep trimmed and cut all dead, weak, leaning or dangerous trees or limbs outside of the Easement
Area, which might interfere with or fall upon the lighting facilities; with the understanding that the rights granted hereunder shall not
unreasonably interfere with Grantors use of the Easement Area. Grantor further grants to FPLES the right to utilize the Easement
Area and any adjoining real property owned by Grantor for storage and laydown of materials during the installation of the lighting
facilities.
By the execution hereof, Grantor covenants that it has the right to convey this Easement and that FPLES and its successors and
assigns shall have quiet and peaceful possession, use and enjoyment of this Easement and the rights granted hereby.
[Signature appears on following page]
IN WITNESS WHEREOF, Grantor has executed this Easement this day of
20
Signed, sealed and delivered
in the presence of:
Signature
Print Name:
Signature:
Print Name:
STATE OF FLORIDA )
ss:
COUNTY OF )
Grantor:
[INSERT NAME OF GRANTOR]
By:
Its:
Print Name:
ACKNOWLEDGMENT
On this day of , 20 before me, the undersigned notary
public, personally appeared , as of
'personally known to me to be the person who subscribed to the foregoing instrument and
acknowledged that he/she/they executed the same on behalf of the State of
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
NOTARY PUBLIC, STATE OF FLORIDA
Print name:
Commission No.:
My Commission Expires:
eaAy;uawase3;o uol; ljosaa Ie a1
;uawase3 0l
„`d„ ilGIHX3
SOW EXHIBIT 3
Certificate of Authority & Incumbency
Agreement: Statement of Work No. 1 ("SOW"), effective November 6,
2019 between Customer and FPL Energy Services, Inc.
Customer: City of Boynton Beach
I hereby certify that I am the duly elected or appointed, qualified and acting ❑ Secretary or ❑ Assistant Secretary or ❑ Other
Officer of the entity named above (the "Entity"), I am charged with maintaining records, minutes, and the seal (if applicable) of the
Entity, and I hereby further certify as follows:
1. The Entity is a ❑ corporation or ❑ limited liability company or ❑ partnership duly organized and validly existing and
in good standing under the laws of the State of
2. The Entity's execution and delivery of above -referenced agreement, whether executed now or in the future, together
with all related statements of work, schedules, exhibits, certificates, instruments and documents as they may be
amended from time to time (collectively, "Transaction Documents") and the Entity's entering into the transactions
contemplated under the Transaction Documents have been duly authorized by appropriate action of the Entity.
3. Pursuant to ❑ the By-laws and Certificate of Incorporation or ❑ the Operating Agreement or Limited Liability Company
Agreement, By-laws and/or Certificate of Formation or Organization or ❑ the Partnership Agreement, and any other
appropriate documents of the Entity as may be applicable ("Entity Documents"), (1) each person named below has
been properly designated and appointed to the office indicated below, and that person continues to hold the office at
this time, and the signature appearing opposite such person's name is the genuine signature of such authorized person;
and (2) each person designated to serve in the above -entitled capacity has been given sufficient authority to act on
behalf of, and to bind the Entity with respect to the execution and delivery of the Transaction Documents, and each
Transaction Document will constitute a valid, legal, binding and enforceable obligation of the Entity upon execution by
each such person:
Name of Authorized Person Title of Signature of
Executing Transaction Documents Authorized Person Authorized Person
(OFFICERS ONLY)
Pursuant to Entity Documents, I have the power and authority to execute this Certificate on behalf of the Entity, and I have
so executed this Certificate and set the seal of the Entity, if applicable, on the 18 day of November , 20 19
**BY:�.C_
PRINT NAME: Lori LaVerriere
TITLE: ❑ Secretary ❑ Assistant Secretary
[N Other Officer City Manager
**NOTE: The person signing this certificate cannot be the same person
CITY ATTORNEY
MASTER LIGHTING SERVICES AGREEMENT
This Master Lighting Services Agreement ("Master Agreement") is made and entered into on this 6 1 day of November, 2019 ("Effective
Date"), by and between FPL Energy Services, Inc. ("FPLES"), a Florida corporation, license No. CGC062174, and City of Boynton Beach
("Customer"), a city in Palm Beach County. FPLES and Customer are collectively referred to as the "Parties" and individually referred to as a
"Party"
1.0 Definitions.
"Agreement" means this Master Agreement together with a
Statement of Work that cross-references or incorporates this Master
Agreement.
"Change" means a request by Customer or otherwise permitted
under Section 14 that changes the Services or the applicable
System, which may consist of modifications or additions to, or
deletions from, any Services or System to be performed or provided
by FPLES under the Agreement.
"Change Order" means an order documenting a Change.
"Confidential Information" means all non-public information which
is disclosed to Customer or 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 Customer
(after due inquiry) to be prohibited from disclosing such information
pursuant to a legal, contractual or fiduciary obligation to FPLES; or
(c) information which Customer can demonstrate was legally in its
possession prior to disclosure by FPLES.
"Delayed Payment Rate" means a rate of interest equal to one -and -
one -half percent (1-1/2%) per month, which applies to any unpaid
amounts which Customer may become obligated to pay to FPLES
under the terms of the Agreement, but in no event more than the
maximum legal rate.
"Dispute" means any dispute or disagreement that may arise
between the Parties with respect to the interpretation of any
provision of the Agreement, the performance of either Party under
the Agreement, or any other matter that is in dispute between the
Parties related to the Agreement.
"Early Termination Fee" means the sum of (a) all unpaid Service
Fees and other amounts payable prior to the effective date of the
termination, (b) the net present value of all Service Fees payable
from and after the effective date of the termination for the remainder
of the Service Term, calculated at a per annum interest rate equal
the lesser of 3% or an interest rate equivalent to that of a U.S.
Treasury constant maturity obligation (as reported by the U.S.
Treasury) that would have a repayment term equal to the remaining
Service Term, all as reasonably determined by FPLES, (c)
reasonable removal costs of the System, and (d) all applicable
taxes. In lieu of removal costs of the System, the Parties may
mutually agree to Customer's purchase of the System at a price
which represents the fair market value of the System at the
expiration of the then current Service Term plus applicable taxes.
119790526_4
"Event of Default" has the meaning set forth in Section 15.1.
"Equipment" means the major equipment components delivered to
Customer by FPLES or installed by FPLES at the Service Location,
which may include and are limited to light fixtures, brackets, poles,
and lamps. The actual scope of Equipment shall be as stated in the
applicable SOW.
"Equipment Warranty Period" has the meaning set forth in Section
5.1.1.
"Final Acceptance Date" shall have the meaning set forth in
Section 3.4.
"Force Majeure Event" means an event which is beyond the
reasonable control of, and not a result of the fault or negligence of,
the affected Party, including but not limited to, acts of God, fire,
flood, windstorm, war, terrorism, epidemics, quarantine regulation,
sabotage, revolution, acts of any government or governmental
agency, strikes or other labor difficulty, insurrection, riot,
telecommunications failures, unusually severe weather conditions
by comparison with the ten-year county average, to the extent that
performance of any such obligation is prevented or delayed by any
such cause, existing or future.
"Guarantor" shall have the meaning set forth in Section 15.1.
"Minor Deficiencies" means, with respect to a particular System
which has been determined by FPLES to be Substantially
Complete, any construction, installation or other Services identified
in a Punch List which do not materially affect the ability of the
System to properly operate and function in accordance with its
intended purpose pursuant to the Agreement and the terms and
specifications contained in the applicable SOW.
"Notice of Substantial Completion" means a written notice issued
by FPLES to notify Customer of the Substantial Completion of the
installation of a System.
"Punch List" means, with respect to a particular System, a list of
Minor Deficiencies provided by Customer to FPLES prior to or along
with Customer's execution of a Notice of Substantial Completion.
"Service Fees" means the Services fees set forth in the applicable
SOW.
"Service Location" means a facility legally owned or operated by
Customer at which Customer desires FPLES to perform Services.
"Service Term" has the meaning set forth in Section 2.
"Service Term Commencement Date" means the first day of the
calendar month following the Final Acceptance Date of the
applicable System (or, if the Final Acceptance Date is the first of a
calendar month, the first day of such month).
"Services" means the services provided or proposed to be provided
by FPLES to construct, install, and maintain a System at specified
Service Locations in accordance with the terms of the applicable
SOW.
"SOW Effective Date" has the meaning set forth in Section 2.0
"Statement of Work" or "SOW" means the scope of Services set
forth in a statement of work, the form of which is set forth in
Schedule C (Form of Statement of Work), to be performed by
FPLES at the identified Service Locations.
"Subcontractor" means a third -party subcontractor who is retained
by FPLES to perform installation or construction work or other
services at Service Location(s) pursuant to a SOW.
"Substantial Completion" or "Substantially Complete" means,
with respect to a particular System, that level of construction and
implementation which renders the System operational, regardless
of whether the System has one or more Minor Deficiencies.
"Substantial Completion Date" has the meaning set forth in
Section 3.1.
"Supplies" means the non -major components of the System
provided Customer by FPLES or installed by FPLES at the Service
Location, which may include but are not limited to electrical wiring,
electrical fittings, hand holes, conduit, footings, nuts, and bolts. The
actual scope of Supplies shall be as stated in the applicable SOW.
"System" means the Equipment and Supplies installed by FPLES
at the Service Location, as stated in the applicable SOW.
2.0 Scope and Term. Subject to the terms and conditions of
this Master Agreement, FPLES agrees to furnish to Customer, and
Customer agrees to purchase and receive from FPLES, the
Services at Customer's specified Service Locations pursuant to the
applicable SOW. The term of this Master Agreement shall
commence on the Effective Date and shall continue until terminated
be either party in writing. The term of each Agreement shall
commence upon the effective date set forth in each applicable SOW
("SOW Effective Date") and shall continue in effect for a period of
ten (10) years from the Service Term Commencement Date ("Initial
Service Term"). Each Agreement may be renewed by mutual
agreement between the parties (each a "Renewal Service Term",
and collectively with the Initial Service Term, the "Service Term").
Each Agreement is a separate an independent agreement between
the Parties incorporating the terms of this Master Agreement.
3.0 Substantial Completion; Final Acceptance,
Maintenance. Training and Payment.
3.1 Inspections and Notice of Substantial Completion. During the
Term, Customer shall have the right to conduct reasonable
inspections of the work of FPLES or any Subcontractor at any time
upon reasonable prior notice. Upon Substantial Completion of
construction and installation of the applicable System in accordance
with the requirements of the applicable SOW, FPLES shall deliver
to Customer a Notice of Substantial Completion in the form set forth
in Schedule A. Within the (10) days following receipt by Customer
of a Notice of Substantial Completion, (i) Customer shall conduct an
inspection, and either (ii) (a) Customer shall complete a Punch List
and approve the Notice of Substantial Completion by delivering to
119790526_4
FPLES an executed and completed Notice of Substantial
Completion, or (ii) (b) Customer shall provide FPLES written notice
of any potential material defects or deficiencies of the System. If
Customer fails to deliver such notice in accordance herewith within
ten (10) days following Customer's receipt of a Notice of Substantial
Completion, Customer shall be deemed to have approved the
Notice of Substantial Completion without any Punch List items. The
date on which Customer approves, or is deemed to have approved
the Notice of Substantial Completion for the System shall be the
"Substantial Completion Date" for such System.
3.2 Correction of Material Defects or Deficiencies. Following
FPLES's receipt of a timely notice by Customer of any potential
defect or deficiency of the System pursuant to Section 3.1 (ii)(b)
above, FPLES shall determine in the reasonable exercise of its
professional judgment whether the alleged defect or deficiency is
material. If FPLES determines that a material defect or deficiency
exists, then FPLES shall cause any necessary corrections to be
made to remedy the material defect or deficiency. Thereafter,
FPLES shall deliver a new Notice of Substantial Completion, which
will restart the process of Section 3.1. Any Dispute as to the
existence of a material defect or deficiency shall be handled
pursuant to Section 17.0 of the Master Agreement.
3.3 Correction of Punch List Items. Following FPLES's timely receipt
of notice by Customer of any Punch List, FPLES shall, within a
reasonable period of time, correct any Minor Deficiencies identified
in the Punch List which FPLES determines, in the reasonable
exercise of its professional judgment, are necessary or appropriate
for completion of the System. Any Dispute as to the existence of any
Minor Deficiencies shall be handled pursuant to Section 17.0 of the
Master Agreement.
3.4 Notice of Final Completion. Following approval or deemed
approval of the Notice of Substantial Completion by Customer, and
the correction of any Minor Deficiencies identified in the Punch List
by FPLES, FPLES shall deliver to Customer a Certificate of Final
Acceptance, in the form set forth in Schedule B, acknowledging
Customer's irrevocable acceptance of the applicable System and
any adjustments to the Service Fees as permitted under Section
3.8. If the System is found to be complete, Customer shall execute
and return to FPLES a Certificate of Final Acceptance within five (5)
business days following receipt by Customer of the Certificate of
Final Acceptance. If, upon inspection by Customer, the System is
not found to be complete, then Customer shall so notify FPLES
within such five (5) business day period, and FPLES shall promptly
perform any necessary corrections and repairs. When FPLES has
completed such corrections and repairs, it shall again issue a
Certificate of Final Acceptance to Customer, and the foregoing
procedure shall be repeated until such time as Customer shall
execute and return the Certificate of Final Acceptance; provided,
however, that a failure of Customer to respond altogether within any
such five (5) business day period following the receipt of a the
Certificate of Final Acceptance from FPLES shall be deemed
approval by Customer of the Certificate of Final Acceptance. The
date on which Customer approves, or is deemed to have approved
the Certificate of Final Acceptance for the System shall be the Final
Acceptance Date for such System ("Final Acceptance Date").
3.5 Payment Unconditional Upon Final Acceptance. Customer
acknowledges that upon the Final Acceptance Date, except with
respect to FPLES's then unperformed continuing Services
obligations during the Service Term, Customer's obligation to pay
the Service Fees with respect to the System, is at all times 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. Customer's sole recourse for
FPLES's failure to perform any continuing Services obligations
under this Master Agreement is limited to the exercise Customer's
rights under Section 15.0 (Default and Remedies).
3.6 System Maintenance; Alterations. During the Service Term and
at its expense, FPLES shall maintain the applicable System in good
operating condition. FPLES' maintenance responsibilities do not
include (i) repair of damage to the System due to improper usage,
acts or omissions of Customer or third persons (other than FPLES
or Subcontractors) or other risk of loss or damage for which
Customer is responsible under this Master Agreement, (ii) any
maintenance, repair, or adjustments to the System necessitated by
a Casualty as defined in Section 8.0, or (iii) manufacturer's warranty
obligations pursuant to Section 5.1.1. Customer shall notify FPLES
of any required repair of the System within 5 days of its actual
knowledge thereof and, if such repair is Customer's responsibility
under this Master Agreement, perform such repair in accordance
with FPLES' written instructions or, at FPLES' election, reimburse
FPLES for the cost of the repair. If such repair is FPLES's
responsibility under this Master Agreement, FPLES shall
commence repair within five (5) days of its receipt of written notice
from the Customer, and complete such repair within a commercially
reasonable period of time not to exceed thirty (30) days from the
date of Customer's notice; provided, however, that if such repair
cannot be completed with commercially reasonable efforts within
such period, the period shall be extended to forty-five (45) days or
as otherwise agreed to between the Parties in writing. All
replacements of and alterations or additions to the System by either
Party shall become part of the System. The Customer shall not
move, modify, remove, adjust, alter or change in any material way
the System, or any part thereof, during the term of the Agreement,
without prior written direction or approval by FPLES, except in the
event of an occurrence reasonably deemed by the Customer or
FPLES to constitute a bona fide emergency.
3.7 Training. If set forth in the applicable SOW, FPLES shall provide
on-site training for a reasonable number of Customer's operating
personnel with respect to the applicable completed System, and
Customer shall assist in such training, all as more fully specified in
the SOW. Unless otherwise provided in the SOW, such training shall
be conducted with respect to the System following the Substantial
Completion Date of the entire System.
3.8 Service Fees. Upon completion of the applicable System, the
Service Fees will be adjusted as applicable based on the final
System cost, if modified by approved Change Orders (as defined
below). The applicable Service Fee shall begin on the Service Term
Commencement Date and shall be due and payable by Customer
in advance on the first day of each payment period thereafter.
Service Fees, plus applicable taxes due from Customer pursuant to
Section 12.3, are due on the same day of each consecutive
payment period for the duration of the Service Term. In addition,
Customer shall pay an interim Service Fee from the Final
Acceptance Date through the Service Term Commencement Date
equal to a pro rata portion of the periodic Service Fee calculated on
a 30 -day month basis, which amount shall be due and payable with
the first periodic Service Fee. Whenever any Service Fee or any
other sum due hereunder is not paid when due, Customer shall pay
to FPLES, on the next due date, a late charge equal to five percent
(5%) of the amount of any late payment (but not less than $25), but
only to the extent permitted by law. Pursuant to Section 12.3,
FPLES may from time to time adjust the Service Fees to reflect any
increases following the SOW Effective Date in personal property tax
or other applicable taxes (excluding income taxes) due from
Customer pursuant to Section 12.3.
4.0 Early Termination For Convenience; End of Term
Options.
119790526_4
4.1 Early Termination for Convenience by Customer. Provided no
default has occurred and is continuing, and subject to indefeasible
payment of the Early Termination Fee without set-off or withholding,
Customer may, upon 90 days written notice to FPLES, terminate the
Service Term for its convenience at any time. Customer's Service
Fee obligations shall remain in full force and effect until FPLES has
received the Early Termination Fee.
4.2 Early Termination for Convenience by FPLES. Upon thirty (30)
days written notice to Customer, FPLES may terminate this Master
Agreement and any applicable Agreements for its convenience (a)
if any regulatory agency promulgates any rule or order which in
effect or application substantially impedes FPLES from fulfilling its
obligations hereunder, or materially and adversely affects FPLES'
ability to provide the applicable System under the terms and
conditions of this Master Agreement, or (b) FPLES, in its sole
discretion, makes a commercial decision to generally discontinue
the commercial lighting as a service line of business. In the event
of a termination by FPLES pursuant to subsections (a) or (b) above,
Customer shall only be obligated to pay FPLES all unpaid Service
Fees and other amounts payable prior to the effective date of the
termination, including all applicable taxes, and FPLES shall be liable
and responsible for removal of the System (unless the Parties
mutually agree upon Customer's purchase of the System).
4.3 Expiration of Service Term. Upon the expiration of the Service
Term, Customer shall be obligated to pay FPLES (a) Except to the
extent disputed due to an Event of Default by FPLES, all unpaid
Service Fees and other amounts payable prior to the effective date
of the expiration, and (b) all applicable taxes.
5.0 Warranty and Limitation of Liability.
5.1 Warranty.
5.1.1 Equipment Warranties. The Equipment to be installed
pursuant to the applicable SOW shall be protected by the retail
seller and/or original equipment manufacturer written warranties
covering parts and equipment performance as specified in and for
the warranty periods set forth in Exhibit 1 of the applicable SOW
("Equipment Warranty Period"). FPLES shall pursue rights and
remedies against the manufacturer and each retail seller of the
Equipment under such warranties in the event of Equipment
malfunction, improper or defective function, or defects in parts,
workmanship, or performance. FPLES shall be responsible for
managing all warranty activity during the Equipment Warranty
Period.
5.1.2 Labor Warranties. FPLES warrants for a period of one (1) year
following the Substantial Completion Date of the applicable System
and for a period of one (1) year following any repair or maintenance
of the System, that all Services performed under the Agreement
comply with customary, reasonable and prudent standards of care
in accordance with standards in the industry and are performed in a
professional manner and consistent with any specifications and
standards as may be set forth in the applicable SOW. Customer
shall promptly notify FPLES in writing of the discovery during the
applicable warranty period of any claim against FPLES's warranties
under this Section 5.1.2. As Customer's sole and exclusive remedy
for any such claim against FPLES's warranties, FPLES shall, at its
own cost and expense, as soon as reasonably possible following
FPLES's receipt of notice of any claim against any warranty or
FPLES's otherwise obtaining knowledge of any claim of warranty,
cause the repair of defective workmanship and/or provide at
FPLES's expense any changes, modifications or additions to the
Services which FPLES determines necessary due to a failure to
perform any Services hereunder in accordance with the standards
set forth in this Section 5.1.2. All costs incidental to FPLES's rework
and testing thereof shall be borne by FPLES. FPLES shall use
commercially reasonable efforts to perform such remedial actions
and make any tests in a timely manner and at such times so as to
minimize disruption of normal operations at Customer's Service
Location. The liabilities and obligations of FPLES under Section
5.1.2 do not extend to any repairs, adjustments, alterations,
replacements or maintenance which were not performed by FPLES
or approved in writing by FPLES, or result from Customer's failure
to comply with Section 3.6 or from Customer's failure to act in
accordance with the training provided by FPLES to Customer's
personnel.
5.1.3 NO IMPLIED WARRANTIES. EXCEPT AS EXPRESSLY
PROVIDED IN THIS MASTER AGREEMENT, FPLES MAKES NO
WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED,
CONCERNING THE SYSTEM, AND FPLES DISCLAIMS ANY
WARRANTY IMPLIED BY LAW, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF
CUSTOM OR USAGE. FPLES MAKES NO WARRANTIES OR
GUARANTEES OF ANY NATURE WHATSOEVER CONCERNING
THE ACTUAL REDUCTION IN THE CUSTOMER'S ENERGY
USAGE AS A RESULT OF THE INSTALLATION AND OPERATION
OF THE SYSTEM. Any estimated savings provided by FPLES in
connection with this Master Agreement represent FPLES'
reasonable expectation of the savings Customer may be able to
achieve through the installation and operation of the System in
accordance with its specifications. Estimated savings are provided
for information purposes only and are not guaranteed in any way.
Customer acknowledges and agrees that actual savings may
deviate based on Customer's actual usage patterns and operation
as well as other extrinsic factors.
5.2 Limitations of Liability. Except with respect to indemnity
obligations under this Master Agreement related to third party
claims, neither Party shall be liable to the other Party for special,
indirect, incidental, exemplary, consequential or punitive damages,
including lost profits, even if the Party has been advised that such
damages are possible. Except with respect to indemnity obligations
under this Master Agreement related to third party claims, FPLES's
aggregate liability for direct damages shall not exceed ten percent
(10%) of the fees paid or payable by Customer for the Services
giving rise to such damages.
6.0 Access and Information.
6.1 Customer Cooperation. Customer shall use reasonable efforts
to assist FPLES in performing the Services contemplated by this
Master Agreement and each applicable Agreement, including
providing information reasonably requested by FPLES concerning
the Service Location(s), making appropriate Customer personnel
available if requested by FPLES to assist FPLES in performing such
Services, and taking any other actions FPLES may reasonably
request from time to time to achieve the purposes and intent of this
Master Agreement and each applicable Agreement.
6.2 Access to Service Locations. Upon the request of FPLES,
Customer shall provide FPLES and its Subcontractors with
reasonable access to the Service Location(s) to enable FPLES to
perform all Services hereunder. Customer shall provide FPLES with
adequate storage and laydown areas at the Service Location(s), as
applicable, during the installation of the applicable System and shall
make available any construction power and other utilities required
by FPLES and its Subcontractors to perform the Services. FPLES
and its Subcontractors shall observe all of Customer's safety and
security procedures at the Service Location(s), to the extent made
119790526_4
known to FPLES, and shall not unreasonably disturb or interrupt
Customer's operations at such location(s).
7.0 Documents and Data. All information, regardless of the
form in which it is communicated or maintained (whether oral,
written, electronic or visual) and whether prepared by FPLES or
otherwise, which is disclosed to Customer including, without
limitation, all SOW's, records, reports, analyses, notes,
memoranda, documentation, data, specifications, diagrams,
statistics, systems, manuals, business plans, operational
information or practices, processes (whether or not patented,
patentable or reduced to practice), customer lists, contractual
arrangements with, and information about, FPLES's suppliers,
distributors and Subcontractors furnished or to be furnished by
FPLES pursuant to this Master Agreement is FPLES Confidential
Information, shall remain the sole and exclusive property of FPLES
and may only be used by Customer for the operation, maintenance,
repair or alteration of the applicable System, to the extent permitted
under this Master Agreement. Customer shall not acquire any rights
or interest with respect to FPLES's or its Subcontractors' proprietary
technology, know-how, processes or any other intellectual property
that may be used in connection with the Services or the System.
For the avoidance of doubt, ownership of the System is governed
by Section 12.0. Customer shall not make any public statements or
publish or circulate any materials that reference the name of FPLES
or its affiliates without the prior written consent of FPLES.
8.0 Risk of Loss. Customer shall bear all risk of loss, damage
or theft of any kind with respect to all or any part of a System located
at a Service Location ("Casualty"), and Customer shall indemnify
and pay FPLES for the repair or replacement of any System or
component subject to Casualty, unless such Casualty is caused by
FPLES' or a Subcontractor's willful misconduct or gross negligence.
Any such Casualty directly caused by FPLES or its Subcontractor
shall be the responsibility of FPLES. Customer shall notify FPLES
in writing of any Casualty within 5 days of its actual knowledge
thereof and, if Customer is responsible for such Casualty under this
Master Agreement, Customer shall at the option of FPLES: (a)
permit FPLES to repair the System, at Customer's cost, to good
repair, condition and working order; (b) place the System in good
repair, condition and working order; (c) replace the System or
System component with a like System or System component in a
condition acceptable to FPLES and transfer clear title to or a right to
use, as appropriate, such System or System component to FPLES
or its assignee, whereupon such System or System component
shall be subject to this Master Agreement and be deemed the
System for purposes hereof; or (d) on the due date for the next
Service Fee or upon the earlier of the expiration of the applicable
SOW, pay to FPLES the Early Termination Fee or, with respect to a
System component, such portion of the Early Termination Fee that
FPLES reasonably allocates to such component. FPLES shall apply
the proceeds of a Casualty received by FPLES toward the
replacement or repair of the System or the obligations of Customer
hereunder. If FPLES elects to repair or replace such Casualty, it
shall do so within the time periods specified in Section 3.6, and
Customer shall, within thirty (30) days following demand, pay
FPLES' reasonable charges therefor. The failure of the System to
operate in part or in whole due to a cause for which Customer is
responsible under this Master Agreement shall not release
Customer of any of its obligations hereunder or entitle Customer to
any Service Fee set-off, abatement or withholding.
9.0 Insurance.
9.1 Insurance to Be Maintained by FPLES. At any time that FPLES
is performing Services under this Master Agreement at any Service
Location, FPLES shall keep and maintain the following minimum
insurance coverages with insurance companies rated "A-, VII" or
higher by A.M. Best's Key Rating Guide that are licensed to do
business in the State where the Services are performed or to be
performed:
9.1.1 Statutory Workers' Compensation Insurance: Workers'
compensation insurance as required by Applicable Laws where the
Services are performed;
9.1.2 Employer's liability Insurance: Employer's liability
insurance with a limit of liability of (i) one million dollars ($1,000,000)
for bodily injury per accident, (ii) One Million Dollars ($1,000,000)
for bodily injury by disease per policy and (iii) One Million Dollars
($1,000,000) for bodily injury by disease per employee;
9.1.3 Commercial General Liability Insurance: Commercial general
liability insurance with a limit of one million dollars ($1,000,000) per
occurrence for bodily injury, death and/or property damage;
9.1.4 Automobile Liability Insurance: Automobile liability insurance,
which shall apply to all owned, non -owned, leased and hired
automobiles in the amount of one million dollars ($1,000,000)
combined single limit per occurrence for bodily injury and property
damage for each accident.
FPLES shall provide Customer with insurance certificates which
provide evidence of the insurance coverage under this Master
Agreement. At least thirty (30) days prior written notice of
cancellation or non -renewal of the above -noted insurance, with the
exception of ten (10) days for nonpayment of premiums, shall be
provided by FPLES to Customer. FPLES shall include Customer on
all the policies shown in this Section 9.1 as an "Additional Insured'
(with the exception of policies listed in Subsection (9.1.1)) for any
liability or damage arising out of the performance of the obligations
assumed by FPLES under this Master Agreement. Any coverage
provided under such policies to Customer shall be primary to any
other coverage available to Customer. Notwithstanding, the failure
to provide certificates or add Customer as an additional insured in
accordance with this Section shall not release FPLES in any manner
of any liability established under this Master Agreement.
9.2 Self -Insurance. Notwithstanding any other requirement set forth
in this Section 9, FPLES may sell -insure (the "Self -Insurance") to
the extent FPLES or an affiliate of FPLES (the "Self Insurer")
maintains a self-insurance program under which FPLES may be
insured; provided that: (a) the Self -Insurer's Credit Rating is rated at
BBB- or better, by Standard & Poor's, and Baa3 or better by
Moody's, and (b) FPLES has provided Customer with notice of its
election to self -insure pursuant to this Section 9. For any period of
time that the Self -Insurer is unrated by Standard & Poor's or the
Self -Insurer's credit rating is rated at less than Investment Grade,
FPLES shall comply with the insurance requirements applicable to
it under this Section 9. FPLES shall provide Customer with letters of
Self -Insurance to evidence the insurance coverage under this
Master Agreement
9.3. Insurance to Be Maintained by Customer. During and
throughout the term of each Agreement and until all amounts
payable to FPLES pursuant to each Agreement are paid in full,
Customer shall maintain, as of the date of installation of each
System, the following minimum insurance coverages with insurance
companies rated "A-, VII" or higher by A.M. Best's Key Rating Guide
that are licensed to do business in the State where the Services are
performed or to be performed:
9.3.1 Statutory Workers' Compensation Insurance: Workers'
compensation insurance as required by Applicable Laws where the
Services are performed;
119790526_4
9.3.2 Employer's Liability Insurance: Employer's liability insurance
with a limit of liability of (i) one million dollars ($1,000,000) for bodily
injury per accident, (ii) One Million Dollars ($1,000,000) for bodily
injury by disease per policy and (iii) One Million Dollars ($1,000,000)
for bodily injury by disease per employee;
9.3.3 General Liability Insurance: General liability insurance one
million dollars ($1,000,000) combined single limit per occurrence for
bodily injury, death and/or property damage for each occurrence;
9.3.4 Automobile Liability Insurance: Automobile liability insurance,
which shall apply to all owned, non -owned, leased and hired
automobiles in the amount of one million dollars ($1,000,000)
combined single limit per occurrence for bodily injury and property
damage for each accident; and
9.3.5 Property Insurance: All -Risk property insurance, covering
physical damage, on the applicable System on a replacement cost
basis.
9.4 Customer shall provide FPLES with insurance certificates which
provide evidence of the insurance coverage under this Master
Agreement. At least thirty (30) days prior written notice of
cancellation or non -renewal of the above -noted insurance, with the
exception of ten (10) days for nonpayment of premiums, shall be
provided by Customer to FPLES. Customer shall include FPLES
and its assigns on all the policies shown in this Section 9.3 as an
"Additional Insured" (with the exception of policies listed in
Subsection 9.3.1 and 9.3.5) for any liability or damage arising out of
the performance of the obligations assumed by Customer under this
Master Agreement and "Lender/Lessor Loss Payee" for the policy
listed in Subsection 9.3.5. Any coverage provided under these
policies to FPLES shall be primary to any other coverage available
to FPLES. Customer hereby releases and waives, and will cause its
insurers to release and waive, any right of subrogation against
FPLES and each of its Subcontractors. Notwithstanding, the failure
to provide certificates or add FPLES as an additional insured or
provide a waiver of subrogation in accordance with this Section shall
not release Customer in any manner of any liability established
under this Master Agreement.
10.0 Indemnification.
10.1 Indemnity Obligations. FPLES shall indemnify, defend and hold
Customer, its officers, agents, and employees harmless against any
and all claims, actions, proceedings, injuries, deaths, expenses,
damages, and liabilities, including reasonable attorney's fees
("Claims"), by third parties to the extent resulting from the
negligence of or material breach of the Agreement by FPLES, its
employees, or Subcontractors. For the avoidance of doubt,
FPLES's indemnity obligations under this Section shall not apply
with respect to any third party claims in connection with FPLES's
obligations under Section 3.6 or Section 8, except to the extent that
the claim is related to the negligence of FPLES or its Subcontractors
(without respect to the deadlines set forth in Section 3.6) in the
actual performance of maintenance Services. CUSTOMER
ACKNOWLEDGES SOLE RESPONSIBILITY FOR THE SAFETY
OF THE SERVICE LOCATION AND ACKNOWLEDGES THAT
FPLES NEITHER HAS, NOR ASSUMES, ANY OBLIGATION TO
ENSURE THE SERVICE LOCATION'S SAFETY. Customer shall
indemnify, defend and hold FPLES, its officers, agents, employees
and assigns harmless against any and all Claims arising in
connection with the applicable System or use thereof except to the
extent of FPLES's indemnity obligations hereunder. The Party
obligated to indemnify under this Section 10 is hereinafter referred
to as the "Indemnitor" and the Party entitled to indemnification
under this Section 10 is hereinafter referred to as an "Indemnitee".
10.2 Defense of Claims. Indemnitor shall have the right to defend
Indemnitee by counsel (including insurance counsel) of Indemnitor's
selection reasonably satisfactory to Indemnitee, with respect to any
Claims; provided, such counsel shall communicate and correspond
with Indemnitee's designee regarding the status and progress of the
case. Indemnitee shall give Indemnitor prompt written notice of any
asserted Claims indemnified against hereunder and shall
cooperate, at the Indemnitor's cost, with Indemnitor in the defense
of any such Claims; provided that the failure to give timely notice
shall not excuse Indemnitor's obligations other than to the extent of
any resulting prejudice. Indemnitor shall not settle any such Claims
without prior written consent of Indemnitee. Notwithstanding
anything to the contrary above, Indemnitee reserves the right to
retain counsel, at Indemnitee's expense, and to participate in the
defense and settlement of any Claim.
10.3 Survival. The obligations of the respective Parties under this
Section 10 shall survive the termination or expiration of this Master
Agreement and each applicable Agreement with respect to any
Claims or liabilities accruing prior to such termination or expiration.
10.4 Remedies. The express remedies of this Section 10 are the
sole and exclusive obligations of Indemnitor and the sole and
exclusive remedies of the Indemnitee with respect to any claims
within the scope of the indemnities set forth in Section 10.1.
11.0 Hazardous Materials. Except to the extent of hazardous
materials brought to the Service Location by FPLES, 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 FPLES's performance of the
Services under this Master Agreement. If, during the course of
performing the Services, FPLES becomes aware of any such
hazardous materials or hazardous condition, FPLES shall promptly
report such matter to Customer before disturbing (or further
disturbing) such materials or condition. Work in the affected areas
shall be resumed by FPLES only upon the written notice from
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. Customer shall indemnify,
defend and hold harmless FPLES and its Subcontractors with
respect to any liability, cost or expense of whatever nature incurred
as a result of any such hazardous materials or hazardous condition.
12.0 Title, Security Interest and Taxes.
12.1 Title. This Master Agreement and each applicable Agreement
is a service agreement and does not constitute a capital lease or
sale of the applicable System. Each System is, and shall at all times
be and remain the sole and exclusive property of FPLES, and
Customer shall have no right, title or interest therein or thereto,
except as to the use thereof subject to the terms and conditions of
this Master Agreement. CUSTOMER ACKNOWLEDGES THAT
FPLES MAKES NO REPRESENTATION OR WARRANTY
REGARDING TREATMENT OF THE TRANSACTION BY THE
INTERNAL REVENUE SERVICE OR THE STATUS OF THIS
MASTER AGREEMENT OR ANY APPLICABLE AGREEMENT
UNDER ANY FEDERAL OR STATE TAX LAW OR FOR
ACCOUNTING PURPOSES; CUSTOMER ENTERS INTO THIS
MASTER AGREEMENT IN SOLE RELIANCE UPON
CUSTOMER'S OWN ADVISORS. Customer will not directly or
indirectly create, incur, assume or allow to exist any lien, claim or
encumbrance (each, a "Lien") on or with respect to any System.
Customer, at its own expense, will promptly pay, satisfy or otherwise
take such actions as may be necessary to keep each System free
and clear of any and all such Liens. Each System is and shall at all
119790526_4
times shall remain personal property notwithstanding how it or any
item thereof may now be or hereafter become affixed, attached,
imbedded in resting upon real property or any improvement thereof.
If requested by FPLES, Customer will promptly obtain and deliver to
FPLES waivers of interest or waivers of Liens in form satisfactory to
FPLES from all persons or entities claiming any interest in the real
property or improvements where the applicable System is located.
Each System shall at all times during the Service Term be kept at
the Service Location designated in the applicable SOW and shall
not be removed therefrom or released from the possession of the
Customer without FPLES' prior written consent. FPLES may, at
Customer's expense, attach markings to each System indicating
FPLES' ownership thereof. All equipment, upgrades, parts and
replacements for or which are added to or become attached to or a
part of a System shall be deemed incorporated into the System and
become the property of FPLES without further action on its part. In
the event any SOW shall be deemed a disguised sale, Customer
hereby grants to FPLES a security interest in the System and all
substitutions, accessions and proceeds thereof to secure
Customer's obligations under the SOW and hereby authorizes
FPLES, or its assignee's, to file financing statements under the
Uniform Commercial Code with respect to the System to evidence
FPLES' or its assignee's interests therein.
12.2 Warranty of Title. FPLES warrants that it has good title to the
applicable System furnished or installed by FPLES or its
Subcontractors.
12.3 Taxes. Customer is responsible for and shall pay all taxes due
under or rising in connection with the Agreement, including all real
and personal property taxes or assessments upon each applicable
System which are now or hereafter imposed or assessed by any
governmental authority, all present or future import duty, federal,
state, county, municipal or other excise or similar taxes levied with
respect to the System, including all applicable sales taxes imposed
upon the Customer's rights to the System under this Master
Agreement and all stamp taxes arising in connection with the filing
of any financing statement or lien with respect to the Agreement or
System. Customer shall pay FPLES on demand as additional
Service Fees: (i) the amount of the personal property tax required
to be paid by FPLES as owner of such System, (ii) an administrative
fee for processing tax returns, assessments and payments, and (iii)
applicable sales tax. FPLES may reasonably estimate and invoice
Customer in advance for any taxes to be paid hereunder and may
include estimated taxes and administrative fees in the Service Fees.
Customer acknowledges and agrees that FPLES may rely upon its
accounting records to substantiate any increase or additional
Service Fees necessitated by a shortfall between estimated taxes
and actual taxes imposed or assessed by any governmental
authority. FPLES shall have no obligation or liability with respect to
any real property tax or with respect to any income, excess profits,
or revenue tax charged or levied against Customer in connection
with this Master Agreement or the applicable System or Services.
Customer shall indemnify and hold FPLES harmless from and
against all present and future taxes and other governmental
charges, or any increases therein (including, without limitation,
sales, use, leasing and stamp taxes and license and registration
fees) and amounts in lieu of such taxes and charges and any
penalties or interest on any of the foregoing, imposed, levied upon,
in connection with, or as a result of the delivery, possession or use
of each applicable System, or based upon or measured by the
Services or Service Fees. Customer shall not, however, be
obligated to pay any taxes on or measured by FPLES net income or
net worth.
13.0 Force Maieure. If a Party is prevented or delayed in the
performance of any such obligation by a Force Majeure Event, such
Party shall immediately provide notice to the other Party of the
circumstances preventing or delaying performance and the
expected duration thereof. Such notice shall be confirmed in writing
as soon as reasonably possible. The Party so affected by a Force
Majeure Event shall endeavor, to the extent reasonable, to remove
the obstacles which prevent performance and shall resume
performance of its obligations as soon as reasonably practicable.
Provided that the requirements of this Section 13 are satisfied by
the affected Party, to the extent that performance of any
obligation(s) is prevented or delayed by a Force Majeure Event, the
obligation(s) of the affected Party that is obstructed or delayed shall
be extended by the time period equal to the duration of the Force
Majeure Event. Notwithstanding the foregoing, the occurrence of a
Force Majeure Event shall not relieve Customer of payment
obligations set forth in Section 3 and Section 12.
14.0 Chanqes.
14.1 Customer Initiated Changes. Upon receiving a request for a
Customer initiated Change, FPLES may at its sole option prepare
and deliver a proposed Change Order to Customer listing the
Service Fee adjustments and scheduling adjustments for the
Change. FPLES shall not be obligated to proceed with or perform
any Change requested by Customer hereunder until the Parties
have agreed in writing upon any such Change Order. 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 Agreement shall apply to all Changes, and no Change shall
be implied as a result of any other Change.
14.2 Change in Laws and/or Permits. If FPLES (i) encounters a
change in applicable laws, rules or regulations or applicable permits
that affect FPLES's ability to perform the Services at a Service
Location and (ii) any such change causes an increase or decrease
in the Service Fees or time of performance, then FPLES shall notify
Customer thereof no later than thirty (30) days after the date of such
change in applicable laws, rules or regulations or applicable permits
at the Service Location, and FPLES shall issue a Change Order to
equitably adjust the time of performance and/or Service Fees.
14.3 Customer -Caused Delay or Affect. Should the actions or
inactions of Customer or any of its representatives or agents cause
a delay of, or any failure of the Customer or any of its
representatives or agents to fulfill its obligations hereunder cause a
materially adversely affect on, FPLES's performance of the Services
which affects the time for completion of the Services or an increase
or decrease in the cost of providing the Services, FPLES shall
promptly, but in no event more than thirty (30) calendar days after
FPLES becomes aware of such Customer -caused delay, notify
Customer in writing. FPLES shall issue a Change Order to equitably
adjust the time of performance and/or Service Fees as applicable.
14.4 Unknown Conditions. If FPLES (i) encounters any concealed
subsurface conditions which a reasonable, experienced contractor
would not foresee existing at the Service Location or which vary
from the conditions shown in the applicable SOW, if any, and (ii) any
such condition affects the performance of the Services or the cost
of providing the Services, then FPLES shall notify Customer thereof
no later than thirty (30) days after the date of such unknown or
concealed Service Location condition, and FPLES shall issue a
Change Order to equitably adjust the time of performance and/or
Service Fees as applicable.
15.0 Default and Remedies.
15.1 Events of Default. "Event of Default" shall mean any one or
more of the following: (a) except as provided in Section 15.2.1.1,
FPLES materially fails to perform any obligation under the
119790526_4
Agreement and fails to cure or commence and diligently proceed to
cure such obligation within thirty (30) days written notice from
Customer, (b) except as provided in Section 15.2.1.1, Customer
fails to timely perform its payment obligations under any applicable
SOW; (c) Customer fails to perform or observe any of the covenants
set forth in Section 9 (Insurance); (d) Customer fails to perform or
observe any other covenant, term or condition under the Agreement
and such failure is not cured within 30 days after written notice
thereof by FPLES; (e) Customer sells, transfers or otherwise
disposes of any applicable Service Location; (f) Customer or any
guarantor of Customer's obligations or liabilities hereunder
("Guarantor") shall enter into any transaction of merger or
consolidation in which it is not the surviving entity or sell, transfer or
otherwise dispose of all or substantially all of its assets or shall
undergo a change in control; (g)(i) Customer or Guarantor
commences any action: (A) for relief under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, or (B) seeking
appointment of a receiver, custodian or other similar official for it or
for its assets or making a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against Customer or
Guarantor any action of a nature referred to in subsection 15(f)(i)(A)
that results in the entry of an order for relief or any such other relief
and remains un -dismissed or un -discharged for a period of 30 days
after the occurrence of such event; (h) Customer or Guarantor shall
liquidate or dissolve itself or be liquidated, dissolved or terminated
by statute or otherwise; (i) any representation or warranty made by
Customer or Guarantor or otherwise furnished to FPLES in
connection with the Agreement shall prove at any time to have been
untrue or misleading in any material respect; Q) Customer or
Guarantor defaults on any indebtedness for borrowed money, lease,
or installment sale obligation, in each case when any applicable
grace period for such obligation has expired and regardless of
whether such indebtedness has been accelerated or the applicable
lender, lessor or creditor has commenced to exercise any remedy;
or (k) Customer or Guarantor shall be in default, after any grace or
cure period, under any other agreement of which FPLES or any of
its affiliates is a party or beneficiary.
15.2 Remedies.
15.2.1 FPLES Event of Default. Subject to the dispute resolution
procedures and cure rights pursuant to Section 15.2.1.1, upon the
occurrence of a FPLES Event of Default, Customer may terminate
this Master Agreement and each applicable Agreement by written
notice to FPLES. Within 30 days following such termination,
Customer shall pay FPLES an amount (to the extent not already
paid) equal to the sum of all Service Fees payable up to the
termination date and other amounts due as of the termination date,
including applicable taxes. FPLES shall be liable and responsive
for removal costs of each applicable System.
15.2.1.1 Allegation of Default of FPLES's Continuing
Obligations. In the event that Customer believes or alleges that
FPLES has failed to perform some or all of its continuing Services
obligations to Customer after the Final Acceptance Date, Customer
will provide FPLES with written notice thereof prior to withholding
any portion of the Service Fees due under the Agreement; provided
however that Customer may withhold an equitable portion of the
Service Fees after giving such written notice, subject to FPLES's
potential remedy related thereto as set forth below. Promptly upon
receipt of such notice, FPLES will appoint an independent qualified
engineer reasonably acceptable to Customer to determine whether
FPLES has breached any of such continuing Services obligations,
and both Customer and FPLES acknowledge and agree that the
determination of the independent engineer will be final and binding
upon the Parties. In the event that the independent engineer finds
in favor of Customer, (i) FPLES will pay the reasonable fees of the
independent engineer, and (ii) FPLES shall have the right to cure
non-performance of the applicable continuing Services within thirty
(30) days following such determination; provided however that
Customer shall have a right of termination pursuant to Section
15.2.1 if FPLES does not timely perform its cure obligations under
this Section 15.2.1.1. In the event that the independent engineer
finds in favor of FPLES, (i) Customer will pay the reasonable fees of
the independent engineer and (ii) if Customer has withheld any
Service Fees due under the Agreement, Customer shall remit such
amount to FPLES, together with interest at the Delayed Payment
Rate, within five (5) business days of such determination; provided
that FPLES shall have a right of termination pursuant to Section
15.2.2 in the event that Customer does not timely perform its
payment obligations under this Section 15.2.1.1.
15.2.2 Customer Event of Default. Upon the occurrence of a
Customer Event of Default, FPLES may exercise, in whole or in part,
any one or more of the following remedies: (a) suspend or
discontinue performance of Services without liability; (b) terminate
this Master Agreement and each applicable Agreement, with or
without such termination, and declare each applicable Early
Termination Fee immediately due and payable, without set-off or
withholding, as liquidated damages and for loss of bargain, which
Customer acknowledges is a reasonable estimation of FPLES'
actual damages and not a penalty; (c) terminate any other
statements of work with Customer without notice or demand, (d)
Charge Customer interest on all monies due FPLES at the Delayed
Payment Rate; (e) Require Customer to gather all or any part of the
System at Customer's expense, at a place reasonably designated
by FPLES; (f) Remove and take possession of each applicable
System, without demand or notice, wherever same may be located,
with or without any court order or pre -taking hearing or other process
of law; and (g) exercise any other remedy available to FPLES at law
or in equity. FPLES may, at its option, use, ship, store or repair any
or all items of the System so removed and may sell, lease or
otherwise dispose of any such System at a private or public sale.
Customer shall permit FPLES to exhibit each applicable System to
potential buyers at the Service Location as reasonably requested by
FPLES. All remedies of FPLES hereunder are cumulative, are in
addition to any other remedies provided for by law, and may, to the
extent permitted by law, be exercised concurrently or separately.
The exercise of any one remedy shall not be deemed to be an
election of such remedy or to preclude the exercise of any other
remedy. In addition, Customer shall be responsible for all costs and
expenses incurred by FPLES in the exercise of its remedies
hereunder, including without limitation, reasonable attorneys' fees
and removal costs. No failure on the part of FPLES to exercise and
no delay in exercising any right or remedy shall operate as a waiver
thereof or modify the terms of this Master Agreement. A waiver of
default shall not be a waiver of any other or subsequent default.
FPLES's recovery hereunder shall in no event exceed the maximum
recovery permitted by law.
15.2.3 Right of Access and Removal. Pursuant to the easement set
forth in Exhibit 2 to the applicable SOW, (a) for the purpose of
installing each applicable System, and maintaining the System
during the Service Term, and (b) for the purpose of removing each
applicable System in the event of (i) expiration of the Agreement, (ii)
any early termination pursuant to Section 4, or (iii) any termination
of the Agreement pursuant to Section 15.2, Customer grants FPLES
the right to enter the Service Location.
16.0 Assignment.
16.1 Agreement Binding. This Master Agreement and Agreement
entered into by the Parties shall be binding upon, and shall inure to
the benefit of, the Parties and their successors and permitted
assigns.
119790526_4
16.2 Permitted Assignment. (a) Customer may not assign this
Master Agreement or any applicable Agreement without the prior
written consent of FPLES, which consent shall not be unreasonably
withheld. No such assignment by Customer or consent by FPLES
to Customer's assignment shall release Customer of any of its
obligations under this Master Agreement or any applicable
Agreement. (b) FPLES may, without the consent of Customer,
assign this Master Agreement, any applicable Agreement, Services,
or any portion thereof, to (i) any controlled affiliate of FPLES's parent
company, NextEra Energy, Inc., without the right to further assign
or transfer any rights, obligations, duties or other interest in this
Contract (except to any other controlled affiliate of NextEra Energy,
Inc.), or (ii) a successor corporation into which all or substantially all
of assets of FPLES are merged or otherwise consolidated,
regardless of whether FPLES is the surviving entity in such merger
or consolidation. (c) FPLES may, without the consent of or notice to
Customer, assign its right, title and interest, or any portion thereof,
in this Master Agreement, each applicable Agreement, the Service
Fees and/or each applicable System, but not FPLES' obligations
under this Master Agreement or each applicable Agreement, to any
other entity, it being agreed that upon any such assignment, FPLES
shall remain fully responsible for all of its obligations hereunder. (d)
Except with respect to FPLES' unperformed continuing Service
obligations during the Service Term, upon assignment of any
applicable SOW to any such entity, Customer's payment obligations
shall at all times be absolute and unconditional and shall not be
subject to, nor shall Customer assert against the assignee, any
claim, defense, set-off, deduction, counterclaim, or recoupment
whatsoever that Customer may at any time have against FPLES.
(e) Any assignment which does not comply with the provisions of
this Section 16.2 shall be null and void.
16.3 No Third Party Beneficiaries. Except as otherwise expressly
provided herein, neither 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
or its permitted assigns.
17.0 Disputes.
17.1 No Set -Off. Except as expressly permitted under the
terms of this Master Agreement, all payments under this Master
Agreement shall be made without set-off or deduction. Any
payment not made by the date required by the 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 at an annual rate equal to the Delayed
Payment Rate,
17.2 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.
17.3 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.
Disputes that cannot be settled to in a manner described via
informal discussions shall be litigated and have exclusive venue in
the Circuit Court for Miami -Dade County or Palm Beach County,
Florida or the United States District Court for the Southern District
of Florida.
18.0 General Provisions.
18.1 Entire Agreement; Construction. This Agreement, together with
any exhibits attached hereto or thereto, sets forth the full and
complete understanding of the Parties, and supersedes any and all
negotiations, agreements and representations made or dated prior
thereto with respect to the subject matter thereof. Any actions or
Services described in this Master Agreement which were performed
or implemented by the Parties prior to the Effective Date of this
Master Agreement shall for all purposes be deemed to have been
performed under this Master Agreement. In the event of any conflict
between any applicable Agreement and this Master Agreement, the
Agreement shall control, but only to the extent that the applicable
SOW cross-references the provision of this Master Agreement
intended to be superseded and sets forth the intent to supersede
such provision.
18.2 Amendments. No change, amendment or modification of this
Master Agreement, any applicable 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. FPLES and its Subcontractors are
independent contractors with respect to the Services performed
hereunder irrespective of whether such Subcontractors are
approved by Customer, and neither FPLES nor its Subcontractors,
nor the employees of either, shall be deemed to be the employees,
representatives or agents of 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 FPLES and Customer.
18.4 Representations. Each Party hereby represents and warrants
to the other that, effective as of its execution of this Master
Agreement: (i) the execution and delivery by it of the any applicable
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 such 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 such 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 such Party and constitutes the valid and legally
binding obligation of such Party, enforceable against the other Party
in accordance with its terms, except to the extent that enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws and subject to general equitable
principles. Customer further represents that (iii) it has the legal right
and authority to permit FPLES to install the applicable System and
provide the Services at the Service Locations; and (iv) if the Service
Location is not owned by Customer, the term of Customer's lease
for each Service Location is not less than the Service Term, as the
same may be extended or renewed under this Master Agreement.
18.5 Drafting Interpretations and Costs. Preparation and negotiation
of this Master Agreement has been a joint effort of the Parties and
the resulting document shall not be construed more severely against
one of the Parties than against the other. Each Party shall be
responsible for its own costs, including legal fees, incurred in
negotiating and finalizing this Master Agreement.
18.6 Captions. The captions contained in this Master Agreement are
for convenience and reference only and in no way define, describe,
extend or limit the scope or intent of such document or the intent of
any provision contained therein.
119790526_4
18.7 Severability/Divisible Contracts. (a) The invalidity of one or
more phrases, sentences, clauses, Sections or Sections 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 Agreement under this
Master Agreement shall constitute a separate and divisible contract
which FPLES may assign to one or more assignees, in whole or in
part, and each and every such assignee of FPLES shall be entitled
to the benefits and rights of FPLES under this Master Agreement,
and shall be entitled to exercise the rights of FPLES under this
Master Agreement
18.8 Further Assurances. FPLES and Customer each agree to do
such other and further acts and things, and to execute and deliver
such additional instruments and documents, as either Party may
reasonably request from time to time whether at or after the
execution of this Master Agreement, in furtherance of the express
provisions of this Master Agreement.
18.9 Applicable Law. 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.
18.10 Counterparts; Electronic Delivery. 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.
An electronically signed or transmitted copy of this Master
Agreement shall be deemed an original for evidentiary purposes.
18.11 Waiver of Jury Trial. EACH OF THE PARTIES HERETO
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HERON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
MASTER AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN), OR ACTIONS OF EITHER PARTY HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES
ENTERING INTO THIS MASTER AGREEMENT.
18.12 No Waiver. The failure of a Party to enforce, insist upon, or
comply with any of the terms, conditions or covenants of this Master
Agreement, or a Party's waiver of the same in any instance or
instances shall not be construed as a general waiver or
relinquishment of any such terms, conditions or covenants, but the
same shall be and remain at all times in full force and effect.
18.13 Notices. All notices, demands, offers or other written
communications required or permitted to be given pursuant to this
Master Agreement shall be in writing signed by the Party giving such
notice and shall be hand -delivered, sent via certified mail, return
receipt requested and postage prepaid, or sent via overnight courier
to such Party's notice address as set forth on the applicable SOW.
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. Notices delivered by
email to a Party's designated contact person, other than notices of
termination, non -renewal, default or demand for indemnification,
shall be effective upon manual acknowledgement of receipt (i.e., not
automated response).
IN WITNESS WHEREOF, the Parties hereby agree to be bound by the terms and conditions of this Master Agreement, effective on the
Effective Date.
FPL ENERGY SERVICES, INC.
BY:
NAME: Trov Rice
TITLE: VP &/G �J
DATE: Il l l
119790526_4
CITY OF BOYNTON BEACH
BY: 4 &A.< a 414i�.
NAME: Lori LaVerriere
TITLE: City Manager
DATE: November 18, 2019
SCHEDULE A
FORM OF
NOTICE OF SUBSTANTIAL COMPLETION
Project Name:
Service Location:
System Description:
FPL Energy Services, Inc.
Customer:
FPLES Representative:
Customer
Representative:
Address:
6001 Village Blvd., West Palm
Beach, Florida 33407
Address:
Telephone:
Telephone:
Facsimile:
Facsimile:
Email:
Email:
EFFECTIVE DATE OF SUBSTANTIAL COMPLETION: , 20_ ("Effective Date of Notice")
This Notice of Substantial Completion ("Notice") is issued by FPL Energy Services, Inc. ("FPLES") to Customer pursuant to that
certain Statement of Work No. pursuant to that certain Master Lighting Services Agreement ("Master Agreement'),
effective as of the _ day of , 20_ Initial capitalized words used herein but not defined shall have the meaning ascribed to
such words in the Master Agreement.
Customer certifies that as of the Effective Date of Notice, FPLES has achieved Substantial Completion of the System specified in this
Notice pursuant to the SOW effective as of , 20_, all in strict accordance with the Master Agreement.
A list of Punch List items to be completed or corrected by FPLES is attached hereto as Exhibit A. In accordance with Section 3.3 of
the Master Agreement, FPLES will complete or correct the Punch List items listed in Exhibit A.
The System has been reviewed by Customer and based on that review and the information provided by FPLES, Customer has
executed this Notice of Substantial Completion, without modifying the Parties obligations under the Master Agreement.
IN WITNESS WHEREOF, FPLES and Customer have made and executed this Notice of Substantial Completion by and through their
duly authorized representatives as of the Effective Date of Notice written above.
FPL ENERGY SERVICES, INC. [FULL LEGAL NAME OF CUSTOMER]
By:
Name:
Title:
119790526_4
By:
Name:
Title:
SCHEDULE B
FORM OF
CERTIFICATE OF FINAL ACCEPTANCE
Project Name: City Of Boynton Beach — Town Square
Service Location: 100 East Boynton Beach Blvd.
Bo nton Beach, FL. 33435
System Description:
FPL Energy Services, Inc.
Customer:
City of Boynton Beach
FPLES Representative:
Christian Pruitt
Customer
Re resentative:
Andrew Mack
Address:
6001 Village Blvd., West
Palm Beach, Florida 33407
Address:
100 E. Boynton Beach Blvd.
Boynton Beach, FL. 33435
Telephone:
(561) 386-5761
Telephone:
(561) 742-6201
Facsimile:
Facsimile:
Email:
Email:
MackA@bbfl.us
EFFECTIVE DATE OF FINAL ACCEPTANCE: , 20_ ("Effective Date of FAC')
This Certificate of Final Acceptance ("FAC') is issued by FPL Energy Services, Inc. ("FPLES") to Customer pursuant to that
certain Statement of Work No. 1 pursuant to that certain Master Lighting Services Agreement effective as of the November
6, 2019, between Customer and FPLES (the "Master Agreement'). Initial capitalized words used herein but not defined
shall have the meaning ascribed to such words in the Master Agreement.
Customer certifies that as of the Effective Date of FAC, FPLES has achieved final completion of the System specified in this
FAC and as required pursuant to the SOW effective as of November 6, 2019, all in strict accordance with the Master
Agreement.
This FAC and the certifications of Customer set forth herein and on any FAC may be relied on by FPLES and by any
assignee of FPLES providing financing to FPLES related to Customer's payment obligations under the Agreement. Any
assignee of FPLES shall be entitled to the rights, but not the obligations, of FPLES under this FAC.
This FAC is being provided by FPLES to Customer, acknowledging final acceptance of the System specified in this FAC.
Customer has examined and carefully studied all of this FAC, including the Master Agreement and all exhibits, appendices,
specifications, terms and conditions.
IN WITNESS WHEREOF, the Parties have executed this FAC as of the Effective Date of FAC.
FPL ENERGY SERVICES, INC. CITY OF BOYNTON BEACH
By:
Name:
Title:
119790526_4
By:
Name:
Title:
SCHEDULE C
Form of Statement of Work
Statement of Work No.
Project Name:
Service Location: e%\,�k
System Description:
FPL Energy Services, Inc.
Customer:
FPLES Representative:
Customer
Qty
Wattage
Represerjlativ
Description
Address:
6001 Village Blvd., West
Ad
Palm Beach, Florida 33407
Telephone:
Facsimile:
F imi e:
Email:
mail:
This Statement of Work ("SOW" a day of 20_ ("SOW Effective Date") is made
subject to and will be governed
y c r Lighting Services Agreement ("Master Agreement') effective as of the
day of , 20
be ustomer and FPL Energy Services, Inc. ("FPLES"), the terms of which are
incorporated herein by re nce.
i ized terms not otherwise defined herein have the meaning set forth in the Master
Agreement.
f the Parties int a this SOW to modify, amend or supersede a term of the Master Agreement for Services to
e performe t
en the Parties must specifically reference in this SOW the specific term in the Master
greement t t i ified, amended or superseded and the intention of the Parties to modify, amend or supersede
such ter y e S vision.
1. Sco e d S ecifications of
System.
Existing Fixture
Existing
New Fixture
New
Description
Qty
Wattage
Location
Description
Wattage
Misc.
1 1979012h -1
3.
4
[Add site plan with locations of fixtures, specifications etc.]
After removal, existing fixtures (Please Check Box and complete)
❑ will be disposed of by FPLES, or
❑ will be retained by Customer at
PLIES Responsibilities for Construction and Installation of the Svstem fadiust asFE
(i) Trenching `
(ii) 2" PVC conduit
(iii) Conductor
(iv) Handholes
(v) Poles
(vi) Lighting fixtures 44,,
(vii) Mounting arms and brackets
(viii) Disconnects
(ix) Miscellaneous m teria
(x) Consumabl
(xi) All reqJCd%Zbo i tall the System.
119790526_4
&rPLES
location:
hall provide:
[Add applicable Service Fees]
Customer Responsibilities fadiust as necessaryl. The Customer shall:
(i) Provide reasonable access to each Service Location
(ii) Make appropriate Customer personnel available if requested by the Company to assi pa
performing Services
(iii) Provide access to electrical and water service
(iv) Provide on site laydown area storage containers.
(v) Provide on site location for dumpsters.
WITNESS WHEREOF, the Parties have executed this SOW as h ffec a te.
'L ENERGY SERVICES, INC. [FULL LE L E CUSTOMER]
B .
119790526_4
Name:
Title:
SOW EXHIBIT 1
Equipment Warranties
rAttach Equipment Warrantiesl
"is
119790526_4
SOW EXHIBIT 2
Prepared by and after recording
Energy Services, Inc.
Rex Noble
Village Blvd.
Palm Beach, Florida
EASEMENT
ALL MEN BY THESE PRESENTS that
ase address for notices i
("Grantor") in consideration of me o 1.00 and other good an
faluable consideration, the adequacy and receipt of which is hereby acknowledged rant g to FPL Energy Services, Inc.
r Florida corporation, its affiliates, licensees, successors, and assigns, whose res r not' 6001 Village Blvd., West PaIrr
3each, Florida 33407 ("FPLES"), a non-exclusive easement forever for onstru ' peration, maintenance, repair, an
eplacement of lighting facilities (including poles, cables, wires, conduit p , nses, p otocells, luminaires and appurtenan
equipment) to be installed from time to time; with the right to reconstruct, sp al improve, add to, enlarge, change the natur
rr physical characteristics and the size of, remove, and relocate su f 'lities an of them upon, across, over, and under a
easement described as follows:
See attached Ex " (" e t Area"),
ogether with all rights and privileges necessary or c n t for e full enjoyment or the use thereof for the herein describe
rurposes, including, but not limited to, the right of in ss a to the Easement Area at all times over the adjoining land o
3rantor; the right to clear the land and keep itcl ared 11 t s, dergrowth and other obstructions within the Easement Area
he right to trim and cut and keep trimmed and all d ak, leaning or dangerous trees or limbs outside of the Easemen
\rea, which might interfere with or fall upon th ng cili ; with the understanding that the rights granted hereunder shall no
inreasonably interfere with Grantor's use khe E ent Area. Grantor further grants to FPLES the right to utilize the Easemen
krea and any adjoining real property ow r Grant o or storage and laydown of materials during the installation and removal o
he lighting facilities. 1%
the execution hereof, Gra
,igns shall have quiet ani
119790526_4
t has the right to convey this Easement and that FPLES and its successors
, use and enjoyment of this Easement and the rights granted hereby.
[Signature appears on following page]
IN WITNESS WHEREOF, Grantor has executed this Easement this day of
20
119790526_4
EXHIBIT "A"
Legal Description of Easement Area
119790526_4
SOW EXHIBIT 3
Certificate of Authority & Incumbency
Agreement: Statement of Work ("SOW"), effective _, 20_
between Customer and FPL Energy Services, Inc.
Customer:
I hereby certify that I am the duly elected or appointed, qualified and acting ❑ Secretary or ❑ Assistant Secretary or ❑ Other
Officer of the entity named above (the "Entity"), I am charged with maintaining records, minutes, and the seal (if applicable) of the
Entity, and I hereby further certify as follows:
in good standing under the laws of the State of
The Entity's execution and delivery of above -referenced agreement, whether executed now or in the f tog e r
with all related statements of work, schedules, exhibits, certificates, instruments and document s t m be
amended from time to time (collectively, "Transaction Documents") and the Entity's enteri tra ions
contemplated under the Transaction Documents have been duly authorized by appropriate o f e
Pursuant to ❑ the By-laws and Certificate of Incorporation or ❑ the Operating Agreeme i 'iility Company
Agreement, By-laws and/or Certificate of Formation or Organization or ❑ the Part
e t, and any other
appropriate documents of the Entity as may be applicable ("Entity Documents" ea
o named below has
been properly designated and appointed to the office indicated below, and tha rs con
u to hold the office at
this time, and the signature appearing opposite such person's name is the genui signa
such authorized person;
and (2) each person designated to serve in the above -entitled capacity be ive sufficient
authority to act on
behalf of, and to bind the Entity with respect to the execution and deli f the ction
Documents, and each
Transaction Document will constitute a valid, legal, binding and enf le 'gation of the
Entity upon execution by
each such person:
Name of Authorized Person Tit Signature of
Executing Transaction Documents u ized rson Authorized Person
FFI S LY)
uant to Entity D he power and authority to execute this Certificate on behalf of the Entity, and I have
cecuted this Ce is the seal of the Entity, if applicable, on the day of 20_
**BY:
PRINT NAME:
TITLE: ❑ Secretary ❑ Assistant Secretary
❑ Other Officer
119790526_4
""NOTE: The person signing this certificate cannot be the same person
119790526_4
CUSTOMER ACKNOWLEDGMENT OF ASSIGNMENT
Re: Notice and Acknowledgment of Assignment of Statement of Work(the "Agreement'), dated as of
20_, by and between FPL Energy Services, Inc. ("FPLES"), and
customeras governed by the Master Li htin
Services Agreement between FPLES and Customer, dated as of , 20
adies and Gentlemen:
Customer expressly acknowledges that FPLES has or will shortly assign to De L e n ncial
Services, Inc. ("Assignee"), whose notice address is 1111 Old Eagle School Road ne, e sylvani
9087, all or a portion of the Service Fees due under the Agreement (as defined ther ) r f seven (7
ears of the Service Term and the rights and remedies of FPLES with respect th c in remedies
elated to the equipment provided by FPLES for use by Customer thereunde "E t"). The Service
ees, together with any late fees and/or interest arising in connection there ' e ively referred to a
the "Customer Payments". FPLES remains solely liable for all or ligations under the
Agreement, all warranties as supplier, and all claims under the Agr e Cu o er acknowledges and
agrees that any claims against FPLES under the Agreement sha be ad against FPLES and no
Assignee and that, except to the extent of any service performa brea PLES under the Agreement,
Sustomer's obligation to make all payments due under the a ent to ssignee for the first seven (7)
years of the Service Term is absolute and unconditional a sh n e subject to any claims, damages,
iabilities, or offsets against any payments due under anm is or any reason whatsoever.
Assignee acknowledges to Customer thaA th ��ment does not modify or expand the right
obligations of Customer and FPLES under th A m and (b) so long as Customer is not in defau
it the Agreement, Assignee will not violates e fight of quiet possession and use of the Equipmen
Customer agrees that pursuant theNZigVnent of all or a portion of the Customer Payments, ill
vill remit all Customer Payments for st 7) years of the Service Term to Assignee at De Lage
_anden Financial Services, Inc., 11OI le School Road, Wayne, Pennsylvania 19087. On or before the
expiration of such seven (7) year p o FPL will provide written notice to Customer of the time and manner
c remit Service Fees thereafte
Customer agrees t pu to the assignment of the Agreement: (a) it will send directly to Assignee
it its following notice a ess: L e Landen Financial Services, Inc., 1111 Old Eagle School Road, Wayne,
'ennsylvania 190 c of material notices pursuant to the Agreement relating in any way to the
quipment, pay n de by Customer, or to default or nonperformance by FPLES; (a) it will not without
kssignee's pri e o ent make any change or modification to the Agreement relating in any way to the
quipment e made by Customer, or any rights or remedies relating to the foregoing; (c) it will
iot relo t he ent or assign the Agreement except as may be permitted by and in compliance with
he ter of A ement; (d) as of the date hereof, the Agreement is in full force and effect, and Customer
not in ult reunder; (e) all of the Customer Payments described herein remain payable by Customer;
f) the Equip nt has been installed and accepted by Customer; and (g) Customer has entered into no other
This Acknowledgment of Assignment is effective as of 120
By:
Name/Title:
Date.-
1197905264
ate:
1197905264
By:
Name/Title:
Date:
By:
Name/Title-
Date:
[If applicable: Agreed to and acknowledged th
, guarantor of Customer's
Guarantor confirms that the guaranty ("Guaranty") c
, is in full force and effect and shall n
send a copy of each notice which Guarantor gives A
address at
Attention: by ce ' i maj
Assignee may hereafter notify Customer.
11 ntor Customer
By:
Name:
Title:
119790526_4
0atedf 20_, 1
tion above.
s Agreement obligations, dated as
amended or rescinded, and agrees
:ed to the Guaranty to Assignee at
postage prepaid, or at such other address
Supplemental Terms and Conditions for Pole Attachment
These Supplemental Terms and Conditions for Pole Attachment ("Supplemental Terms") hereby amend and supplement the
Master Lighting Services Agreement ("MLSA") between FPL Energy Services, Inc. ("FPLES") and City of Boynton Beach ("Customer")
effective November 6, 2019. The MLSA and other documents attached to or incorporated into the MLSA, together with these Supplemental
Terms are collectively, the "Contract". Unless otherwise defined in these Supplemental Terms, capitalized terms have the meanings given
in the MLSA. In the event of a conflict between these Supplemental Terms and the MLSA, these Supplemental Terms shall govern and
control.
DEFINITIONS. When used in these Supplemental Terms with initial or complete capitalization, whether in singular or in plural
the following terms have the following defined meanings:
1.1 Poles: LED light poles installed by FPLES pursuant to the MLSA.
1.2 Facilities: Any antenna, hardware, equipment, apparatus, device or other hardware, and cables or wires connecting
such antenna to such equipment, apparatus, device or other hardware placed on the same Poles solely for advertising banners
and/or transmission and/or receiving of wireless video surveillance signals.
1.3 Laws: Laws shall have the meaning set forth in Section 6.1
2. SCOPE OF USE.
2.1 FPLES agrees to license the installation of Facilities by Customer on FPLES's Poles consistent with generally
accepted safety, operational, reliability and engineering requirements and with applicable Laws. Notwithstanding the
above, nothing contained herein shall be construed to compel the FPLES to construct, reconstruct, retain, extend,
repair, place, replace, maintain or make space available for attachment of Facilities on FPLES's Poles. FPLES
reserves the right to revoke the license provided hereunder as necessary to ensure the safe and reliable operation
and maintenance of FPLES's System.
2.2 The rights granted to Customer by these Supplemental Terms shall constitute a revocable license to the extent such
use is permitted pursuant to the terms of these Supplemental Terms,
2.3 Customer shall design, specify, and supply all material associated with the installation, operation, and maintenance
of Facilities.
2.4 The license granted Customer shall provide Customer a non-exclusive right -of -occupancy of FPLES's Pole,
authorizing the installation, operation, use and maintenance of Facilities. The license does not provide Customer with
any ownership interests in any FPLES Pole, and is for Customer's sole use and purpose.
FEES AND BILLING.
3.1 The attachment fee payable to FPLES by Customer for Facilities attachments is included in the monthly Service Fees.
TAXES. Unless otherwise exempt, Customer shall pay all annual or periodic real property, personal property, gross receipts,
franchise tax or other taxes, including any increase in such taxes levied or assessed to FPLES and based upon the license
granted by these Supplemental Terms or on account of its existence. FPLES will provide reasonable notice to Customer of
receipt of notice of assessment of property or any portion thereof, which includes an increment of such assessment attributable
to the license. FPLES shall bill for the payment of such taxes attributable to the license and Customer will pay in accordance
with Section 3. In the event FPLES wishes to challenge any assessments on property that is subject to the license, FPLES will
conduct such challenges and Customer agrees to provide reasonable cooperation. In the event Customer wishes to challenge
an assessment or increase thereof related to the license, Customer shall request FPLES to conduct such challenge and FPLES
agrees to provide reasonable cooperation in conducting such challenges. Customer shall pay all expenses incurred by FPLES
in connection with conducting such challenges including but not limited to reasonable attorney's fees, expert witness fees and
disbursements. To the extent any of the above taxes relating to the license are levied and assessed directly to Customer,
Customer shall be responsible for any filings, timely payment of and any challenges to such taxes and FPLES agrees to provide
reasonable cooperation in relation to same.
PROTECTION AGAINST LIENS. Customer will keep the FPLES System free from any liens arising out of any work performed,
materials furnished or obligations incurred by or on behalf of Customer and shall indemnify, defend and hold harmless FPLES
from all claims, demands, costs and liabilities, including reasonable attorney's fees and costs, in connection with or arising out
Supplemental Terms and Conditions for Pole Attachment (Rev. 08-28-19) Page 1 of 3
Supplemental Terms and Conditions for Pole Attachment
of any such lien or claim of lien. Customer will cause any such lien imposed on the property to be released of record by payment
or posting of a proper bond within forty-five (45) days after receipt by Customer of notice of the filing of such lien.
COMPLIANCE WITH LAWS.
6.1 Customer shall comply with all applicable federal, state and local laws, ordinances, rules, regulations, permits, licenses,
and requirements thereunder ("Laws") in connection with performance of their activities under these Supplemental
Terms. Such laws, regulations, etc. shall include, but not be limited to, the current editions and any subsequent
revisions of the regulations of the United States Occupational Safety & Heath Administration (OSHA), and the National
Electric Safety Code.
6.2 If the Customer observes that any requirement specified in these Supplemental Terms is at variance with any Laws,
Customer shall promptly notify FPLES in writing before incurring any further liability, expense, or obligation for the
Customer or FPLES.
CUSTOMER INDEMNITY.
7.1 Customer accepts the System in its present condition, as is, where is, To the fullest extent allowed by Florida law,
Customer agrees to indemnify and save harmless FPLES, its officers, employees, agents and assigns from and against
any loss, damage, liability, cost, suit, charge, cause of action, claim and expense, arising out of any damage to the
System or injury to or death of any person as well as from any and all fines, levies, penalties, citations, assessments
and fees from any local, state or federal agency, board, court or other governmental authority as a result of any alleged
or actual violation of any laws, rules or regulations of such authorities or agencies arising out of, in connection with, or
as a consequence of Customer's activities and/or the activities of Customer's agents, servants, employees, contractors
or subcontractors, including but not limited to, the use or occupancy (including ingress and egress) of the System, and
the installation, operation, use and maintenance of the Facilities.
7.2 Customer understands and agrees that to the extent permitted by Florida law it is responsible for any and all costs and
expenses incurred by FPLES to enforce this indemnification provision.
7.3 The obligations set forth in this article shall survive completion of the work, termination or expiration of this contract.
8. OWNERSHIP. Subject to Section 9.3, Customer shall own all Facilities that are installed upon FPLES Poles in accordance with
these Supplemental Terms.
9. TERMINATION.
9.1 FPLES shall have the right to terminate the license hereunder, if:
A. Facilities are installed, operated, used, maintained and/or modified in violation of any Laws or in aid of any
unlawful act or undertaking. FPLES agrees not to terminate the license hereunder for a period of 30 days,
provided that Customer ceases operations at the Service Location and is making diligent efforts to correct
the violation(s). Customer shall provide FPLES with prompt written notice of any such action under which
operation or use of the Facilities is denied, revoked or canceled or reinstated.
B. Any authorization which may be required by any federal and/or state governmental and/or regulatory
authority with respect to the installation, operation, use, maintenance and/or modification of the Facilities is
denied, revoked or canceled. FPLES agrees not to terminate the license hereunder for a period of 90 days
after receipt of notice by the appropriate party, provided that Customer ceases operations at the Service
Location and is making diligent efforts to obtain or reinstate such authorization. Customer shall provide
FPLES with prompt written notice of any such action under which operation or use of the Facilities is denied,
revoked or canceled or reinstated.
C. Immediately, without notice, upon termination or expiration of the MLSA.
9.2 Upon termination of any license, neither party will owe any further obligations to the other under such license, except
for the indemnities and hold harmless provisions contained throughout these Supplemental Terms, Customer's
Supplemental Terms and Conditions for Pole Attachment (Rev. 08-28-19) Page 2 of 3
Supplemental Terms and Conditions for Pole Attachment
obligation to reimburse FPLES for all costs, expenses and losses properly incurred by FPLES pursuant to such license
and Customer's obligations under Section 9.3.
9.3 In the event of termination or expiration of these Supplemental Terms or the MLSA, Customer shall within ten (10)
days from the date of termination or expiration, as applicable, remove its Facilities and repair the Poles to their previous
condition. In the event that Customer fails to timely remove all of its Facilities, FPLES shall have the right to remove
the remaining Facilities, in which event such Facilities may be retained by FPLES as its property without accounting to
Customer therefore, and the expense of such removal and repairs shall be charged to and paid by Customer without
credit for the value, if any, of such Facilities.
IN WITNESS WHEREOF, the Parties hereby agree to be bound by the terms and conditions of these Supplemental Terms, effective on
the date last signed below.
FPL ENERGY SERVICES, C.
BY:
NAME: Troy Rice
TITLE: VP & GM / G�
DATE: 6
CITY OF BOYNTON BEACH
MA/� Aw—
TITLE: City Manager
DATE: November 18, 2019
Supplemental Terms and Conditions for Pole Attachment (Rev. 08-28-19)
Page 3 of 3