FPL EV Equipment Agreement ELECTRIC VEHICLE CHARGING EQUIPMENT AGREEMENT
This ELECTRIC VEHICLE CHARGING EQUIPMENT AGREEMENT("Agreement")is made thisday of March,2020("Effective
Date"), by and between City of Okeechobee("Host"), with a location at 55 SE 3rd Ave, Okeechobee, FL 34974 (the"Property")and Florida
Power&Light Company,a Florida corporation("Company"),with an address at 700 Universe Blvd CEA/JB,Juno Beach,FL,33408. Host and
Company are sometimes individually referred to herein as a"Party"and collectively as the"Parties."
WHEREAS,Company desires to install and own electric vehicle charging and related equipment,including electrical power inverters,
interconnection equipment, electrical wiring, underground conduit, wire and cable management systems, charging stations, electric meters,
metering and switch cabinets,and power distribution boxes(the"Equipment")on the Property and Host desires to have the Equipment installed
and agrees to permit Company to utilize the Property upon the terms and conditions set forth below.
NOW THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration,the
receipt and sufficiency of which is hereby acknowledged,the Parties hereby agree as follows:
1. Use. During the Term, Host agrees that Company may and/or state tax credits, and other financial incentives arising from
use the Property for the purposes of, and has the sole right (at the installation and/or operation of the Equipment. If Company
Company's cost and in Company's sole discretion)of, constructing, determines it to be necessary or desirable,the Company may record
installing, operating, inspecting, maintaining, repairing, enlarging, a memorandum of agreement in the public records of the county in
modifying, removing (at any time), testing and replacing the which the Property is located and Host shall sign such memorandum
Equipment and any additional equipment required to dispense of agreement (if needed). The right to access and use of Host's
electricity to charge electric vehicles, together with the following electrical system(s) includes for purposes of powering Company's
rights: (a)the right of ingress and egress 24 hours-a-day, 7 days a computer equipment used in monitoring the electricity dispensed
week; (b) the right, at Company's sole cost and expense, to from the Equipment and record system data to evaluate charging
paint/stripe and to install signage (in either case, in a manner behavior. Host understands and acknowledges that Company
substantially similar to the form attached hereto as Exhibit B)on and and/or its contractors will gather data and information from the
around the Equipment; and (c) Company's quiet enjoyment of the Equipment with respect to vehicle charging activity, vehicle usage
Property needed for purposes of this Agreement shall not be and technical performance of the vehicle and Equipment. Company
disturbed. The location of the Equipment is as described in Exhibit shall own all rights to such data and information.Host acknowledges
A. In the event that Company, in its sole discretion,determines that that such data and information will be used and disclosed by
an easement is necessary for the sole purpose of connecting the Company and third parties for the purpose of understanding and
Equipment to the electrical grid, then Host shall grant Company an evaluating the impact of electric vehicles on transit systems and the
easement in a mutually agreeable location in, on, over, under, electric power grid, for use in regulatory reporting, industry forums,
through and across a portion of the Property to be identified by the case studies or other similar activities,in accordance with applicable
Parties in the form attached hereto as Exhibit C. laws and regulations. The Host will share information requested by
the Company (including, but not limited to, baseline data requests,
2. Term. Subject to this Section 2, the initial term of this electric vehicle information and user surveys).
Agreement shall terminate on the tenth(10th)anniversary of the date
on which commissioning for the Equipment was completed (the 4. Payment of Electricity. Without limiting Section 5, Host
"Initial Term"),and unless terminated earlier as herein provided,shall is responsible for paying all consumption costs for electricity
automatically renew on a year-to-year basis after the Initial Term until dispensed from the Equipment at the rate paid by Host based on the
the thirteenth(13th)anniversary of the date on which commissioning Host's then-current Company-tariffed rate; provided, however,
for the Equipment was completed(each year,a"Renewal Term,"and Company will provide a separate invoice to the Host for electricity
each Renewal Term together with the Initial Term, the "Term"). If dispensed from the Equipment. Company will install a meter for the
either Party elects not to renew this Agreement for a Renewal Term, Equipment on the Property.
then such Party must give a written notice of termination to the other 5. Charge for Use of Equipment. Host agrees that users of
Party at least 90 days prior to the expiration of the then current Initial the Equipment will be charged (a) a rate between $0.25/kWh and
Term or Renewal Term, as applicable. In the event such notice is $0.35/kWh(or such other range as provided by Company to Host in
delivered, no further automatic extensions shall occur and this writing from time to time) for the consumption costs for electricity
Agreement shall terminate at the end of the then existing Initial Term dispensed from the Equipment and (b) vehicle idling fees (after a
or Renewal Term, as applicable. The Company may terminate this grace period determined by Company) at a rate equal to$0.40 per
Agreement at any time and for any reason by giving 30 days' prior minute or such other rate as provided by Company to Host in writing
written notice to Host. from time to time. The charges to be paid by such users will be
3. Cooperation.In general,the Parties agree to cooperate to collected by a third party provider contracted by Company. On a
achieve the purposes and intent of this Agreement. Host shall quarterly basis,such third party provider will remit to Host all charges
cooperate as necessary with Company (at no cost to Host) in collected from all the users of the Equipment pursuant to Sections
Company's efforts to obtain all permits, licenses and approvals 5(a) and (b) above, excluding any associated transaction fees
necessary for the installation and operation of the Equipment. collected by such third party provider("Host Remittance"). On or
Company will not permit any lien against the Property arising from prior to January 31 of each calendar year of the Term,the Company
the installation or operation of the Equipment. Company shall(i)pay will (if applicable) make a payment to Host equal to the amount by
any personal property tax which is attributable to the Equipment,and which the aggregate amount of the Host's payments to Company
(ii) be the sole recipient and beneficiary of any and all such federal
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under Section 4 for the immediately preceding calendar year
exceeds the Host Remittance for such calendar year.
6. Interference. During the Term, Host shall not Interfere, or
cause or permit to be caused any Interference, with the Equipment.
For purposes of this Agreement, “Interfere” and “Interference” shall
mean interference with Company’s use, operation, access,
maintenance or repair of the Equipment including: (a) subject any
portion of the Equipment to any lien or encumbrance unless the
holder thereof delivers a non-disturbance agreement; and (b) sale,
transfer, assignment, lease or sublease any portion of the Property
other than subject to Host’s rights hereunder.
7. Insurance. Each Party will maintain at all times during the
Term, the following insurance: (a) commercial general liability
insurance with limits of One Million Dollars ($1,000,000) per
occurrence combined single limit for bodily injury and property
damage; (b) business automobile liability insurance with limits of One
Million Dollars ($1,000,000) for bodily injury and property damage;
and (c) workers’ compensation insurance in compliance with Florida
statutes. Such policy or policies shall be issued by companies
authorized to do business in the State of Florida with a minimum A.M.
Best financial rating of “A– VII”. Company has the right to meet the
insurance designated in this section through any combination of self-
insurance, primary or excess coverage. Each Party, for itself and its
respective insurers, waives any right to assert any claim against the
other Party to the extent such claim is covered by the waiving Party’s
insurance. Each Party shall waive all rights of subrogation of its
respective insurers.
8. Indemnification. Each Party (the “Indemnifying Party”)
shall indemnify the other Party (the “Indemnified Party”) from and
against all losses, claims, damages or expenses, including attorneys’
fees, incurred by the Indemnified Party in connection with any claims
for personal injury or death to persons and damage to property
(including environmental damage) arising under this Agreement
during the Term, to the extent arising from the negligence or willful
misconduct of the Indemnifying Party, its agents, employees,
representatives, contractors, affiliates or sub-contractors. Subject to
the next sentence, neither Company nor Host shall be liable to the
other for consequential, special, exemplary, punitive, indirect or
incidental losses or damages or for any loss of use, cost of capital,
loss of goodwill, lost revenues or loss of profit, nor shall any parent,
subsidiary, affiliate or employee of either Party have any liability
under this Agreement, and Company and Host each hereby releases
the other and each of such persons and entities from any such
liability. The foregoing exclusion shall not be construed to limit
recovery under any indemnity or defense obligation of Host under
this Agreement related to third party claims. In no event shall the
aggregate damages payable by a Party hereunder for any reason
whatsoever exceed Three Hundred Thousand U.S. Dollars
($300,000.00). Notwithstanding the foregoing, this Section 8 shall not
be construed or interpreted as a waiver of Host’s sovereign immunity
and the limits established in Section 768.28, Florida Statutes. This
section shall survive the expiration or earlier termination of this
Agreement.
9. Equipment to Remain Personal Property of Company.
The Equipment is and will remain the property of Company, its
successors or assigns, regardless of its use or manner of attachment
to the Property. Host agrees to execute such further documentation
as is reasonably necessary to ensure that the Equipment does not
constitute, and is not deemed to be, a fixture attached to the
Property.
10. Representations. Each Party represents and warrants to
and covenants with the other Party that: (a) such Party has full right,
power and authority to execute this Agreement and that this
Agreement shall bind and benefit the Parties and their respective
successors and assigns; and (b) such Party’s execution and
performance of this Agreement will not violate any laws, ordinances,
covenants or other agreement binding on such Party. Additionally,
Host represents and warrants to Company that it has good and
unencumbered title to the Property either free and clear of any liens,
mortgages or other encumbrances, or if any lien, mortgage or other
encumbrance exists, then such lien, mortgage or other encumbrance
(or any environmental restriction) will not prevent the performance of
this Agreement or burden or encumber the Equipment.
11. Default. An “Event of Default” means that a Party fails to
fully perform any of its covenants under this Agreement within sixty
(60) calendar days after such defaulting Party receives written notice
of such default from the non-defaulting Party; provided, however, if
such default cannot reasonably be cured within such sixty (60) day
time period, defaulting Party shall not be deemed in default
hereunder if defaulting Party has commenced to cure such default
within said sixty (60) day time period and thereafter continues with
diligence to complete the cure of such default.
12. Remedies. Upon an Event of Default as set forth in
Section 11, non-defaulting Party may (i) perform, or cause to be
performed, on behalf and at the expense of defaulting Party, any or
all of the undertakings or obligations as to which defaulting Party
remains in default, in which event defaulting Party will reimburse non-
defaulting Party for such actual reasonable costs and expenses,
within forty-five (45) days following receipt of invoice and supporting
documentation; (ii) exercise any remedy that such non-defaulting
Party may have at law or in equity and (iii) terminate this Agreement
upon 30 days’ prior written notice if the defaulting Party has not cured
such default by the expiration of such 30-day period.
Notwithstanding the preceding sentence, Host may not perform any
right or obligation of Company under Section 1 or take any other
action that relocates or physically alters any of the Equipment.
13. Assignment. Neither Party shall assign this Agreement or
any interest herein without the prior written consent of the other
Party; provided, that the Parties acknowledge that the Equipment
may be covered by Company’s utility financing structure.
14. Notices. All notices, demands, requests, consents,
approvals and other instruments required or permitted to be given
pursuant to this Agreement shall be in writing, signed by the notifying
Party, or officer, agent or attorney of the notifying Party, and shall be
deemed to have been effective upon delivery if served personally,
including but not limited to delivery by messenger, overnight courier
service or by overnight express mail, or on the third (3rd) business
day after posting if sent by registered or certified mail, postage
prepaid, return receipt requested, and addressed as follows:
To Host: To the address set forth in the Preamble above.
To Company: To the VP of Development at the address set forth in
the Preamble above with an e-mail copy to FPLEVolution@fpl.com.
Pamela M. RauchVP External Affairs &Economic Development
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Exhibit A—Location of Equipment
Property Address: 55 SE 3rd Ave, Okeechobee, FL 34974 (SE Park St. Between SE 2nd Ave and SE 3rd Ave)
Number of Spaces: Up to [6] spaces
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Exhibit B—Form of Signage
Parking Stall Signage (~12” x ~18”)
Parking Stall Striping
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Exhibit C—Form of Easement Agreement