ENERGY AUDIT AGREEMENT
ENERGY AUDIT AGREEMENT
This Energy Audit Agreement ("Agreement"), effective the last date signed below, is by
and between the City of Clearwater, a municipal corporation of the State of Florida with an
office at 112 South Osceola Avenue (the "Agency") and Honeywell Building Solutions with an
office at 3079 Premiere Parkway, Suite 100, Duluth, GA 30097 (the "Company") (each a
"Party" and collectively the "Parties").
Whereas, the Company is party to the state term contract procured by the State of
Florida, Department of Management Services, ITN No. DMS 01/2002-103, Comprehensive
Energy Strategy, which enables the Company to perform work under the Guaranteed Energy
Performance Savings Contract Act, codified at section 489.145 of the Florida Statutes, and under
section 235.215 of the Florida Statutes; and
Whereas, the Agency is responsible for the operation, management and maintenance of
the facilities identified on Attachment A to this Agreement (the "Facility(s)"); and
Whereas, a comprehensive investment grade technical energy audit (the "Energy Audit")
and savings analysis (the "Report") must be performed at the Facility in order to determine the
feasibility of entering into a guaranteed energy performance savings contract ("Energy
Performance Contract") to provide for the installation and implementation of energy
conservation measures ("ECMs") at the Facility; and
Whereas, if the ECMs are demonstrated to be feasible, and if the amount of energy cost
savings can be reasonably ascertained and guaranteed in an amount sufficient to cover all costs
associated with an energy performance contracting project at the Facility(s), the Parties intend to
negotiate an Energy Performance Contract under which the Company shall design, procure,
install, implement, maintain and monitor such ECMs at the Facility(s);
Therefore, the Parties agree as follows:
Article 1: Scope of Ener2V Audit
The Company will perform the Energy Audit and prepare the detailed engineering and economic
Report that specifically identifies the energy improvements and operational changes which are
recommended to be installed or implemented at the Facility(s). The Report shall contain detailed
projections of energy and cost savings to be obtained at the Facility(s) as a result of the
installation of the recommended ECMs. The savings calculations must utilize assumptions,
projections and baselines which best represent the true value of future energy or operational
savings for the Facility(s), i.e., utilize: accurate marginal cost for each unit of savings at the time
the audit is performed; documented material and operational costs actually avoided; adjustments
to the baseline to reflect current conditions at the Facility(s) compared to the historic base period;
calculations which account for the interactive effects of the recommended ECMs; etc. The
Report shall clearly describe how utility tariffs were used to calculate savings for all ECMs. The
Report shall describe the Company's plan for installing or implementing the measures in the
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Facility(s), including all anticipated costs associated with such installation and implementation.
The primary purpose of the Report is to provide an engineering and economic basis for
negotiating an Energy Performance Contract between the Agency and the Company; however,
the Agency shall be under no obligation to negotiate such a contract.
The Company shall perform the following tasks in performing the Energy Audit and preparing
the Report:
A. Collect General Facilitv(s) Information
The Company shall collect general Facility(s) information such as: size, age, construction
type, condition and general use of the Facility(s). The Company shall also collect and
summarize Facility(s) utility cost and consumption data for the most recent 24-36 month
period. Company shall evaluate the impact on utility cost and consumption of any energy
initiatives currently being installed or currently planned to be installed by the Agency in
the Facility(s) which will remain separate from the Energy Performance Contract
throughout the duration of that agreement.
Agency shall make available (or cause its energy suppliers to make available) all
available records and data concerning energy and water usage for the Facility(s) for the
most current 24-36 month period, if available, including: Utility records; occupancy
information; descriptions of any changes in the structure of the Facility(s) or its heating,
cooling, lighting or other systems or energy requirements; descriptions of all major
energy and water consuming or energy and water saving equipment used in the
Facility(s); any comfort problems, code deficiencies and description of energy
management procedures presently utilized. The Agency shall also make available a
record of any energy related improvements or modifications that have been installed
during the past three years, or are currently being installed or are currently planned to be
installed by the Agency in the Facility(s) separate from the energy service agreement
throughout the duration of that agreement. The Agency shall also make available copies
of drawings, equipment logs and maintenance work orders to the Company.
B. Analyze Existing Systems and ECluipment
Company shall compile an analysis based on a physical inspection of the major electrical
and mechanical systems at the Facility(s), including:
1. Cooling systems and related equipment
2. Heating and heat distribution systems
3. Automatic temperature control systems and equipment
4. Air distribution systems and equipment
5. Outdoor ventilation systems and equipment
6. Kitchen and associated dining room equipment, if applicable
7. Exhaust systems and equipment
8. Hot water systems
9. Electric motors 5 HP and above, transmission and drive systems
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10. Interior and exterior lighting
11. Laundry equipment, if applicable
12. Water consumption end uses, such as restroom fIxtures, water fountains,
irrigation, etc.
13. Other major energy using systems, if applicable
The analysis shall address the following considerations:
1. the loads, efficiencies or hours of operation for each system (where
Facility(s) operating or climatic conditions necessitate, engineering
estimates may be used, but for large fluctuating loads with high potential
savings appropriate measurements are required unless waived by the
Agency);
2. current operating condition for each system;
The Company shall conduct interviews with Facility(s) operation and maintenance staff
regarding the Facility(s)'s mechanical systems operation, occupancy patterns and
problems with comfort levels or equipment reliability.
C. Establish Base Year Consumption and Reconcile with End Use Consumption Estimates
Company shall examine the most recent 24-36 months of utility bills and establish Base
Year consumption for electricity, fossil fuels and water by averaging; or selecting the
most representative contiguous 12 months. Company shall consult with Facility(s) staff
and account for any unusual or anomalous utility bills which may skew Base Year
consumption from a reasonable representation.
Company shall analyze loading, usage and/or hours of operation for all major end uses
representing more than 5% of total Facility(s) consumption including, but not limited to:
1. Lighting
2. Heating
3. Cooling
4. HV AC motors (fans and pumps)
5. plug load (independent devices greater than 5%)
6. kitchen equipment
7. other equipment
8. miscellaneous
Where loading and/or usage are highly uncertain Company shall employ spot
measurement and/or short term monitoring at its discretion, or at the request of the
Agency. Reasonable applications of measurement typically include variable loads that
are likely candidates for conservation measures, such as cooling equipment.
D. Develop List of Potential Energy Conservation Measures (ECMs)
1. identify and propose potential ECMs for installation or implementation at the Facility(s),
including water conservation measures
2. estimate the cost, savings and life expectancy of each proposed ECM;
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3. specify Facility(s) operations and maintenance procedures which will be affected by the
installation/implementation of the proposed ECMs;
4. provide analysis methodology, supporting calculations and assumptions used to estimate
savings, which shall be based on the life cycle cost calculations provided in section
255.255 of the Florida Statutes. Manual calculations should disclose essential data,
assumptions, formulas, etc. so that a reviewer could replicate the calculations based on
the data provided;
5. for savings estimates using computer simulations, Company shall provide access to the
program and all inputs and assumptions used, if requested by the Agency.
6. provide a preliminary savings measurement and verification plan for each of proposed
ECMs
7. provide a preliminary commissioning plan for the proposed ECMs
8. provide detailed calculations for any rate savings proposals
9. provide detailed supporting calculations for any proposed maintenance or other
operational savings;
10. estimate any environmental costs or benefits of the proposed ECMs (e.g., disposal costs,
avoided emissions, water conservation, etc.)
11. For all proposed ECMs, Company shall comply with all applicable state, federal and
local codes and regulations in effect at the time of this analysis.
E. Select Final Recommended ECMs
Company shall, in consultation with the Agency, recommend specific ECMs from its
preliminary compilation for installation and implementation at the Facility(s).
F. Cost and Fee Estimates
Company shall provide detailed estimates of all costs and fees associated with the
installation and implementation of the ECMs including:
1. engineering/design costs for individual ECMs
2. contractor/vendor estimates for individual ECM hard costs
3. construction management fees for the project
4. commissioning costs for individual ECMs
5. initial training costs
6. annual service fees including:
measurement and verification
maintenance
performance monitoring
ongoing training services
7. other costs/fee (specify)
G. Savings Estimates
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The Agency has endeavored to provide the Company with sufficient general and specific
guidance in this Article 1 to develop the savings estimates for the Report. In the event
that questions arise as to the calculation of savings or whether certain items will be
allowed as savings, the Company shall seek written guidance from the Agency. Agency's
rejection of certain calculations of savings or rejection of certain items as allowable
savings in the Report shall be at the risk of the Company.
The following items will be allowed as savings or in the development of savings: 1
Agency material/commodity cost
Outside maintenance labor cost (if applicable)
Agreed escalation rates for natural gas
Agreed escalation rates for electricity
Agreed escalation rates for water
Agreed escalation rates for material/commodity cost savings
Agreed escalation rates for allowable labor savings
The following items will not be allowed as savings or in the development of savings:
Agency in-house labor cost
Agency deferred maintenance cost
Offset of future Agency capital cost
H. Report Format
1. An executive summary which describes the Facility(s), measures evaluated,
analysis methodology, results and a summary table presenting the cost and
savings estimates for each measure.
2. A discussion of measures not evaluated in detail and the explanation of why a
detailed analysis was not performed.
3. A summary of all utility bills, Base Year consumption and how it was established,
and end use reconciliation with respect to the Base Year including a discussion of
any unusual characteristics and findings.
4. Detailed descriptions for each ECM including analysis method, supporting
calculations (may be submitted in appendices), results, proposed equipment and
implementation issues.
5. Conclusions, observations and caveats regarding cost and savings estimates.
6. Thorough appendices which document the data relied upon to prepare the analysis
and how that data was collected.
1. Unless otherwise agreed in writing, escalation rates shall tie to the Consumer Price
Index. The value of fuel and water unit savings shall be escalated using actual rate increases as
they occur over the term of the contract. The base rate value for each fuel and water unit shall
not devalue in the event of any rate decrease.
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The Report shall be completed within ninety (90) days of the effective date of this
Agreement, unless otherwise stated in Attachment A. The Agency shall conduct and
complete a technical review within sixty (60) days of its receipt of the Report, unless
otherwise stated in Attachment A.
I. Acceptance of the Reoort- If Energy Conservation Measures are Feasible.
The Agency shall accept the Report if the recommended ECMs are feasible and projected energy
cost savings are equal to or greater than the total projected costs of the design and installation of
the recommended ECMs. If the Agency determines that one or more of the recommended ECMs
is not feasible, the Agency shall give the Company written notice of any and all said objections,
in detail, within fourteen (14) days after completing its technical review of the Report. The
Company shall correct the Report and submit a revised draft within twenty-one (21) days of said
notification. The Agency shall have fourteen (14) days from receipt of the revised Report to
notify the Company if any objections have not been corrected. This re-submission process shall
continue until (1) the date all material concerns are resolved and the Report is accepted, or (2)
the dispute is otherwise resolved.
Article 2: Ener2V Performance Contract
The Parties intend to negotiate an Energy Performance Contract under which the Company shall
design, install and implement ECMs and provide certain maintenance and monitoring services.
However, nothing in this Agreement should be construed as an obligation on any of the Parties to
execute such an Energy Performance Contract. The terms and provisions of such an Energy
Performance Contract shall be set forth in a separate agreement. This Agreement shall
automatically terminate upon the Parties' execution of an Energy Performance Contract relating
to the Facility(s).
Article 3: Payment
The Parties understand and intend that the Company's costs for services performed under this
Agreement (1) shall be included in the total project cost, (2) shall not be paid for under this
Agreement, and (3) shall be paid for only under the Energy Performance Contract, if any, from
savings generated by implemented ECMs. The Company is undertaking work under this
Agreement in consideration of the Agency's good faith intention to negotiate the Energy
Performance Contract with the Company. The Company understands and agrees that payment to
it is contingent upon realization of energy cost savings being equal to or greater than the total
cost of the design and installation of the Company's recommended ECMs.
Article 4: Termination
A. By Company:
Company may terminate this Agreement prior to the completion of the Energy Audit and
Report or subsequent to the completion of the Energy Audit and Report if:
(i) It determines that it cannot guarantee a minimum amount of energy and cost
savings through the implementation of an energy performance contracting project
at the Facility(s); or
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(ii)
It determines that even though it can guarantee a minimum amount of energy and
cost savings in energy costs, that amount would be insufficient to cover the costs
associated with performing this analysis, installing ECMs and related
maintenance and monitoring services.
Termination under this section shall be effective upon Agency's receipt of written
notification from the Company stating the reason for the termination and all supporting
documents. Company shall provide the Facility(s) with any preliminary notes, reports or
analysis which have been produced or prepared prior to the effective date of the
termination.
B. By Agency:
Agency may terminate this Agreement:
(i) If the Company fails to complete the Energy Audit and deliver the Report to the
Agency within the time established in Article 1, above; or fails to obtain a written
extension of that time from the Agency. Termination under this subsection B (i)
shall be effective upon Company's receipt of written notification from the Agency
that the deadline for submission of the Report has past. Company shall provide
the Facility(s) with any preliminary notes, reports or analysis which have been
produced or prepared prior to the effective date of the termination.
(ii) If, prior or subsequent to the completion of the Energy Audit, the Company
notifies the Agency in writing that it is unable to guarantee a sufficient level of
savings pursuant to subsection 4 A (i) or (ii) above. Termination under this
subsection B (ii) shall be effective upon Company's receipt of written notification
from the Agency. Company shall provide the Facility(s) with any preliminary
notes, reports or analysis which have been produced or prepared prior to the
effective date of the termination.
C. By Either Party:
Either Party may terminate this Agreement, when the Party deems it to be in its best
interest to do so, by providing the other Party thirty (30) days written notice of its intent to do so.
Termination shall be effective thirty (30) days after receipt of the written notice.
Article 5: Standard Terms and Conditions
Section 1. Agreement Term
The Agreement term shall commence on the effective date of the Agreement and end 240 days
from effective date, unless earlier terminated pursuant to the provisions of Article 4 hereof.
Notwithstanding, Company shall adhere to the deadlines set forth in Article 1 regarding the
completion and submittal of the list of ECMs and the Report.
Section 2. A{>oropriations
Obligations of the Agency shall cease immediately without penalty if in any fiscal year covered
by the Agreement term, the Agency fails to appropriate, reappropriate or otherwise make
available funds for this Agreement. Agency shall provide written notification to Company of any
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impending change in the status of appropriations which may affect this Agreement of which it
has notice.
Section 3. Materials. Equipment and Supplies
The Company shall provide or cause to be provided all facilities, materials, equipment and
supplies necessary to perform the Energy Audit and prepare the Report.
Section 4. Subcontractor Disclosure
As of the execution date of this Agreement, the following subcontractors are expected to perform
material work (i.e., greater than 5% of the total work) pursuant to this Agreement:
Company will provide any subcontractors.
If, during the term of this Agreement, the Company retains subcontractors to perform material
work pursuant to this Agreement who were not disclosed, the Company shall so notify the
Agency in writing.
Section s. Patent and Copyright Responsibility
The Company agrees that any material or design specified by the Company or supplied by the
Company pursuant to this Agreement shall not knowingly infringe any patent or copyright, and
the Company shall be solely responsible for securing any necessary licenses required for
patented or copyrighted material utilized by the Company in the performance of the Energy
Audit and preparation of the Report.
Section 6. Release and Indemnity
The Company agrees to assume all risk of loss and to indemnify and hold the Agency, its
officers, agents and employees harmless from and against any and all liabilities, demands,
claims, suits, losses, damages, causes of action, fines or judgments, including costs, attorneys'
and witnesses' fees, and expenses incident thereto, for injuries to persons (including death) and
for loss of, damage to or destruction of property (including property of the Agency) because of
Company's negligent or intentional acts or omissions. In the event that any demand or claim is
made or suit is commenced against the Agency, the Agency shall give prompt written notice
thereof to Company and Company shall have the right to compromise or defend the same to the
extent of its own interest. Company further agrees to maintain adequate insurance to protect the
Agency against such risks. Company also agrees to indemnify and hold the Agency harmless
should any goods or services provided by Company infringe upon the patent, copyright or trade
secret of another. Notwithstanding any provision to the contrary, neither Party shall be liable to
the other Party for any special, incidental, consequential, or punitive damages.
Section 7. Dispute Resolution
The Agency and the Company recognize and acknowledge that efforts should always be made to
avoid or prevent disputes through effective partnering, good communications, and joint decision
making; and that timely requests for clarification and for information will help ensure a better
understanding of issues and problems and lead to the elimination of doubts, uncertainties, and
ambiguities. Nevertheless, the Agency and the Company also recognize that disputes may
develop between them and, in such event, wish to establish procedures to be followed to resolve
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such disputes in the shortest possible time and at the least possible expense to the Agency and
the Company.
Any conflict or dispute between the Agency and the Company shall be resolved in accordance
with the procedures specified in this Agreement, which shall be the sole and exclusive
procedures for the resolution of any such disputes. This Agreement establishes successive steps
of conflict prevention and alternative dispute resolution prior to litigation, completion of which
shall be conditions precedent to the right to commence litigation over any dispute arising out of
or relating to the Agreement. The successive steps are: (1) informal negotiations between
project-level management personnel; (2) formal negotiations between executive-level
management, initiated by written notice and completed within thirty days, or longer as mutually
agreed; and (3) mediation, initiated by written notice. Except as otherwise agreed by the Parties
in a mediation contract, all mediation proceedings shall be conducted in accordance with this
Agreement and, where applicable, the then-current Model Procedure for Mediation of Business
Disputes published by the Center for Public Resources (CPR), 366 Madison Avenue New York,
NY 10017, (212) 949-6490 (http://www.cpradr.org). If the Agency and the Company have not
agreed within ten (10) business days of the request for mediation on the selection of a neutral
mediator willing to serve, then the Parties agree that a mediator shall be selected by the Florida
Conflict Resolution Consortium (FCRC), Florida State University, Tallahassee, (850) 644-6320
(http://consensus.fsu.edu). The appointment by FCRC of a qualified mediator shall be binding
on both Parties, and both Parties shall promptly cooperate with the appointed mediator to
effectuate mediation.
Any action legal or equitable action arising out of or relating to this Agreement shall be brought
in the appropriate state court in Pinellas County, Florida, and not elsewhere, and shall be
governed by Florida law. The threshold issue for determination shall be whether the Party
bringing the action has complied with the alternative dispute resolution processes specified
above.
Section 8. Personnel
All Company employees, subcontractors, or agents performing work under the Agreement shall
be properly trained technicians who meet or exceed any specified training qualifications. Upon
request, Company shall furnish a copy of technical certification or other proof of qualification.
All employees, subcontractors, or agents performing work under the Agreement must comply
with all security and administrative requirements of the Agency. The Agency may conduct, and
the Company shall cooperate in, a security background check or otherwise assess any employee,
subcontractor, or agent furnished by the Company. The Agency may refuse access to, or require
replacement of, any personnel for cause, including, but not limited to, technical or training
qualifications, quality of work, change in security status, or non-compliance with the Agency's
security or other requirements. Such approval shall not relieve the Company of its obligation to
perform all work in compliance with the Agreement. The Agency may reject and bar from any
facility for cause any of the Company's employees, subcontractors, or agents.
The Company, together with its agents, subcontractors, officers and employees, shall have and
always retain under the Agreement the legal status of an independent contractor, and in no
manner shall they be deemed employees of the Agency or deemed to be entitled to any benefits
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associated with such employment. During the term of the Agreement, the Company shall
maintain at its sole expense those benefits to which its employees would otherwise be entitled to
by law, including health benefits, and all necessary insurance for its employees, including
workers' compensation, disability, and unemployment insurance, and provide the Agency with
certification of such insurance upon request. The Company remains responsible for all
applicable federal, state, and local taxes, and all FICA contributions.
Section 9. Compliance with Applicable Law
In performing this Agreement, the Company shall comply with all laws, rules, codes, ordinances,
and licensing requirements that are applicable to the conduct of its business, including those of
federal, State, and local agencies having jurisdiction and authority. By way of non-exhaustive
example, Chapter 287 of the Florida Statutes and Chapter 60A-I of the Florida Administrative
Code govern the Agreement. By way of further non-exhaustive example, the Company shall
comply with section 247A(e) of the Immigration and Nationalization Act, the Americans with
Disabilities Act, and all prohibitions against discrimination on the basis of race, religion, sex,
creed, national origin, handicap, marital status, or veteran's status. Violation of such laws shall
be grounds for Agreement termination. The Agency may cancel the Agreement if the Company
refuses to allow public access to all records made or received by the Company in conjunction
with the Agreement, unless the records are exempt from section 24(a) of Article I of the State
Constitution and section 119.07(1) of the Florida Statutes.
Section 10. Waivers
No right of either party hereto shall be deemed to have been waived by non-exercise thereof, or
otherwise, unless such waiver is reduced to writing and executed by the party entitled to exercise
such right.
Section 11. Assignment
Neither Party may assign this Agreement without the prior written consent of the other Party,
which shall not be unreasonably withheld.
Section 12. Capacity to Contract
Each person signing the Agreement warrants that he or she is duly authorized to do so and to
bind the respective Party to the Agreement. The Company warrants that it is in good standing
and legally authorized to transact business in Florida. The Company warrants that, to the best of
its knowledge, there is no pending or threatened action, proceeding, or investigation, or any other
legal or financial condition, that would in any way prohibit, restrain, or diminish the Company's
ability to satisfy its Agreement obligations. The Company warrants that neither it nor any
affiliate is currently on the convicted vendor list maintained pursuant to section 287.133 of the
Florida Statutes, or on any similar list maintained by any other state or the federal government.
The Company shall immediately notify the Agency in writing if its ability to perform is
compromised in any manner during the term of the Agreement.
Section 13. Confidential Information
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Each Party may have access to confidential information made available by the other Party (see
particularly, but not exclusively, subsection Il9.07(ee) and section 119.071 of the Florida
Statutes). Each Party shall protect such confidential information in the same manner as it
protects its own confidential information of like kind. Disclosure of any confidential information
received by the Agency will be governed by the Public Records Act, chapter 119 of the Florida
Statutes.
Section 14. Convicted or Discriminatory Vendors
A person or affiliate placed on the convicted vendor list following a conviction for a public entity
crime is prohibited from doing any of the following for a period of 36 months from the date of
being placed on the convicted vendor list: submitting a bid on a contract to provide any goods or
services to a public entity; submitting a bid on a contract with a public entity for the construction
or repair of a public building or public work; submitting bids on leases of real property to a
public entity; being awarded or performing work as a contractor, supplier, subcontractor, or
consultant under a contract with any public entity; and transacting business with any public
entity in excess of the Category Two threshold amount ($25,000) provided in section 287.017 of
the Florida Statutes.
An entity or affiliate placed on the discriminatory vendor list pursuant to section 287.134 of the
Florida Statutes may not submit a bid on a contract to provide any goods or services to a public
entity; may not submit a bid on a contract with a public entity for the construction or repair of a
public building or public work; may not submit bids on leases of real property to a public entity;
may not be awarded or perform work as a contractor, supplier, sub-contractor, or consultant
under a contract with any public entity; and may not transact business with any public entity.
Section 15. Proiect Management
All necessary and ordinary communications, submittals, approvals, requests and notices related
to Project work shall be issued or received by:
City of Clearwater
1900 Grand Ave. Clearwater, FL 33765
Tel: 727-562-4891
Fax: 727-562-4895
Email: rick.carnley@MyClearwater.com
Honeywell Building Solutions
11214 Cedar Grove St. Windermere, FL 34786
Tel: 407-909-9344
Fax: 407-641-9740
Email: Bueno.Prades@Honeywell.com
Either Party may change its point of contact by written notice to other Party's then-current
designated contact, which shall not constitute a formal amendment to this Agreement.
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Section 16. Modification of Terms
The Agreement contains all the terms and conditions agreed upon by the Parties. The Agreement
may only be modified or amended upon mutual written agreement of the Parties. No oral
agreements or representations shall be valid or binding upon the Agency or the Company.
Section 17. Execution in Counterparts
The Agreement may be executed in counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
Section 18. Severability
If a court deems any provision of the Agreement void or unenforceable, that provision shall be
enforced only to the extent that it is not in violation of law or is not otherwise unenforceable, and
all other provisions shall remain in full force and effect.
Article 6: Execution
CITY OF CLEARWATER
By:
~(}J~g"~JL
William B. Home II
City Manager
Approved as to form:
~d~ d'
Laura LiPOWS~
Assistant City Attorney
Attest:
. a E. Goudeau
lerk
nIclrch '7 :;;l 007
)
Its: Account Executive
Energy Audit Agreement
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2/19/2007
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ATTACHMENT "A"
Long Center Recreational Facility
1501 North Belcher Ave.
Clearwater, FL
Clearwater Main Library
100 N. Osceola Ave.
Clearwater, FL
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