EXHIBIT_A_Master_Services_Agreement_Terms_&_Conditions_03262025.pdf

MASTER SERVICES AGREEMENT

This Master Services Agreement (the “Agreement”) is entered into effective as of the XX day of XXXXXXXXX, 20XX (the “Effective Date”) by and between XXXXXXXXXXXXXXX, (“Company” or “Contractor”) and Florida Keys Electric Cooperative Association, Inc., (“FKEC”).

WHEREAS, Company is in the business of providing XXXXXXXXXXXXXXXXXX; and

WHEREAS, Company represents that it has sufficient experience, personnel, and equipment to perform XXXXXXXXXXXXXXXXXX and FKEC desires to have Company provide such services in accordance with the terms of this Agreement; and

NOW THEREFORE, in consideration of the mutual promised, covenants, and agreements contained herein, the parties hereto intending to be legally bound agree as follows:

DEFINITIONS

For the purposes of this Agreement the following definitions shall apply unless the context clearly indicates otherwise. All capitalized terms used in this Agreement that are not defined in this Section shall have the definitions set forth elsewhere herein, including the Exhibits to this Agreement:

1. “FEMA” is the Federal Emergency Management Agency.

2. “Services” includes XXXXXXXXXXXXXX.

3. “Governmental Authority” means any local, state, regional, federal, or national administrative, legal, judicial, or executive agency, commission, department, or other governmental entity.

4. “OIG” means the Office of Inspector General.

5. “OSHA” means the Occupational Health and Safety Administration.

6. “Request for Services” means a document issued by FKEC authorizing Company the Services pursuant to the terms of this Agreement.

SCOPE OF SERVICES

FKEC desires Company to perform XXXXXXXXXXXXXXXX as described in more detail at Exhibit A, as may be requested by FKEC from time to time under this Agreement (the “Services”).

Upon mutual execution of a Request for Services, Company shall supply, and FKEC shall procure, the Services pursuant to the terms and conditions of this Agreement. Each Request for Services issued hereunder by FKEC and accepted by Company will describe the Services to be performed, specify the rates to be charged, include a price ceiling the Company exceeds at its own risk, and specify the period for performance. Unless otherwise directed by FKEC in writing, Company shall not commence work under this Agreement until it has signed a Request for Services issued by

FKEC.

No additional terms shall apply to Services unless mutually agreed upon between the parties in an applicable Request for Services. It is specifically agreed that any preprinted terms and conditions appearing on a purchase order authorization shall have no force or effect pursuant to the Services. Where the terms of this Agreement conflict with the terms of a Request for Services, the Request for Services prevails.

COMPENSATION

For performance of the Services, FKEC shall pay Company the fees set forth in each Request for Services pursuant to the rates in Exhibit B. Each Request for Services will also include a fixed “not to exceed” amount that Company exceeds at its own risk. Where FKEC is compensating Company on a time and materials or time and equipment basis, Company may not invoice for Services or expenses in excess of the not to exceed amount shown in the relevant Request for Services unless it has been amended in writing and signed by the Parties.

The Company shall bill FKEC at a frequency no less than weekly or as otherwise specified in a specific Request for Services, and the invoice shall be due and payable within 30 days upon receipt and approval of the invoice. All invoices must be submitted with a hard copy of the invoice and an electronic copy (Microsoft Excel format) of the invoice detail. Invoice details will be verified by FKEC before being paid. Company may be required to submit revised invoices to meet FEMA’s requirements for reimbursement.

If FKEC disputes an invoice Company submits for any reason, including lack of supporting documentation (as may be required by FKEC in its sole discretion), FKEC shall temporarily delete the disputed item and pay the remainder of the invoice. FKEC shall promptly notify Company of the dispute and request remedial action. After the dispute is settled, Company shall include the settled amount, if any, on a subsequent regularly scheduled invoice or on a special invoice for the disputed item only. FKEC may also withhold 25 percent of the projected cost in the event the Company exceeds the scheduled completion date. The withheld funds will not be paid until the FKEC is satisfied all items in the Request for Services are met after the delay.

If for any reason FKEC fails to pay Company in full within thirty (30) days from the date of an invoice, FKEC shall pay the Company a late payment charge each month equal to the prime rate for any unpaid balance or the highest rate permitted by law, whichever is greatest. However, FKEC will not be responsible for late payment charges if FKEC withholds funds in accordance with this Section or rejects the work due to nonconformity with the Agreement or for any other cause that may jeopardize FKEC’s FEMA Public Assistance reimbursement.

Unless otherwise specified in a Request for Services, all payments are due in U.S. dollars, and rates are net of non-U.S. taxes that may be assessed, or any U.S. state government sales or use taxes that are or may become applicable to the Services.

BONDING

In accordance with 2 C.F.R. § 200.325, if Company is requested to perform work on construction or facility improvement projects or subcontracts exceeding the Simplified Acquisition Threshold as defined by 48 C.F.R. Subpart 2.1 (currently, $250,000), or if for any other reason FKEC determines it necessary, FKEC reserves the right to require the following:

Performance Bond

Company shall execute and provide to FKEC concurrently with this Agreement a Performance Bond in the amount of the total, not-to-exceed compensation indicated in any subsequent Request for Service and in a form provided or approved by FKEC. No payment will be made to Company until FKEC has received and approved the performance bond.

Payment Bond

Prior to commencing work, Company shall be required to furnish the FKEC with a Payment Bond for the protection of all persons supplying labor and material to the performance of any work related to the Agreement in the amount of the total, not-to-exceed compensation indicated in any subsequent Request for Service and in a form provided or approved by FKEC. No payment will be made to Company until FKEC has received and approved the performance bond.

RECORDS

For a period of five (5) years after completion of the applicable Services, Company will provide, if requested by FKEC, the State of Florida, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives, access to any books, documents, papers, and records of the Contractor which are directly pertinent to this Agreement, for the purposes of making audits, examinations, excerpts, and transcriptions.

Company agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

Company agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the Agreement.

In compliance with the Disaster Recovery Act of 2018, the FKEC and Company acknowledge and agree that no language in this Agreement is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States.

CONFIDENTIALITY

Both parties acknowledge that in the performance of their obligations hereunder, a party (a “Receiving Party”) may come into contact with Confidential Information (as defined below) of other party (a “Disclosing Party”). A Receiving Party shall not (i) use Confidential Information of a Disclosing Party for any purpose other than performing such Receiving Party’s obligations hereunder and (ii) except as permitted herein, disclose, or permit the disclosure of any Confidential Information of such Disclosing Party to any third party. Notwithstanding the foregoing (i) Company may disclose FKEC’s Confidential Information to its permitted https://www.lawinsider.com/clause/performance-bond subcontractors and/or Company’s employees and/or the employees of Company’s permitted subcontractors who need to know FKEC’s Confidential Information in order for Company to perform its obligations hereunder and who agree to received such information subject to the confidentiality provisions of this Agreement, and (ii) FKEC may disclosed Confidential Information of Company as is reasonably necessary for FKEC to adequately use and/or maintain the subject of the Services. Each party shall be liable for a breach of the confidentiality provisions of this Agreement by any of its respective subcontractors, employees, employees of subcontractors, and agents.

“Confidential Information” means any and all of a Disclosing Party’s information in any form that is not generally known to third persons, including but not limited to the existence and terms and conditions of this Agreement and information relating to a Disclosing Party’s: plant designs, specifications, and layouts; equipment designs; product designs and specifications; and processes, formulas, trade secrets, pricing, rates, and methodologies. Except with respect to the existence and terms and conditions of this Agreement, Confidential Information does not include information that, as shown by documentary evidence, (w) is or becomes a generally available or known to the public through no fault of the Receiving Party; (x) is already know by or available to the Receiving Party prior to the disclosure by the Disclosing Party; (y) is subsequently disclosed to the Receiving Party by a third party who is not under any confidentiality obligation to the Disclosing Party; or (z) has already been or are hereafter independently acquired or developed without violating any obligation that the Receiving Party has to the Disclosing Party.

TERM

Contract Term

This Agreement is effective on the date of the Effective Date and expires XXXXXXXXX XX, 20XX thereafter, unless extended or terminated in accordance with the terms and conditions of this Agreement.

Each Request for Services will include the date by which Company must begin to provide the requested services and the date by which services must be completed. These dates may only be modified if agreed by the Parties, in writing.

If Company fails to begin work within 48 hours of the commencement date listed in the Request for Services, Contractor is responsible for a per day monetary penalty indicated in the Request for Services, if any, until work begins or FKEC is able to start work with another Contractor for the same scope of work.

Termination for Cause

FKEC reserves the right to terminate this Agreement immediately, in whole or in part, at its sole discretion, for the following reasons:

1. Lack of, or reduction in, funding or resources in which instance, FKEC shall provide Contractor ten days’ written notice of such termination or lack of funds;

2. Contractor’s non-performance of the specifications of this Agreement or Request for Services or non-compliance with the terms of this Agreement or Request for Services.

Termination, in whole or in part under this Section may be made at FKEC’s option and without prejudice to any other remedy to which FKEC may be entitled to at law or in equity, or elsewhere under this Agreement. FKEC shall not pay for work, equipment, services or supplies that are unsatisfactory or unauthorized provided that "unsatisfactory” materials are in noncompliance with the terms herein. At FKEC’s sole discretion and with written notice by FKEC, the Contractor may be given a reasonable opportunity prior to termination to correct any deficiency in the work or services performed under this Agreement. Nothing herein, however, shall be construed as negating the basis for termination for nonperformance or shall in no way limit or waive FKEC’s right to terminate this Agreement under any other provisions herein.

3. Contractor’s improper, misuse, or inept performance of services under this Agreement;

4. Contractor’s submission of invoices, data, statements and/or reports that are incorrect, incomplete, and/or false in any way;

5. In FKEC‘s sole discretion, if termination is necessary to protect the health and safety of FKEC’s customers, contractors, and/or employees;

6. If Contractor becomes or is declared insolvent or bankrupt, or is the subject of any proceedings relating to its liquidation or insolvency or for the appointment of a receiver or similar officer for it, has a receiver of its assets or property appointed or makes an assignment for the benefit of all or substantially all of its creditors, institutes or causes to be instituted any proceeding in bankruptcy or reorganization or rearrangement of its affairs, enters into an agreement for the composition, extension, or adjustment of all or substantially all of its obligations, or has a material change in its key employees; and/or

7. Contractor’s inability to perform under this Agreement due to judicial order, injunction, or any other court proceeding.

In the event of termination, FKEC may take possession of the premises and all materials, tools, and appliances thereon and finish the work by whatever method it may deem expedient. In such cases, Contractor shall only be entitled to receive payment for work satisfactorily completed prior to the termination date, subject to any setoffs due FKEC in completing the unfinished portion of the work and for reimbursement of damages incurred. FKEC may take possession of and use any materials, plant, tools, equipment, and property of any kind furnished by Contractor to complete the work. If the expense incurred by FKEC to finish the work exceeds the expense which would have otherwise been incurred under this Agreement pursuant to the rates in Exhibit B, Contractor shall pay the difference to FKEC. The expense incurred by FKEC as herein provided, and the damage incurred through Contractor's default, shall be certified by the appropriate FKEC-appointed representative. The liability of Contractor and its surety or sureties for such damages and costs is joint and several. The obligations of Contractor and his surety with respect to the warranty and maintenance shall remain in full force and effect for the portion of the Work completed by Contractor and shall not expire until the expiration of the prescribed time period measured from the final acceptance of the project in its entirety. These clauses shall survive the termination of this Agreement.

If FKEC determines pursuant to this Agreement to hold Contractor in default and terminate the Agreement for cause and it is subsequently determined that any such determination was improper, unwarranted, or wrongful, then any such termination shall be deemed for all purposes as a termination for convenience. Contractor agrees that it shall be entitled to no damages, allowances, or expenses of any kind other than as provided in this Agreement in connection with such termination, and does expressly waive, in the event of termination, any and all claims for consequential damages, loss of bonding capacity, destruction of business, unabsorbed home office overhead, lost profit and the like.

If a default occurs, FKEC may, but is not obligated to, deliver a written notice to Contractor describing the default and the termination date. FKEC, at its sole option, may extend the termination date to a later date. If FKEC permits Contractor to cure the default and Contractor does so before the termination date, then the termination is ineffective. If Contractor does not cure the default before the termination date, then FKEC may terminate this Agreement on the termination date and pay Contractor for all Services performed to the satisfaction of FKEC, if any, through such date.

To effect final termination, FKEC must notify Contractor in writing. After receiving the notice, Contractor shall, unless the notice directs otherwise, immediately discontinue all Services under this Agreement, and promptly cancel all orders or subcontracts chargeable to this Agreement.

Any violation or breach of terms of this Agreement on the part of the Contractor or a Subcontractor may result in the suspension or termination of this Agreement, or such other action, including the recovery of damages, as may be necessary to enforce the rights of FKEC.

In addition to any other remedies provided for in this Agreement or to which FKEC may be entitled at law or in equity, in the event of a breach or violation of this Agreement by Contractor, Contractor may be barred from consideration for the award of additional contracts from FKEC, including but not limited to contracts related to disaster relief or recovery. The duties and obligations imposed by this Agreement and the rights and remedies available hereunder shall be in addition to, and not a limitation of, any duties, obligations, rights, and remedies otherwise imposed or available by law.

Termination for Convenience

FKEC or Company may terminate this Agreement for its respective convenience by providing thirty (30) days’ prior written notice to the other party; provided, however, pursuant to such a termination, any Services to be performed pursuant to a Request for Services mutually executed by the parties prior to the date of such termination must be completed pursuant to such Request for Services unless the parties mutually agree otherwise. In addition to the foregoing, FKEC may terminate any individual Request for Services by provided thirty (30) days’ prior written notice to Company, but such termination shall not relieve FKEC of its obligation to pay Company for expenses incurred and Services performed up to the date of termination and all reasonable expenses which Company incurs by reason of such termination.

CHANGE ORDERS

Without invalidating the Agreement, Company or FKEC may order changes in the Services required under a Request for Services, including additions, deletions, or other revisions, including but not limited to drawings and changes to specifications. Such party shall submit a written request (each a “Change Order”) to the other party describing the nature of the proposed change(s). In the case of a Change Order initiated by Company, FKEC shall promptly review Company’s proposal and notify Company in writing of any objections, or otherwise countersign the proposed Change Order. In the case of a Change Order initiated by FKEC, Company shall specify the effect, if any, that FKEC’s proposed change(s) would have on the Services, the price, the payment schedule, the completion date and any other provisions under the Agreement or Request for Services. The parties shall come to a mutual agreement on such proposed changes via a Change Order executed by both parties. In the event of a disagreement in the proposed change(s), either party shall have the ability to terminate the applicable Request for Services at issue.

INSURANCE AND INDEMNITY

Mutual Indemnity

FKEC AGREES TO INDEMNIFY, DEFEND (BUT ONLY IF SO ELECTED BY COMPANY AT ITS SOLE

DISCRETION) AND HOLD HARMLESS COMPANY, ITS AFFILIATES, JOINT VENTURE PARTNERS,

SUBSIDIARIES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, REPRESENTATIVES,

AGENTS AND EMPLOYEES (COLLECTIVELY, “COMPANY INDEMNIFIED PARTIES”), FROM AND

AGAINST ANY AND ALL PROCEEDINGS, CLAIMS, DEMANDS, ACTIONS, DAMAGES, LIABILITIES,

LOSSES, COSTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’

FEES INCURRED BY A COMPANY INDEMNIFIED PARTY IN DEFENDING THE FOREGOING OR

INCURRED IN ENFORCING FKEC’S INDEMNIFICATION OBLIGATIONS HEREUNDER) (COLLECTIVELY, “DAMAGES”), IN ANY MANNER ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OF

THE SERVICES HEREUNDER, TO THE EXTENT THAT ANY SUCH DAMAGES ARE CAUSED BY ANY

NEGLIGENT ACTS, ERRORS OR OMISSIONS, BREACH OF THE AGREEMENT OR ANY WILLFUL

MISCONDUCT OF FKEC, ITS SUBCONTRATOR(S), OR ANYONE DIRECTLY OR INDIRECTLY

EMPLOYED BY ANY OF THEM, OR ANYONE FOR WHOSE ACTS ANY OF THEM MAY BE LIABLE, AND

REGARDLESS OF WHETHER OR NOT A COMPANY INDEMNIFIED PARTY WOULD OTHERWISE BE

LIABLE FOR SUCH DAMAGES UNDER A STATUTORY OR COMMON LAW STRICT LIABILITY

STANDARD. FOR THE AVOIDANCE OF DOUBT, FKEC SHALL NOT BE OBLIGATED TO INDEMNIFY

ANY COMPANY INDEMNIFIED PARTY HEREUNDER FOR THAT PORTION OF ANY DAMAGES

RESULTING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF A COMPANY INDEMNIFIED

PARTY.

COMPANY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS FKEC, ITS AFFILIATES, JOINT

VENTURE PARTNERS, SUBSIDIARIES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS,

REPRESENTATIVES, AGENTS AND EMPLOYEES (COLLECTIVELY, “FKEC INDEMNIFIED PARTIES”), FROM AND AGAINST ANY AND ALL PROCEEDINGS, CLAIMS, DEMANDS, ACTIONS, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE

ATTORNEYS’ FEES INCURRED BY A FKEC INDEMNIFIED PARTY IN DEFENDING THE FOREGOING OR

INCURRED IN ENFORCING COMPANY’S INDEMNIFICATION OBLIGATIONS HEREUNDER)

(COLLECTIVELY, “DAMAGES”), IN ANY MANNER ARISING OUT OF OR RESULTING FROM THE

PERFORMANCE OF THE SERVICES HEREUNDER, TO THE EXTENT THAT ANY SUCH DAMAGES ARE

CAUSED BY ANY NEGLIGENT ACTS, ERROR OR OMISSIONS, BREACH OF THE AGREEMENT OR ANY

WILLFUL MISCONDUCT OF COMPANY, ITS SUBCONTRACTOR(S), OR ANYONE DIRECTLY OR

INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE FOR WHOSE ACTS ANY OF THEM MAY BE

LIABLE, AND REGARDLESS OF WHETHER OR NOT A FKEC INDEMNIFIED PARTY WOULD

OTHERWISE BE LIABLE FOR SUCH DAMAGES UNDER A STATUTORY OR COMMON LAW STRICT

LIABILITY STANDARD. FOR THE AVOIDANCE OF DOUBT, COMPANY SHALL NOT BE OBLIGATED TO

INDEMNIFY ANY FKEC INDEMNIFIED PARTY HEREUNDER FOR THAT PORTION OF ANY DAMAGES

RESULTING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF A FKEC INDEMNIFIED PARTY.

Limitation of Liability

FKEC AND COMPANY’S TOTAL CUMULATIVE LIABILITY FOR CLAIMS OF ANY KIND, WHETHER

BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER ANY

WARRANTY OR OTHERWISE, FOR ANY LOSS OR DAMAGE RELATING TO THIS AGREEMENT OR THE

PERFORMANCE OF THE SERVICES, SHALL IN NO CASE EXCEED THE COMPENSATION PAID TO

COMPANY PURSUANT TO THE APPLICABLE REQUEST FOR SERVICES, AND FKEC AND COMPANY

HEREBY RELEASES EACH OTHER FROM ANY LIABILITY IN EXCESS OF SUCH AMOUNT. THIS

MONETARY LIMITATION SHALL SURVIVE THE FAILURE OF ANY EXCLUSIVE REMEDY.

NEITHER PARTY SHALL BE LIABLE, WHETHER BASED ON CONTRACT, TORT (INCLUDING

NEGLIGENCE AND STRICT LIABILITY), UNDER ANY WARRANTY OR OTHERWISE RELATING TO THE SERVICES OR THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR

INCIDENTAL LOSS OR DAMAGE, ANY DAMAGE TO OR LOSS OF ANY PROPERTY OR EQUIPMENT,

OR ANY LOSS OF USE OF PROPERTY OR EQUIPMENT.

ALL OF THE PROVISIONS OF THIS AGREEMENT PROVIDING FOR LIMITATION OF, OR PROTECTION AGAINST LIABILITY OF FKEC OR COMPANY, SHALL ALSO PROTECT ITS DIRECTORS, OFFICERS AND

EMPLOYEES, AND AFFILIATED ENTITIES OF COMPANY AND THEIR DIRECTORS, OFFICERS,

EMPLOYEES, AND AFFILIATES, AND SHALL APPLY REGARDLESS OF THE FAULT, NEGLIGENCE OR STRICT LIABILITY OF COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES. ANY

CAUSE OF ACTION OR OTHER CLAIM RELATING TO THE SERVICES MUST BE COMMENCED

WITHIN ONE (1) YEAR AFTER COMPLETION (OR TERMINATION) OF THE APPLICABLE SERVICES.

THE PROVISIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING ANY OTHER PROVISION OF

THIS AGREEMENT.

WITH REGARDS TO THIS AGREEMENT FOR SERVICES RELATED TO

FLORIDA, AND SPECIFICALLY WITH REGARDS TO WAIVER OF

CONSEQUENTIAL DAMAGES AND LIMITATION OF LIABILITY,

PURSUANT TO FLA. STAT. § 558.035, INDIVIDUAL EMPLOYEES AND

AGENTS OF THE COMPANY MAY NOT BE HELD INDIVIDUALLY LIABLE

FOR NEGLIGENCE BY FKEC. FKEC COVENANTS NOT TO SUE ANY

INDIVIDUAL EMPLOYEE, AGENT, OR OFFICER OF COMPANY

(INCLUDING ANY INDIVIDUAL EMPLOYEE, AGENT, OR OFFICER OF

COMPANY’S SUBCONTRACTORS OR SUBCONSULTANTS) IN THEIR

INDIVIDUAL CAPACITY FOR PROFESSIONAL NEGLIGENCE, ERRORS,

OR OMISSIONS, INCLUDING NEGLIGENCE ARISING OUT OF BREACH

OF CONTRACT OR WARRANTY ASSOCIATED WITH THE AGREEMENT.

FKEC’S REMEDY FOR SUCH CLAIMS SHALL BE LIMITED TO RECOVERY

OF THE LEGAL DAMAGES ASSESSED COMPANY.

Insurance

Upon execution of the Agreement and until completion of the Services, Company shall provide a Certificate of Liability Insurance evidencing insurance applicable to its operations as follows:

1. Workers’ Compensation Insurance at statutory limits, and Employer’s Liability Insurance with a limit of $1,000,000 per accident to provide for payment to Company’s employees employed on or in connection with the Services covered by this Agreement and/or their dependents, of Workers’ Compensation benefits including, when required, Occupational Disease benefits in accordance with the applicable law including the U.S. Longshoremen’s and Harbor Workers’ Compensation Act and the Jones Act.

2. Commercial General Liability Insurance (including Premises Operations, Explosion, Collapse, Underground, Contractual Liability, Independent Contractor’s Liability, and Products/Completed Operations Insurance) with a limit of $1,000,000 each occurrence and $1,000,000 in the aggregate, for bodily injury and/or personal injury, including death, and property damage.

3. Commercial Automobile Liability Insurance (including owned, non-owned and hired automobiles) with a combined single limit for bodily injury, death, and property damage of $1,000,000 per accident. This coverage does not apply to FKEC-furnished vehicles which are used by Company on a temporary or incidental basis (i.e. not permanently assigned to Company). On such vehicles, FKEC shall maintain similar insurance for Company’s benefit.

4. Professional Liability Insurance with a limit of $1,000,000 each claims and annual aggregate if Company provides professional services as a party of their scope of work under any Request for Services.

DISPUTE RESOLUTION

Remedies

If any Services performed by the Contractor fail to meet the requirements of the Agreement, any other applicable standards, codes or laws, or the instructions of FKEC’s Designated Representative, in addition to the actions listed in Section 4.2 above, FKEC may in its sole discretion and with written notice:

1. elect to have the Contractor re-perform or cause to be re-performed at Contractor’s sole expense, any of the Services which fail to meet the requirements and standards referenced in this Agreement;

2. hire other contractor(s) to perform the Services and deduct any additional costs incurred by FKEC as a result of substituting contractors from any amounts due to Contractor; or

3. pursue and obtain any and all other available legal or equitable remedies.

This Section shall in no way be interpreted to limit FKEC’s right to pursue and obtain any and all other available legal or equitable remedies against Contractor.

Arbitration

Any dispute, controversy or claim arising out of or relating to this Agreement or the breach thereof, shall be resolved by arbitration substantially in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“the Rules”). Judgement upon any arbitration award may be entered in any court having jurisdiction, the parties hereby consenting to the jurisdiction of such courts for this purpose. Each party shall be entitled, under the supervision of the Arbitrator, to the amount of pre-arbitration discovery deemed reasonable by the Arbitrator. The Arbitrator shall give full effect to this Agreement and shall not deviate therefrom. The costs of the arbitration, including the arbitrator’s fee and court reporter’s fee, shall be equally split among the parties. The arbitration shall take place in Monroe County, Florida, and the arbitrator shall issue any award at the place of arbitration. The arbitrator may conduct hearings and meetings at any other place agreeable to the parties or, upon the motion of a party, determined by the arbitrator as necessary to obtain significant testimony or evidence.

The parties shall select one arbitrator in accordance with the Rules. If the parties fail to agree on an arbitrator, the arbitration shall take place before an arbitrator is selected in accordance with Rule 12 of the Rules.

REPRESENTATIVES

Company will function in cooperation with and subject always to the direction and control of FKEC’s authorized officers or representatives designated in the applicable Request for Services.

Company shall also designate a representative in each Request for Services.

NOTICES

Unless otherwise provided herein, in the event notice is required to be given to a party pursuant to any provision of this Agreement, such notice shall be properly given and in full compliance https://www.lawinsider.com/clause/location-of-arbitration https://www.lawinsider.com/clause/selection-of-arbitrators with this Agreement if such notice is in writing and is delivered: (a) by an internationally recognized overnight courier, postage prepaid; (b) by personal delivery to the party; or (c) by facsimile if promptly confirmed by first-class mail or internationally recognized overnight courier, in each case postage prepaid, to the parties at the addresses and/or numbers listed below:

If to Company:

XXXXXXXXXXXXXXXXXXXXXXXX

Attn: XXXXXXXXXXXXXXXX, XXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXX, XX XXXX

Phone: (XXX) XXX-XXXX

Email: xxxxxx@xxxxxxxxxxxxxx.com

If to FKEC:

Florida Keys Electric Cooperative Assoc., Inc.

Attn: Scott Newberry, CEO

P.O. Box 377

91630 Overseas Highway

Tavernier, FL 33070

Phone: 305-852-2431

Fax: 305-852-4794

Email: scott.newberry@fkec.com or at such other address or numbers as the parties may have furnished to the other in writing.

Such notice shall be deemed delivered (x) upon receipt if delivered personally, (y) on the next business day if sent by internationally recognized overnight courier, or (z) the day of sending if send by facsimile or email transmission in accordance with the terms hereof.

CONTRACTOR DUTIES

Warranty

WITH RESPECT TO THE SERVICES PROVIDED BY COMPANY, COMPANY WARRANTS THAT ITS

SERVICES SHALL BE PERFORMED IN ACCORDANCE WITH PROFESSIONAL INDUSTRY STANDARDS

OF SIMILARLY SITUATED BUSINESSES PROVIDING SIMILAR SERVICES. THERE IS NO OTHER

WARRANTY OR REPRESENTATION, WHETHER STATUTORY, EXPRESSED, OR IMPLIED. THE SOLE

LIABILITY OF COMPANY RELATING TO THE SERVICES SHALL BE LIMITED TO PERFORMING AT

COMPANY’S EXPENSE ANY SERVICES PERFORMED BY COMPANY WHICH HAVE FAILED TO MEET

mailto:scott.newberry@fkec.com

THE ABOVE WARRANTY, IF SUCH FAILURE IS PROMPTLY REPORTED TO FKEC NOT LATER THAN

ONE (1) YEAR FOLLOWING THE COMPLETION OF THE APPLICABLE SERVICES. THE FOREGOING

REMEDY SHALL BE FKEC’S SOLE REMEDY FOR ANY FAILURE OF COMPANY TO COMPLY WITH ITS

WARRANTY OBLIGATIONS.

WITH RESPECT TO ANY EQUIPMENT AND/OR MATERIALS PROVIDED PURSUANT TO THE

SERVICES, SUCH SHALL BE PROVIDED ON AN “AS-IS, WHERE-IS, WITH ALL-FAULTS” BASIS,

PROVIDED THAT COMPANY SHALL PASS THROUGH ANY MANUFACTURER WARRANTIES

AVAILABLE FOR ASSIGNMENT TO FKEC WITH RESPECT TO ANY SUCH EQUIPMENT AND/OR

MATERIALS.

Applicability of Additional Federal Contract Provisions and Requirements

Contractor acknowledges that for any procurement involving federal financial assistance, FKEC will include contract clauses as required by 2 C.F.R. Part 200, Appendix II and any other applicable law or regulation in effect at the time of contract execution. These clauses shall apply only to the extent required by law.

FKEC has adopted a companion Addendum to Appendix II – Notice of Applicability, which provides additional guidance on the evolving nature of these federal requirements. The Addendum is included here:

Addendum to Appendix II to 2 C.F.R. Part 200-Contract Provisions for non-Federal Entity Contracts Under Federal Awards

Notice of Applicability

For all federally funded procurements and contracts/agreements, FKEC will include contract provisions as required by the current and understood to be effective version 2 C.F.R. Part 200, Appendix II, as well as any additional provisions required by the awarding agency or applicable law at the time of contract execution.

FKEC recognizes that the scope, applicability, and enforceability of certain federal contract clauses may evolve due to administrative rulemaking, executive orders, or judicial interpretation.

Accordingly:

• Only those clauses that are required by applicable law, regulation, or funding conditions in effect at the time of contract execution will be incorporated;

• Contract templates will be reviewed periodically and revised to reflect the current legal and regulatory framework.

FKEC will include language in the contract indicating that such clauses are incorporated “to the extent applicable by federal law.” All contractors should consult with their legal counsel on specific issues relating to the applicability of state and federal laws to their performance of any contracts.

Compliance with the Byrd Anti-Lobbying Amendment

Contractors who apply or bid for an award of $100,000 or more shall file the required certification set out in Exhibit C.

Contractor has and shall comply with 31 U.S.C. § 1352 and include a requirement to comply with these regulations in any subcontractor or lower tier covered transaction it enters into.

Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non- Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification to the awarding agency.

Debarment and Suspension

This Agreement is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Contractor is required to verify that neither it, its principals (defined at 2 C.F.R. § 180.995), nor its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R.§ 180.940) or disqualified (defined at 2 C.F.R. § 180.935).

Contractor has and shall comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.

The Contractor must execute the certification regarding debarment, suspension, and other responsibility matters is attached hereto as Exhibit D. This certification is a material representation of fact relied upon by FKEC. If it is later determined that the Contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the Florida Division of Emergency Management and FKEC, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.

Contractor has and shall comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R.

pt. 3000, subpart C while this Agreement is valid and throughout the term of this Agreement.

Contractor further agrees to include a provision requiring such compliance in its lower tier covered transactions.

Subcontracting

Contractor acknowledges that if Contractor intends to enter into subcontracts for any portion of the work under this Agreement, Contractor must take the affirmative steps described in 2 C.F.R.

§ 200.321 to ensure that small business firms, minority business firms, women’s business enterprises, and labor surplus area firms are used when possible. A list of labor surplus area firms is available at https://www.doleta.gov/LSA/about.cfm. Contractor may be required to comply with the steps enumerated in 2 C.F.R. 200.321 (as cited below), unless emergency or exigent circumstances prevent such use, however, this decision is at the discretion of FKEC.

Contractor must document its efforts to comply with these requirements. Affirmative steps include:

Placing qualified small and minority businesses and women's business enterprises on solicitation lists.

https://www.doleta.gov/LSA/about.cfm

Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources.

Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises.

Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises.

Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce.

Equal Employment Opportunity

If the Agreement is a federally assisted construction contract as defined at 41 C.F.R. Part 60-1.3, then during the performance of this Agreement, Contractor agrees as follows:

1. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.

The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:

Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising;

layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.

2. The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

3. The Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor's legal duty to furnish information.

4. The Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Contractor's commitments under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

5. The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.

6. The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

7. In the event of the Contractor's noncompliance with the nondiscrimination clauses of this Agreement or with any of the said rules, regulations, or orders, this Agreement may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.

8. The Contractor will include the portion of the sentence immediately preceding paragraph

(1) of this subsection and the provisions of paragraphs (1) through (7) of this subsection in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:

Provided, however, that in the event a Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.

FKEC further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work:

Provided that if FKEC so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.

FKEC agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.

FKEC further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, FKEC agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee);

refrain from extending any further assistance to FKEC under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.

Contract Work and Safety Standards

1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph 1 of this subsection the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (for liquidated damages.

Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph 1 of this subsection, in the sum of $27 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph 1 of this subsection.

3. Withholding for unpaid wages and liquidated damages. FEMA shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Agreement Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 2 of this subsection.

4. Subcontracts. Contractor shall insert in any subcontracts the clauses set forth in paragraphs 1 through 4 of this subsection and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs 1 through 4 of this subsection.

Environmental Compliance

1. Clean Air Act

Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.

Contractor agrees to report each violation to FKEC and understands and agrees that FKEC will, in turn, report each violation as required to assure notification to the Florida Division of Emergency Management, FEMA, and the appropriate Environmental Protection Agency Regional Office.

Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.

2. Federal Water Pollution Control Act

Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq.

Contractor agrees to report each violation to FKEC and understands and agrees that FKEC will, in turn, report each violation as required to assure notification to the Florida Division of Emergency Management, FEMA, and the appropriate Environmental Protection Agency Regional Office.

Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.

MISCELLANEOUS

Independent Contractor

Contractor has and shall perform its obligations under this Agreement as an independent contractor and not as an employee of FKEC.

DHS Seal, Logo, and Flags

Contractor shall not use any United States Department of Homeland Security (DHS) seal(s), logo(s), crest(s) or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre-approval.

No Obligation by Federal Government

The Federal Government is not a party to this Agreement and is not subject to any obligations or liabilities of FKEC, Contractor, or any other party pertaining to any matter resulting from this Agreement.

Program Fraud and False or Fraudulent Statements or Related Acts

Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to Contractor’s actions pertaining to this Agreement.

Domestic Preference Requirements.

As appropriate and to the extent consistent with law, the Contractor should, to the greatest extent practicable, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subcontracts and purchase orders for work or products under this Agreement. For purposes of this section:

1. ‘‘Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.

2. ‘‘Manufactured products’’ means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber;

and lumber.

Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment.

As used in this clause, the terms backhaul; covered foreign country; covered telecommunications equipment or services; interconnection arrangements; roaming; substantial or essential component; and telecommunications equipment or services have the meaning as defined in FEMA Policy,…