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Unison Solutions - Capstone Microturbine Factory Protection Plan Copyright 2014 City of Dubuque Consent Items # 16. ITEM TITLE: Unison Solutions - Capstone Microturbine Factory Protection Plan Agreement SUMMARY: City Manager recommending approval of the Capstone Turbine Factory Protection Plan End User Agreement with Unison Solutions for the three 200kw microturbines located at the Water & Resource Recovery Center. SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve ATTACHMENTS: Description Type ❑ W&RRC Microturbine Factory Protection Plan End User Agreement- City Manager Memo MVM Memo ❑ Staff Memo Staff Memo ❑ Agreement Supporting Documentation THE CITY OF Dubuque UBE I erica .i Masterpiece on the Mississippi 2007-2012-2013 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Water& Resource Recovery Center - Microturbine Factory Protection Plan End User Agreement DATE: November 13, 2014 Water& Resource Recovery Center Manager Jonathan Brown recommends City Council approval of the Capstone Turbine Factory Protection Plan End User Agreement with Unison Solutions for the three 200kw microturbines located at the Water & Resource Recovery Center. The cost of the nine year service agreement is $632,218, to be paid quarterly in the amount of $17,561.61 over the nine year time span. I concur with the recommendation and respectfully request Mayor and City Council approval. Micliael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Jonathan R. Brown, Water & Resource Recovery Center THE CITY OF Dubuque AII4meric11 a City DUBgkE r Masterpiece on the Mississippi 2007-2012-2013 TO: Michael C. Van Milligan, City Manager FROM: Jonathan R. Brown, W&RRC Manager SUBJECT: Water& Resource Recovery Center— Microturbine FPP DATE: November 13, 2014 INTRODUCTION The purpose of this memorandum is to seek approval of the Capstone Turbine Factory Protection Plan End User Agreement (Attached as Exhibit A) between the City of Dubuque and Unison Solutions of Dubuque for the three 200kw microturbines located at the Water & Resource Recovery Center (W&RRC). DISCUSSION Unison Solutions' Capstone Turbine Factory Protection Plan (FPP) consists of a wide array of services including scheduled maintenance parts as needed pursuant to the Capstone Standard Maintenance Schedule, unscheduled maintenance parts as needed, including engine assembly (engine/generator), all power electronics components, all fuel system components, optional/accessory equipment, including main battery pack, heat recovery module (HRM) coil, advanced power server (APS), dual mode controller (DMC), external fuel filter, and an external regulator. It also includes maintenance labor, scheduled and unscheduled, with an engine overhaul at 40,000 turbine rune hours. Additional services included are access to Capstsone's/Unison Call Center, including 24/7 Technical Support, priority response to unscheduled maintenance service requests, system software upgrades as released by Capstone, and the installation of system software upgrades. Due to the complexity of the microturbine system, the W&RRC maintenance staff do not currently possess the needed technical skills to work on the turbines. Since the beginning of the turbine project, it has been anticipated and budgeted for that the City would purchase this factory protection plan. Unison is a licensed vendor in this service area for Capstone, thus the option to solicit competitive quotations for this maintenance contract is not possible. The FPP will provide for savings over the long-term of approximately $400,000. These costs would include the rebuilding of the turbines after a five year period and the purchase of warranties following the rebuild. The cost of the FPP was included in the financial analysis of the cogen project and has been included in the operations and maintenance cost budget of the W&RRC. The FPP can be terminated at any time if it is determined to discontinue operation of the microturbines if it becomes more cost effective to use the methane generated by an alternate method. The engineer's estimates for rebuilding conventional genset is approximately $80,000 to $110,000 per year. The microturbine option was chosen due to the efficiency of its operation, availability of space, and ease of operation. City Attorney Barry Lindahl has reviewed and approved the agreement. City Finance Director Ken TeKippe has reviewed and approved the insurance certificate. BUDGETIMPACT The cost of the nine year service agreement with Unison Solutions is $632,218, to be paid quarterly in the amount of$17,561 .61 over the nine year time span. These funds will be taken from the W&RRC operating budget. ACTION TO BE TAKEN I respectfully request City Council approval to execute a contract with Unison Solutions to provide a Capstone Turbine Factory Protection Plan for the Water & Resource Recovery Center's microturbine system. Cc: Gus Psihoyos, City Engineer Steve Sampson Brown, Project manager Encs. 2 UNISON SOLUTIONS Unison Solutions, Inc 5451 Chavenelle Rd • Dubuque • IA52002 • USA Phone: (563) 585-0967 • Fax: (563) 585-0970 Web: www.unisonsolutions.com CAPSTONE TURBINE FACTORY PROTECTION PLAN — END USER AGREEMENT AGREEMENT NUMBER UNI -14-0178 AGREEMENT EXECUTION DATE 12/15/2014 ❑ Plan A — 5 year or 39,999 trh,2 Parts ONLY, NO Overhaul PURCHASER COMPANY NAME (BILL -TO) City of Dubuque PURCHASER CONTACT NAME (BILL -TO) Jonathan Brown ❑ Plan B — 5 year or 39,999 trh, Parts & Labor, NO Overhaul PHONE NUMBER (563) 589-4176 ADDRESS (BILL -TO) 795 Julien Dubuque Drive, Dubuque, IA 52003 ❑ Plan C — 9 year or 79,999 trh, Parts ONLY, with Overhaul NAME (SITE CONTACT) Jonathan Brown COMPANY (SITE CONTACT) City of Dubuque PHONE NUMBER (563) 589-4176 ADDRESS (TURBINE LOCATION) 795 Julien Dubuque Drive, Dubuque, IA 52003 ►1 Plan D — 9 year or 79,999 trh, Parts & Labor, with Overhaul TOTAL NUMBER OF: Turbines:1 CR600 Gas Packs/Air Packs: Copeland FGBs: A. Factory Protection Plan Types and Optional Services FACTORY PROTECTION PLAN TYPE' PRICE ❑ Plan A — 5 year or 39,999 trh,2 Parts ONLY, NO Overhaul ❑ <4000 hrs/yr ❑ 4000-6000 hrs/yr ❑ >6000 hrs/yr $ ❑ Plan B — 5 year or 39,999 trh, Parts & Labor, NO Overhaul ❑ <4000 hrs/yr ❑ 4000-6000 hrs/yr ❑ >6000 hrs/yr $ ❑ Plan C — 9 year or 79,999 trh, Parts ONLY, with Overhaul ❑ <4000 hrs/yr ❑ 4000-6000 hrs/yr ❑ >6000 hrs/yr $ ❑ <4000 hrs/yr ❑ 4000-6000 hrs/yr $632,218.00 ►1 Plan D — 9 year or 79,999 trh, Parts & Labor, with Overhaul // >6000 hrs/yr ❑ Other — Description: (See also checked items in column "OTHER" in Section B below.) $ OPTIONAL SERVICES PRICE ❑ CSN Capstone Service Network Remotc Monitoring Scrvicc, Subscription ONLY3 $ ❑ Upgrades — Description: $ ❑ Commissioning or ❑ Re -commissioning $ ❑ Other — Description: $ ' See Section B below for description of included services for each type of Factory Protection Plan. 2 Turbine run hours (trh) 3 CSN Remote Monitoring equipment must be purchased separately. UNI -14- 0178 UNISON CONFIDENTIAL Page 1 of 9 FPP Contract — rev. 21)) Customer Initials: If11/ UNISON SOLUTIONS Unison Solutions, Inc 5451 Chavenelle Rd • Dubuque • IA52002 • USA Phone: (563) 585-0967 • Fax: (563) 585-0970 Web: www.unisonsolutions.com CAPSTONE TURBINE FACTORY PROTECTION PLAN - END USER AGREEMENT TOTAL PRICE $632,218.00 B. Description of Factory Protection Plan Services FACTORY PROTECTION PLAN INCLUDED SERVICES PLAN A PLAN B PLAN C PLAN D OTHER Maintenance Parts: > Scheduled maintenance parts as needed pursuant to the then current Capstone Standard Maintenance Schedule (Capstone document number 440000 for Model C30 or Model C60, or Capstone User Manual for Model C65 or C200). ✓ ✓ ✓ ✓ ❑ Unscheduled maintenance parts as needed, including: • Engine assembly (Engine/Generator) • All power electronics components • All fuel system components • Optional/Accessory equipment (if installed) - Main battery pack - Heat Recovery Module (HRM) coil - Advanced Power Server (APS) - Dual Mode Controller (DMC) - External Fuel Filter - External Regulator ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ Maintenance Labor:4 > Scheduled maintenance labor. No ✓ No ✓ ❑ ➢ Unscheduled maintenance labor. No ✓ No ✓ ❑ Engine Overhaul at 40,000 trh No No ✓ ✓ ❑ Additional Services: > Access to Capstone's/Unison's Call Center, including 24/7 access to Technical Support. ✓ ✓ ✓ ✓ ❑ ➢ Priority response to unscheduled maintenance service requests. No ✓ No ✓ ❑ > System software upgrades as released by Capstone. ✓ ✓ ✓ ✓ ❑ 4 Normal Unison service hours are 7:00 am to 5:00 pm. UNI -14- 0178 Page 2 of 9 UNISON CONFIDENTIAL FPP Contract — rev. b13 Customer Initials: UNISON SOLUTIONS Unison Solutions, Inc 5451 Chavenelle Rd • Dubuque • IA52002 • USA Phone: (563) 585-0967 • Fax: (563) 585-0970 Web: www.unisonsolutions.com CAPSTONE TURBINE FACTORY PROTECTION PLAN - END USER AGREEMENT > Installation of system software upgrades. No ✓ No ✓ ❑ > Other - Description: ❑ C. Service Conditions 1. Sites must be clean, free of debris and any other obstructions, well lit, and operating in an environment that will not cause excessive usage, or need for replacement, of consumables and filters outside the parameters of Capstone's standard service intervals. 2. Sites must be installed in accordance with all Capstone installation requirements. 3. Sites must be commissioned in accordance with Capstone specifications and Capstone must have an approved Commissioning Checklist on file. 4. Owner shall retain title to all hardware Unison designates to be scrap. Unison shall provide a list of approved disposal providers as necessary. an internct connection for CSN starting on the Start of Services Date and terminating on the End of Services Date (scc Section D below). D. Term of Agreement 1. Start of Services: The Agreement and Services shall commence ❑ Upon the Date of Commissioning, which shall occur no later than; or ® Agreement Execution Date. 2. End of Services: The Agreement and Services shall expire ❑ 5 years from Start of Services or 39,999 trh, whichever comes first; or ® 9 years from Start of Services or 79,999 trh, whichever comes first; or E Other (specify: ). E. Payment Terms 1. Payment for the Service Agreement will be made in equal ❑ Annual or ® Other (specify: quarterly) installments of $17,561.61. The first installment is due upon the Start of Services Date (see Section D above). The remaining installments will be due 30 days prior to each succeeding Anniversary (Annual or Other, whichever is specified in the first sentence of this paragraph) of the Start of Services Date. 2. Unless otherwise provided for in the payment descriptions above, payments for Services are due 30 calendar days from date of invoicing, are stated in U.S. dollars and include any fees, licenses and permits required for the performance of the Services, and exclude sales and other taxes. 3. Overdue payments shall be subject to a late charge, calculated from the date of invoice to the date of payment, equal to the lesser of 1.5% per month or the highest applicable rate allowed by law. The foregoing shall in no way limit any other remedy that may be available to Unison. 4. Purchaser's obligations to Unison to pay in full all amounts owed to Unison as of the termination or expiration of this Agreement shall survive the termination for any reason or expiration of this Agreement. UNI -14- 0178 Page 3 of 9 UNISON CONFIDENTIAL FPP Contract — rev. T$ Customer Initials: Nr' 01- UNISON SOLUTIONS Unison Solutions, Inc 5451 Chavenelle Rd • Dubuque • IA52002 • USA Phone: (563) 585-0967 • Fax: (563) 585-0970 Web: www.unisonsolutions.com CAPSTONE TURBINE FACTORY PROTECTION PLAN — END USER AGREEMENT 5. Unison may adjust pricing upward for the services provided hereunder upon written notice to Purchaser should the total Consumer Price Index (CPI) for the United States — All Urban Consumers Midwest Urban Size D exceed 3% for the 12 months immediately preceding. F. Excluded Services The following are specifically excluded from the Agreement: 1. Changes to the original design and configuration (alterations from "as commissioned"). 2. Application engineering and installation; correction of latent or discovered defects or equipment failure due to application engineering, installation, settings and/or connections. For example, damages due to inadequate ventilation, or damages due to siloxanes in the biogas as the result of inadequate gas testing and media change outs. 3. Operation of Covered Equipment on a day-to-day basis. 4. Emissions testing or testing of exhaust gas. 5. Fuel analysis or laboratory analysis to confirm fuel composition. 6. Operator classroom training. 7. Operation of the Covered Equipment outside of Capstone's standard operating guidelines defined in the Capstone User Manual. 8. City, state, and/or federal permits, rebates, or incentive applications or filings. 9. Any services requested by Purchaser which are determined, to be outside the scope of this Agreement. 10. Balance of plant equipment: Unison will provide Services for the Covered Equipment listed in Exhibit 1 only, as may be amended by the parties from time to time in writing. the customer. The CSN equipment is capable of monitoring additional Balance of Plant Equipment under this Agreement. Under no circumstances is Capstone obligated to provide any Services for Balance of Plant equipment or any other equipment that is not listed as Covered Equipment. 12. Internet connection, service, maintenance, or hardware related fees. UNI -14- 0178 Page 4 of 9 UNISON CONFIDENTIAL FPP Contract - rev. --1-)E Customer Initials: ,rv1 UNISON SOLUTIONS Unison Solutions, Inc 5451 Chavenelle Rd • Dubuque • IA52002 • USA Phone: (563) 585-0967 • Fax: (563) 585-0970 Web: www.unisonsolutions.com CAPSTONE TURBINE FACTORY PROTECTION PLAN — END USER AGREEMENT Pursuant to this Services Agreement (the "Agreement"), Purchaser hereby authorizes Unison Solutions, Inc ("Unison") to provide the services described above (the "Services"), including the provision of any necessary parts (the "Parts"), on the Capstone Turbine generator systems, controls and/or accessories identified above (the "Covered Equipment") in accordance with and subject to the terms and conditions described above and on the pages attached hereto. 1. Price of the Services, Payment Terms and Scope of Services. The price, payment terms and scope of services for each of the Services (the "Scope of Services") are set forth on the cover pages of this Agreement. If repairs or additional labor outside of the applicable Scope of Services are determined to be necessary and the required repairs are authorized by Purchaser, then (i) additional labor and other costs and expenses will be billed by Unison to Purchaser at the then effective Unison Factory Protection Plan Service Flat Rate Schedule and the then effective Unison Factory Service Rates, as such terms and provisions are revised by Unison from time to time, and (ii) Parts will be billed at the then prevailing Capstone List Price, and (iii) mobilization costs and expenses will be without charge so long as the labor is performed at the same time scheduled maintenance is performed. Unison shall provide the City of Dubuque with a copy of the Unison Factory Protection Plan Service Flat Rate Schedule on an annual basis. If labor is not performed at the same time of scheduled maintenance, mobilization charges will be as described in Unison's Factory Service Rates. 2. Term. This Agreement shall continue in effect for the term indicated in Section D of this Agreement unless Unison terminates this Agreement by delivering to Purchaser written notice in the event of: (i) Purchaser's breach of any material term or condition of this Agreement; or (ii) Purchaser's failure to pay when due any amount owed by Purchaser to Unison under any agreement with Unison. If Purchaser fails to pay when due any amount owed by Purchaser to Unison and this Agreement is not terminated immediately by Unison, Unison may delay or cease performance of Services under this Agreement until payment in full is received or other payment arrangements are UNI -14- 0178 Page 5 of 9 agreed to, at Unison's sole discretion. The foregoing does not limit or restrict in any way Unison's right to terminate this Agreement at any time following an event described in this Section. Additionally the City of Dubuque shall have the right to terminate with or without cause upon 30 days written notice. Unison reserves the right to assess a cancellation fee on a case-by-case basis, not to exceed 50% of one annual payment. In the event of a termination by Unison, Purchaser will forfeit all amounts paid at the time of termination. 3. Unison's Services; Warranty. Unison agrees that it will comply with applicable laws and regulations relating to its provision of the Services and such Services will be provided in a professional and workmanlike manner consistent with the applicable Scope of Services and with generally accepted industry standards and practices with regard to the type of services provided hereunder. Unison provides the warranties with respect to Parts and labor provided by Unison for the applicable Covered Product (the "Service -Related Warranties"). Notwithstanding any term contained in a Service -Related Warranty or this Agreement to the contrary, any and all Service -Related Warranties expire upon the completion of the Services. 4. Purchaser's Representations. Purchaser represents, warrants, and covenants that: (i) it has the right, power, and authority to enter into this Agreement and to perform fully its obligations hereunder; (ii) the making of this Agreement does not violate any agreement existing between it and any other person or entity; (iii) it has obtained or will obtain all licenses and permits necessary for Unison to perform the Services; (iv) all information provided by Purchaser to Unison related to the Services and its ability to pay for the Services is complete and accurate; (v) it will arrange for UNISON CONFIDENTIAL FPP Contract — rev. , 7)13 Customer Initials: 1;110 UNISON SOLUTIONS Unison Solutions, Inc 5451 Chavenelle Rd • Dubuque • IA52002 • USA Phone: (563) 585-0967 • Fax: (563) 585-0970 Web: www.unisonsolutions.com CAPSTONE TURBINE FACTORY PROTECTION PLAN — END USER AGREEMENT Unison's access to the facilities where the Covered Equipment is located as needed to perform the Services; and (vi) it will perform all of its obligations under this Agreement to the reasonable satisfaction of Unison. 5. Purchaser's Obligations. In addition to all other obligations stated in this Agreement, when requested, Purchaser shall provide Unison with: (i) records and information concerning the Covered Equipment; and (ii) any special tools or instruments needed for the Covered Equipment which Purchaser already possesses. Purchaser shall designate an authorized representative who shall be available to Unison at all times while Unison is performing the Services on Purchaser's premises. Purchaser agrees that the Scope of Services excludes all trade labor work and any supervision, management or regulation of Purchaser's employees, agents or contractors and work related thereto, and it does not include responsibility for planning, scheduling, monitoring or management of the work to be performed by Purchaser. Purchaser agrees that any written or oral reports and advice provided by Unison to Purchaser in connection with the provision of Services shall be utilized solely by Purchaser and shall not be used or conveyed by Purchaser to any third party. 6. Disclaimer. EXCEPT AS SET FORTH IN SECTION 3, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY ARE GIVEN FOR THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. 7. Limitation of Liability in General. 7.1 THE EXCLUSIVE REMEDY OF PURCHASER UNDER THIS AGREEMENT FOR BREACH OF THIS CONTRACT OR WARRANTY SHALL BE THE: CORRECTION OF NON -CONFORMITIES OF SERVICES; THE CORRECTION OF NON - CONFORMITIES OF PARTS; OR AS OTHERWISE PROVIDED IN THE SERVICE -RELATED WARRANTY. UNI -14- 0178 Page 6 of 9 7.2 Independent of, severable from, and to be enforced independently of any other enforceable provision of this Agreement, UNISON SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR LOST GOODWILL, LOST PROFITS, LOST BUSINESS, COST OF COVER OR OTHER INDIRECT ECONOMIC DAMAGES, AND FURTHER INCLUDING INJURY TO PROPERTY, FOR BREACH OF CONTRACT WITH RESPECT TO ANY NON-CONFORMANCE OF OR NON- CONFORMITY OR DEFICIENCY IN THE SERVICES OR PARTS, REGARDLESS OF WHETHER UNISON WAS HAD REASON TO KNOW OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES. Unison shall indemnify, defend and hold Purchaser harmless from and against all costs, fees (including attorneys' fees), losses, liabilities and expenses related to any personal injury, damage, or death related to Unison's negligence, including, without limitation, those costs, losses, liabilities and expenses resulting from any product liability claim, to the extent such claim involves Unison's negligence. Purchaser shall indemnify, defend and hold Unison harmless from and against all costs, fees (including attorneys' fees), losses, liabilities and expenses related to any personal injury, damage, or death related to Purchaser's improper use or operation of the Covered Equipment, including, without limitation, those costs, losses, liabilities and expenses resulting from any product liability claim, to the extent such claim involves improper use or operation of the Covered Equipment. 7.3 The limitations of Unison's obligations and Purchaser's remedies, as provided for in this Section, shall prevail over any conflicting or inconsistent provisions contained in any of the documents comprising this Agreement or any other document issued by Purchaser hereto or in any conflicting or inconsistent statement made by any representative of Unison, except to the extent that such provision or statement further limits Unison's liability. UNISON CONFIDE TIAL FPP Contract - rev. jcr Customer Initials: UNISON SOLUTIONS Unison Solutions, Inc 5451 Chavenelle Rd • Dubuque • IA52002 • USA Phone: (563) 585-0967 • Fax: (563) 585-0970 Web: www.unisonsolutions.com CAPSTONE TURBINE FACTORY PROTECTION PLAN — END USER AGREEMENT 7.4 The rights, remedies and obligations of the Parties set forth in this Agreement, together with the attached exhibits, are the exclusive rights, remedies and obligations of the Parties hereunder and are in lieu of any other right, remedy, or obligation available at law or in equity. 8. Dispute Resolution. All disputes and claims arising out of this Agreement or any document referenced herein shall be settled by mediation first then arbitration in Dubuque, Iowa by a panel of three arbitrators under the commercial arbitration rules of the American Arbitration Association or the Judicial Arbitration and Mediation Service. Such arbitration shall be conducted by three (3) arbitrators, one (1) chosen promptly by Unison, one (1) chosen promptly by Purchaser and one (1) neutral arbitrator, selected by the first two arbitrators. The award of the arbitrators shall be final and binding and the parties consent to the exclusive jurisdiction of any federal or state court in Dubuque County, Iowa for purposes of enforcing any decision of the arbitration panel. 9. Confidential Information, Intellectual Property Rights. Purchaser shall not, directly or indirectly, modify or disassemble for the purpose of reverse engineering any Covered Equipment or components thereof. All intellectual property rights and confidential information relating to the Covered Equipment, and any information provided by Capstone/Unison to Purchaser under this Agreement, shall remain the sole property of Capstone/Unison. 10. Miscellaneous. 10.1 Governing Law. This Agreement is governed by the laws of the State of Iowa (as such laws are applied to contracts made and performed entirely within Iowa, without regard to Iowa's conflicts of laws provisions) and federal laws applicable to patents and trademarks. 10.2 Survival. All provisions of this Agreement will survive its termination to the fullest extent necessary to give the Parties the full benefit of the bargain expressed in this Agreement. Notwithstanding the foregoing, Purchaser agrees that upon completion of the Services, any and all UNI -14- 0178 Page 7 of 9 Service -Related Warranties shall expire as of such date. 10.3 Assignment. This Agreement may not be assigned by Purchaser without the prior written consent of Unison. Unison may assign this Agreement to an entity wholly-owned by Unison without the consent of Purchaser. 10.4 Severability. If any provision of this Agreement or the terms and conditions set forth herein is declared or found to be illegal, unenforceable, or void, the remaining provisions of this Agreement shall remain in full force and effect, subject to the immediately following provisions. In the event any provision of this Agreement is declared or found to be illegal, unenforceable or void, the Parties agree to negotiate in good faith a substitute provision that is legal and enforceable and is as nearly as possible consistent with the intentions underlying the original provision. If the remainder of the Agreement is not materially affected by such declaration or finding and is capable of substantial performance, then such remainder will be enforced to the extent permitted by law. 10.5 Independent Review and Advice. Each Party has full knowledge of the contents of this Agreement, its legal consequences and any and all rights which each may have with respect to one another. Each Party has had the opportunity to receive independent legal advice with respect to this Agreement and each Party enters into this Agreement of its own free will. The Parties expressly agree that there are no expectations contrary to the Agreement and no usage of trade or regular practice in the industry shall be used to modify any of the terms and provisions of the Agreement. 10.6 Entire and Sole Agreement. This Agreement constitutes the complete agreement with respect to the Services and supersedes all prior or contem poraneous proposals, agreements, representations, discussions and literature, written or oral, concerning the Services. This Agreement is not intended to change or alter any of the rights, duties, obligations, liabilities or limitations set forth in any other agreements between the Parties. The UNISON CONFIDENTIAL FPP Contract - rev.- ,4D Customer Initials: UNISON SOLUTIONS Unison Solutions, Inc 5451 Chavenelle Rd • Dubuque • IA52002 • USA Phone: (563) 585-0967 • Fax: (563) 585-0970 Web: www.unisonsolutions.com CAPSTONE TURBINE FACTORY PROTECTION PLAN — END USER AGREEMENT Parties' obligations with respect to confidential information reverse engineering and/or trade secrets shall be governed by, if applicable, the Direct Sales Agreement, the End User License, or any confidentiality agreements the Parties have entered into. 10.7 Amendments. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party. 10.8 Force Majeure. Each Party's performance shall be suspended (other than the obligation to pay monies due) for so long as such performance is hindered by events beyond its reasonable control ("Force Majeure"), such as, but not limited to, riots, labor disputes of a general nature, national or civil wars, insurrections, rebellions, terrorist acts, embargoes, civil disturbances, earthquakes, dispositions or orders of governmental authority, acts of civil or military authority, fires, strikes, delays in transportation, inability to obtain necessary labor, manufacturing facilities or materials from usual sources and acts of God. Any delays resulting from a Force Majeure shall extend the time for performance correspondingly. If a failure to perform results from a governmental law, rule, regulation, disposition or order and the affected Party is unable to perform, after making reasonable efforts to UNISON SOLUTIONS, INC.: BY: NAME: TITLE: L QV�eyziY���`n VP UNI -14- 0178 Page 8 of 9 comply, the matter shall be deemed a Force Majeure. 10.9 No Third Party Beneficiaries. None of the terms of this Agreement are intended to confer to or benefit any person or entity other than the Parties to this Agreement any rights, remedies or other benefits under or by reason of this Agreement. 10.10 Waiver. No waiver by either Party of any term contained herein (or any breach thereof) shall be effective unless it is in writing executed by the party waiving such term (or any breach thereof). No waiver shall be deemed or construed as a further or continuing waiver of any such term (or any breach thereof) on any other occasion or as a waiver of any other term (or any breach thereof) on the same or any other occasion. The delay or failure of any Party in providing written notice hereunder shall not constitute a waiver by such Party of any default or any further default under the Agreement. 11. City's Insurance. Unison shall furnish and maintain proof of insurance as required by the City of Dubuque's "Insurance Requirements for General, Artisan or Trade Contractors, Subcontractors or Sub Subcontractors. Insurance Schedule B — Class A" per the attached exhibit. CITY OF DUBUQUE: BY: NAME: /7 l Michael C. Van Mi1ligen TITLE: City Manager UNISON CONFIDENTIALFPP Contract - rev. ,j.J Customer Initials: (J, Unison Solutions, Inc. 5451 Chavenelle Rd • Dubuque • IA 52002 • USA Phone: (563) 585-0967 • Fax: (563) 585-0970 Web: www.unisonsolutions.com FACTORY PROTECTION PLAN - END USER AGREEMENT Exhibit 1 STARTING TRH 1277 (as of 4/21/2014 SERIAL NO. r co N- r MODEL/CONFIGURATION OR PART NUMBER 600R-BG4-BU00 MANUFACTURER Capstone DESCRIPTION CR600 Turbine SITE NAME! LOCATION Dubuque W&RRC UNI -14-0178 Page 9 of 9 UNISON CONFIDENTIAL FPP Contract- rev. `)1 Customer Initials: C^0�