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etc.52 The LMS contract contained a termination clause for
convenience that provides:
upon 15 days Written Notice to Contractor, FPL may at
its sole discretion and without prejudice to any other
right or remedy, terminate this Contract. * * *
Upon such termination, FPL shall pay such amount as
Contractor and FPL may agree is to be paid by reason of
such termination, but in event of failure to agree upon
the amount to be paid by reason of such termination,
FPL shall pay the Contractor and Contractor agrees to
accept in full payment of all FPL’s obligations to the
Contractor under this Contract, an amount consisting
of:
1. All amounts which are due to the Contractor
as a result of Contractor satisfactorily
reaching payment milestones in accordance
with * * * [the LMS contract] which FPL has
not yet paid Contractor, plus
2. An amount equal to 10% of the progress
payment for any Contract milestone not
started and for which no preparatory or
startup costs have been incurred by Contract
at the time of termination, plus
3. If a portion of a Contract milestone is
terminated, an amount equal to the costs
which Contractor is unable to mitigate * * *
and 10% of the progress payment determined by
multiplying the percentage of such Work which
52 Although the terms of the LMS contract were for “phase
I,” Mr. Garcia testified that “once we made the commitment [to
the LMS], it was a huge investment and we would continue with
that vendor unless there was a catastrophic event.” He further
testified:
the contract was always envisioned as a single contract
and all the purchases have been made under the same
contract. Phase I, Phase II and [Phase] III were
designations given in order to better manage the
contract. You would not get a contract for 10 or 20
years originally. It just doesn’t make sense.
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