1. law, govt and politics

SOLAR POWER PURCHASE AND SALE AGREEMENT
COVER SHEET
"Seller": EJ Terry Solar 1, LLC
"Buyer": Plymouth, Cotmeetiel:lt Board of Education
Plymouth
Plymo~th
BeE and Township of
Premises and Sites: As set forth in Exhibit A hereto.
Solar Systems: As set forth on Exhibit K hereto
Buyer is Owner of each Site:
_X__ Yes
No
"Term": Commencing on the Effective Date and with respect to each Solar System, ending on
the day before the twentieth (20th) anniversary of the Commercial Operations Date of that
System, subject to earlier termination or extension, as provided herein.
Energy Price: As set forth in Exhibit G hereto.
Point of Delivery:
As set forth in Exhibit D hereto.
"Buyer's Serving Utility": Connecticut Light & Power Company ("CL&P"), or a successor
load-serving entity.
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SOLAR POWER PURCHASE AND SALE AGREEMENT
Seller and Buyer (each also referred to as a "Party") identified on the Cover Sheet of this
Solar Power Purchase and Sale Agreement ("Power Purchase Agreement" or
"Agreement") hereby enter into this Power Purchase Agreement as of this _ day of October,
2013 (the "Effective Date") for the construction, installation, operation and maintenance of the
Solar System and the purchase and sale of Energy. The Solar System will be developed,
constructed, owned, and operated by Seller on the Premises.
Seller and Buyer agree as follows:
ARTICLE I
DEFINITIONS
1.1
Definitions. Terms used in this Power Purchase Agreement not otherwise
defmed on the Cover Sheet or in the Preamble shall have the meaning set forth below:
"Access Easement" means that certain easement for access to the Premises on a
particular Site as further described in the Lease for that Site.
"Actual Energy Output" means the kWhs delivered by a Solar System to the Point of
Delivery in the applicable Production Period.
"Actual Variable Utility Price" means the aggregate ali-in cost per kWh charged to
Buyer by Buyer's Serving Utility for a particular Site and any other entity from whom Buyer
purchases electricity for that Site from time to time, as the case may be, less any component of
such cost to the extent that Buyer pays such cost component to Buyer's Serving Utility or other
supplier regardless of whether and how much electricity Buyer consumes.
"Aftlliate" means, when used with reference to a specified Person, any Person that
directly or indirectly through one or more intermediaries controls or is controlled by or is under
common control with the specified Person. For purposes of the foregoing, "control" (including
the terms "controlling," "controlled by" and ''under common control with") means the
possession, direct or indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by contract or otherwise, or
the actual or beneficial ownership of more than 50% of the outstanding voting securities of a
Person or, in the case of a Person that is a limited partnership, ownership of any general
partnership interest therein.
"Annual Energy Production Guarantee" has the meaning ascribed thereto in Section
9.4(i).
"Beneficial Accounts" means accounts that may be served by the Solar Systems,
designated by Buyer, under Connecticut's Virtual Net Metering law.
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"Business Day" means any day except a Saturday, Sunday, or a Federal Reserve Bank
holiday. A Business Day begins at 8:00 a.m. and ends at 5:00p.m. local time for the Party
receiving a notice, or payment, or performing a specified action.
"Buyer Decision Period" has the meaning ascribed thereto in Section 9.4(viii).
"Buyer Default" means an event of default by Buyer, as provided in Section 8.3.
"Buyer Mitigation Plan" has the meaning ascribed thereto in Section 9.4.
"Buyer Parties" means Buyer, its employees, agents, contractors, students or invitees.
"Buyer's Serving Utility" means the utility company named in the Cover Sheet to this
Power Purchase Agreement.
"Calculation Date" has the meaning ascribed thereto in Section 9.4(iii).
"Change in Law" means any change to, or a Governmental Authority's change in
interpretation of, a Law, including changes to laws or regulations regulating or imposing a tax,
fee or other additional charge, cost, or obligation on Seller's ownership, operation, or delivery of
Energy from a Solar System or upon Seller's ownership or operation of that Solar System.
"Commercial Operations" has the meaning ascribed thereto in Section 4.1.
"Commercial Operations Date" means the date specified in Section 4.1.
"Conditions Precedent" has the meaning ascribed thereto in Section 6.1.
"Confidential Information" has the meaning ascribed thereto in Section 15.1.
"Construction Period" means the period beginning on the date upon which Seller
obtains all Governmental Approvals for. the construction of a particular Solar System and ending
on the Commercial Operations Date for that Solar System.
"CPI" means the Consumer Price Index published by the United States Bureau of Labor
Statistics for the _ _ region or a comparable index agreed upon by the Parties if the Consumer
Price Index is no longer published by the United States Bureau of Labor Statistics.
"Credit Rating" means, with respect to any entity, the rating assigned to such entity's
unsecured, senior long-term debt obligations (not supported by third party credit enhancements)
by S&P and/or Moody's, (depending upon whether such entity is rated by one or both rating
agencies). If at a particular time, S&P or Moody's no longer provide such ratings, the Parties
shall select another rating agency reasonably acceptable to both Parties.
"Cumulative Minimum System Output" has the meaning ascribed thereto in Section
9.4(i).
"Cumulative System Output" means the sum of the Actual Energy Output for all
Production Periods to date as of any Calculation Date.
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"Default Rate" has the meaning ascribed thereto in Section 4.4.
"Effective Date" has the meaning ascribed thereto in the preamble.
"Energy" means all electrical energy, measured in kilowatt-hours that is produced by
each Solar System and delivered to Buyer at the Point of Delivery.
"Energy Price" means the per kWh charge set forth in the Cover Sheet to this Power
Purchase Agreement, plus, for actual sales and deliveries of Energy to Buyer at the Point of
Delivery, any and all mandated fees, taxes and other charges assessed by any Governmental
Authority or the Buyer's Serving Utility and required to be collected by Seller in respect of such
actual sales and deliveries.
"Environmental Attributes" means any and all environmental, power source, and
emission characteristics, credits, reductions, offsets, allowances, and benefits, howsoever
entitled, established by Law or voluntary scheme directly or indirectly attributable to the
generation of electricity from each Solar System. Environmental Attributes include (i) any
benefit accruing from the renewable nature of solar PV-generated energy; (ii) any avoided
emissions of pollutants to the air, soil, or water (such as sulfur oxides (SOx), nitrogen oxides
(NOx), and carbon monoxide (CO)); (iii) any avoided emissions of carbon dioxide (C02),
methane (CH.t) and other greenhouse gases ("GHGs") that may contribute to the actual or
potential threat of altering the Earth's climate by trapping heat in the atmosphere; (iv) any
property rights that may exist with respect to the foregoing attributes, howsoever entitled;
(v) displacements of energy generation by fossil-fuel-consuming or GHG-emitting generation
resources; (vi) any reporting rights to these avoided emissions, such as Green Tag Reporting
Rights; and (vii) Zero Emission Renewable Energy Credits also referred to as ZRECs.
"Environmental Incentives" include (i) federal, state, or local tax credits and/or
deductions from taxable income associated with the construction, ownership, or production of
electricity from each Solar System; (ii) any other financial incentives in the form of credits,
rebates, reductions, or allowances associated with each Solar System that are applicable to a
local, state, or federal income taxation obligation; and (iv) rebates, grants or subsidies for which
each Solar System may be eligible. Environmental Incentives do not include Environmental
Attributes or Green Tag Reporting Rights.
"Escrow Agent" means a third party agent mutually acceptable to Buyer and Seller.
"Estimated Expected System Output" has the meaning ascribed thereto in Section
9.4(ii).
"Expected System Output" has the meaning ascribed thereto in Exhibit B.
"Fair Market Value" has the meaning ascribed thereto in Section 6.6.
"Financing" has the meaning ascribed thereto in Section 14.7Cii)(b).
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"Force Majeure Event" means any act or occurrence that delays or prevents a Party
from timely performing obligations under this Power Purchase Agreement or from complying
with conditions required under this Power Purchase Agreement if such act or event is beyond the
reasonable control of, without the fault or negligence of, and could not have been prevented or
mitigated using commercially reasonable efforts (other than commencing, defending or
prosecuting litigation or administrative proceedings) by the Party relying thereon as justification
for such delay, nonperformance, or noncompliance. Without limiting the generality of the
foregoing, a Force Majeure Event may include: an act of god or the elements, extreme or severe
weather conditions, explosion, fire, flood, epidemic, landslide, mudslide, sabotage, terrorism,
earthquake, flood or similar cataclysmic event, an act of public enemy, war, blockade, utility
outage, civil insurrection, riot, civil disturbance or strike or other labor difficulty suffered by a
Party or its suppliers (other than labor difficulty affecting only a Party or a supplier or contractor
(or its subcontractors) to a Party), the actions, delays or omissions of a Governmental Authority
(including but not limited to, the delay in issuing, the failure to issue or the denial of a
Governmental Approval) not caused by the negligence or wrongful conduct of the Party seeking
excusal of its performance by reason of a Force Majeure Event, or the appeal by a third party of a
Governmental Approval. A Force Majeure Event shall not include the loss or failure of Seller's
supply, materials or equipment, unless such loss or failure is caused by an event that would
otherwise constitute a Force Majeure Event. Financial cost or economic hardship shall not
constitute grounds for a claim of a Force Majeure Event, nor shall a Force Majeure Event excuse
the payment of a financial obligation hereunder.
"Green Tag" means a commercially recognized unit representing the value or amounts
of Environmental Attributes.
)
"Green Tag Reporting Rights" means the right of a green tag owner to report the
ownership of accumulated green tags in compliance with federal or state law, if applicable, to a
federal or state agency or any other party at the green tag owner's discretion. Such rights include
without limitation those green tag reporting rights accruing under Section 1605(b) of The Energy
Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and
international or foreign emissions trading program.
"Governmental Approvals" means, with respect to a particular Solar System, all
applicable unappealable approvals, permits, licenses, and authorizations from all Governmental
Authorities (including but not limited to, interconnection approvals and the Interconnection
Agreement) necessary for the construction and installation of that Solar System and the
generation and sale of Energy by that Solar System.
"Governmental Authorities" means the United States of America, the State, Litchfield
County, Town of Plymouth, and any political subdivision thereof and any agency, department,
commission, board, court or instrumentality thereof, having jurisdiction over each Site, each
Premises, each Solar System and the Parties. For the avoidance of doubt "Governmental
Authorities" also means Buyer's Serving Utility.
"Independent Engineer" means an independent, licensed professional engineer,
licensed in the State, with expertise in the design and construction of photovoltaic systems
similar to the Solar Systems, selected by Buyer and approved by Seller, which approval shall not
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be unreasonably withheld, conditioned or delayed. The Independent Engineer shall be selected
by Buyer within fourteen (14) days of the Effective Date or Seller's rejection of Buyer's selection
of the preceding candidate for Independent Engineer, as applicable, and approved or rejected by
Seller (in a writing delivered to Buyer) within ten (10) days of the delivery, in writing, by Buyer
to Seller, of the name and qualifications of Buyer's selection for the Independent Engineer.
-"Interconnection Agreement" means each agreement for interconnection of each Solar
System with the distribution system of Buyer's Serving Utility, the forms of which are attached
as Exhibit F.
"kWh" means a kilowatt hour of electrical energy.
"Law" means any applicable law, statute, regulation, rule, regulation, tariff, requirment,
decision, writ, order, decree or judgment, or any interpretation thereof, promulgated or issued by
Governmental Authorities from time to time.
"Lease" means each Solar Photovoltaic Lease Agreement for each Site between Buyer as
Lessor and Seller as Lessee, the form of which is attached hereto as Exhibit H.
"Lender" has the meaning ascribed thereto in Section 11.1.
"Lien" means any mortgage, pledge, lien (including mechanics', labor or materialmen's
liens), charge, security interest, encumbrance or claim of any nature.
"Manuals" means, with respect to a particular Solar System, all written instructions and
manuals provided by or readily available from suppliers or manufacturers of equipment or
materials incorporated into or comprising that Solar System and related to the construction,
installation, operation or maintenance of such equipment or materials.
"Meter" has the meaning ascribed thereto in Section 4.2.
"Minimum Expected System Output" has the meaning ascribed thereto in Section
9.4(ii).
"Moody's" means Moody's Investors Service, Inc. or its successor.
"Net Metering" has the meaning ascribed thereto in Section 2.6.
"Option Price" has the meaning ascribed thereto in Section 6.6.
"Output Difference" means the difference, if any, between the Actual Energy Output in
a Production Period and the Expected System Output for such Production Period, calculated as
provided in Section 9.4(iii).
"Outside Governmental Approvals Date" means the date for each Solar System
designated as the Outside Governmental Approvals Date for that Solar System on Exhibit J.
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"Outside Commercial Operations Date" means the date for each Solar System
designated as the Outside Commercial Operations Date for that Solar System on Exhibit J.
"Performance Shortfall" means that as of a Calculation Date, the aggregate kWh value
in the Tracking Account is less than zero, as provided in Section 9.4(iii).
"Performance Shortfall Payment" has the meaning ascribed thereto in Section 9.4(iv).
"Person" means any individual, partnership, limited liability company, corporation,
cooperative, trust, estate, Governmental Authority, association or other entity.
"Point of Delivery" is the location on each Site set forth in Exhibit D hereto.
"Premises" means the area of each Site on which Seller shall construct, install, operate
and maintain the Solar System on that Site, as shown on Schedule 2 of the Lease for that Site.
"Production Period" means, with respect to a particular Solar System, each twelve (12)
month period beginning on the Commercial Operations Date of that Solar system and ending on
the day before each subsequent anniversary of that Commercial Operations Date. The twentieth
(20th) Production Period shall comprise the period from the day following the end of the
nineteenth (19th) Production Period and the last day of the Term, with respect to that Solar
System.
"Production Period Extension" means any 5-year period extending the Term with
respect to a particular Solar System, following the last day of the Term with respect to that
System.
'
)
"Prudent Operating Practice" means the practices, methods and standards of
professional care, skill and diligence engaged in or approved by a significant portion of the solar
electric power industry for facilities of similar size, type, and design to the Solar Systems, that, in
the exercise of reasonable judgment, in light of the facts known at the time, would have been
expected to accomplish results in accordance with Law, Governmental Approvals, reliability,
safety, environmental protection, applicable codes, and reasonable economy and expedition, and
this Agreement.
"Qualified Assignee" means:
(i) as it pertains to any collateral assignment of this Power Purchase Agreement by Seller
to a Lender, said Lender;
(ii) as it pertains to any assignment of this Power Purchase Agreement by Seller, any
entity that is an Affiliate of Seller that is taking title to a particular Solar System and agrees, in a
writing delivered to Buyer, to assume Seller's duties and obligations under this Power Purchase
Agreement with respect to that Solar System or any entity that is not an Affiliate of Seller: (W)
that is taking Seller's title to a particular Solar System, (X) that has competence and experience
in the operation and maintenance of solar photovoltaic systems similar in size and type as that
Solar System, as reasonably demonstrated to Buyer and (Y) agrees, in a writing delivered to
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Buyer, to assume Seller's duties and obligations under this Power Purchase Agreement with
respect to the particular Solar System;
(iii) as it pertains to any collateral assignment of this Power Purchase Agreement by
Buyer to a mortgagee of a particular Site, that mortgagee;
(iv) as it pertains to any assignment of this Power Purchase Agreement by Buyer, any
entity that is an Affiliate of Buyer that is taking title to a particular Site and agrees, in a writing
delivered to Seller, to assume Buyer's duties and obligations under this Power Purchase
Agreement with respect to that Site or any entity that is not an Affiliate of Buyer: (X) that is
taking Buyer's title to the entirety of a particular Site, (Y) that has a Credit Rating equal or better
than that of Buyer as of the Effective Date, and (Z) agrees, in a writing delivered to Seller, to
assume Buyer's duties and obligations under this Power Purchase Agreement with respect to the
particular Site; and
(v) as it pertains to any assignment of this Power Purchase Agreement by a Lender, any
entity that is fmancially capable of performing Seller's obligations under this Power Purchase
Agreement with respect to a particular Solar System and has engaged and will maintain an
engagement throughout the Term of this Power Purchase Agreement, with respect to that Solar
System, with third parties with competence and experience in the operation and maintenance of
solar photovoltaic systems similar in size and type to the particular Solar System.
"Restore" (and correlative terms, including "Restored" and "Restoration") means the
repair or replacement (with then-available equipment of similar or better function) of a particular
Solar System as provided in Section 14.7.
"S&P" means the Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.) or
its successor.
"Schedule" means that Governmental Approval and construction schedule attached
hereto as Exhibit J.
"Seller Decision Period" has the meaning ascribed thereto in Section 9.4.
"Seller Default" means an event of default by Seller, as provided in Section 8.1.
"Seller Mitigation Plan" has the meaning ascribed thereto in Section 9.4.
"Seller Parties" means Seller, its employees, agents, contractors or invitees.
"Shut Down of a Portion of a Solar System," Shut Down of a Portion of that Solar
System" and "Shut Down a Portion of a Solar System" mean, with respect to a particular Solar
System, a shutdown or degradation in service of one or more strings of photovoltaic panels of
that Solar System or an interruption of the electricity generated by one or more strings of
photovoltaic panels of that Solar System at any location or locations between said string of
photovoltaic panels or strings of photovoltaic panels and the Point of Delivery of that Solar
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"Site" means each Site listed and shown on the particular schedule of Exhibit A.
"Site Electrical System" means, with respect to each Site, Buyer's existing electrical
system for the supply and distribution of electricity to that Site, which system is interconnected
with the Buyer's Serving Utility.
"Solar System" means all equipment, facilities and materials, including photovoltaic
arrays, DC/AC inverters, wiring, meters, tools, pyranometer, transmission lines and any other
property now or hereafter installed, owned, operated, or controlled by Seller for the purpose of
interconnecting, operating or maintaining and monitoring a solar photovoltaic generation system
on a particular Site all in accordance with this Power Purchase Agreement. Each Solar System
to be installed and operated on each Site is described more particularly in Exhibit K.
"State" means the State of Connecticut.
"Substantial Default" means any default of the terms of this Power Purchase
Agreement, beyond any applicable notice or cure period, which has or will likely result in
damage to the non-defaulting Party in excess of Twenty-Five Thousand ($25,000) Dollars.
"Term" has the meaning ascribed thereto in the Cover Sheet to this Power Purchase
Agreement, or any extension thereo(
)
-"Tracking Account" means the account tracking the calculation of the Output
Difference of the Solar System in kWh values as provided in Section 9.4(iii).
"Transmission Easement" means that certain easement on each Site for the installation
and maintenance of underground electric transmission lines.
-"Utility Easement" means that certain easement on each Site for the installation and
maintenance of utilities.
"Warranties" means, with respect to a particular Solar System, all manufacturer and
supplier warranties applicable to the equipment and materials comprising or incorporated into
that Solar System.
"Zero Emission Renewable Energy Credits" or "ZRECs" means a Class I Renewable
Energy Certificate (REC) from a zero emissions project as defined in Section I 07 of Public Act
11-80. ZREC-qualified projects are Connecticut generation projects that are located behind
company customer meters, achieve commercial operation on or after July 1, 2011, and emit no
pollutants.
"ZREC Contract" means, for each Solar System, the "Standard Contract for the
Purchase and Sale of Connecticut Class I Renewable Energy Credits from Low or Zero
Emissions Projects" by and between Connecticut Light & Power Company and PhosEnergy LLC
for that Solar System, dated as of the date therefor set forth on Exhibit K.
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1.2
Rules of Usage. The Parties hereby agree that the following rules of usage shall
apply to this Power Purchase Agreement unless otherwise required by the context or unless
otherwise specified: (i) definitions set forth herein shall be equally applicable to the singular and
plural forms of the terms defmed; (ii) references to articles, sections, paragraphs, clauses,
annexes, appendices, schedules or exhibits are references to articles, sections, paragraphs,
clauses, annexes, appendices, schedules or exhibits in this Power Purchase Agreement; (iii) the
headings, subheadings and table of contents used in this Power Purchase Agreement are solely
for convenience of reference and shall not constitute a part of this Power Purchase Agreement
nor shall they affect the meaning, construction or effect of any provision of this Power Purchase
Agreement; (iv) reference to any agreement (including this Power Purchase Agreement) means
such agreement as amended, supplemented or otherwise modified from time to time in
accordance with the applicable provisions thereof; (v) references to any Law includes any Law
as that Law may be changed from time to time; (vi) where a word or phrase is specifically
defined, other grammatical forms of such word or phrase have corresponding meanings; the
words "herein," "hereunder," and "hereof' refer to the provisions of this Power Purchase
Agreement as a whole and not to any particular portion or provision of this Power Purchase
Agreement; "including" means "including, but not limited to," and other forms of the verb "to
include" are to be interpreted similarly; references to "or" shall be deemed to be disjunctive but
not necessarily exclusive; (vii) references to "days" shall mean calendar days, unless the term
"Business Days" is used. If the time for performing an obligation under this Power Purchase
Agreement expires on a day that is not a Business Day, the time shall be extended until that time
on the next Business Day.
ARTICLE II
SELLER'S RIGHTS, DUTIES AND OBLIGATIONS
2.1
Construction.
(i)
Seller shall design, engineer, construct, install, service and test
each Solar System substantially in accordance with Exhibit K (subject to
modification of Exhibit K as provided in clauses (ii) and (iii) below) and
in accordance with Laws, Governmental Approvals, the Schedule and all
Warranties and Manuals.
(ii)
If the Governmental Approvals and/or virtual Net Metering
requirements for a particular Solar System require a reduction in the size
of that Solar System and corresponding changes tflat...!Q_the specifications,
iHeludiRg btlt not limited to, Solar System Size for that selar-Solar
.S.system be ehanged, Seller can reduce the size of that Solar System
ehange-as required by said Governmental Approvals and/or virtual Net
Metering requirements and make the corresponding changes to said-the
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specifications for that Solar System by tfie amouRt of Hot less thaH j'f()_:S_E___ .----{ Formatted: Not Highlight
INSERTED], which reduced size of that Solar System and corresponding
changes to the specifications for that Solar System will be set forth eR-fu
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reduced such that the Expected System Output of that Solar System forthe
first Production Period for that Solar System is Jess than seventy-five
(75%) percent of the amount of electricity that the Buver consumed at the
Site on which that Svstem is to be located during the twelve (12) months
prior to the Effective Date.
Seller shall prepare and submit to Buyer the draft fmal
(iii)
specifications for each Solar System. Buyer, at its sole cost and expense,
shall have the right to review (including obtaining an independent
engineering review from the Independent Engineer) such specifications
prior to Seller filing the applications to Governmental Authorities for the
Governmental Approvals for the construction of that Solar System. The
Independent Engineer's review shall be limited to determining if the draft
final specifications for each Solar System conform to the applicable codes
and meet appropriate health,. safety and asset integrity requirements. If
within five (5) Business Days of receipt of such specifications from Seller,
Buyer reasonably determines that such plans are inconsistent with this
Power Purchase Agreement, Buyer shall provide Seller with notice of such
determination, including an explanation of such determination. Seller
shall modify the specifications as reasonably required to address all such
inconsistencies. Seller shall submit to Buyer any modified specifications
for Buyer's review. Buyer shall make any further reasonable objection to
the specifications within ten (10) days and Seller shall make any further
modifications reasonably required, each in the same manner as set forth in
the foregoing provisions of this clause (ii). The final specifications for
each Solar System, as reviewed by Buyer without objection, shall be
submitted to Buyer and shall be attached hereto as Exhibit K in
substitution of Exhibit K attached hereto, without need to amend this
Power Purchase Agreement. Any modification to the specifications or to a
particular Solar System that constitutes a material deviation from such
specifications as reviewed by Buyer shall require the prior written consent
of Buyer, such consent not to be unreasonably withheld, conditioned or
delayed. Buyer's review of such specifications shall not be construed as
constituting approval, confirmation, or endorsement of Seller's work, or
relieve Seller from any obligation, duty, responsibility, or liability for the
design, engineering or construction of the particular Solar System.
(iv)
Seller shall give Buyer not less than ten (10) days~ notice prior to
the commencement of construction activities at each Site. Prior to Seller
commencing any construction activities at each Site, and without
limitation of Seller's obligations under Section 14.4, Seller shall have
delivered to Buyer evidence of the effectiveness of the insurance
coverages Seller is required to procure in accordance with Article XIV.
(v)
Seller may Commence Operations of a Solar System any_time
before the Commercial Operations Date of that Solar System and Buyer
will begin buying the Energy generated by that Solar System on that date.
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In no case will Seller achieve Commercial Operations for a particular
Solar System later than the Outside Commercial Operations Date for that
Solar System set forth in Exhibit J. Upon Commercial Operations for each
Solar System, Seller shall provide to Buyer a copy of the final as-built
drawings of that Solar System.
2.2
Operation and Maintenance of the Solar System. Seller shall operate and
maintain each Solar System in good working order and in accordance with Prudent Operating
Practices, all Warranties and Manuals and this Power Purchase Agreement and shall monitor the
performance of each Solar System, at all times during the Term.
2.3
Sale and Purchase of Energy. Seller shall sell to Buyer, and Buyer shall
purchase and accept from Seller, all of the Energy generated by each Solar System, as and when
the same is delivered, at the Energy Price, prior to the Commercial Operation Date for that Solar
System. Seller can make available to Buyer and Buyer shall take delivery of, at the Delivery
Point, any Energy produced by a particular Solar System in connection with the testing of same.
Buyer shall pay Seller for said Energy at a rate equal to one-hundred percent (100%) of the
Energy Price that would otherwise be applicable on the Commercial Operation Date.
2.3
Providing Monitoring, Metering and Billing.
Seller shall provide all
monitoring, metering, billing, invoicing and administrative services necessary to fulfill Seller's
duties under this Power Purchase Agreement.
2.4
Ownership of ZRECs, Environmental Attributes and Environmental
Incentives. Seller shall own all right, title and interest in and to all Environmental Attributes and
Environmental Incentives produced from the Solar Systems; provided that, subject to the terms
of Article XV, nothing herein shall limit Buyer from publicizing its use and consumption of solar
energy from the Solar Systems. Buyer agrees to assign any and all rights it may have during the
Term in and to the Environmental Attributes or Environmental Incentives to Seller and Buyer
agrees to promptly execute any and all documents reasonably required by Seller.in connection
therewith. In the event that Buyer purchases a particular Solar System from Seller as provided in
this Power Purchase Agreement, Seller shall assign to Buyer all of its right, title and interest in
and to the Environmental Attributes produced from that Solar System applicable to the period
following transfer of title, including those thereafter produced from or attributable to the that
Solar System.
2.5
Solar System Property Rights. Each Solar System shall at all times retain the
legal status of personal property as defined under Article 9 of the Uniform Commercial Code.
Seller shall own all of the Solar Systems. Unless and until Buyer purchases a particular Solar
System as provided herein, all of the Solar Systems are the personal property of Seller, and the
Parties intend that the Solar Systems shall not attach to or be deemed a part of, or fixture to, the
Premises or any other areas of the Sites. Other than as expressly provided herein, Buyer shall not
take any action that would result in the failure of the Solar Systems to be the personal property of
Seller.
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' ·~
2.6
Governmental Approvals; Installation and Maintenance of the Utility
Interconnection.
(i)
)
J
Subject to the terms of Section 4.2, Seller shall comply, at Seller's cost,
with all applicable requirements of the Buyer's Serving Utility applicable
to the design, engineering, construction, operation and maintenance of the
each Solar System, including but not limited to interconnection of the that
Solar System with Buyer's Serving Utility. Prior to the delivery to Buyer
of any Energy from a particular Solar System, Seller, at its cost, shall
make arrangements for the delivery and resale by Buyer to Buyer's
Serving Utility of the Energy generated by that Solar System in excess of
the Energy consumed by Buyer at the Site on which that Solar System is
located in accordance with Law ("Net Metering"). Seller shall ensure
that the Solar System shall be in compliance with Laws at all times during
the Term, including with respect to Net Metering.
(ii)
Seller shall be responsible for and bear all costs associated with
applying for and obtaining all Governmental Approvals for the
construction, operation and maintenance of the Solar Systems. Seller shall
coordinate with Buyer in respect of application for Governmental
Approvals, and shall ensure that Buyer has the opportunity to participate
in all material discussions with any applicable Governmental Authorities.
Buyer agrees to cooperate with Seller in obtaining all such Governmental
Approvals, including promptly executing any and all applications,
consents or other documents required in connection therewith, at no cost
to Buyer. Seller shall keep Buyer informed of its progress toward
obtaining all such Government Approvals by providing a written or oral
report to Buyer weekly following the date hereof. In the event Seller has
not obtained the Governmental Approvals required for the installation of a
particular Solar System on or before the Outside Governmental Approvals
Date for that Solar System, either Party shall have the right to terminate
this Power Purchase Agreement with respect to that Solar System by
providing the other written notice of such termination on or before the date
upon which Seller obtains all such Governmental Approvals required for
the installation of that Solar System, in which event this Power Purchase
Agreement shall terminate, with respect to that Solar System and the Site
on which it is to be located with neither Party having any liability by
reason of such termination. Seller agrees to use commercially reasonable
efforts (other than commencing, defending or prosecuting litigation or
administrative proceedings) to obtain the Governmental Approvals.
However, Seller's failure to obtain the Governmental Approvals required
for the installation of any Solar System by the Outside Governmental
Approvals Date for that Solar System, shall not be a Seller Default,
provided that Seller has used commercially reasonable efforts (other than
commencing, defending or prosecuting litigation or administrative
proceedings) to obtain the said Governmental Approvals.
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2.7
Maintenance of Health and Safety; Standards.
(i)
During the Construction Period of each Solar System, Seller will
ensure the safety of workers and visitors at the Premises on which that
Solar System is being installed in accordance with Laws, Governmental
Approvals, and otherwise in accordance with Prudent Operating Practice.
Prior to commencement of construction of each Solar System, Seller shall
submit to Buyer its procedures for maintaining safety at the Premises on
which that Solar System is being installed during the Construction Period
of that Solar System. Buyer shall review such procedures and the Parties
shall work together to agree to procedures that do not unreasonably
interfere with Buyer's conduct of its normal operations at the particular
Site of which the particular Premises is a part. During the Construction
Period for a particular Solar System, Buyer shall comply with, and use
commercially reasonable efforts to ensure that the Buyer Parties at the
particular Site on which the particular Solar System is being installed
comply with, such safety procedures and other reasonable rules and
regulations implemented by Seller and communicated in writing to Buyer
in connection with the Premises on which the particular Solar System is
being installed and the construction of that Solar System that do not
unreasonably interfere with Buyer's conduct of its normal operations at
the particular Site at which the particular Premises is located. Buyer shall
allow Seller to limit access to each Premises on each Site to authorized
personnel only during the Construction Period for the Solar System that is
located on each Premises.
(ii)
All persons engaged in work on a particular Site in connection with the
design, engineering or construction of the Solar System being constructed
on that Site shall be identified to Buyer in accordance with the reasonable
procedures established by Buyer upon written notice to Seller.
(iii)
Seller will take reasonable measures to reduce or mitigate noise,
dust, the spread of debris and construction materials during construction of
each Solar System. Each Premises and any other areas used for
construction shall be kept in a commercially reasonable neat and clean
condition during the Construction Period of the Solar System being
installed on the particular Premises. Promptly following the conclusion of
construction at a particular Site, Seller shall remove all debris, extra
materials, scaffolding, tools, machinery and other construction materials to
leave the Premises located on said Site and all other areas of said Site
broom clean and shall maintain the particular Premises in such condition
for the Term, except as is reasonably required for maintenance, repair,
replacement or removal of the particular Solar System, during which
activities the requirements for the Construction Period shall apply. Seller
shall use and dispose of any "hazardous materials" (as such term is
defined in any applicable Laws), if any, brought to a particular Premises or
any other area of a particular Site in connection with the construction,
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installation, operation and maintenance of the particular Solar System, in
accordance with all Laws, provided prior written notice to Buyer. Further,
Seller shall provide notice to Buyer's emergency contact, set forth in
Exhibit E, attached hereto, if Seller is bringing any such "hazardous
materials" on to a particular Site.
\
2.8
(iv)
All persons employed or engaged by Seller (and Seller's contractors) in
the design, engineering and construction of the Solar Systems shall be
qualified and, if required by Law or Prudent Operating Practices, licensed,
for the work for which they have been employed or engaged, in
accordance with Prudent Operating Practices.
(v)
Upon and after the Commercial Operations Date of each Solar System,
Seller will take safety precautions with respect to the operation,
maintenance, repair and replacement of said Solar System and will comply
with all Laws, Governmental Approvals and Prudent Operating
Practices. If Seller becomes aware of any circumstances relating to a
particular Premises or a particular Solar System that creates risk of
damage or injury to any person or any person's property, Seller shall take
prompt action to prevent such damage or injury and will give Buyer's
emergency contact, identified on Exhibit E. notice of such condition.
Such action may include disconnecting and removing all or a portion of a
particular Solar System, or suspending the supply of Energy to Buyer at a
particular Site.
(vi)
If all or a portion of a particular Solar System on a particular Site is
ground mounted, Seller shall at all times during the Term for that Solar
System following the commencement of construction of the ground
mounted portions of that Solar System, maintain a locked security fence
around those portions of the Premises on which the ground mounted
portions of the Solar System are located. The design for such security
fence shall be submitted to Buyer prior to the commencement of
construction of the ground mounted portions of the particular Solar
System for Buyer's approval, which shall not be unreasonably withheld,
conditioned or delayed, and Seller shall accommodate Buyer's reasonable
requests with regard to the design and construction of any such fence,
provided that the cost of same remains within the project budget for the
particular Solar System.
Avoidance of Liens on the Premises.
(i)
Except as expressly permitted by Article XI of this Power Purchase
Agreement, Seller will not directly or indirectly allow any mortgage,
pledge, lien (including mechanics', labor or materialmen's liens), charge,
security interest, encumbrance or claim of any nature ("Liens") on or with
respect to Buyer or the Sites or any interest therein arising from or relating
to the construction, ownership or operation of the Solar Systems by Seller.
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(ii)
Seller shall hold harmless Buyer from any and all such Liens. Seller shall,
at no cost to Buyer, within ten (10) Business Days of knowledge of same,
discharge or otherwise remove any such Lien by bonding, payment or
otherwise and shall notify Buyer of such discharge, release or removal. If
Seller does not cause any such Lien to be discharged, released or
otherwise removed by payment, bonding, payment to a court of competent
jurisdiction, or other method approved in advance by Buyer within ten
(10) business days of notice from Buyer to Seller demanding such
removal, Buyer shall have the right (but not the obligation) to pay all sums
reasonably necessary to obtain releases and discharges (including the
settlement of any lien or claim). In such event, Buyer shall have the right
to either deduct all amounts so paid (plus reasonable attorneys' fees) from
amounts due Seller hereunder or be reimbursed by Seller for such amounts
upon demand.
2.9
Payment of Taxes and Assessments. Except as otherwise expressly provided
herein, Seller is solely responsible for all income, gross receipts, personal property or other
similar taxes and any and all franchise fees or similar fees relating to Seller's ownership of the
Solar System and the sale of electricity from the Solar System. However, notwithstanding the
foregoing, Buyer is responsible for any real property taxes in connection with the location of the
Systems on the Sites and Seller will take responsibility long-term for any sales and use taxes due
by reason of the sale of Energy.
Performance Bonds. Seller will, at its cost and expense, provide or cause its
2.10
subcontractor to provide performance bonds, naming Buyer as obligee thereunder, guarantying
the completion of each Solar System, in accordance with the terms of this Power Purchase
Agreement, for the term of one year.
bW2.11
J: ~-r:~y~i_l}_t: _~«)l_l!~- -~-i~~·- _-~-r?_vi~-~~ -~~~ _~-~!l~!- _i:~ _~~~-~- ~~ _~_(~91:1! ~~ _~~ _~-~~-~ _!?-__ .->{~F_o_rm_a_tt_ed_:_Fo_n_t:_Bo_ld_ _ _ _ _ _--'
the Terrvville Solar Site, Seller shall convev the title to the Ten-vville Solar Site to the Town of
Plvmouth free of charge. provided that the To\\-11 of Plymouth accepts this conveyance.
ARTICLE III
BUYER'S RIGHTS, DUTIES AND OBLIGATIONS
3.1
Accept and Purchase Energy. With respect to all of the Solar Systems that
achieve Commercial Operations, Buyer shall accept delivery of all of the Energy generated by
said Solar Systems and delivered to Buyer at the Point of Delivery for said Solar Systems, and
Buyer shall purchase from Seller all of said Energy, and Buyer shall pay for said Energy at the
Energy Price, subject to and in accordance with the terms and conditions of this Power Purchase
Agreement.
3.2
Provide Access to the Site and the Solar System. With respect to each Site,
Buyer, at no third party or outside cost to Buyer, shall provide or assist Seller and its agents and
contractors in obtaining convenient access to and from the Premises located on each Site and the
Transmission Easement, Utility Easement and Access Easement areas located on each Site
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during normal business hours as reasonably necessary or appropriate for Seller to perform
construction, inspections, maintenance, repairs, removal of each Solar System and for the
replacement of damaged portions of each Solar System. Access includes access for lifting,
rigging and material handling equipment required by Seller. In the event of an emergency
relating to a Solar System, a Premises or a Transmission Easement area that threatens to cause or
result in imminent harm to persons or property, Buyer, at no third party or outside cost to Buyer,
shall provide or assist Seller in obtaining immediate access to and from the particular Premises
and/or the Transmission Easement, Utility Easement or Access Easement areas, as applicable.
3.3
Assistance with Interconnection, Permits and Leases. Buyer, at no third party
or outside cost to Buyer, shall assist Seller and cooperate with Seller, as necessary, to acquire
and maintain the Governmental Approvals required for the construction, operation, maintenance
and repair of the Solar Systems, including, so long as Seller is in compliance with its obligations
hereunder, signing any applications or consents for Governmental Approvals, ZRECs or other
Environmental Attributes (and for the creation and verification of said ZRECs and other
Environmental Attributes), and rebate applications as are required to be signed by a person or
entity in the position of Buyer. Buyer will also deliver to Seller copies of any Governmental
Approvals, rebates or other fmancial incentives related to the Solar Systems that are in the name
or physical control of Buyer, and Buyer agrees to assign same to the extent required in
accordance with the terms of this Power Purchase Agreement.
3.4
Obstructions. Access to sunlight ("insolationlnsolation") for the Solar Systems
is essential to the value to Seller of the rights granted hereunder and is a material inducement to
Seller in entering into this Agreement. Buyer shall not take any actions, or allow others (to the
extent within Buyer's control) to conduct any activities at the Sites that cause shading of the
Solar Systems or may damage or otherwise interfere with the operation of the Solar Systems, all
in accordance with the provisions of the Leases. Without limiting the foregoing, Buyer shall not
construct or permit to be constructed any structure on the Sites, or permit the growth of foliage,
that could reasonably be known to have a material adverse effect on insolationinsolation levels.
If Buyer becomes aware of any potential development or other activity on adjacent or nearby
properties to the Sites that could diminish the insolationinsolation to the Solar Systems, Buyer
shall advise Seller of such information and reasonably cooperate, at no third party or outside cost
to Buyer, with Seller in any measures necessary to preserve existing levels of
insolationlnsolation at the Solar Systems. In addition to and not in limitation of. the foregoing,
as of the Effective Date. certain trees on certain of the Sites will shade and interfere with
Insolation to, certain of the Solar Svstems to be installed on those Sites. Accordingly, Buver
hereby consents to Seller's removal or trimming, as reasonably required. of said trees so as to
eliminate said shading of and interference with Insolation to, said Solar Systems.
3.5
Maintenance of Site Electrical System. Buyer shall maintain each Site
Electrical System in good condition and repair so as to be able to receive the Energy. With
respect to each Site, Buyer will maintain its connection and service contract(s) with the Buyer's
Serving Utility or any successors thereto, so that Buyer can procure its full requirements for
electricity for each Site that are not served by the Solar System located on that Site or otherwise.
3.6
Environmental Attributes and Environmental Incentives Belong to Seller.
Buyer acknowledges that, subject to the provisions of Section 8.2(iii) of this Agreement, any
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Environmental Attributes and Environmental Incentives with respect to each Solar System, such
as, by way of example and not by way of limitation ZRECs, belong to and are the property of
Seller for so long as Seller owns each Solar System. Any Environmental Attributes or
Environmental Incentives that are initially credited or paid to Buyer will be assigned by Buyer to
Seller without delay. So long as Seller is in compliance with its obligations hereunder, Buyer
agrees to cooperate at Seller's cost with Seller in any applications for Environmental Attributes
or Environmental Incentives and the assignment of Buyer's rights to same.
3.7
Seller's Failure to Pay Taxes and Charges. If Buyer, either directly or as a
levy against the Site, is assessed any taxes or fees that are the responsibility of Seller pursuant to
the terms of this Power Purchase Agreement, Buyer will immediately give Seller notice of such
imposition. In the event Seller contests its obligation for such assessment, Seller will cooperate
with Buyer in contesting such assessment; provided, that Buyer will promptly pay such taxes to
avoid any additional penalties and interest accruing on such assessments. If following such
contest it is determined that the amount is properly payable by Seller, Seller will reimburse to
Buyer upon demand the amount paid plus interest at the Default Rate.
3.8
Taxes, Fees and Charges. Buyer is responsible for paying all taxes based upon
or measured by Buyer's income or revenues .. Buyer is also responsible for paying all taxes or
fees assessed against Buyer due to Buyer's purchase of the Energy or resale of Energy to the
Buyer's Serving Utility.
3.9
Access to Solar System. Buyer shall use commercially reasonable efforts to
implement policies and practices to restrict unauthorized access to each Premises and to prevent
harm or damage to each Solar System. If Buyer becomes aware of any circumstances relating to
a Solar System or a Premises that creates an imminent risk of damage or injury to any person or
any person's property, Buyer shall immediately notify Seller's emergency contact identified on
Exhibit E of such threat. If the threat relates to portions of a Site other than the Premises located
on same, Buyer shall promptly take such action as is necessary or appropriate to prevent such
damage or injury.
3.10
Notice of Damage. Buyer shall immediately notify Seller of any physical
conditions or other circumstances of which Buyer becomes aware that indicate there has been or
might be damage to or loss of the use of a Solar System or that could reasonably be expected to
adversely affect a Solar System.
3.11
Temporary Shutdown of the Solar Facility. Buyer shall not cause, or allow
any Buyer Parties to cause any Solar System to shut down, temporarily or otherwise, unless in
the case of emergency or as a result of a Force Majeure Event. In the event of a shut down of all
of a Solar System or the Shut Down of a Portion of a Solar System caused by Buyer or a Buyer
Party, or as the result of a Force Majeure Event, the Cumulative Minimum System Output and
the Expected System Output for said Solar System shall be adjusted pursuant to the terms of
Section 6.5. Other than in the event of such shut down resulting from a Force Majeure Event,
Buyer shall be subject to make payments to Seller in respect of such shut down in accordance
with Section 6.5. At the request of Buyer, Seller may consent, such consent not to be
unreasonably withheld, conditioned or delayed, to temporarily shut down all of a Solar System or
to temporarily Shut Down a Portion of a Solar System for a predetermined period of time;
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provided that nothing herein shall require Seller's consent to a shutdown of a Solar System if
necessary as a result of an emergency; and provided further that the Cumulative Minimum
System Output and the Expected System Output for a Solar System all or partially so shut
downse shall be adjusted pursuant to the terms of Section 6.5, and, other than in the event of a
shut down of all of a Solar System or the Shut Down of a Portion of a Solar System as the result
of a Force Majeure Event, Buyer shall make any payments to Seller required in accordance with
Section 6.5. In addition to and not in limitation of the foregoing, in the event of shut down of all
of a Solar System caused by or requested by Buyer or a Buyer Party or in the event of a Shut
Down of a Portion of a Solar System caused by or requested by Buyer or a Buyer Party, other
than by reason of a Force Majeure Event, in addition to the other payments required by this
Section 3.11, Buyer shall also pay Seller for the amount of the value of all Environmental
Attributes (including but not limited to ZRECs) and Environmental Incentives lost by reason of
such shut down of all of the Solar System or such Shut Down of a Portion of a Solar System.
)
3.12
Avoidance of Liens on the Solar System. Buyer will not directly or indirectly
allow any Lien on or with respect to the Solar Systems, Seller's rights in the Leases therefor,
Seller's rights in the leasehold estates created by said Leases, Seller's rights in the Transmission
Easements and Access Easements and the easement areas created thereby and Seller's rights in
this Power Purchase Agreement that is attributable to any act or omission of Buyer or Buyer
Parties. If Buyer becomes aware of such a Lien that is attributable to Buyer or Buyer Parties,
Buyer will promptly give Seller notice of such Lien. Buyer shall hold harmless Seller from any
and all such Liens and will promptly and at no cost to Seller, take such action as is necessary or
appropriate to have any such Liens released, discharged or removed. If Buyer does not cause
any such Lien or claim to be discharged, released or otherwise removed by payment or bonding
or other method approved in advance by Seller within ten (10) Business Days of notice from
Seller to Buyer demanding such removal, Seller shall have the right (but not the obligation) to
pay all sums reasonably necessary to obtain releases and discharges (including the settlement of
any lien or claim). In such event, Seller shall have the right to either deduct all amounts so paid
(plus reasonable attorneys' fees) from amounts due Buyer hereunder or be reimbursed by Buyer
for such amounts upon demand.
3.13
Temporary Storage Space During Installation or Removal. Without cost to
Buyer, Buyer shall provide sufficient space for the temporary laydown, storage and staging of
tools, materials and equipment and for the parking of construction crew vehicles and temporary
construction trailers and facilities reasonably necessary during any installation, maintenance,
repair, replacement or removal of each Solar System; provided that, unless in the event of an
emergency, Seller has given Buyer not less than three (3) days prior notice ofthe extent and need
for such space. Buyer and Seller will coordinate and cooperate in determining the amount of
space required for such purposes.
ARTICLE IV
ACCEPTANCE TESTING, METERING, INVOICING AND PAYMENT
Solar System Acceptance Testing; Commercial Operation. Seller will
4.1
conduct one or more tests during installation of each Solar System to demonstrate the operation
and the installed capacity of each Solar System, such tests to be in accordance with all
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Warranties and Manuals. Seller will give Buyer three (3) Business Days advance notice of these
tests and Buyer and its Independent Engineer can be present to verify said tests. "Commercial
Operations" will begin, with respect to a particular Solar System on the later of (i) the day on
which Buyer's Serving Utility approves the interconnection of that Solar System to the electric
distribution system of Buyer's Serving Utility or (ii) the day on which (X) the entire particular
Solar System can be operated on a sustained basis in accordance with the Warranties and
Manuals, to produce not less than the Expected System Output for that Solar System, and (Y)
Seller is in receipt of all Governmental Approvals for the production and sale of Energy by that
Solar System (including Net Metering and the Interconnection Agreement), and (Z) [that8olar
System is ·a£cepted .irito th.e State's. ZREC_ pro:iraei.__ l;'he_ "<;~lll_~t:~~-i_a!_()p~r~~io_~s_ ;t?_a_t~"--~h~L----­ Comment [Al]: Sal and Glenn: An ofthe SOlar :
Systems have now been ac:Cepted into the Ct.'s
·
be the first day of the calendar month immediately following the date upon which the Solar
· ZREC prOgi-iun; 50 this Is now a mmot point.··
System begins Commercial Operations. In the event the Solar System begins Commercial
Operations on the first day of a calendar month such date shall be the Commercial Operations
Date. Seller shall provide Buyer not less than three (3) Business Days prior notice of the
Commercial Operations Date. £Q~-~~!-~~-~Y~] _____________________ ---------------------------------------------------c;{ Formatted: Not Highlight
(a)
Subject to Buyer successfully performing its obligations set forth in
Section 4.2(b) below, Seller warrants that each Solar System that achieves Commercial
Operations shall be eligible for Net Metering at all times during the Term in accordance with
Law.
(b)
If a Site does not already comply with Net Metering laws and regulations
as of the Effective Date, then Buyer will use commercially reasonable efforts to cooperate with
the Seller to support Seller's arrangements to implement Net Metering on behalf of Buyer in
respect of the Solar System to be installed on that Site. In the event Buyer's Serving Utility
requires repairs, replacements or upgrades to the Site Electrical System of a particular Site or any
portion of the public electric transmission system (i.e. switches, transformers or transmission
lines) serving that Site as a condition to the interconnection of that Solar System with such public
electric transrr...ission system serving that Site through the Site Electrical System of that Site,
whether such repairs, replacements or upgrades are required on or off that Site, Seller shall
perform such repairs, replacements or upgrades at its sole cost and expense. Notwithstanding the
foregoing, if at any time and from time to time after the Effective Date and/or throughout the
Term and/or any renewal thereof, Buyer makes any change or changes to a Site and because of
said change or changes, Buyer's Serving Utility requires repairs, replacements or upgrades to the
Site Electrical System of a particular Site or any portion of the public electric transmission
system (i.e. switches, transformers or transmission lines) serving that Site as a condition to the
continuing interconnection of that Solar System with such public electric transmission system
serving that Site through the Site Electrical System of that Site and/or to comply with the Net
Metering laws and regulations then in effect, whether such repairs, replacements or upgrades are
required on or off that Site, Buyer shall promptly perform such repairs, replacements or upgrades
at its sole cost and expense.
(c)
Seller shall measure and record the amount of Energy supplied to Buyer
by each Solar System using one or more commercially available, revenue-grade metering
systems (the "Meters").
The Meters shall include industry standard telemetry for
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communication with Ethernet, cellular and other output capabilities for purposes of metering,
monitoring and collecting data on Energy production. The Meters shall be installed and , , , ,
,
, , ,
maintained at Seller's cost. Buyer grants Seller a right of access to the Meters as needed to :( ;: ,
)
, ::': \> ,
inspect, repair and maintain such Meters. Buyer shall allow for the installation of necessary ,•,', ,·,. : :',·:' <.; '' , ,'' , ,
communication lines and shall reasonably cooperate in providing access for such installation. If , ,'''·:· . ••.....•••..·...····', <
., .
Buyer has internet or ethernet access at a Site, Buyer shall make same available to Seller free of •. · · :·•·• ·. '.·. > ' '
:,
charge, R!f!Y.~cf.e_cj.1 __ ~l_(!'!~!!:.Y~':: __~~~~---~9_t_'?-:~~~~-'!I1_4!!~g__ !!I_~ __f9!.~[<?~g1 __ Rii<?~--!~--'!~~~~~~g--~~~Y~t:'~_;);c~{i-Fo--"-'rm"-a-'tt"'"ed'-:-'Fon-'---'t:...:.Ita"'--'.lic-'--'.-'.-'----.,
internet or ethemet systems: (i) Seller, at its cost and expense, shall determine if anv upgrades
are required to Buyer's internet or ethernet systems to provide access to same to Seller and to
meet IEEE 487 and (ii) if any upgrades are required to Buyer's internet or ethemet systems to
provide access to same to Seller and to meet IEEE 487, Seller shall be responsible for the cost of
such upgrades if Seller still desires such access. The Meters shall be kept under seal, such seals
to be broken only by Seller when the Meters are to be tested, adjusted, modified or relocated. In
the event that Seller or Buyer breaks a seal, the applicable Party shall notify the other as soon as
practicable. Seller shall provide Buyer with copies of the data from the Meters upon request.
Seller shall retain records of data from the Meters for not less than five (5) years.
4.3
Invoicing. Seller will invoice Buyer for Energy monthly in arrears, plus
applicable taxes, if any, and any other mandatory Governmental Authority charges that may be
assessed, within thirty (30) days after the end of each month. Each invoice will set out the
amount of Energy in kWh delivered during the prior billing period, the Energy Price, and the
amount due, including any taxes and/or other mandated charges assessed on the delivery and sale
of Energy to Buyer at the Point of Delivery.
4.4
Payment.
(a)
Buyer shall make payment to Seller for Energy by electronic funds
transfer to the account listed in Section 5.2 of this Power Purchase Agreement or as otherwise
directed in writing by Seller. Payment shall be made not later than the 15th day of the next
month following delivery of Seller's invoice to Buyer in accordance with Section 4.3. If such
due date falls on a day that is not a Business Day, such due date shall be the next Business Day.
Payments for Energy made after the due date will be considered late and will bear interest on the
unpaid balance at the prime rate of interest published on the due date for such payment under
"Money Rates" in the Wall Street Journal (or if the Wall Street Journal is no longer published a
comparable publication agreed upon by the Parties), plus eighteen percent per annum or the
greatest interest rate permitted by law, whichever is greater (the "Default Rate").
(b)
Buyer shall make payment to Seller for payments due hereunder other
than payments for Energy (whether the Option Price or otherwise) by electronic funds transfer to
the account listed in Section 5.2 of this Power Purchase Agreement or as otherwise directed in
writing by Seller. Payment shall be made not later than the 15th day of the next month following
delivery of Seller's invoice therefor to Buyer. If such due date falls on a day that is not a
Business Day, such due date shall be the next Business Day. Payments made after the due date
will be considered late and will bear interest on the unpaid balance at the Default Rate.
4.5
Meter Verification. Seller may test the Meters from time to time, but not less
than once every two (2) years following the Commercial Operations Date of the System which
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the Meters serve. Buyer shall be notified three (3) Business Days in advance of such tests and
shall have the right to be present during such tests. If a particular Meter is inaccurate, it shall be
promptly repaired or replaced. If the Meter is inaccurate by more than two (2) percent (2%) and
it is not known when the Meter inaccuracy commenced (if such evidence exists such date will be
used to adjust prior invoices), then the invoices covering the period of time since the last Meter
test shall be adjusted for the amount of the inaccuracy based on the assumption that the
inaccuracy persisted during one-half of such period.
4.6
Books and Records. To facilitate payment and verification, each Party shall
maintain all books and records necessary for billing and payments, including copies of all
invoices under this Power Purchase Agreement, for a period of at least five (5) years.
4. 7
Payment Adjustments; Billing Errors. Payment adjustments will be made if
Buyer or Seller discovers there have been inaccuracies in invoicing, or there is determined to
have been a Meter inaccuracy sufficient to require a payment adjustment. The Party requesting
an adjustment shall notify the other Party in writing providing sufficient detail of the proposed
adjustment and the reason therefor. In the event the noticed Party disputes such proposed
adjustment, the Parties shall work together to resolve the discrepancy. In the event the Parties
cannot resolve the discrepancy, the Parties shall submit the dispute to arbitration pursuant to the
terms of Article XII. If the required adjustment is ultimately determined to be in favor of Buyer,
Buyer's monthly payment shall be credited in an amount equal to the adjustment. If the required
adjustment is ultimately determined to be in favor of Seller, Seller will add the adjustment
amount to Buyer's next monthly invoice. If an adjustment is required at the end of the Term, the
Party who must pay said adjustment shall do so within thirty (30) days of a determination that
such amount is owed. No adjustments will be made unless notice as provided in this Section 4.7
is given within one hundred twenty (120) days of the delivery of the invoice for which an
adjustment is requested.
ARTICLE V
NOTICES
5.1
Immediate Notice of Damage to tbe Solar System. Without limitation of
Seller's obligations under Section 2.2, in addition to Buyer's duty to immediately notify Seller if
Buyer becomes aware of a risk or the threat of a risk to persons or property, Buyer shall
immediately notify Seller if Buyer becomes aware of any of the following conditions: (i) damage
to a Site caused by the operation, maintenance or repair of the Solar System on that Site;
(ii) damage to a Solar System from any cause; or (iii) damage to a Site from a cause other than
the Solar System on that Site, which damage is reasonably likely to have an adverse effect on the
operation of a Solar System on that Site or the delivery of Energy by that Solar System. In the
event of any such damage, Buyer agrees that Seller may immediately inspect the applicable Solar
System and the applicable Site to determine whether commercial operation of the Solar System
at that location is safe and to make repairs to the particular Solar System, if necessary.
5.2
Addresses for tbe Delivery of Notices. Any notice required, permitted, or
contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the
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)
/
address set forth below or at such other address or addresses as a Party may designate for itself
from time to time by notice hereunder.
To Seller:
EJ Terry Solar 1, LLC
SAFARIENERGY,LLC
989 6th Avenue
Fifth Floor
New York, NY 10018
Attention: Mathew Rudey
Phone No.: (212) 935-2500
Email: [email protected]
With a copy to:
With a copy to:
Attn:
Phone No.:
Email:
Payment Account
Information:
[to be provided]
)
To Buyer:
Plymouth BoE
80 Main Street
Terryville, CT
06786
Attention: Michael Santogatta
Phone No.: (609) 895-2046
Email:
[email protected]
With a copy to:
Attention:
To Buyer (for invoices):
Attention:
5.3
Acceptable Means of Delivering Notice. Each notice required, permitted, or
contemplated hereunder shall be deemed to have been validly served, given or delivered as
follows: (i) if sent by United States certified mail, return receipt requested, with proper first
class postage prepaid, three (3) Business Days following the date of the postmark on the
envelope in which such notice was deposited in the United States mail, or (ii) if sent by a
regularly scheduled overnight delivery carrier with delivery fees either prepaid or an
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arrangement with such carrier made for the payment of such fees, the next Business Day after the
same is delivered by the sending Party to such carrier.
ARTICLE VI
CONDITIONS PRECEDENTffERMINATION/EXTENSION
6.1
Conditions Precedent. Other than as to Article I; Sections 3.3,2,2, 5.3, 6.1 6.2
and ..2J.; and Articles X, XI, XII, XIII, XV and XVI, which shall be in full force and effect as of
the Effective Date, the rights and obligations of the Parties hereunder with respect to each Solar
System are expressly conditioned upon the satisfaction in full (or written waiver by each Party)
of all of the following conditions with respect to that Solar System (collectively the "Conditions
Precedent"):
(i)
CL&P shall have consented to, and Seller shall have obtained, the
assignment of the ZREC Contract for that Solar System by PhosEnergy
LLC to Seller or an Affiliate of Seller;
(ii)
Seller shall have obtained all Governmental Approvals required for the
construction of that Solar System and that Solar System shall have been
accepted into the State's ZREC program;
(iii)
Seller shall have confirmed that the Site and the Premises on which that
Solar System is to be located are suitable for the construction, installation,
operation and maintenance ofthat Solar System; and
(iv)
Only with respect to the Solar System which is to serve Terryville
High School, Seller shall have acquired the title to the Terryville Solar
Site
•
··
·
· a-be located from the
third party who owns said-the Terryville Solar Sitereal property, and the
Township of Plymouth shall have accepted the dedication conveyance,
free of charge, of the title to the Terryville Solar Site!aad fi·ee of charge.
(v)
Buyer's receipt from the Independent Engineer of an opinion, that the
Solar System and engineering specifications therefor are technically
compliant with the applicable codes and meet appropriate health, safety
and asset integrity requirements, to be provided in writing within twenty
(20) days of Seller's submission for all Governmental Approvals.
Seller and Buyer, as applicable, shall each use commercially reasonable efforts (other
than commencing, defending or prosecuting litigation or administrative proceedings) to satisfy
the Conditions Precedent.
6.2
Change in Law. If at any time prior to the Commercial Operations Date of a
particular Solar System, a Change in Law not contemplated as of the Effective Date (i) renders
this Power Purchase Agreement illegal or unenforceable, (ii) would render performance by a
Party illegal or unenforceable, (iii) materially limits or eliminates, abolishes or makes illegal the
sale of Energy generated by that Solar System from Seller to Buyer or materially limits or
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eliminates, abolishes or makes illegal the trading or transferring of ZRECs, the Parties shall enter
into good faith negotiations to make the minimum changes to this Power Purchase Agreement
necessary to render this Power Purchase Agreement in compliance with any such Change in Law
and to provide that the Parties retain the rights and benefits provided herein. If the Parties do not
agree to make changes acceptable to the other Party, each in its sole discretion, within thirty (30)
days, then either Party may terminate this Power Purchase Agreement with respect to the Sites
and Solar Systems so affected, and, if such Change in Law makes it illegal to operate a Solar
System at a Site, Seller, at its expense, shall remove that Solar System from that Site. (to the
extent then constructed and installed) and restore the Premises on that Site as closely as
reasonably possible to its condition, ordinary wear and tear excepted, prior to the commencement
of construction of the particular Solar System including the removal of structural elements and
mounting pads and reasonable ground stabilization measures. Other than as provided herein with
respect to restoration of a particular Premises, such termination shall be without penalty to or
liability of either Party by reason of such termination.
)
6.3
INTENTIONALLY OMITTED.
6.4
INTENTIONALLY OMITTED.
6.5
Payment for Temporary Shut Down of Solar System.
(i)
In the event (a) Buyer needs to conduct any type of work on a Site
that will require the shut down of the Solar System located on that Site, or
(b) if Buyer or any Buyer Parties cause any disruption which will require
or otherwise causes Seller to cease making deliveries of Energy from a
particular Solar System, or otherwise causes a Solar System to shut down
for a period in excess of thirty six (36) hours in any Production Period, in
either case other than as a result of a Force Majeure Event, Buyer's
payments due hereunder shall be adjusted to compensate Seller for its loss
of income and additional expenses actually incurred during the period in
which.Energy cannot be or is not generated by the particular Solar System
and delivered to Buyer during such shutdown, and the Cumulative
Minimum System Output for that Solar System and Expected System
Output for that Solar System for the applicable Production Period shall be
downwardly adjusted to account for the loss of production time. The
payment adjustment shall be equal to the sum of: (1) Seller's lost revenue
from Energy sales from that Solar System to Buyer determined on the
basis of the historical performance of that Solar System during the
applicable time period during the Production Period immediately prior to
the suspension (i.e. if the interruption is from June 1 through June 10 then
the lost revenue shall be based on that Solar System's performance from
June 1 - June 10 of the previous year- and if such interruption occurs
during the first Production Period, such lost revenue shall be measured
using the Expected System Output for that Solar System for the applicable
time period), (2) Seller's actual costs of making the particular Premises
available to Buyer by moving, disassembling, removing, storing, reassembling, and re-commissioning the particular Solar System, as and if
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required; and (3) Seller's lost income from the sale of Environmental
Attributes produced by that Solar System, calculated by reference to the
amount of Energy that the Solar System would have produced as provided
in the foregoing clause (1) and the foregone revenue determined in
accordance with any agreement for the sale of the Environmental
Attributes, produced by that Solar System, to which Seller is party and/or,
if and to the extent that Seller is at the time selling the Environmental
Attributes, produced by that Solar System, in a spot market, based on the
market price of such Environmental Attributes reasonably determined
based on market information for the period of suspension from reputable
brokerage firms or third-party intermediaries through which Seller is
selling the Environmental Attributes and actively engaged in the purchase
and sale of comparable Environmental Attributes. Seller will provide
Buyer with written documentation detailing the calculation of its lost
revenues calculated in accordance with the foregoing and any additional
costs reasonably incurred by Seller solely as a direct result of such
suspension. Buyer will have thirty {30) calendar days to review the
calculation and make, in writing, any objections to the calculation. Absent
any objection raised by Buyer within that thirty (30) day period, Buyer
shall be deemed to have accepted Seller's calculations. Any dispute raised
in a timely manner by Buyer shall be resolved in accordance with Article
XII. Further, in addition to but not in limitation of the foregoing, the
Cumulative Minimum System Output for a particular Solar System and
the Expected System Output for that Solar System for the applicable
Production Period shall be downwardly adjusted to account for any loss of
production time in excess of one (1) hour caused by any and all actions or
omissions of Buyer or any Buyer Party. The Cumulative Minimum
System Output and the Expected System Output adjustment for a
particular Solar System shall be determined using the historical
performance as set forth in Section 6.5(i)(l).
(ii) In the event any disruption or reduction of the generation or delivery
of Energy from a particular Solar System is caused by a Force Majeure
Event, the Cumulative Minimum System Output for that Solar System and
the Expected System Output for that Solar System for the applicable
Production Period shall be downwardly adjusted accordingly. Such
adjustment shall be determined using the performance standard (based on
a reduction in the production of Energy) as set forth in Section 6.5(i)(l).
Buyer's Purchase Option. Buyer shall have the option at the end of the Term
6.6
with respect to a particular Solar System, to purchase that Solar System at Fair Market Value.
Buyer may exercise its purchase option by giving Seller no less than one hundred twenty
(120) calendar days notice of its desire prior to the end of the Term with respect to that Solar
System. If Buyer provides timely notice of its exercise of such option, the Parties shall fust
attempt to agree on a Fair Market Value for the particular Solar System. If the Parties cannot
agree on a Fair Market Value within thirty (30) calendar days from the date of Buyer's notice of
its exercise of the option, Fair Market Value shall be determined within a further thirty (30) days
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)
by an independent energy appraiser mutually acceptable to the Parties. Buyer shall have thirty
(30) days from the independent appraiser's determination of Fair Market Value to elect to
purchase the particular Solar System as provided herein. "Fair Market Value" shall mean the
price that would be established in an arm's length transaction between an informed and willing
buyer and an informed and willing seller for the particular Solar System as installed at the
particular Premises, including its residual value. However, the determination of Fair Market
Value will not take into account the value of this Power Purchase Agreement or the extension
thereof. Buyer acknowledges that Seller makes no representation or promise as to the Fair
Market Value of any Solar System at any future time. If Buyer exercises its purchase option
with respect to a particular Solar System, then at the closing of the sale and purchase of that
Solar System, which shall take place on or before the last day of the Term, with respect to that
Solar System (or such other date as reasonably agreed by the Parties), Buyer and Seller will
promptly execute all documents necessary to (i) transfer title to the particular Solar System to
Buyer, free and clear of any Liens, and (ii) assign all Warranties, to the extent assignable for the
particular Solar System and, to the extent assignable, all Governmental Approvals for the
particular Solar System to Buyer. Buyer will pay the purchase price for the particular Solar
System to Seller concurrently with the passage of title to that Solar System. Buyer waives its
right to exercise this purchase option (A) if Buyer does not give Seller timely notice of Buyer's
intent to so exercise its purchase option, or (B) if a Buyer Default is then continuing.
)
6.7
Seller's Term Extension Option. Should Buyer elect not to purchase a
particular Solar System at the end of the Term for that Solar System, then the Term for that Solar
System shall automatically be extended for an additional five (5) years, under all of the terms
and provisions of this Agreement and of the applicable Lease, except that the Energy Price to
Buyer for the Energy generated by that Solar System (including all ancillary costs of power such
as transmission costs, demand charges and other typical utility charges) shall be 25% less than
the then current ali-in cost per kWh for electricity that is then charged to Buyer or could then be
charged to Buyer by Buyer's Serving Utility for the Site on which said Solar System is located.
Thereafter, the Energy Price will be adjusted annually, based on the percentage increase or
decrease in the CPI, with a minimum annual price increase of 1.5% and a maximum annual price
increase of 3%. At the end of the five year Term extension, Buyer shall have the option to
purchase the particular Solar System at Fair Market Value from Seller in accordance with the
provisions of Section 6.6.
6.8
Termination. If at the end of the Term or any extension thereof with respect to
a particular Solar System, Buyer has not exercised its purchase option pursuant to Section 6.6
and/or Seller has not exercised its frrst right of offer pursuant to Section 6.7, or if other than at
the end of the Term or any extension thereof with respect to a particular Solar System, this
Agreement has otherwise terminated pursuant to its provisions with respect to that Solar System,
Seller shall have an additional ISO days from the expiration of the applicable Term or renewal
thereof or other termination with respect to that Solar System to remove said Solar System from
the applicable Premises and restore said Premises to as nearly practicable the condition it was in
prior to the installation of said Solar System, ordinary wear and tear excepted.
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ARTICLE VII
FORCE MAJEURE
7.1
No Liabilitv If a Force Majeure Event Occurs. Neither Seller nor Buyer will
be liable to the other or be in default hereunder in the event and to the extent Seller or Buyer is
prevented from performing its obligations hereunder in whole or in part due to a Force Majeure
Event. The Party rendered unable to fulfill any obligation by reason of a Force Majeure Event
shall take all commercially reasonable efforts (other than commencing, defending or prosecuting
litigation or administrative proceedings) so long as such event continues, to remove such
inability. Nothing herein shall be construed as permitting that Party to continue to fail to
perform after said cause has been or reasonably could have been removed.
7.2
Notice. ln the event of any delay or nonperformance resulting from a Force
Majeure Event, the Party suffering the Force Majeure Event shall (i) as soon as practicable,
notify the other Party in writing of the nature, cause, date of commencement thereof, and the
anticipated extent of any delay or interruption in performance, (ii) immediately exercise all
reasonable efforts to minimize the delay or nonperformance caused by such Force Majeure
Event, and (c) notify the other Party of the cessation or termination of such Force Majeure Event;
provided, however, that a Party's failure to give timely notice shall not affect such Party's ability
to declare a Force Majeure Event unless the delay in giving notice prejudices the other Party.
Termination Following Force Majeure Event. If a Force Majeure Event that has materially
affected either Party's performance of its obligations hereunder with respect to a particular Solar
System or Site and the effects of such Force Majeure Event on the affected Party's performance
hereunder has continued for a period of two hundred seventy (270) days, then, without limitation
of the affected Party's obligations under Section 7.1 or Section 7.2, and subject to Seller's
obligations under Section 14.7, either Party may terminate this Power Purchase Agreement, as it
pertains to the affected Site or Solar System upon ninety (90) days' advance notice to the other
Party given prior to the resumption of the affected Party's performance following such Force
Majeure Event. If at the end of such ninety (90) day period, the affected Party has not resumed
performance hereunder, this Power Purchase Agreement will automatically terminate with
respect to the affected Site and Solar System.
ARTICLE VIII
DEFAULTS/REMEDIES
8.1
Seller Defaults. The following shall be events of defaults with respect to Seller
(each, a "Seller Default"):
(i)
Seller fails to pay any amounts due Buyer pursuant to this Power Purchase
Agreement or a Lease for a particular Premises and such failure remains
uncured for thirty (30) days following Buyer's notice of such failure to
Seller; provided that if Seller fails to pay any Performance Shortfall
Payment due Buyer, Seller may elect by notice in writing to Buyer to
offset all or a portion of such amounts due against amounts invoiced to
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)
Buyer pursuant to Section 4.3 for the following four (4) months, and if
Seller makes such election, Seller will not be in default under this Section
8.1(i) with respect to such unpaid portion of the Perfonnance Shortfall
Payment; provided further, however, that (a) such offset shall be limited to
a maximum amount equal to the total amount invoiced to Buyer pursuant
to Section 4.3 for the four (4) months preceding the month in which such
payment is due, and any such amounts due in excess of such amount shall
be paid when due and failure to make such payment within fifteen (15)
days of Buyer's notice of such failure shall be a Seller Default and (b) any
amounts offset as provided herein that are not for any reason fully credited
against amounts otherwise due from Buyer within such four (4) month
period shall be immediately due and payable without further right of
offset;
)
8.2
(ii)
Seller fails to maintain in effect any insurance required by Article
XIV and such failure remains uncured for thirty (30) days following
Buyer's notice of such failure to Seller;
(iii)
Seller (a) commences a voluntary case under any bankruptcy law; (b) fails
to controvert in a timely and appropriate manner, or acquiesces in writing
to, any petition filed against Seller in an involuntary case under any
bankruptcy law; or (c) any involuntary bankruptcy proceeding commenced
against Seller remains undisrnissed or undischarged for a period of one
hundred twenty (120) days;
(iv)
Seller fails to remove any Lien in accordance with Section 2.8 and fails to
cure such failure within thirty (30) days of Buyer's notice of such failure
to Seller; and/or
(v)
Seller breaches any provision of this Power Purchase Agreement
other than as set forth in Sections 8.l(i) through fu1 and such breach
remains uncured for thirty (30) days following Buyer's notice of such
breach to Seller, provided, however, that if said breach is of a type that
cannot be cured within thirty (30) days and provided further that Seller has
commenced curing said breach within said thirty (30) days and continues
to diligently make efforts to cure said breach, Seller shall have an
additional sixty (for a total of ninety (90)) days to cure said breach.
Buyer's Remedies.
(i)
If a Seller Default has occurred and is continuing, subject to
Section 12.2, Buyer has the right in its sole discretion, without obligation,
to take any and all action reasonably necessary to cure such Seller Default.
In the event that Buyer exercises such right, Seller shall immediately
reimburse Buyer for any and all reasonable costs and expenses incurred by
Buyer (including reasonable attorney's fees) in connection with the
exercise of Buyer's rights under this Section 8.2(i). Buyer agrees that any
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and all persons performing work to any portion of the Solar System in the
exercise of Buyer's rights under this Section 8.2(i) shall be experienced in
performing such work; provided that in no event shall Buyer have any
liability to Seller whatsoever in connection with Buyer's exercise of its
rights under this Section 8.2(i) except to the extent such liability results
from the gross negligence or willful misconduct of Buyer, its employees,
agents or contractors, and Seller shall subject to Article IX, indemnify
Buyer and hold Buyer harmless from any claims of third parties or any
proceedings of any Governmental Authority in connection with Buyer's
exercise of its rights under this Section 8.2(i), except to the extent that any
such claim or proceedings results from the gross negligence or willful
misconduct of Buyer, its employees, agents or contractors; and/or
(ii)
If a Seller Default has occurred and is continuing, Buyer can,
subject to Section 12.2, exercise all of its rights under this Power Purchase
Agreement and at law and in equity.
If a Seller Default has occurred and is continuing, subject to the
(iii)
rights of the Lender for the particular Solar System, Buyer shall have the
ownership of the ZRECs generated by that Solar System on and after the
particular Seller Default until the Seller Default is cured.
(iv)
Buyer's remedies hereunder are cumulative and not exclusive and
the exercise or failure to exercise a particular remedy does not constitute
an election of remedies hereunder.
8.3
Buyer Defaults. The following shall be events of default with respect to Buyer
(each, a "Buver Default"):
(i)
Buyer fails to pay any amounts due Seller pursuant to Section
4.4(a) of this Power Purchase Agreement and such breach remains
uncured for thirty (30) days following Seller's notice of such breach to
Buyer;;
(ii)
Buyer fails to pay any amounts due Seller pursuant to Section
4.4(b) of this Power Purchase Agreement and such breach remains
uncured for four (4) months following Seller's notice of such breach to
Buyer;
(iii)
Buyer (A) commences a voluntary case under any bankruptcy law;
(B) fails to controvert in a timely and appropriate manner, or acquiesces in
writing to, any petition filed against Buyer in an involuntary case under
any bankruptcy law; or (C) any involuntary bankruptcy proceeding
commenced against Buyer remains undisrnissed or undischarged for a
period of one hundred twenty (120) days;
(iv)
Buyer refuses without reasonable cause to sign any consents, authorization
or assignment needed to obtain any Environmental Attributes or
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\
i
Environmental Incentives, which breach is not cured within 10 Business
Days of notice to Buyer
(v)
Buyer fails to remove any Lien in accordance with Section 3.12
and fails to cure such failure within thirty (30) days of Buyer's notice of
such failure to Seller; and/or
(vi)
Buyer breaches any provision of this Power Purchase Agreement
other than as set forth in Sections 8.3(i) through .(y} and such breach
remains uncured for thirty (30) days following Seller's notice of such
breach to Buyer, provided, however, that if said breach is of a type that
cannot be cured within thirty (30) days and provided further that Buyer
has commenced curing said breach within said thirty (30) days and
continues to diligently make efforts to cure said breach, Buyer shall have
an additional sixty (for a total of ninety (90)) days to cure said breach.
(vii)
8.4
Buyer fails to maintain insurance.
Seller's Remedies..
(i)
If a Buyer Default has occurred and is continuing, subject to
Section 12.2, Seller has the right in its sole discretion, without obligation,
to take any and all action reasonably necessary to cure such Buyer
Default. In the event that Seller exercises such right, Buyer shall
immediately reimburse Seller for any and all reasonable costs and
expenses incurred by Seller (including reasonable attorney's fees) in
connection with the exercise of Seller's rights under this Section 8.4(i).
Seller agrees that any and all persons performing work to any portion of
the Solar System in the exercise of Seller's rights under this Section 8.4(i)
shall be experienced in performing such work; provided that in no event
shall Seller have any liability to Buyer whatsoever in connection with
Seller's exercise of its rights under this Section 8.4(i) except to the extent
such liability results from the gross negligence or willful misconduct of
Seller, its employees, agents or contractors, and Buyer shall subject to
Article IX, indemnify Seller and hold Seller harmless from any claims of
third parties or any proceedings of any Governmental Authority in
connection with Seller's exercise of its rights under this Section 8.4(i),
except to the extent that any such claim or proceedings results from the
gross negligence or willful misconduct of Seller, its employees, agents or
contractors; and/or
(ii)
If a Buyer Default has occurred and is continuing, Seller can,
subject to Section 12.2, exercise all of its rights under this Power Purchase
Agreement and at law and in equity.
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(iii)
Seller's remedies hereunder are cumulative and not
exclusive and the exercise or failure to exercise a particular remedy does
not constitute an election of remedies hereunder.
ARTICLE IX
LIMITATION OF LIABILITY AND WARRANTIES
9.1
LIMITATION OF LIABILITY.
NEITHER SELLER NOR BUYER
SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, PUNITIVE, EXEMPLARY,
INDIRECT, OR CONSEQUENTIAL DAMAGES (OTHER THAN DIRECT OR
ACTUAL DAMAGES), WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR
IN CONNECTION WITH THIS POWER PURCHASE AGREEMENT OR ANY LEASE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, THE LIABILITY OF EITHER PARTY TO THE OTHER UNDER THIS
POWER PURCHASE AGREEMENT AND ANY LEASES WITH RESPECT TO A
PARTICULAR SITE AND SOLAR SYSTEM SHALL NOT EXCEED THE GREATER
OF THE TOTAL AMOUNT OF ENERGY PAYMENTS DUE FROM BUYER TO
SELLER OVER THE TERM, WITH RESPECT TO THE APPLICABLE SOLAR
SYSTEM, FOR THE ENERGY GENERATED BY THE APPLICABLE SOLAR SYSTEM
OR THE FAIR MARKET VALUE OF THE APPLICABLE SOLAR SYSTEM
DETERMINED AS OF THE COMMERCIAL OPERATION DATE.
9.2
Manufacturers' Warranty. Each Solar System shall be the subject of one or
more manufacturers' warranties guaranteeing, at a minimum, the solar panels comprising the that
Solar System will not malfunction or degrade to the extent of a reduction in rated Energy output
for that Solar System at ASTM standard test conditions of more than ten percent (I 0%) over the
first ten (10) Production Periods for that Solar System, and to the extent of a reduction in rated
Energy output at specified test conditions of more than twenty percent (20%) during the entire
Term with respect to that Solar System. Further, each Solar System shall be the subject of a
manufacturer's warranty guaranteeing the inverter or inverters for that Solar System will not
malfunction or degrade to the extent of a reduction in rated Energy output for that Solar System
of more than ten percent (10%) over the first five (5) Production Periods for that Solar System.
The foregoing manufacturers' warranties shall be fully assignable to Buyer or any other
subsequent owner of the particular Solar System. The manufacturers' warranties shall be the
current warranties provided to the particular manufacturer's customers at the time that Seller
places the applicable purchase order.
Installer's Warranty. The design and construction of each Solar System shall
9.3
be subject of warranties covering the full cost of labor for the repair or replacement of defective
design, workmanship and components, for the first five (5) Production Periods for that Solar
System. All such warranties shall be assignable to Buyer in the event Buyer becomes the owner
of the particular Solar System.
9.4
Energy Production GuaranteejQ_p.J?~ _IS_~_l:J-~]__ ______ ------------------------ ____ -------------- {Formatted: Not Highlight
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)
(i)
Seller guarantees that each Solar System shall produce a total of at
least ninety percent (90%) of the Expected System Output (adjusted as
provided in Section 9.4(iii)) during each Production Period for that Solar
System (the "Annual Energy Production Guarantee"), up to a
cumulative output during the Term, with respect to that Solar System, of
ninety percent (90%) of the aggregate of the Expected System Output for
all Production Periods for that Solar System, as shown in Exhibit B (such
cumulative output being the "Cumulative Minimum System Output").
)
(ii)
The Expected System Output· for each Solar System for the first
twelve (12) months following the Commercial Operations Date of that
Solar System has been established using the PVSyst v.5.41 calculator
independently administered by the University of Geneve, Switzerland. To
determine the Expected System Output for that Solar System for the
remainder of the Term, with respect to that Solar System, the Expected
System Output for that Solar System for each subsequent year shall be
reduced annually for solar panel degradation by a factor of 1% per year.
The annual calculation is presented in Preliminary Exhibit B attached
hereto ("Preliminary Exhibit B"). Preliminary Exhibit B reflects Seller's
estimate of the Expected System Output ("Estimated Expected System
Output") for each Solar System as of the Effective Date based on
preliminary specifications for that Solar System shown in Exhibit K. Prior
to commencement of construction, and as provided in and subject to the
provisions of Section 2.l(ii), Seller shall provide Buyer with final
specifications and a final Exhibit B. adjusted to reflect the final
specifications of each Solar System ("Final Exhibit B") which shall
replace the Preliminary Exhibit B. The Expected System Output for each
Solar System for any Production Period shall not be less than the
Cumulative Minimum System Output for that Solar System ("Minimum
Expected System Output") set forth on Final Exhibit B.
(iii) Within 30 days of the end of each Production Period for each Solar
System (each such date a "Calculation Date"), Seller shall compare the
Actual Energy Output for that Solar System to the Expected System
Output for that Solar System (as it may be adjusted as provided herein) for
such Production Period and shall provide Buyer with a written report
setting out the calculation of the Output Difference for that Solar System
and including the details of all events that resulted in any adjustment of
the Expected System Output for such Production Period as provided
herein. The Expected System Output for each Solar System shall be
normalized (adjusted to account for actual solar insolatioolnsolation) to
account for deviations between each Production Period's actual
meteorological data as collected by the pyranometer installed at each
Premises by Seller or, if such data is not available for any reason,
corresponding weather data collected for such period by the pyranometer
installed at Bradley International Airport. The Expected System Output
for each Solar System shall be further adjusted as provided in Sections 6.5
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and 14.7. Ifthe Actual Energy Output of a particular Solar System is 90%
of the Expected System Output for that Solar System, as so adjusted, then
the Tracking Account for that Solar System shall be unchanged; provided
that in such event for the first Production Period, the Tracking Account
shall be zero. If the Output Difference for a particular Solar System is a
positive number in excess of ninety percent (90%) of the Expected System
Output for that Solar System, as so adjusted, then the Output Difference
for that Solar System will be added to the Tracking Account for that Solar
System. If the Output Difference for that Solar System is a negative
number less than ninety percent (90%) of the Expected System Output for
that Solar System, as so adjusted, then such number shall be subtracted
from the Tracking Account for that Solar System. For each Calculation
Date that the Tracking Account for that Solar System is equal to or greater
than zero, Seller shall have met the Annual Energy Production Guarantee
for that Solar System. For any Calculation Date that the Tracking
Account for that Solar System is less than zero, Seller shall have a
Performance Shortfall for that Solar System.
(iv)
Subject to Section 9.4(v), in the event of a Performance Shortfall
for a particular Solar System, Seller shall pay Buyer within ten (10)
Business Days an amount equal to the number of kWhs shown as a
negative number in the Tracking Account for that Solar System multiplied
by the greater of(a) the Actual Variable Utility Price then in effect less the
Energy Price and (b) $0.00 (a "Performance Shortfall Payment"). Upon
such payment, the Tracking Account for that Solar System shall be zero.
At each Calculation Date for each Solar System the Cumulative
(v)
System Output for that Solar System shall be compared against the
Cumulative Minimum System Output for that Solar System. At such time
as Seller has met the Cumulative Minimum System Output for that Solar
System, Seller shall thereafter have no further obligation to make any
Performance Shortfall Payments for that Solar System regardless that the
Tracking Account for that Solar System may be negative as of any
subsequent Calculation Date for that Solar System.
(vi)
Buyer shall have the right to require Seller to have its calculations
of the Actual Energy Output for a particular Solar System independently
verified at Buyer's expense.
(vii) Within one hundred twenty (120) days of the end of any
Production Period of a particular Solar System in which Buyer is entitled
to a Performance Shortfall Payment, Seller shall have the right to elect, by
written notice to Buyer, to provide Buyer with a plan to modify that Solar
System to attempt to achieve the Expected System Output for that Solar
System for each of the remaining Production Periods in the Term for that
Solar System until Seller has satisfied the Cumulative Minimum System
Output for that Solar System (the "Seller Mitigation Plan"). No Seller
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Mitigation Plan shall include the use of any area of the Site outside the
Premises on which the particular Solar System is located without Buyer's
prior written consent in its sole discretion.
(viii) In the event Seller elects to provide Buyer with a Seller Mitigation
Plan, Buyer shall either accept or reject the Seller Mitigation Plan within
thirty (30) days of its receipt of same (such thirty (30) day period being the
"Buyer Decision Period''), time being of the essence. If Buyer accepts
the Seller Mitigation Plan Seller shall proceed to promptly implement
same at its sole cost and expense. In the event Buyer does not respond to
the Seller Mitigation Plan during the Buyer Decision Period, Buyer shall
be deemed to have accepted the Seller Mitigation Plan. A Seller
Mitigation Plan shall in no event be based on the use or occupancy of land
in addition to the Premises on which the particular Solar System is
located.
(ix)
In the event Buyer rejects the Seller Mitigation Plan, Buyer may
provide Seller with an alternate Mitigation Plan prepared by an
experienced installer and operator of photovoltaic solar energy systems
(the "Buyer Mitigation Plan") within sixty (60) days Buyer's rejection of
Seller's Mitigation Plan, time being of the essence. In the event Buyer
provides Seller with a Buyer Mitigation Plan, Seller shall either accept or
reject the Buyer Mitigation Plan within thirty (30) days of its receipt of
same (the "Seller Decision Period"), time being of the essence. In the
event Buyer rejects the Seller Mitigation Plan and does not provide Seller
with a Buyer Mitigation Plan within sixty (60) days of Buyer's rejection of
Seller's Mitigation Plan, time being of the essence, Buyer shall be deemed
to have accepted the Seller Mitigation Plan and Seller shall proceed to
promptly implement same at its sole cost and expense. In the event Seller
does not reject the Buyer Mitigation Plan within the Seller Decision
Period, time being of the essence, Seller shall be deemed to have accepted
the Buyer Mitigation Plan and shall promptly thereafter implement same
at its sole cost and expense.
(x)
In the event Seller rejects the Buyer Mitigation Plan within the
Seller Decision Period, the Parties shall immediately proceed to arbitration
as provided in Section 12.2. In any event, Buyer shall cooperate with
Seller at Seller's expense in regard to Seller's implementation of any
applicable Mitigation Plan.
9.5
EXCLUSION AND DISCLAIMER OF WARRANTIES. EXCEPT AS
EXPRESSLY SET FORTH IN THIS POWER PURCHASE AGREEMENT, EACH
SOLAR SYSTEM SHALL BE "AS-IS" AND "WHERE-IS" AND NO OTHER
WARRANTY TO BUYER OR ANY OTHER PERSON, WHETHER EXPRESS,
IMPLIED OR STATUTORY, IS MADE AS TO THE INSTALLATION, DESIGN,
DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, USEFUL LIFE,
FUTURE ECONOMIC VIABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE,
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ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY SELLER TO THE FULLEST
EXTENT PERMITTED BY LAW.
9.6
Complete Failure of Solar System._-- Notwithstanding any contrary tenn
or provision in this Power Purchase Agreement, in the event the Energy provided by a particular
Solar System following the date that is one hundred eighty (180) days after the Commercial
Operations Date for that Solar System falls below ninety percent (90%) of the Expected System
Output for that Solar System (which shall be allocated in equal daily amounts for this purpose
and adjusted for actual solar iEsola.-tionlnsolation and as provided in Sections 6.5 and 14.7) for
one-hundred eighty (180) consecutive days or for a total of three hundred sixty (360) days in any
Production Period, and such failure is not due to a Force Majeure Event, Seller shall provide
Buyer with a Seller Mitigation Plan, in either case within one-hundred eighty (180) days
thereafter, time being of the essence. Buyer shall either accept or reject the Seller Mitigation
Plan within the Buyer Decision Period, time being of the essence. If Buyer accepts the Seller
Mitigation Plan, Seller shall proceed to promptly implement same. In the event Buyer does not
respond to the Seller Mitigation Plan during the Buyer Decision Period, Buyer shall be deemed
to have accepted the Seller Mitigation Plan. In the event Buyer rejects the Seller Mitigation
Plan, Buyer shall provide Seller with a Buyer Mitigation Plan, at Seller's cost, within onehundred eighty (180) days of Buyer's rejection of Seller's Mitigation Plan, time being of the
essence. In the event Buyer provides Seller with a Buyer Mitigation Plan, Seller shall either
accept or reject the Buyer Mitigation Plan within the Seller Decision Period. In the event Buyer
rejects the Seller Mitigation Plan and does not provide Seller with a Buyer Mitigation Plan
within one-hundred eighty (180) days of Buyer's rejection of Seller's Mitigation Plan, time being
of the essence, Buyer shall be deemed to have accepted the Seller Mitigation Plan and Seller
shall proceed to promptly implement same. In the event Seller does not reject the Buyer
Mitigation Plan within the Seller Decision Period, time being of the essence, Seller shall be
deemed to have accepted the Buyer Mitigation Plan and shall promptly thereafter implement
same. In the event Seller rejects the Buyer Mitigation Plan within the Seller Decision Period, the
Parties shall immediately proceed to arbitration as provided in Section 12.2. In any event, Buyer
shall cooperate with Seller at Seller's expense in regard to Seller's implementation of any
applicable Mitigation Plan.£QE~?H~~!:!~L----------·---------------------------------------------------------ARTICLE X
ASSIGNMENT
10.1
Assignment by Buyer. Buyer shall not have the right to assign its rights and
obligations under this Power Purchase Agreement, and any such assignment shall be null and
void. Notwithstanding the foregoing, Buyer shall have the right to assign its rights and
obligations under this Power Purchase Agreement with respect to a particular Site or Sites to a
Qualified Assignee, without the consent of Seller, provided that said assignee assumes all of
Buyer's obligations under this Agreement with respect to that Site or Sites in a writing that Buyer
delivers to Seller at which time Buyer shall be released from any obligations under this
Agreement with respect to that Site or those Sites arising after said delivery of the aforesaid
writing..
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,_/i Formatted: Not Highlight
)
10.2
Assignment by Seller. Seller shall not have the right to assign its rights and
obligations under this Power Purchase Agreement, and any such assignment shall be null and
void. Notwithstanding the foregoing, Seller shall have the right to assign its rights and
obligations under this Power Purchase Agreement with respect to a particular Solar System or
Solar Systems to a Qualified Assignee, without the consent of Buyer, provided that said assignee
assumes all of Seller's obligations under this Agreement with respect to that Solar System or
Solar Systems in a writing that Seller delivers to Buyer at which time Seller shall be released
from any obligations under this Agreement with respect to that Solar System or those Solar
Systems arising after said delivery of the aforesaid writing.
ARTICLE XI
LENDER ACCOMMODATIONS
11.1
Buyer Acknowledgment. Buyer acknowledges that Seller shall have the right
to fmance each Solar System with financing accommodations from one or more financial
institutions, bond holders or other financial source and that Seller's obligations will be secured
by, among other collateral, a pledge or collateral assignment of this Power Purchase Agreement
and a first security interest in the particular Solar System. In order to facilitate such necessary
fmancing, and with respect to any such financial institutions or other financial source of which
Seller has notified Buyer in writing (each, a "Lender"), Buyer agrees as set forth below.
)
11.2
Consent to Collateral Assignment. Notwithstanding any contrary term or
provision of this Power Purchase Agreement, Seller shall have the right to assign this Power
Purchase Agreement as collateral for financing or refmancing of each Solar System, and Buyer
consents to the collateral assignment by Seller to the Lender of Seller's right, title and interest in
and to this Power Purchase Agreement. Notwithstanding any contrary term or provision
contained in this Power Purchase Agreement, any collateral assignment of this Power Purchase
Agreement to a Lender for financing or refinancing of a Solar System shall not require Buyer's
consent. In addition to, but not in limitation of the foregoing, in the event a Lender nonetheless
requires a written consent from Buyer, Buyer shall in good faith work with Seller and Seller's
Lender to agree upon such a consent by Buyer to the collateral assignment of this Power
Purchase Agreement.
Lender's Rights Following an Event of Default. Notwithstanding any contrary
11.3
term or provision of this Power Purchase Agreement:
(a)
A Lender, as collateral assignee, shall be entitled to exercise, in the place and
stead of Seller, any and all rights and remedies of Seller under this Power Purchase Agreement in
accordance with the terms of this Power Purchase Agreement. Lender shall also be entitled to
exercise all rights and remedies of secured parties generally with respect to this Power Purchase
Agreement and each Solar System on which said Lender has a Lien.
(b)
The Lender shall have the right, but not the obligation, to pay all sums due
under this Power Purchase Agreement with respect to a particular Solar System and to perform
any other act, duty or obligation required of Seller hereunder with respect to a particular Solar
System or cause to be cured any default or Seller Default with respect to a particular Solar
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System in the time and manner provided by the terms of this Power Purchase Agreement.
Nothing herein requires the Lender to cure any Seller Default (unless the Lender has succeeded
to Seller's interests) to perform any act, duty or obligation of Seller, but Buyer hereby gives the
Lender the option to do so.
(c)
Lender shall endeavor to provide Buyer promptly with written notice in
the event Seller is in default under any applicable financial documents. Upon the exercise of
remedies under its security interest in a particular Solar System, including any sale thereof by the
Lender, whether by judicial proceeding or under any power of sale, or any conveyance from
Seller to the Lender, Buyer's consent shall not be required, however, the Lender will give notice
to Buyer of the transferee or assignee of this Power Purchase Agreement, with respect to a
particular Solar System; provided, further, that any sale, transfer or other disposition of a Solar
System by the Lender, whether by judicial proceeding or otherwise, shall be made solely to a
Qualified Assignee. Any such exercise of remedies shall not constitute an Event of Default.
(d)
Upon any rejection or other termination of this Power Purchase
Agreement, with respect to a particular Solar System, pursuant to any process undertaken with
respect to Seller under the United States Bankruptcy Code, at the request of Lender made within
sixty (60) days of such termination or rejection, Buyer will enter into a new Power Purchase
Agreement with Lender or its Qualified Assignee, on the same terms and conditions as
hereunder.
11.4
Lender's Right to Cure.
(a)
Buyer will not exercise any right to terminate this Power Purchase
Agreement, with respect to a particular Solar System, unless Buyer has given the Lender prior
written notice at the address provided to Buyer in writing of any event giving rise to Buyer's
right to terminate this Power Purchase Agreement, with respect to a particular Solar System.
Buyer's notice of an intent to terminate this Power Purchase Agreement, with respect to a
particular Solar System, must specify the condition giving rise to such right. Notwithstanding
any contrary term .or provision in this Power Purchase Agreement, Lender shall have one
hundred twenty (120) days beyond the cure period provided to Seller pursuant to this Power
Purchase Agreement to cure the condition. Buyer's and Seller's obligations under this Power
Purchase Agreement will otherwise remain in effect and required to be fully performed during
any cure period.
(b)
If the Lender or its Qualified Assignee (including any purchaser which
meets the definition of a Qualified Assignee) has commenced and is diligently pursuing judicial
proceedings to acquire title to or control of a particular Solar System, or has acquired title to or
taken control of a Solar System, and in either event cures all existing Seller Defaults, with
respect to a particular Solar System, that are susceptible to being cured by Lender or its Qualified
Assignee within the time allowed by Section 11.4(a) and assumes in writing the obligations of
Seller hereunder, then this Power Purchase Agreement will continue in full force and effect, with
respect to a particular Solar System.
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11.5
Notice of Defaults and Events of Default. Buyer agrees to deliver to the
Lender a copy of any notice of a Seller's Default simultaneously with the delivery of such notice
by Buyer to Seller.
ARTICLE XII
GOVERNING LAW I DISPUTE RESOLUTION
12.1
Governing Law. This Power Purchase Agreement is governed by and shall be
interpreted in accordance with the laws of the State of Connecticut, without regard to principles
of conflicts of law. EACH PARTY WAIVES ITS RESPECTIVE RIGHT TO ANY JURY
TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER OR IN
CONNECTION WITH THIS POWER PURCHASE AGREEMENT.
12.2
{i)
In the event of any dispute arising under this Power Purchase Agreement
(a "Dispute"), within ten (10) days following the receipt of a notice from
either Party identifying such dispute, the Parties shall meet, negotiate and
attempt, in good faith, to resolve the Dispute quickly, informally and
inexpensively.
(ii)
If the Parties are unable to resolve a dispute arising hereunder through
initial dialogue within thirty (30) days of either Party notifying the other of
a Dispute, any Party may initiate administered, binding arbitration as set
forth in this section. If such dispute involves an amount that is One
Hundred Thousand Dollars ($100,000.00) or less, such arbitration will be
submitted to a single, disinterested arbitrator, mutually agreed to by the
Parties, with significant experience in the solar electric power industry. If
such dispute involves an amount that is in excess of One Hundred
Thousand Dollars ($100,000.00), such arbitration will be submitted to a
panel of three (3) disinterested arbitrators mutually agreed to by the
Parties, each such arbitrator to have significant experience in the solar
electric power industry. If the Parties cannot mutually agree on the
selection of the arbitrator(s) within thirty (30) days, the arbitrator(s) will
be selected in accordance with the Rules of the American Arbitration
Association as they pertain to the selection of arbitrators. The arbitration
will otherwise be conducted pursuant to the Commercial Rules of the
American Arbitration Association. The arbitration proceedings will be
conducted entirely within the County of Hartford, Connecticut. The
arbitrator(s) shall have no authority to award damages that are barred or
limited by this Power Purchase Agreement. The arbitrator(s) will be
instructed to use all reasonable efforts to render a written decision setting
forth its (their) findings and the legal basis for the decision and
conclusions within thirty (30) days of the date on which the arbitration
proceedings are concluded. The arbitrator's decision concerning the item
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or items in dispute will be fmal and binding on the Parties absent
arithmetic error. The non-prevailing Party shall pay the cost of the
arbitrator(s) as such cost is determined by the arbitrator(s). Judgment
upon the decision rendered by the arbitrator(s) may be entered by any
court having jurisdiction.
ARTICLE XIII
INDEMNIFICATION
13.1
Seller's Indemnity to Buyer. Subject to the limitations set forth in Section 9.1,
Seller agrees that it will indemnify, defend and hold harmless Buyer and Buyer's successors and
permitted assigns and their respective subsidiaries, directors, officers, members, shareholders and
employees (collectively, the "Buver Indemnified Parties") from and against any and all
damages, costs and expenses, including reasonable legal fees, incurred by Buyer Indemnified
Parties as a result of a third party claim arising from or in connection with (i) the negligent
activities or conduct of Seller, its employees, agents, contractors, lessees or invitees ; or (ii) a
Seller Default.
13.2
Buyer's Indemnity to Seller. Subject to the limitations set forth in Section 9.1,
Buyer agrees that it will indemnify, defend and hold harmless Seller and Seller's successors and
assigns and their respective subsidiaries, directors, officers, managers, members, Lenders (if
any), shareholders and employees (collectively, the "Seller Indemnified Parties") from and
against any and all damages, costs and expenses, including reasonable legal fees, incurred by
Seller Indemnified Parties as a result of a third party claim arising from (i) the negligent
activities or conduct of Buyer, its employees, agents, contractors, lessees, students or invitees, or
(ii) Buyer Default.
ARTICLE XIV
INSURANCE AND CASUALTY
14.1
Seller's Liability Insurance. At all times during the Construction Period of a
particular Solar System, Seller shall maintain, at its expense, commercial general liability
insurance, including products and completed operations and personal injury insurance, in a
minimum amount of one million dollars ($1,000,000) per occurrence and two million dollars
($2,000,000) in the aggregate with an umbrella of four million dollars ($4,000,000), endorsed to
provide contractual liability in said amount, specifically covering Seller's obligations under this
Power Purchase Agreement and naming Buyer as an additional insured. Seller, if it has
employees, shall also maintain at all times following the commencement of construction of the
Solar System Workers' Compensation insurance coverage in accordance with applicable
requirements of Federal and State Law.
14.2
Property Insurance. Seller will maintain or cause to be maintained at all times
following the Commercial Operations Date of each Solar System, Special Form Cause of Loss
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Insurance covering that Solar System during all periods (construction and operation) that Seller
is the beneficial owner of the Solar System (the "Property Insurance"). The Property Insurance
shall be in an amount not less than the full replacement value of the particular Solar System
during the first fifteen (15) years of the Term, with respect to that Solar System and shall name
Seller (and Lender if any) as the loss payee. During the last five (5) years of the Term, the
Property Insurance shall be in an amount not less than an amount equal to the actual cash value
of the Solar System and shall name Seller (and Lender if any) as the loss payee.
Notwithstanding the foregoing, during the last five (5) years of the Term, with respect to a
particular Solar System, Buyer shall have the right to require Seller's Property Insurance to be
for the full replacement value of that Solar System, provided that Buyer pays to Seller one half of
the difference between the premium for the actual cash value Property Insurance and the
premium for the full replacement value Property Insurance. In the event Buyer pays one half of
the difference of the cost of the insurance as provided above, such Property Insurance shall name
both Buyer and Seller as loss payees.
14.3
Subcontractor Insurance. Seller shall require all of its vendors or contractors
with access to a Site to carry comprehensive general liability insurance with a combined single
limit of coverage not less than one million dollars ($1,000,000) per occurrence.
14.4
Evidence of Insurance. Prior, to as applicable, the Construction Period for a
particular Solar System or the Commercial Operations Date of a particular Solar System and
upon Buyer's request annually thereafter, Seller shall deliver to Buyer certificates of insurance
evidencing such coverage, as applicable. To the extent that such provisions are generally
provided by the insurance industry, these certificates shall specify that Buyer shall be given at
least thirty (30) days' prior notice by the insurer in the event of any material modification,
cancellation or termination of coverage. Such insurance shall be primary coverage without right
of contribution from any insurance of Buyer. Other than the insurance required by the terms of
Section 14.1 and as provided in the last sentence of Section 14.2, any insurance maintained by
Seller is for the exclusive benefit of Seller and shall not in any manner inure to the benefit of
Buyer. Buyer shall be a named additional insured under Seller's liability insurance policies.
Failure to maintain insurance shall not relieve Seller of its obligations hereunder.
14.5
Buyer's Insurance. Buyer shall maintain, at its expense, commercial general
liability insurance, including products and completed operations and personal injury insurance,
in a minimum amount of two million dollars ($2,000,000) per occurrence and in the aggregate,
endorsed to provide contractual liability in said amount, specifically covering Buyer's
obligations under this Power Purchase Agreement and naming Seller as an additional insured.
14.6
Evidence of Insurance. Within ten (10) days after execution of this Power
Purchase Agreement and upon Seller's request annually thereafter, Buyer shall deliver to Seller
certificates of insurance evidencing such coverage. To the extent that such provisions are
generally provided by the insurance industry, these certificates shall specify that Seller shall be
given at least thirty (30) days' prior notice by the insurer in the event of any material
modification, cancellation or termination of coverage. Such insurance shall be primary coverage
without right of contribution from any insurance of Seller. Seller shall be a named additional
insured under Buyer's insurance policies required hereunder. Failure to maintain insurance shall
not relieve Buyer of its obligations hereunder.
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14.7
Casualty.
In the event of a casualty event that damages a Solar System,
(i)
provided Buyer is not in Buyer Default, Seller shall use good faith and
diligent efforts to Restore that Solar System as necessary such that said
Solar System as Restored is capable of producing not less than the
Expected System Output then in effect, and the Cumulative System
Output and the Expected System Output for such Solar System shall be
adjusted for any loss in Energy production resulting from such casualty
event until Stich Restoration is complete.
(ii)
The Restoration obligations set forth in Section 14.7(i) shall be
limited and conditioned as follows:
(a)
In the event that a Change in Law following the date hereof
prohibits the Restoration of a Solar System following a casualty event,
then Seller's obligation to Restore that Solar System shall be limited to
the repairs and replacements, if any, that can be made in accordance
with applicable Laws.
(b)
If and to the extent that the terms of the financing of a Solar
System (a "Financing") requires the application of insurance proceeds
received in connection with such casualty event to prepay Seller's debt
obligations thereunder, then Seller shall use commercially reasonable
efforts (other than commencing, defending or prosecuting litigation or
administrative proceedings) to finance the Restoration of that Solar
System at then prevailing rates and terms. If Seller, using such
commercially reasonable efforts, is unable to fmance the Restoration at
then prevailing rates and terms, then Seller shall apply an amount
equal to the net insurance proceeds (i.e., the gross insurance proceeds
less (1) the amount required to. repay the then-outstanding debt.
obligations under the Financing (not including any "make-whole"
premium or other prepayment penalty) and (2) Seller's reasonable
costs related to procuring the insurance settlement to Restore as much
of the particular Solar System as can be Restored by the application of
such funds, and the Expected System Output for that Solar System
shall be adjusted proportionally, taking into account any increased
output performance in the Restored equipment comprising the Solar
System; provided that if at the time of the casualty event, there
remains outstanding twenty-five percent (25%) or less of the original
principal amount of the Financing of the particular Solar System, then
Seller shall be required to Restore that Solar System such that said
Solar System as Restored is capable of producing not less than the
Expected System Output then in effect.
(c)
than
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In the event that despite commercially reasonable efforts (other
commencing, defending or prosecuting litigation or
41
administrative proceedings), Restoration of a Solar System is not
complete within two (2) years of the date of the damage or destruction,
Buyer and Seller shall have the right to terminate this Power Purchase
Agreement, with respect to that Solar System, by providing written
notice to the other at any time prior to the date upon which Restoration
is complete, in which event neither Party shall have any further
obligations to the other, with respect to that Solar System, except those
that specifically survive the termination of this Power Purchase
Agreement, with respect to that Solar System.
(iii)
Notwithstanding Section 14.7(i), in the event a Solar System is
damaged or destroyed during the last five (5) years of the Term, with
respect to that Solar System, to the extent that the Energy delivered by that
Solar System is reduced by more than twenty five percent (25%) of its
production capacity at the time of such damage or destruction, Seller shall
have the right to terminate this Power Purchase Agreement, with respect to
that Solar System, by providing notice of such termination to Buyer within
ninety (90) days of such damage or destruction, in which event, Buyer
shall have the right to purchase that Solar System in accordance with the
applicable procedures set forth in Section 6.6. Notwithstanding the
preceding sentence, in the event Buyer exercises its option to cause Seller
to increase the limits of its Property Insurance as provided in Section 14.2,
Seller shall have no right to terminate this Power Purchase Agreement
pursuant to the terms of this Section 14.7 (iii) and shall Restore the
particular Solar System as provided in Section 14.7(i).
ARTICLE XV
CONFIDENTIAL INFORMATION
All of Buyer's obligations· under this Article XV· are limited by and subordinate to its
obligations under the Freedom oflnformation Act, Conn Statute · •·
.·
15.1
Definition of Confidential Information.
The following constitutes
"Confidential Information," whether oral or written which is delivered by Seller to Buyer or by
Buyer to Seller including: (i) proposals and negotiations before the Commercial Operations Date
of each Solar System concerning this Power Purchase Agreement, (ii) the terms of this Power
Purchase Agreement, (iii) the actual invoices billed to Buyer under this Power Purchase
Agreement, (iv) Seller's pricing, Seller's personnel, the configurations of Solar Systems, Energy
output, and operations, and (v) information that either Seller or Buyer stamps or otherwise
identifies as "confidential" or "proprietary'' before disclosing it to the other. Confidential
Information does not include (A) information that was publicly available at the time of the
disclosure, other than as a result of a disclosure in breach of this Power Purchase Agreement;
(B) information that becomes publicly available through no fault of the recipient after the time of
the delivery; (C) information that was rightfully in the possession of the recipient (without
confidential or proprietary restriction) at the time of delivery or that becomes available to the
recipient from a source not subject to any restriction against disclosing such information to the
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recipient; and (D) information that the recipient independently developed without a violation of
this Power Purchase Agreement.
15.2
Dutv to Maintain Confidentiality. Buyer and Seller agree not to disclose
Confidential Information received from the other to anyone (other than Buyer's and Seller's
Affiliates, counsel, consultants, Lenders, prospective Lenders, purchasers, prospective
purchasers, investors, prospective investors, contractors constructing or providing services to the
Solar System (including suppliers), employees, officers and directors who agree to be bound by
the provisions of this Article), without the disclosing party's prior written consent. Confidential
Information will retain its character as Confidential Information but may be disclosed by the
recipient if and to the extent such disclosure is required (i) to be made to Governmental
Authorities by any requirements of Law, (ii) pursuant to an order of a court, (iii) in order to
enforce this Power Purchase Agreement, or (iv) in order to defend a Party's position in an
arbitration or court proceeding arising out of this Power Purchase Agreement or in connection
therewith. With the exception of the terms of this Power Purchase Agreement and monthly
invoices, a Party may use its own Confidential Information for its own uses and purposes,
including the public disclosure of such information at its own discretion. In the event that a
Party who receives Confidential Information from the other Party is required by Law or by a
court or regulatory agency to disclose said Confidential Information, said Party will, to the extent
possible, notify the other Party in advance of such disclosure, affording the other Party the
opportunity to challenge or quash the disclosure.
15.3
Irreparable Injury; Remedies. Buyer and Seller each agree that disclosing
Confidential Information of the other in violation of the terms of this Article XV may cause
irreparable harm, and that the harmed party may seek any and all remedies available to it at law
or in equity, including injunctive relief.
15.4
Return of Confidential Information. Upon request, at the expiration or earlier
termination of this Power Purchase Agreement each receiving Party shall destroy or return to
each disclosing Party its Confidential Information including all copies, summaries, analysis and
excerpts thereof or therefrom.
ARTICLE XVI
MISCELLANEOUS
16.1
Entire Agreement; Integration; Exhibits. This Power Purchase Agreement,
together with the Exhibits attached hereto, and each Lease constitute the entire agreement and
understanding between Seller and Buyer with respect to the subject matter hereof and supersede
all prior agreements relating to the subject matter hereof, which are of no further force or effect.
The Exhibits attached hereto are integral parts hereof and are made a part of this Power Purchase
Agreement by reference. In the event of a conflict between the provisions of this Power
Purchase Agreement and those of any Exhibit or any Lease, the provisions of this Power
Purchase Agreement shall prevail, and such Exhibit or the Lease shall be corrected accordingly.
23777'22 v3 1-23-2014 Version ofP1ymouth PPA
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16.2
Amendments. This Power Purchase Agreement may only be amended,
modified or supplemented by an instrument in writing executed by duly authorized
representatives of Seller and Buyer.
16.3
Industry Standards. Except where a higher standard may be expressly required
by the terms of this Power Purchase Agreement, for the purpose of this Power Purchase
Agreement the Prudent Operating Practice in the relevant market shall be the measure of whether
a Party's performance is reasonable and timely. Unless expressly defmed herein, words having
well-known technical or trade meanings shall be so construed.
16.4
No Partnership or Joint Venture. Seller, and the agents and employees of
Seller, in the performance of this Power Purchase Agreement, shall act as independent
contractors and not as officers or employees or agents of Buyer. This Power Purchase
Agreement shall not impart any rights enforceable by any third party (other than a permitted
successor or assignee bound to this Power Purchase Agreement).
16.5
Unenforceable Provision. In the event that any proVISion of this Power
Purchase Agreement is unenforceable or held to be unenforceable, the Parties agree that all other
provisions of this Power Purchase Agreement have force and effect and shall not be affected
thereby. The Parties will, however, use commercially reasonable efforts to agree on the
replacement of the void, illegal or unenforceable provision(s) with legally acceptable clauses
which correspond as closely as possible to the sense and purpose of the affected provision and
this Power Purchase Agreement as a whole.
16.6
Counterparts. This Power Purchase Agreement may be executed in two
counterparts, both of which taken together shall constitute one and the same instrument and each
of which shall be deemed an original.
16.7
Facsimile Delivery. This Power Purchase Agreement may be duly executed and
delivered by a Party by execution and facsimile or PDF electronic mail delivery of the signature
page of a counterpart to the other Party, and, ifdelivery is made by facsimile or PDF electronic
mail, the executing Party shall promptly deliver, via overnight delivery, a complete original
counterpart that it has executed to the other Party, but this Power Purchase Agreement shall be
binding on and enforceable against the executing Party whether or not it delivers such original
counterpart.
16.8
Survival. Sections 2.5. 2.9, 4.3, 4.4, 4.6, 4.7. 5.2, 7.3, , 9.1. 11.3(d), 16.8. and
Articles I. VIII. XII. XIII, XV and XVI shall survive the expiration or earlier termination of this
Power Purchase Agreement, with respect to a particular Site and Solar System.
16.9
Buyer Representations and Warranties.
representations and warranties to Seller:
(i)
Buyer makes the following
Buyer is duly authorized and has the power to enter into this Power
Purchase Agreement and perform its obligations hereunder.
2377722 v3 1-23·2014 Versiono£P1ymouth PPA
44
(ii)
Buyer has all the rights required to enter into this Power Purchase
Agreement and perform its obligations hereunder without the consent of
any third party.
(iii)
This Power Purchase Agreement is enforceable, subject to
applicable moratorium and insolvency laws, against Buyer in accordance
with its terms and does not conflict with or violate the terms of any other
agreement to which Buyer is a party.
(iv)
The information provided by Buyer pursuant to this Power Purchase
Agreement as of the Effective Date is true and accurate in all material
respects.
(v)
Buyer has no knowledge of any facts or circumstances that could
materially adversely affect its ability to perform its obligations hereunder.
16.10 Seller Representations and Warranties.
representations and warranties to Buyer:
Seller makes the following
(i)
Seller is duly authorized and has the power to enter into this Power
Purchase Agreement and perform its obligations hereunder.
(ii)
Seller has all the rights required to enter into this Power Purchase
Agreement and perform its obligations hereunder without the consent of
any third party.
(iii)
This Power Purchase Agreement is enforceable, subject to
applicable moratorium and insolvency laws, against Seller according to its
terms and does not conflict with or violate the terms of any other
agreement to which Seller is a party.
(iv)
The information provided by Seller pursuant to this Power Purchase
Agreement as of the Effective Date is true and accurate in all material
respects.
(v)
Seller has no knowledge of any facts or circumstances that could
materially adversely affect Seller's ability to perform its obligations
hereunder.
16.11 Leases. Upon the receipt of the Governmental Approvals required to construct
each Solar System, Seller will provide Buyer with Schedule, to the Lease for the Site which that
Solar System is to serve, showing the location of the Premises and the Access Easements, for
Buyer's approval which approval shall not be unreasonably withheld conditioned or delayed. At
the same time, Buyer shall provide Seller with a Schedule to said Lease showing the location of
the Transmission Easements and the Utility Easements, for Seller's approval, which approval
shall not be unreasonably withheld conditioned or delayed. Upon such approvals, the Parties
shall execute the Lease for the particular Premises.
2377722 v3 1-23-2014 VersionofP1ymouth PPA
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l,.
16.12
Public Outreach.
(i)
Subject to the terms of Article XV and applicable Law, Buyer shall have
the right to promote the installation and use of the installed Solar Systems
through press releases, case studies, published material and its internet
site. Seller and Buyer shall work together to develop explanatory and
educational materials to explain the operation of the Solar Systems to
visitors.
(ii)
Subject to the terms of Article XV, Seller shall have the right to promote
the installation and use of the installed Solar Systems through press
releases, published material and its internet site.
(iii)
Seller and Buyer shall each have the right to consent to promotional and
other public materials that refer to it, such consent not to be unreasonably
withheld.
[Signature Pages Follow]
\
/
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IN WITNESS WHEREOF, the Parties have caused tllls Power Purchase Agreement to
be duly executed as of the Effective Date.
WITNESS/ATTEST
_ _ SELLER:
EJ TERRY SOLAR 1, LLC
By: ___________________
Name: _ _ _ _ _ _ _ _ __
Title:----------BUYER:
PLYMOUTH BOARD OF EDUCATION
By: ___________________
Name: _ _ _ _ _ _ _ _ __
By: _____________________
Name:-----------
Title:---------------
Title:-----------
BUYER:
TOWN OF PLYMOUTH TO'.:VNSHIP
B:
B:
Name:
Title:
Name:
Title:
23777'2 v3 1-23-2014 Version ofP!ymouth PPA
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I
l
EXHIBIT A
DESCRIPTION OF PREMISES AND SITES
LOCATION: HARRY S. FISHER ELEMENTARY SCHOOL
ADDRESS: 79 N MAIN ST, TERRYVILLE, CT
POINT OF DELIVERY: IN ELECTRIC ROOM, GROUND FLOOR
SATELLITE IMAGE:
/
LEGEND
e
Point of Delivery
location of Solar
2377721 v3 1-23-2014 Version ofPJymouth PPA
LOCATION: TERRYVILLE HIGH SCHOOL
ADDRESS: 33 N HARWINTON AVE, TERRYVILLE, CT
POINT OF DELIVERY: AT EXISTING METER, EXTERIOR GROUND
SATELLITE IMAGE:
0
Point of Delivery
0
Location of Solar
2377722 v3 1-23-2014 Version ofPiymouth PPA
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LOCATION: PLYMOUTH CENTER SCHOOL
ADDRESS: 107 NORTH ST PLYMOUTH, CT 06782
POINT OF DELIVERY: IN ELECTRIC ROOM
SATELLITE IMAGE:
LEGEND
e
Point of D~livery
0
location of Solar
23777]1 v3 1-23-2014 Version of Plymouth PPA
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LOCATION: ELI TERRY MIDDLE SCHOOL
ADDRESS: 21 N MAIN ST, TERRYVILLE, CT 06786
POINT OF DELIVERY: IN ELECTRIC ROOM, BASEMENT
SATELLITE IMAGE:
lEGEND
e
Point of Delivery
location of Solar
23777'22 v3 1-23-2014 Version ofP1ymouth PPA
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)
PRELIMINARY EXHIBIT B
ESTIMATED AND MINIMUM EXPECTED SYSTEM OUTPUTS
LOCATION: HARRY S. FISHER ELEMENTARY SCHOOL
Year
Expected _System
Output
(kWh}
Annual Energy
ProductionGuarantee
(kWh)
Cumulative
Minimum System
Output
(kWh)
1
283,803
255,423
255,423
2
280,965
252,869
508,292
3
278,156
250,340
758,632
4
275,374
247,837
1,006,468
5
272,620
245,358
1,251,827
6
269,894
242,905
1,494,731
7
267,195
240,476
1,735,207
8
264,523
238,071
1,973,278
9
261,878
235,690
2,208,968
10
259,259
233,333
2,442,301
11
256,667
231,000
2,673,301
12
254,100
228,690
2,901,991
13
251,559
226,403
3,128,394
14
249,043
224,139
3,352,533
15
246,553
221,898
3,574,431
16
244,087
219,679
3,794,110
17
241,647
217,482
4,011,592
18
239,230
215,307
4,226,899
19
236,838
213,154
4,440,053
20
234,469
211,022
4,651,075
LOCATION: TERRYVILLE HIGH SCHOOL
2377722 v3 1-23-2014 Version ofP1ymouth PPA
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Year
Expected System
Output
(kWh)
Annual Energy
Production
Guarantee
Cumulative
Minimum System
Output
(kWh)
(kWh)
1
1,334,700
1,201,230
1,201,230
2
1,321,353
1,189,218
2,390,448
3
1,308,139
1,177,326
3,567,773
4
1,295,058
1,165,552
4,733,325
5
1,282,107
1,153,897
5,887,222
6
1,269,286
1,142,358
7,029,580
7
1,256,594
1,130,934
8,160,514
8
1,244,028
1,119,625
9,280,139
9
1,231,587
1,108,429
10,388,568
10
1,219,271
1,097,344
11,485,912
11
1,207,079
1,086,371
12,572,283
12
1,195,008
1,075,507
13,647,790
13
1,183,058
1,064,752
14,712,542
14
1,171,227
1,054,105
15,766,647
15
1,159,515
1,043,564
16,810,210
16
1,147,920
1,033,128
17,843,338
17
1,136,441
1,022,797
18,866,135
18
1,125,076
1,012,569
19,878,703
19
1,113,826
1,002,443
20,881,146
20
1,102,687
992,419
21,873,565
23777'22 v3 1-23-2014 Version ofP1ymouth PPA
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\
}
LOCATION: PLYMOUTH CENTER SCHOOL
Year
Expected System
Output
(kWh)
Annual Energy
Production
Guarantee
(kWh)
Cumulative
Minimum System
Output
(kWh)
1
272,259
245,033
245,033 .
2
269,536
242,583
487,616
3
266,841
240,157
727,773
4
264,173
237,755
965,528
s
261,531
235,378
1,200,906
6
258,916
233,024
1,433,930
7
256,326
230,694
1,664,624
8
253,763
228,387
1,893,011
9
251,226
226,103
2,119,114
10
248,713
223,842
2,342,956
11
246,226
221,604
2,564,559
12
243,764
219,388
2,783,947
13
241,326
217,194
3,001,140
14
238,913
215,022
3,216,162
1S
236,524
212,871
3,429,034
16
234,159
210,743
3,639,776
17
231,817
208,635
3,848,412
18
229,499
206,549
4,054,961
19
227,204
204,483
4,259,444
20
224,932
202,439
4,461,883
2377722 v3 1-23-2014 Version ofPiymouth PPA
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LOCATION: ELI TERRY MIDDLE SCHOOL
Year
Expected System
Output
(kWh)
Annual Energy
Production
Guarantee
Cumulative
Minimum System
Output
(kWh)
(kWh)
1
292,860
263,574
263,574
2
289,931
260,938
524,512
3
287,032
258,329
782,841
4
284,162
255,746
1,038,587
5
281,320
253,188
1,291,775
6
278,507
250,656
1,542,431
7
275,722
248,150
1,790,581
8
272,965
245,668
2,036,249
9
270,235
243,212
2,279,461
10
267,533
240,779
2,520,240
11
264,857
238,372
2,758,611
12
262,209
235,988
2,994,599
13
259,587
233,628
3,228,227
14
256,991
231,292
3,459,519
15
254,421
228,979
3,688,498
16
251,877
226,689
3,915,187
17
249,358
224,422
4,139,609
18
246,864
222,178
4,361,787
19
244,396
219,956
4,581,743
20
241,952
217,757
4,799,500
2377722 v3 1-23-2014 Version of Plymouth PPA
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EXHIBIT C
INTENTIONALLY OMITTED
2377722 v3 1-23-2014 Version ofP1ymouth PPA
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EXHIBITD
POINTS OF DELIVERY
(PLEASE SEE EXHIBIT A)
2377722 v3 1-23-2014 Version ofP1ymouth PPA
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EXHIBIT E
EMERGENCY CONTACT INFORMATION
BUYER:
SELLER:
To be provided
Phone No.: (860) _ -_ _
Email:----------
To be provided
(212) 935 - 3500
Email: [email protected]
23777'22. v3 1·23-2014 Version ofPiymouth PPA
EXHIBITF
COPIES OF FORMS OF INTERCONNECTION AGREEMENTS
STANDARD FAST TRACK AND STUDY PROCESS GENERATOR INTERCONNECTION
AGREEMENT
This Interconnection Agreement (this "Agreement"), dated as of _ _ , 200__ (the
"Effective Date"), is entered into by and between [Connecticut Light and Power, a specially chartered
Connecticut COiporation with a principal place of business at 107 Selden St, Berlin, cr, 06037] [or] [The
United Illuminating Company, a specially chartered Connecticut corporation with a place of business at
157 Omn:h Street, New Haven, CT 06510] (the "Electric Distribution Company" or "EDC"), and
_ _, a _ _ [c01poration/1imited liability company] with a principal place of business of _ _ (the
"Generator"). The EDC and the Generator are collectively referred to herein as the "Parties" and
individually as a "Party." Any capitalized term used but not defined in this Agreement shall have the
meaning ascribed to such term in the Guidelines for Generator Interconnection attached hereto as
Appendix~ as maybe amended from time to time (the "Guidelines").
1.
Basic Understancl.irw;s.
1.1.
The Generator owns and! or operates or plans to construct a Generating Facility at
[insert address of Generating Facility, and end-use customer account number], as depicted
in Appendix H (the "Facility"). A description of the Facility as studied, and incorporating any
design changes approved in accon:lance with Section 1.4, is attached hereto as Appendix B (the
"Facility Description").
1.2.
The subject matter of this Agreement pertains to the Interconnection of the Facility to the
EPS. This Agreement does not relate to any other obligation of the Generator unrelated to the
Interconnection of the Facility. Apart from this Agreement, the Generator is responsible for (a) all
arrangements to effect any deliveries of electric energy from the Facility in accon:lance with the
appropriate retail or FERGjurisdictional tariffs and (b) arranging for its purchase of retail power
(such as back-up or stand-by power).
1.3.
This Agreement does not cover sales of power, capacity, energy or IIJaiket products
generated from the Facility. If the Generator intends to sell energy or ancillaxy services from the
Facility, it must provide written notice to the EDC of such intention at least sixty (60) days prior to
the effectuation of such sale. Furthermore, the EDC may require the Generator to enter into a
new Interconnection agreement prior to such sale which may or may not require approval from
FERC
1.4.
Any changes to the design of the Facility as it is described and specified in the application
submitted by the Generator to the EDC with respect to such Facility (the "Application") must be
approved by the EDC in writing prior to the implementation of such design changes. Only design
changes approved in accon:lance with this Section 1.4 shall be implemented
1.5.
The Generator may not operate the Facility in parallel with the EPS until: (a) the
conditions for initial parallel operation of the Facility set forth in Appendix C have been met; (b)
commissioning and testing of the Facility has been completed in accon:lance with the Guidelines
and to the satisfaction of the EDC; (c) the Generator has paid the EDC all funds due pursuant to
paragraphs 53.1 and 53.2 of this Agreement; and (d) the EDC has provided formal written
authorization in accon:lance with the Guidelines stating that operation of the Facility in parallel
2377722 v3 1-23-2014 VersionofP1ymouth PPA
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;
\
with the EPS is authorized by the EDC (the "Authorization Date"). Such written authorization
will not be effective unless accompanied by a description of the Facility that incorporates all design
changes to the Facility since the Application was submitted to the EDC (and not specified therein),
including all design changes made during construction.
1.6.
The Generator shall obtain each consent, approval, authorization, order or acceptance
from FERC necessary for the Generator or any entity that, direcdy or indirecdy, through one or
more intermediaries, controls, or is controlled by, or is under common control with the Generator
(each, an "Affiliate") to sell any power, capacity, energy or marlret products from the Facility into
the wholesale power marlret (collectively, "Wholesale Sales") prior to making any such sales. If
the Generator intends to make Wholesale Sales, then the Generator shall provide written notice to
the EDC at least sixty (60} days prior to making any Wholesale Sales. The Generator shall
indemnify, defend and hold harmless the EDC, its trustees, directors, officers, employees, agents
and affiliates from any costs, damages, fines or penalties, including reasonable attorneys' fees,
direcdy resulting from Generator's or its Affiliate's non-compliance with any provision of this
Section 1.6; provided, however, that the such indemnification obligation shall be subject to the
limitation of liability set fotth in Section 14.
2.
Entire Agreement.
2.1.
This Agreement, including any attachments or appendices, is entered into pursuant to the
Guidelines.
2.2.
This Agreement, the Guidelines, and the relevant EDC Tariffs, Terms and Conditions
represent the entire understanding between the Parties as to the subject matter of this Agreement.
2.3.
Each Party hereby represents that in entering into this Agreement, it has not relied on any
promise, inducement, representation, warranty, agreement or other statement not set fotth in this
Agreement, the Tariffs, Terms and Conditions, or the Guidelines.
2.4.
In the event of a conflict between this Agreement, the Guidelines and/or the Tariffs,
Terms and Conditions, the Tariffs, shall take first precedent, followed by the Terms and
Conditions, followed by the Guidelines, and lasdythis Agreement.
3.
Term.
3.1.
This Agreement is effective as of the Effective Date. The Agreement shall continue in full
force and effect until terminated pursuant to Section 4.
4.
Termination.
4.1.
This Agreement may be terminated under the following conditions:
4.1.1. The Parties maymutuallytenninate this Agreement at anytime upon the execution
of an agreement to terminate this Agreement.
4.1.2. The Generator may terminate this Agreement at any time by providing sixty (60)
days written notice to EDC
4.13. Either Party may terminate this Agreement immediately upon the occurrence of an
Event of Default (as such term is defined in Section 20.1) by the other Party, subject to the
notice requirement set fotth in Section 20.2(c).
2317722 v3 1-23-2014 Version ofP1ymouth PPA
3
4.1.4. The EDC may terminate this Agreement if the Generator. (a) operates the Facility
in parallel with the EPS prior to the Authorization Date; (b) fails within six months of
testing to receive authorization from the EDC to operate in parallel with the EPS; (c) does
not construct the Facility in accordance with the Facility Description; (d) modifies the
Facility without the written approval of the EDC; (e) fails to ene~ the Facility within
twelve months of the Amhorization Date; or (f) permanently abandons the Facility. For
the ptuposes of this Agreement, the Generator's failure to operate the Facility for any
consecutive twelve month period after the Amhorization Date shall be deemed a
permanent abandonment.
4.1.5. The EDC may terminate this Agreement if the· Generator fails to correct an
Emergency Condition (as such term is defined in Section 7.1.1) or a Non-Emergency
Adver.;e Operating Effect (as such term is defined in Section 7.1.4) within ninety (90) days
from the date on which the EDC disconnected the Facility due to such event.
4.2.
Survival of Obligations. The termination of this Agreement shall not relieve either Patty of
its liabilities and obligations, owed or continuing at the time of termination.
4.3.
Related ~reements. Any agreement attached to and incorporated into this Agreement
shall terminate concurrendy with this Agreement unless the Parties have agreed otherwise in
writing.
5.
General Payment Terms.
5.1.
Interconnection Costs. The Generator is responsible for paying all costs associated with
Interconnection of the Facility, including (a) testing costs, (b) costs associated with installing,
testing and maintaining the communications infrastructure necessary to provide protection and! or
monitoring of the Generating Facility (collectively, the "Communications Costs"), (c)
construction, modification or upgrade costs necessary to accommodate the Interconnection
(collectively, the "Construction Costs"), and (d) any ongoing maintenance costs and other charges
deemed necessary by the EDC to maintain the Interconnection (all such costs described in this
sentence, the "Interconnection Costs"). The EDC shall notify the Generator in the event the
Construction Costs exceed 110% of the estimate of such costs provided by the EDC to the
Generator in the G>nstruction Agreement (as such term is defined below), facility study report or
other written under.;tanding of the Parties.
5.2.
Initial Cost Estimate. Attached hereto as Appendix D is a good-faith estimate of the initial
Interconnection G>sts (the "Initial Cost Estimate").
5.3.
Billing and Payment Procedures for Initial Interconnection G>sts.
5.3.1. The Generator shall pay the EDC the amount set forth in the Initial G>st Estimate
(the "Initia Payment") within thirty (30) days of the Effective Date.
5.3.2. Wtthin thirty (30) days following the date on which the Facility is fim connected to
the EPS (the "Initial Interconnection"), the EDC shall provide the Generator with a final
accounting report detailing any Underpayment (as such term is defined belo-..0 or
Overpayment (as such term is defined belo-..0 made by the Generator with respect to the
Initial Payment. To the extent that the actual Interconnection Costs accrued up to the date
of the Initial Interconnection exceed the Initial Payment (an "Underpayment"), the EDC
shall invoice the Generator for an amount equal to the Underpayment and the Generator
2377722 v3 1-23-2014 Version ofP1ymouth PPA
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shall pay such amount to the EDC within thirty (30) days of such invoice. To the extent
that the Initial Payment exceeds the actual Interconnection Costs accrued up to the date of
the Initial Interconnection (an "Overpayment"), the EDC shall refund to the Generator
an amount equal to the Overpayment within thirty (30) days of the provision of such final
accounting report.
5.4.
Billing and Payment Procedures for Qw;o~ Interconnection Costs. All Interconnection
Costs incurred following the Initial Interconnection shall hereinafter be referred to as the
"Ongoing Costs," and shall include maintenance, testing and Communications Costs, as well as
any Construction Costs not inch.tded in either (a) the Construction Agreement by and between the
Generator and the Company, dated as of L_), a copy of which is attached hereto as Appendix
.E (the "Construction Agreement"), or (b) the Initial Cost Estinlate. The EDC shall invoice the
Generator for all Ongoing Costs as such costs are incurred, and the Generator shall pay each such
invoice within thirty (30) days of receipt, or as otherwise agreed to by the Parties.
5.5.
Milestones. The Parties shall agree on milestones for which each Party is responsible and
list them in Appendix F of this Agreement. A Party's obligations under this provision may be
extended by agreement. If a Party anticipates that it will be unable to meet a milestone for any
reason other than a Force Majeure Event (as such term is defined in Section 18.1), it shall
immediately notify the other Party of the reason(s) for not meeting the milestone and (a) propose
the earliest reasonable alternate date by which it can attain this and future milestones, and (b)
requesting appropriate amendments to Appendix F. The Party affected by the failure to meet a
milestone shall not unreasonably withhold agreement to such an amendment unless (~ it will suffer
significant uncompensated economic or operational harm from the delay, (~ attainment of the
same milestone has previously been delayed, or (ill) it has reason to believe that the delay in
meeting the milestone is intentional or unwarranted notwithstanding the circumstances explained
by the Party proposing the amendment.
5.6.
Distribution Upgrades. The EDC shall design, procure, construct, install, and own the
upgrades described in Appendix G of this Agreement (the "Upgrades'). If the EDC and the
Generator agree, the Generator may consttuct Upgrades that are located on land owned by the
Generator. The actual cost of the Upgrades, including overheads, shall be directly assigned to the
Generator. The Generator shall be responsible for its share of all reasonable expenses, associated
with operating, maintaining, repairing, and replacing such Upgrades, except to the extent that a
retail tariff of, or an agreement with, the EDC provides otherwise.
5.7.
6.
Taxes. The Parties shall comply with all applicable federal and state tax laws.
Operating Requirements.
6.1.
General Operating Requirements. The Generator shall consttuct, interconnect, operate,
and maintain the Facility and all accompanying and necessary facilities in accordance with (a) all
applicable laws and requirements, Good Uility Practice, the Guidelines, Tariffs, and the Terms
and Conditions; (b) applicable specifications that meet or exceed those provided by the National
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Electrical Safety Code, the American :National Standards Institute, IEEE, Underwriter's
Laborato.ry and ISO-NE operating requirements in effect at the time of construction and other
applicable national and state codes and standards. Following the initial Interconnection of the
Facility; the Generator shall comply with all special operating requirements set forth in Appendix
C In the event that the EDC believes that the cause of any problem to the EPS originates from
the Facility, the EDC has the right to install monitoring equipment at a mutually agreed upon
location to determine the exact cause of the problem The cost of such monitoring equipment
shall be borne by the EDC, unless such problem or problems are demonstrated to be caused by
the Facility or if the test was performed at the request of the Generator in which case the costs of
the monitoring equipment shall be borne by the Generator. If the operation of the Facility
interferes w-ith the EDCs or its customers' operations, the· Generator must immediately take
corrective action to stop such interference and shall not operate the Facility until such time as such
interference is stopped If the Generator fails to take immediate corrective action pursuant to the
preceding sentence, then the EDC may disconnect the Facility as set forth in the Guidelines.
6.2.
No Adverse Effects; Non-interference.
6.2.1. The EDC shall notify the Generator if the EDC has evidence that the operation of
the Facility could cause disruption or deterioration of service to other customers served
from the EPS or if operation of the Facility could cause damage to the EPS or other
affected systems. (For example, deterioration of service could be caused by, among other
things, harmonic injection in excess of IEEE SID 519, as well as voltage fluctuations
caused by large step changes in loading at the Facility.) The Generator shall cease
operation of the Facility until such time as the Facility can operate without causmg
disruption or deterioration of service to other customers served from the EPS or causing
damage to the EPS or other affected systems. Each Party shall promptly notify the other
Party in writing of any condition or occurrence relating to such Party's equipment or
facilities which, in such Party's reasonable judgment, could adversely affect the operation of
the other Party's equipment or facilities.
6.2.2. The EDC shall operate the EPS in such a manner so as to not unreasonably
interfere with the operation of the Facility. The Generator shall protect itself from normal
disturbances propagating through the EPS in accordance with Good Uility Practice.
Examples of such disturbances include single-phasing events, voltage sags from remote
faults on the EPS, and outages on the EPS.
6.3.
Safe Operations and Maintenance.
6.3.1. GeneraL The Generator shall operate, maintain, repair, and inspect, and shall be
fully responsible for, the Facility or facilities that it now or hereafter may own unless
otherwise specified in this Agreement. Each Party shall be responsible for the
maintenance, repair and condition of its respective lines and appurtenances on such Party's
respective side of the Point of Interconnection. The EDC and the Generator shall each
provide equipment on its respective side of the Point of Interconnection that adequately
protects the EPS, personnel, and other persons from damage and injury. If the EDC has
constructed or owns facilities that are identified at the time of Interconnection as
specifically required by or as a result of such Interconnection, then the Generator shall
reimburse the EDCfor the costs of maintaining and repairing such facilities.
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6.32. Ongoing Maintenance; Testing of the Facility. The Parties hereby acknowledge
and agree that maintenance testing of the Facility's protective relaying is imperative for
safe, reliable operation of the Facility. The test cycle for such protective relaying shall not
be less frequent than once every sixty (60) calendar months or the manufacturer's
recommended test cycle, whichever is more frequent. The Generator shall provide copies
of these test records to the EDC within thirty (30) days of the completion of such
maintenance testing. The EDC may disconnect the Facility from the EPS if the Generator
fails to adhere to this Section 6.3.2. The Generator is responsible for all ongoing
maintenance costs associated with the Facility.
6.4.
Access.
6.4.1. Emeytency Contact Information. Each Party shall provide to the other Party and
shall update as necessary a telephone number that can be used at all times to allow the
other Party to report an emergency.
6.4.2. EDC ~ht to Access EDGOwned Facilities and Equipment. The Generator shall
allow the EDC access to the EDCs equipment and the EDCs facilities located on the
Facility's premises (the "EDCProperty"). To the extent that the Generator does not own
all or part of the real property on which the EDC is required to locate EDC Property in
order to serve the Facility, the Generator shall procure and provide to the EDC all
necessary rights, including easements, for access to the EDC Property.
6.4.3. Isolation Device. The EDC shall have access to the Isolation Device of the Facility
at all times. Generator is responsible for obtaining any and all property rights, including
easements, which will permit the EDC access to such Isolation Device.
6.4.4. Right to Review Information. The EDC shall have the right to review and obtain
copies of the Generator's operations and maintenance records, logs, or other information
such as unit availability, maintenance outages, circuit breaker operation requiring manual
reset, relay targets and unusual events pertaining to the Facility or its Interconnection with
the EPS. The EDC shall treat such information as confidential and shall use such
information solely for the pmposes of determining compliance with the operating
requirements set forth in this Section 6.
7.
Disconnection.
7.1
TemporaryDisconnection.
7.1.1 EmeJ¥ency Conditions. The EDC may immediately and temporarily disconnect
the Facility from the EPS without prior notification in cases where, in the reasonable
judgment of the EDC, the continued connection of the Facility is imminently likely to (a)
endanger persons or damage property or (b) cause an adverse effect on the integrity or
security of, or damage to, the EPS or to other electric power systems to which the EPS is
directly connected (each, an "Emergency Condition"). Upon becoming aware of an
Emergency Condition, the Generator shall (~ immediately suspend operation of the
Facility and (u) promptly provide written notice to the EDC of such Emergency Condition
and suspension (an "Emergency Condition Notice"). The Emergency Condition Notice
shall describe (A) such Emergency Condition, (B) the extent of any damage or deficiency,
(Q the expected effect on the operation of each Party's facilities and operations, (D) the
anticipated duration of such Emergency Condition and (E) the necessary corrective action.
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After temporary disconnection or suspension pursuant to this Section 7.1.1, the Facility
may not be reconnected or resume operation until the EDC and Generator are both
satisfied that the cause of such Emergency Gmdition has been corrected. If the Generator
fails to correct the Emergency Condition within ninety (90) days from the time that the
EDC has temporarily disconnected the Facility due to such an event, the EDC may elect to
tenninate this Agreement in accordance with Section 4.1.5 and! or permanently disconnect
the Facility in accordance with Section 7.2.2.
7.1.2 Routine Maintenance. Construction and Repair. The EDC shall have the right to
disconnect the Facility from the EPS when necessary for routine maintenance,
construction and repairs to the EPS. The EDC shall provide· the Generator with a
minimum of seven (7) days prior 'Written notice of such disconnection, consistent with the
EDC's planned outage notification protocols. If the Generator requests disconnection by
the EDC at the Point of Common Inten:onnection, the Generator will provide a minimum
of seven (7) days prior 'Written notice to the EDC. The EDC shall make reasonable efforts
to work with Generator to schedule a mutually convenient time or times to temporarily
disconnect the Facility pursuant to this Section 7.1.2.
7.1.3
Fon:ed Outages. During any forced outage, the EDC shall have the right to
temporarily disconnect the Facility from the EPS in order to effect immediate repairs to
the EPS. The EDC shall use reasonable efforts to provide the Generator with prior notice
of such temporarily disconnection; provided, however, the EDC may temporarily
disconnect the Facility from the EPS without such notice pursuant to this Section 7.1.2 in
the event cin:umstances do not permit such prior notice to the Generator.
7.1.4 Non- Eme~ency Adverse OperatiJ:¥ Effects.
The EDC may temporarily
disconnect the Facility if it is having a non-emergency adverse operating effect on the EPS
or on other customers (a "Non-Emergency Adverse Operating Effect") if the
Generator fails to correct such Non-Emergency Adverse Operating Effect within fortyfive (45) days of the EDC's 'Written notice to the Generator requesting correction of such
Non-Emergency Adverse Operating Effect. If the Generator fails to correct a NonEmergency Adverse Operating Effect within ninety (90) days from the time that the EDC
has temporarily disconnected the Facility due to such an event, the· EDC may elect to
tenninate this Agreement in accordance with Section 4.15 and! or permanently disconnect
the Facility in accordance with Section 7 .2.2.
7.1.5 Modification of the Facility. The EDC has the right to immediately suspend
Inten:onnection service and temporarily disconnect the Facility in the event any material
modification to the Facility or the Generator's Inten:onnection facilities has been
implemented without prior 'Written authorization from the EDC.
7.1.6 Be-connection. Any temporary disconnection pursuant this Section 7.1 shall
continue only for so long as is reasonably necessary. The Generator and the EDC shall
cooperate with each other to restore the Facility and the EPS, respectively, to their normal
operating states as soon as reasonably practicable following the correction of the event that
led to the temporary disconnection.
7.2
Permanent Disconnection.
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7.2.1 The Generator may permanently disconnect the Facility at any time upon thirty
(30) days prior written notice to the EDC
8.
7.2.2
The EDC may permanently disconnect the Facility upon termination of this
Agreement in accordance with Section 4.
7 .2.3
The EDC may permanently disconnect the Facility in the event the Generator is
unable to correct an Emergency Condition or a Non-Emergency Adve~e
Operating Effect in accordance with Section 7.1.1 or Section 7.1.4, respectively.
Metering.
8.1.
Metering of the output from the Facility shall be conducted p~uant to the terms of the
Guidelines.
9.
Assignments.
9.1
Except as provided herein, the Generator shall not voluntarily assign its rights or
obligations, in vvhole or in part, under this Agreement without the EDCs prior written consent,
which consent shall not be unreasonably withheld or delayed. Any assignment the Generator
pmports to make without the EDC's prior written consent shall not be valid. Notwithstanding the
foregoing, the EDCs consent shall not be required for any assignment made by the Generator to
an Affiliate with an equal or greater credit rating and with the legal authority and operational ability
to satisfy the obligations of the Generator under this Agreement; provided that that Generator
promptly notifies the EDC of any such assignment. In all events, the Generator shall not be
relieved of its obligations under this Agreement unless, and Wltil, the permitted assignee assumes
in writing all obligations of this Agreement and notifies the EDC of such assumption.
10.
Confidentiality;
10.1
The EDC shall maintain the confidentiality of information provided from the Generator to
the EDC if such information is clearly marked and labeled "Confidential" (the "Confidential
Information"). Confidential Information shall not include information that (a) is or hereafter
becomes part of the public domain, (b) previously was in the possession of the EDC, or (c) the
EDC is required to disclose p~uant to a valid order of a court or other governmental body or any
political subdivision thereof; provided, however, that to the extent that it may lawfully do so, the
EDC shall fmt have given notice to the Generator and given the Generator a reasonable
opportunity to interpose an objection or obtain a protective order requiring that the Confidential
Information and! or documents so disclosed be used only for the pmpose for which the order was
issued; provided further that if such Confidential Information is requested or required by the
DPUC, the EDC shall seek. protective treatment of such Confidential Information.
11.
Insurance Requirements.
11.1 General Liability. In connection with the Generator's performance of its duties and
obligations Wlder this Agreement, the Generator shall maintain, during the term of this
Agreement, general liability insurance with a combined single limit of not less than:
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11.1.1 Three hundred thousand dollars ($300,000) per occurrence and in the aggregate for
bodily injwy and/ or property damage claims where the gross nameplate rating of the
Facility is less than or equal to an aggregate of 100 kW;
11.1.2 One million dollan; ($1,000,000) per occurrence and in the aggregate for bodily
injwy and/or property damage claims where the gross nameplate rating of the Facility is
greater than 100 kW and less than or equal to an aggregate of 1MW;
11.1.3 Two million dollan; ($2,000,000) per occurrence and in the aggregate for bodily
injwy and/or property damage claims where the gross nameplate rating of the Facility is
greater than 1MW and less than or equal to an aggregate of 5MW; or
11.1.4 Five million dollan; ($5,000,000) per occurrence and in the aggregate for bodily
injwy and/ or property damage claims where the gross nameplate rating of the Facility is
greater than SMW and less than or equal to an aggregate of 20MW.
11.2 Insurer Requirements and Endon;ements. All insurance required pursuant to this Section
11 shall be carried by insurers qualified to underwrite insurance in Omnecticut with an AM Best
rating of A- or better. In addition, all insurance shall: (a) include the EDC as an additional insured;
(b) contain a severability of interest clause or cross-liability clause unless the Generator is a
residential customer, (c) provide that the EDC shall not be liable to the insurance carrier with
respect to the payment of premium for such insurance; and (d) provide for written notice to the
EDC thirty (30) days prior to cancellation, termination, or material change of such insurance.
11.3
Evidence of Insurance.
11.3.1 Evidence of the insurance required pursuant to this Section 11 shall state that the
coverage provided is primary, and is not excess of or contnbuting with any insurance or
self-insurance maintained by the EDC
11.3 .2 The Generator is responsible for providing the EDC with evidence of insurance on
an annual basis as set forth in the Guidelines.
11.3.3 Prior to the EDC commencing any wotk on system modifications, the Generator
shall have its insurer provide to the EDC certificates of insurance evidencing the insurance
coverage required pursuant to this Section 11. Such certificates shall clearly indicate
whether such insurance policy is written on a nclaims-made n basis.
11.3.4 The EDC may, at its discretion, require the Generator to maintain tail coverage
with respect to any policy written on a "claims-made" basis fora period of three yean; after
expiration or termination of such policy. ·
11.35 All insurance certificates, statements of self insurance, endon;ements, cancellations,
terminations, alterations, and material changes of such insurance shall be issued and
submitted to the appropriate EDC Facilitator.
12.
Performance Assurance.
12.1 H the EDC reasonably expects that any Interconnection Costs necessaty to accommodate
the Facility will be in excess of fifty thousand dollars ($50,000) in the aggregate in any calendar
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year, the EDC may require that the Generator provide to the EDC a guarantee, a surety bond,
letter of credit or other form of security that is reasonably acceptable to the EDC at least twenty
{20) Business Days prior to the commencement of the related work Such security for payment
shall be in an amount sufficient to cover such Interconnection Costs. In addition:
12.1.1. Any guarantee provided by the Generator pursuant to this Section 12 shall be made
by an entity that meets the creditworthiness requirements of the EDC; and contain terms
and conditions that guarantee payment of any amount that may be due from the
Generator, up to an agreed-to maximum amount; and
12.12. Any letter of credit or surety bond provided by the Generator pursuant to this
Section 12.1.2 shall be issued by a financial institution or insurer reasonably acceptable to
the EDC and must specify an expiration date reasonably acceptable to the EDC
13.
IndemnificatioiL
13.1 Indemnification of the EDC Subject to the limitation of liability set forth in Section 14,
the Generator shall indemnify, defend and hold hannless the EDC and its trustees, directors,
officers, employees and agents (including affiliates, contractors and their employees) from and
against any liability, damage, loss, claim, demand, complaint, suit, proceeding, action, audit,
investigation, obligation, cost, judgment, adjudication, arbitration decision, penalty (including fees
and fines), or expense (including court costs and attorneys' fees) relating to, arising from or
connected to this Agreement.
13.2 Indemnification of the Generator. Subject to the limitation of liability set forth in Section
14, the EDC agrees to indemnify, defend and hold harmless the Generator, its trustees, directors,
officers, employees and agents (including Affiliates, contractors and their employees), from and
against any and all damages for personal injury (including death) or property damage to unaffiliated
third parties arising from any and all actions relating to or arising out of any material failure by the
EDC to perform any of its obligations pursuant to Section 622 of this Agreement.
13J Survival of IndemnificatioiL The indemnification obligations of each Party set forth in this
Section 13 shall continue in full force and effect regardless of whether this Agreement has expired
or been terminated, defaulted or cancelled and shall not be limited in any way by any limitation on
msurance.
14.
Limitation of Liability.
14.1 Except with respect to a Party's fraud or willful misconduct, and except with respect to
damages sought by a third party in connection with a third party claim: (a) neither Party shall be
liable to the other Party, for any damages other than direct damages; and (b) each Party agrees that
it is not entitled to recover and agrees to waive any claim with respect to, and will not seek,
consequential, punitive or any other special damages as to any matter under, relating to, arising
from or connected to this Agreement.
15.
Amendments and Modifications.
15.1 No amendment or modification of this Agreement shall be binding unless in writing and
duly executed by both Parties.
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16.
Permits and Approvals.
16.1. The Generator is responsible for obtaining all environmental and other permits required by
governmental authorities for the construction and operation of the Facility (each, a "Required
Permit"). The EDC assumes no responsibility for obtaining any Required Permit, advising the
Generator with respect to Required Permits, or assuring that all Required Permits have been
obtained by the Generator. Upon written request of the EDC, the Generator shall promptly
provide to the EDC a copy of any Required Permit.
17.
Environmental Releases.
17.1. Each Party shall immediately notify the other Party, first orally and then in writing, of any
of the following events related to the Facility upon becoming aVJare of such event: (a) the release
of any hazardous substances; (b) any asbestos or lead abatement activities; or (c) any type of
remediation activities. The Party having the responsibility for reporting such an event to
appropriate governmental authorities shall promptly furnish to the other Party copies of any
publicly available reports filed with such authorities.
18.
Force Majeure.
18.1. For pwposes of this Agreement, "Force Majeure Event" means any event or
circumstance that {a) is beyond the reasonable control of the affected Patty and (b) the affected
Party is unable to prevent or provide against by exercising commercially reasonable efforts. Force
Majeure Events include the following events or circumstances, but only to the extent they satisfy
the foregoing requirements: (i) acts of VJar or terrorism, public disorder, insurrection, or rebellion;
(ii) floods, hurricanes, earthquakes, lighting, storms, and other natural calamities; (iii) explosions or
fire; (iv) strikes, work stoppages, or labor disputes; (v) embargoes; and (vi) sabotage. In no event
shall the lack of funds or the inability to obtain funds constitute a Force Majeure Event.
182. If a Force Majeure Event prevents a Party from fulfilling any obligations under this
Agreement, such Party will promptly notify the other Party in writing, and will keep the other Party
informed on a continuing basis of the scope and duration of the Force Majeure Event. The
affected Party shall specify in reasonable detail the circumstances of the Force Majeure Event, its
expected duration, and the steps that the affected Party is taking to mitigate the effects of the event
on its performance. The affected Party may suspend or modify its performance of obligations
under this Agreement, other than the obligation to make payments then due or becoming due
under this Agreement, but only to the extent that the effect of the Force Majeure Event cannot be
mitigated by the use of commercially reasonable efforts. The affected Party shall use commercially
reasonable efforts to resume its performance as soon as possible. Wnhout limiting this section, the
Generator shall immediately notify the EDC verbally if the failure to fulfill the Generator's
obligations under this Agreement may impact the safety or reliability of the EPS.
19.
Notices.
19.1. All notices, demands and other communications to be given or delivered under or by
reason of the provisions of this Agreement shall be in writing and shall be deemed to have been
given: (a) immediately when peiSonally delivered; (b) when received by fim class mail, return
receipt requested; (c) one day after being sent for overnight delivery by Federal Express or other
overnight delivery service; or (d) when receipt is acknowledged, either electronically or otherwise, if
sent by facsimile, telecopy or other electronic transmission device. Notices, demands and
2377722 v3 1-23-2014 Version of Plymouth PPA
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'l
communications to the other Parties shall, unless another address is specified by such Parties in
writing, be sent to the addresses indicated below:
IftotheEDG
If to the Generator:
19.2. Each Party may designate operating representatives to conduct daily communications
between the Parties, which may be necessary- or convenient for the administration of this
Agreement. The names, addresses, and phone numbers of each Party's representatives shall be
provided in writing by such Party to the other Party.
20.
Default and Remedies.
20.1.
Defaults. Each of the follo-wing shall constitute an "Event of Default;"
20.1.1. A Party fails to pay any bill or invoice for charges incurred pursuant to this
Agreement or any other amount due from such Party to the other Party as and when due,
any such failure shall continue for a period of thirty (30) days after written notice of
nonpayment from the affected Party to the defaulting Party; provided, however, if such
Party disputes such bill, invoice or other amount due in good faith, then such failure to pay
shall not constitute an Event of Default and the Parties shall resolve such dispute in
accordance with Section 21;
20.12. A Party (a) fails to comply with any other provision of this Agreement or breaches
any representation or warranty in any material respect and (b) fails to cure or remedy such
failure or breach within sixty (60) days after notice and written demand by the other Party
to cure the same or such longer period reasonably required to cure the same (not to exceed
an additional ninety (90) days unless otherwise mutually agreed upon, provided that the
failing or breaching Party diligently continues to cure until such failure oF breach is fully
cured). This provision pertains only to cure periods not specifically addressed elsewhere in
this Agreement;
20.1.3. A Generator modifies the Facility or any part of the Interconnection without the
prior written approval of the EDQ or
20.1.4. A Party fails to perform any obligation hereunder in accordance with (a) applicable
laws and regulations, (b) the ISO.NE operating documents, procedures, and reliability
standards, and (c) Good Utility Practice.
202.
Remedies. Upon the occurrence of an Event of Default, the non-defaulting Party may, at
its option, in addition to any remedies available under any other provision herein, do any,
or any combination, as appropriate, of the follo-wing: (a) continue to perform and enforce
this Agreement; (b) recover damages from the defaulting Party except as limited by this
Agreement; (c) by written notice to the defaulting Party tenninate this Agreement; or (d)
pursue any other remedies it may have under this Agreement or under applicable law or in
equity.
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21.
Dispute Resolution Procedures.
21.1.
22.
Each Party shall agree to attempt to resolve all disputes promptly, equitably and in good
faith. If the Parties are unable to informally resolve any dispute, the Parties shall follow the
dispute resolution process set forth in the Guidelines.
Subcontractors.
22.1.
Nothing in this Agreement shall prevent a Party from utilizing the sexvices of any
subcontractor as it deems appropriate to perform its obligations under this Agreement;
provided, however, that the hiring Party shall require such subcontractor to comply with all
applicable terms and conditions of this Agreement in providing such subcontracting
sexvices and the hiring Party shall remain primarily liable to the other Party for the
performance of such subcontractor.
22.2.
'The creation of any subcontract relationship shall not relieve the hiring Party of any of its
obligations under this Agreement. The hiring Party shall be fully responsible to the other
Party for the acts or omissions of any subcontractor hired by the hiring Party to perform
its obligations under this Agreement. Any applicable obligation imposed by this
Agreement upon the hiring Party shall be equally binding upon, and shall be construed as
having application to, any subcontractor of such Party.
22.3.
'The obligations under this Section 22 will not be limited in any way by any limitation of
subcontractor's insurance.
23.
Miscellaneous.
23.1.
Governing Law. This Agreement and the legal relations between the Parties will be
governed by and construed in accordance with the laws of the State of Connecticut
applicable to contracts made and performed in such State and without regard to conflicts
of law doctrines.
23.2.
Non-waiver. No failure on the part of any Party to exercise or delay in exercising any right
hereunder shall be deemed a waiver thereof, nor shall any single or partial exercise of any
right hereunder preclude any further or other exercise of such or any other right.
23.3.
No Third Party Beneficiaries. This Agreement is made solely for the benefit of the Parties.
Nothing in the Agreement shall be construed to create any rights in or duty to, or standard
of care with respect to, or any liability to, any person not a party to or otherwise bound by
this Agreement.
23.4.
Severability. If any provision of this Agreement is held to be unenforceable for any reason,
such provision shall be adjusted rather than voided, if possible, to achieve the intent of the
Parties. If no such adjustment is possible, such provision shall be fully severable and
severed, and all other provisions of this Agreement will be deemed valid and enforceable to
the extent possible.
235.
No Partnership. Nothing in this Agreement shall constitute or be construed to be or
create an association, joint venture, agency relationship, or partnership between the Parties
or to impose any partnership obligation or partnership liability upon either Party. No Party
shall have any right, power or authority to enter into any agreement or undertaking for, or
2377722 v3 1-23-2014 Version of Plymouth PPA
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act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the
other Parties.
}
23.6.
Hea~s.
23.7.
Cba~es in State Reg:ulations or Law. Upon thirty (30) days prior written notice, EDC may
terminate this Agreement if there are any changes in DPUC regulations or Connecticut law
that affects the EDCs ability to perform its obligations under this Agreement.
23.8.
General Rules of Construction. For all purposes of this Agreement: (a) all terms defined
herein or in the Guidelines shall have the meanings assigned to them herein or in the
Guidelines, as the case may be, and shall include the plural as well as the singular, (b) all
references in this Agreement to designated "Sections" and other subdivisions are to the
designated Sections and other subdivisions of the body of this Agreement; (c) pronouns of
either gender or neuter will include, as appropriate, the other pro11oun forms; (d) the words
"herein," "hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section or other subdivision; (e) "or" is not
exclusive; (f) "including" and "includes" will be deemed to be followed by "but not limited
to" and "but is not limited to," respectively; (g) any definition of or reference to any law,
agreement, instrument or other document herein will be construed as referring to such law,
agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified; (h) any definition of or reference to any law or statute will be
construed as referring also to any rules and regulations promulgated thereunder, and @ as
used herein, "days n shall mean n calendar days."
23.9.
Countez.parts. This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all counterparts so executed shall constitute one agreement
binding on all of the Parties hereto, notwithstanding that all of the Parties are not
signatories to the same counterpart. Facsimile counterparts may be delivered by any Party,
with the intention that they shall have the same effect as an original counterpart hereof.
All headings in this Agreement are included solely for convenient reference, are
not intended to be full and accurate descriptions of the contents of this Agreement, will
not be deemed a part of this Agreement, and will not affect the meaning or interpretation
of this Agreement.
23.10. Signatures. Each Party hereby signifies its agreement to the all of the terms of this
Agreement by its signatures hereto. Each Party represents that it has carefully reviewed
this Agreement individually and with counsel and that it has knowingly and willingly
executed this Agreement.
[Signature Page Follows]
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IN WITNESS HEREOF, the Parties have caused this INIEROJNNECIION AGREEMENT to be
executed on the day and year first written above.
TI-IE EDC
By: _ _
Name:
Title: _ _
Duly Authorized
TI-IE GENERATOR
By: _ _
Name:
Title:--
Duly Authorized
2377722 v3 1-23-2014 Version ofP!)ttlOuth PPA
16
EXHIBITG
ENERGY PRICING
Harry S. Fisher Elementary School: 79 N Main St, Terryville, CT: $.128/per kWh escalating
annually according to the CPI, as hereinafter defined, with a minimum annual energy price
increase of 1.5% and a maximum annual energy price increase of3.0%; if Connecticut Light and
Power or its successor load-serving entity reduces the kWh price charged to its customers, then
the Energy Price escalator contained in the Power Purchase Agreement (PPA) will be reset, to a
level of+ 1.5% above the previous year's kWh price. This revised PP A price will be in effect for
the succeeding annual period.
Terryville High School: 33 N Harwinton Ave, Terryville, CT 06786: $.150/per kWh escalating
annually according to the CPI, as hereinafter defined, with a minimum annual energy price
increase of 1.5% and a maximum annual energy price increase of3.0%; if Connecticut Light and
Power or its successor load-serving entity reduces the kWh price charged to its customers, then
the Energy Price escalator contained in the Power Purchase Agreement (PPA) will be reset, to a
level of+ 1.5% above the previous year's kWh price. This revised PP A price will be in effect for
the succeeding annual period.
Plymouth Center School: 107 North St Plymouth, CT 06782: $141/per kWh escalating
annually according to the CPI, as hereinafter defined, with a minimum annual energy price
increase of 1.5% and a maximum annual energy price increase of 3.0%; if Connecticut Light and
Power or its successor load-serving entity reduces the kWh price charged to its customers, then
the Energy Price escalator contained in the Power Purchase Agreement (PPA) will be reset, to a
level of+ 1.5% above the previous year's kWh price. This revised PP A price will be in effect for
the succeeding annual period.
Eli Terry Middle School: 21 N Main St, Terryville, CT 06786: $.130/per kWh escalating
annually according to the CPI, as hereinafter defined, with a minimum annual energy price
increase of 1.5% and a maximum annual energy price increase of3.0%; if Connecticut Light and
Power or its successor load-serving entity reduces the kWh price charged to its customers, then
the Energy Price escalator contained in the Power Purchase Agreement (PP A) will be reset, to a
level of+ 1.5% above the previous year's kWh price. This revised PP A price will be in effect for
the succeeding annual period.
2377722 v3 1-23-2014 Version of Plymouth PPA
EXHIBITH
FORM OF LEASE
Solar Photovoltaic Lease Agreement
This Solar Photovoltaic Lease Agreement (the "Lease") is made and entered into as of the
___ of-..-.-' 2013( the "Lease Effective Date"), b~twe~n EJ TerrySolar 1, LLC ("Tenant"),
and [:P;IY#Ioufu, Q~~e!le,{# Boat~ of~u<:llti,o~pr)~q\,ViJ:sJllp pf~Jynu:Juth] ("Landlord").
WHEREAS, Landlord is the owner of that certain real property and the improvements
thereon located in the Township of Plymouth, County of _ _ and State of Connecticut as more
particularly described in Schedule 1 attached hereto (the "Site"); and
91'
. . wHEREAs, Landlord, [PIYIIlou~ :.Qi~~!l§rt, :Soiir<i·o(Educati.OI:rw=::to~SlliP·'
and Tenant have entered into a certain SOLAR POWER PURCHASE AND SALE
AGREEMENT (the "Agreement"), dated
, 2013, wherein, inter alia, Tenant
has agreed to develop, fmance, install, own, operate, maintain, repair, replace and remove, all in
accordance with and subject the terms and provisions of the Agreement, the solar energy facility,
designated to be located on the Site in Exhibit K of the Agreement and more particularly
described in Exhibit K of the Agreement (the "Solar System"), on the Premises, as defmed in the
Agreement, which Premises on the Site is shown on Schedule 2, attached to this Lease; and
..
J>lYriiouth]
WBEREAS, Landlord has agreed to lease the Premises to Tenant and Tenant has agreed
to lease the Premises from Landlord in order for them to carry out their respective obligations
under the Agreement, all in accordance with the terms of this Lease set forth below; and
WHEREAS, in order for Tenant to carry out its obligations under the Agreement,
Landlord, in this Lease, pursuant to the Agreement, is further, subject to and in accordance with
this Lease, granting the Tenant the Access Easement, as this term is defmed in the Agreement,
over, on, under and through the Site in the locations (the "Access .Easement Area") shown on
Schedule 2 attached to this Lease; and
WHEREAS, in order for Tenant to carry out its obligations under the Agreement,
Landlord, in this Lease, pursuant to the Agreement, is further, subject to and in accordance with
this Lease, granting the Tenant the Transmission Easement and Utility Easement, as these terms
are defmed in the Agreement, over, on, under and through the Site in the locations (respectively
the "Transmission Easement Area" and the "Utility Easement Area") shown on Schedule 3,
attached to this Lease; and
WHEREAS, in order for Tenant to carry out its obligations under the Agreement,
Landlord, in this Lease, pursuant to the Agreement, is, subject to and in accordance with, this
Lease, granting the Tenant an easement (the "Construction Easement") over those portions of the
Site, shown on Schedule 2 of this Lease (the "Construction Easement Area"), for the staging of
construction and laydown and storage of materials, vehicles and equipment and the parking of
vehicles required for Tenant to install, maintain, repair, replace and/or remove the Solar System
23777'22 v3 1-23-2014 Version of Plymouth PPA
on and from the Premises in accordance with the provisions of the Agreement and this Lease;
and
WHEREAS, the Access Easement Area, the Transmission Easement Area, the Utility
Easement Area and the Construction Easement Area are referred to collectively in this Lease as
the "Easement Areas."
NOW, THEREFORE, in consideration of the Premises, the mutual covenants and
agreements contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Tenant and Landlord, intending to be legally
bound hereby, hereby agree as follows:
1.
Incorporation, References and Certain Other Provisions.
(a)
The preamble and recitals of this Lease and the schedules attached to this Lease
are hereby incorporated by reference into and made a part of this Lease as if set forth at length in
this Lease.
(b)
The Agreement is hereby incorporated by reference into and made a part of this
Lease as if set forth at length herein. Unless expressly defmed otherwise in this Lease, all
capitalized terms in this Lease have the defmitions given to them in the Agreement.
(c)
All references in Articles VII. VIII, X, XI, XII, XIII, XIV, XV and XVI and
Sections 5.2, 5.3 and_2,1 of the Agreement to the Agreement hereby are also deemed to include
this Lease as if this Lease was expressly mentioned therein. In addition to and not in limitation
of, the foregoing:
(i)
Removal of the System is governed by the Agreement;
(ii)
Each of Landlord and Tenant shall obtain and maintain the insurance
coverages required under the Agreement;
(iii)
Taxes are governed by Agreement;
(iv)
Liability, limitation of damages and indemnity are covered by the
(v)
Assignment of this Lease is governed by the Agreement; and
(vi)
All notices under this Lease are governed by Sections 5.2 and 5.3 of the
Agreement.
Agreement.
(d)
In the event of a conflict between the provisions of the Agreement and the
provisions of this Lease, the provisions of the Agreement govern.
2.
Lease.
2377722 v3 1·23-2014 Version ofP1ymouth PPA
Landlord does hereby grant, demise and lease the Premises to Tenant, and Tenant hereby
leases the Premises from Landlord, in accordance with the terms -and conditions set forth herein,
for the Use, as hereinafter defmed.
3.
Use.
(a)
Landlord, for the Term, and all renewals thereof, hereby grants to Tenant the
rights for Tenant, its contractors, subcontractors, sub-subcontractors, suppliers, materialmen and
the principals, officers and employees of all of them (collectively the "Tenant Parties") to enter
onto the Premises for the design, installation, connection, operation, maintenance, repair,
replacement and removal ofthe Solar System, referred to collectively in this Lease as the "Use."
(b)
The Use further includes the right, throughout the Term, and all renewals thereof,
to: (i) locate the Solar System on the Premises, (ii) keep the Solar System in place on the
Premises and (iii) operate the Solar System on the Premises, all in accordance with the
provisions of the Agreement and of this Lease.
(c)
Further, if Buyer does not exercise its purchase option, pursuant to Section 6.6 of
the Agreement, at the end of the Term or a renewal thereof, as applicable, for a time period of: (i)
the shorter of one hundred eighty days (180) days after the expiration of the Term or a renewal
term thereof, as applicable, or (ii) Tenant's removal of the Solar System and restoration of the
Premises in accordance with the provisions of the Agreement, this Lease and the applicable
provisions of the Agreement shall remain in effect solely for the purpose of allowing Tenant to
remove the Solar System from and to restore, the Premises, in accordance with the provisions of
the Agreement. The rights provided to Tenant in this Section 3(c) are also part of and included
within the meaning of the Use.
4.
Easements.
During the Term, all renewals thereof and for the time period set forth in Section 3(c) of
this Lease, Landlord hereby grants Tenant the following non-exclusive easements (collectively
the "Easements"):
(a)
The Access Easement on, over and above the Access Easement Area to permit the
Tenant Parties to enter on to the Access Easement Area with Persons, vehicles and equipment in
order to install, maintain, repair, replace and/or remove the Solar System on and from the
Premises.
(b)
The Transmission Easement over, under, on, through and above the Transmission
Easement Area for the Tenant Parties to interconnect the Solar System to the electrical
distribution systems of the Site and of Buyer's Serving Utility and for the Tenant Parties to
maintain, repair, replace and/or remove same and to permit the Solar System to be
interconnected with electrical distribution systems of the Site and of Buyer's Serving Utility.
(c)
The Utility Easement over, under, on, through and above the Utility Easement
Area for the Tenant Parties to access electric and water utility service required for the Tenant
Parties to install, maintain, repair, replace and/or remove the Solar System on and from the
Premises and to provide Station Power to the Solar System. "Station Power" means electric
2377722 v3 1-23-2014 Version ofP1ymoutb PPA
energy consumed in the start-up and operation of the Solar System, which is distinct from the
alternating current output of the Solar System.
(d)
The Construction Easement on, over and above the Construction Easement Area
for:
(i)
the staging of construction and the laydown and storage of materials by
the Tenant Parties required for the installation, maintenance, repair, replacement and/or removal
of the Solar System on and from the Premises in accordance with the provisions of the
Agreement and this Lease,
(ii)
the storage and use of vehicles and equipment by the Tenant Parties
required for Tenant to install, maintain, repair, replace and/or remove the Solar System on and
from the Premises in accordance with the provisions of the Agreement and this Lease, and
(iii) the parking of the vehicles of the Tenant Parties engaged in the
installation, maintenance, repair, replacement and/or removal of the Solar System on and rrom
the Premises in accordance with the provisions of the Agreement and this Lease.
5.
Rent.
For and in consideration of the Use of the Premises and for the Easements, the Tenant
hereby covenants to pay Landlord, on or before the Commercial Operations Date, and on or
before each anniversary of the Commercial Operation Date during the Term, and any renewals
thereof, one dollar ($1.00) per year.
6.
Representations and Warranties, Covenants of Landlord and Tenant.
(a)
Authorization and Validity.
(i)
The execution and delivery by Landlord of, and the performance of its
obligations under, this Lease have been duly authorized by all necessary action, do not and will
not require any further consent or approval of any other Person, and do not contravene any
provision of, or constitute a default under, any indenture, mortgage or other material agreement
binding on Landlord or any valid order of any court, or regulatory agency or other body having
authority to which Landlord is subject. This Lease constitutes a legal and valid obligation of
Landlord, enforceable against Landlord, subject to insolvency and moratorium laws, in
accordance with its terms.
(ii)
The execution and delivery by Tenant of, and the performance of its
obligations under, this Lease have been duly authorized by all necessary action, do not and will
not require any further consent or approval of any other Person, and do not contravene any
provision of, or constitute a default under, any indenture, mortgage or other material agreement
binding on Tenant or any valid order of any court, or regulatory agency or other body having
authority to which Tenant is subject. This Lease constitutes a legal and valid obligation of
Tenant, enforceable against Tenant, subject to insolvency and moratorium laws, in accordance
with its terms.
2377722 v3 1-23-2014 VersionofPiymouthPPA
(b)
Landlord's Interest in Site. Landlord represents, warrants and covenants that
Landlord has lawful authorization to use and occupy the Site, including the Premises and the
Easement Areas, that Landlord owns good and marketable fee simple title to the Site, including
the Premises and the Easement Areas and that Tenant shall have quiet and peaceful possession of
the Premises and the Easement Areas, free from any claim of any entity or Person of superior
title thereto without hindrance to or interference with or molestation of Tenant's quiet enjoyment
thereof, throughout the Term and any renewals thereof. Landlord, at its sole cost and expense,
shall obtain subordination non-disturbance and attornment agreements, in form and substance
reasonably acceptable to Tenant and all Lenders of Tenant (the "SNDAs") from all Persons
holding mortgages or deeds of trust on the Site during the Term and all renewals thereof.
(c)
No Interference with and Protection of System. Landlord represents and warrants
to Tenant that there are no circumstances known to Landlord and commitments to third parties
that may damage, impair or otherwise adversely affect the Solar System or its construction,
installation or function (including activities that may adversely affect the Solar System's
exposure to sunlight). Landlord will not initiate, conduct or permit activities on, in or about the
Premises or the Site that have a likelihood of causing damage, impairment or otherwise
adversely affecting the Solar System. Landlord shall take all reasonable steps to limit access to
the Premises except to the Tenant Parties. Landlord shall implement and maintain reasonable
and appropriate security measures on the Site to prevent Landlord's employees, invitees,
students, agents and representatives, and other unrelated third parties, from having access to the
Premises or the Solar System, and to prevent from occurring any theft, vandalism or other
actions that have a reasonable likelihood of causing damage, impairment or otherwise adversely
affecting the Solar System.
(d)
Insolation.
Landlord acknowledges and agrees that access to soolight
(!!!Insolation!!.) for the Solar System is essential to the value to Tenant of the rights granted
hereunder and is a material inducement to Tenant in entering into this Lease and the Agreement.
Accordingly, Landlord shall not knowingly permit any interference with inselaHenlnsolation on
and at the Premises. Without limiting the foregoing, Landlord shall not construct or permit to be
constructed any structure on the Site, or permit the growth· of foliage, that could reasonably be
known to have a material adverse effect on in:selatienlnsolation levels. If Landlord becomes
aware of any potential development or other activity on adjacent or nearby properties that could
diminish the insolationlnsolation to the Premises, Landlord shall advise Tenant of such
information and reasonably cooperate with Tenant in any measures necessary to preserve
existing levels of insolatienlnsolation at the Premises.
(e)
Hazardous Materials. Landlord represents and warrants that, to the best of its
knowledge, there are no Hazardous Materials (as defined herein) present on, in or under the Site
or any buildings thereon in violation of any applicable Law, or in such quantities that would
require investigation or remediation under Environmental Laws (as defined herein). Landlord
shall not introduce or use any Hazardous Materials on, in or under the Site or the buildings
thereon in violation of any Environmental Laws. If Landlord becomes aware of any Hazardous
Materials, Landlord shall promptly notify Tenant of the type and location of such Hazardous
Materials in writing. Landlord agrees to assume full responsibility for (and protect, indemnify
and defend Tenant against) any liability or cleanup obligations for any contamination or
pollution or breach of Environmental Laws related to the Site, unless, but only to the extent,
23777'22 v3 1-23-2014 Version ofP1ymouth PPA
directly attributable to the actions of the Tenant Parties. For purposes of this Lease, "Hazardous
Materials" means and includes each substance designated as a hazardous waste, hazardous
substance, hazardous material, pollutant, contaminant or toxic substance or as designated with
words of similar meaning and regulatory effect under any Environmental Law, petroleum and
petroleum products or derivatives, and any other substance for which liability or standards of
conduct may be imposed under Environmental Law. For purposes of this Lease, "Environmental
Law" means the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. § 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.;
the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C.
§ 7401 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 1471 et seq.; the Toxic
Substances Control Act, 15 U.S.C. §§ 2601 through 2629; and all Laws of any Governmental
Authority having jurisdiction over the Site or the Premises addressing pollution or protection of
the environment and all amendments to such Laws and all regulations implementing any of the
foregoing.
7.
Amendments.
This Lease may be amended only in writing signed by Tenant and Landlord or their
respective permitted successors or assigns.
8.
Memorandum of Lease and Financing Statements.
Landlord and Tenant shall execute the memorandum of this Lease and the Agreement in
the form attached hereto as Schedule 4 which Tenant can record against the title to the Site.
Further, Tenant is permitted to file and Landlord consents to the filing of, one or more financing
statements against the Solar System in those jurisdictions of Tenant's choosing to confirm
Tenant's ownership of the Solar System.
9.
Lien Waiver and Estoppel Certificate.
(a)
Lien Waiver. From time to time, upon written request by Tenant, Landlord shall
provide within ten (10) Business Days thereafter, a lien waiver from any Person purporting to
have a Lien, security interest or other encumbrance on the Premises and/or the Easement Areas,
confirming that it has no interest in the Solar System and no interest in Tenant's leasehold estate
in the Premises or easement rights in the Easement Areas.
(b)
From time to time, upon written request by either Landlord or Tenant, Landlord
or Tenant shall provide the other, within seven (7) days thereafter, an estoppel certificate
attesting, to the knowledge of, as applicable, Landlord or Tenant, of, as applicable, Tenant's or
Landlord's compliance with the terms of this Lease and the Agreement or detailing any known
issues of noncompliance, and making such other representations as may be reasonably required
by a Lender or mortgagee.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK. SIGNATURE
PAGES FOLLOW.]
23777'!2 v3 1-23-2014 Version ofP1ymouth PPA
IN WITNESS WHEREOF, the Landlord and the Tenant have executed this Lease as of
the Lease Effective Date.
ATTEST/WITNESS
By: _ _ _ _ _ _ _ _ __
Name: ___________________
By: ______________
Name: ____________________
Title:------------------=------
Title:------------------'='=~~~"-'----
ATTEST/WITNESS
TENANT:
EJ Terry Solar 1, LLC
By: ____________________
By: _ _ _ _ _ _ _ __
Name: ____________________
Name~=------------------------­
Title: --------------------------
2377722 v3 1-23-2014 Version ofP!ymouthPPA
Title:-----------------
Schedule 1
Legal Description of Site
[TBD]
2377722 v3 1-23-2014 Version ofPI}lllouth PPA
Schedule 2
Plan Showing Premises, Access Easement Area and Construction Easement Area
[TBD]
2377722 v3 1-23-2014 Version of Plymouth PPA
Schedule 3
Plan Showing Transmission Easement Area and Utility Easement Area
[TBD]
2377722 v3 1-23-2014 Version of Plymouth PPA
Schedule 4
Form of Memorandum of Lease
MEMORANDUM OF LEASE
Record and Return to:
Kevin J. Moore, Esq.
Sills Cummis & Gross P.C.
650 College Road East
Princeton, New Jersey 08540
(609) 227-4602
THIS MEM()RANDUM OF LEASE ("Memorandum") between [Plymmith, Ccffinectieut
·
, 201_ and gives notice of that certain Solar Photovoltaic
Tenant, is dated as of
Lease Agreement and Solar Purchase and Sale Agreement covering portions of that certain
property located in the Townshlp of Plymouth, County of
Litchfield and State of
Connecticut, commonly known as
and more particularly described in Schedule
A_, attached hereto and made a part hereof (the "Site").
B.oard. ofpducation.~r To\VllSrup ofPlyffiop.fu], as Landlord and EJ Terry Solar 1, LLC, as
Among other things, the Solar Photovoltaic Lease Agreement relates to the Solar System,
as defined in the Solar Photovoltaic Lease Agreement, at the Site, which Solar System is owned
by Tenant, the Premises at the Site and the Easement Areas at the Site, as these terms are defined
in the Solar Photovoltaic Lease Agreement.
This Memorandum of Lease is solely for recording purposes and shall not be construed to
alter, modify, limit, amend or supplement the Solar Photovoltaic Lease Agreement or the Solar
Purchase and Sale Agreement in any way.
IN WITNESS WHEREOF, this Memorandum of Lease has been duly executed as of
the date set forth above.
ATTEST/WITNESS
LANDLORD:
[
By: ____________________
Name: ____________________
By:--------------Name: __________________
Title:-------------------
Title:--------------------
ATTEST/WITNESS
TENANT:
EJ Terry Solar 1, LLC
By: ________________
Name: ___________________
By: _______________
Name: __________________
Title:----------------
Title:---------------=
2377722 v3 1-23-2014 Version ofP1ymouth PPA
STATE OF CONNECTICUT
COUNTYOF
)
)SS:
)
I certify that on
, 201 _) ----,---~-=----:-personally came before me and acknowledged under oath to my satisfaction that:
a. . This person is the
of [Plyriu:iut11:,"pollg~6fiffiit.Boar4~f
~uca#Oh (,i:)'o\Vn~ of~~ytl1~mth] named in this Agreement;
b.
This person is the attesting witness to the signing of this document by the
proper officer, who is the
of the [Plymouth-, CofiiJ:eetiem:rBoardofEducationor
J'pwnsl¥P offl)'n:iouth];
.c: ..· . Thi.s document was signed and delivered by the [l>Iymol1ih, C~eeti~~t
Boarcfo:t'~ducati~noi:Town:# of Plymouth] as its vol~tary act duly authorized by the ..
[Plytriouth, Cql.l~eetioot BpanlofEduc<ttion or Town5l;lip of Plymouth];
d.
This person signed this proof to attest to the truth of these facts.
Name: __________________
Title:--------Sworn to and subscribed
before me this_ day of____,
201_
Notary, State of Connecticut
2377722 v3 1·23-2014 Version ofP1ymouth PPA
STATEOFNEWYORK
COUNTY OF NEW YORK
)
)SS:
)
_, 20I_,
personally came before me and
I CERTIFY that on
this person acknowledged under oath, to my satisfaction, that:
ofEJ Terry
a)
this person signed and delivered the attached document as the
Solar I, LLC, a limited of the State of Delaware; and
b)
this document was signed and delivered by EJ Terry Solar I, LLC, as its voluntary act
and deed by virtue of authority from its members.
Notary, State of New York
2377722 v3 1-23-2014 Version ofP1ymouth PPA
SCHEDULE A
LEGAL DESCRIPTION OF SITE
[TBD]
2377722 v3 1-23-2014 Version of Plymouth PPA
I
I
EXHIBIT I
(Intentionally Omitted)
2377722 v3 1-23-2014 Version ofP1ymouth PPA
EXHIBITK
SPECIFICATIONS OF SOLAR SYSTEMS
AND
DATES OF ZREC CONTRACTS
Harry S. Fisher Elementary School:
SYSTEM SIZE*
in Wattsoc)
SYSTEM COMPONENTS
Component
PVModules
Racking System
Inverters
Manufacturer
Irina or comparable
GameChange or comparable
SMA or comparable
Model
TBD
TBD
TBD
Contractor retains the right to change the make and manufacturer of such System components
with components of equivalent size and quality if the specified components are not available,
subject to Company's prior written approval, not to be unreasonably withheld, prior to making
changes thereto.
CONNECTICUT LIGHT & POWER ZREC CONTRACT INFORMATION:
Contract#: M2-0975
Dated: September 24, 2013
*Subject to Governmental Approvals
2377722 v3 1-23-2014 Version ofPiymouthPPA
Terryville High School:
SYSTEM SIZE*
SYSTEM COMPONENTS
Component
PVModules
Racking System
Inverters
Manufacturer
Trina or comparable
GameChange or comparable
SMA or comparable
Model
TBD
TBD
TBD
Contractor retains the right to change the make and manufacturer of such System components
with components of equivalent size and quality if the specified components are not available,
subject to Company's prior written approval, not to be unreasonably withheld, prior to making
changes thereto.
CONNECTICUT LIGHT & POWER ZREC CONTRACT INFORMATION:
Contract #: L2-0905
Dated: August 15, 2013 .
*Subject to Governmental Approvals
2377722 v3 1-23-2014 Version ofPlymouth PPA
Plymouth Center School:
SYSTEM SIZE*
SYSTEM COMPONENTS
Component
PV Modules
Racking System
Inverters
Manufacturer
Irina or comparable
GameChange or comparable
SMA or comparable
Model
TBD
TBD
TBD
Contractor retains the right to change the make and manufacturer of such System components
with components of equivalent size and quality if the specified components are not available,
subject to Company's prior written approval, not to be unreasonably withheld, prior to making
changes thereto.
CONNECTICUT LIGHT & POWER ZREC CONTRACT INFORMATION:
Contract #: M2-0976
Dated: September 24, 2013
*Subject to Governmental Approvals
2377722 v3 1·23-2014 Version ofP1ymouth PPA
Eli Terry Middle School:
SYSTEM SIZE*
in Wattsoc)
SYSTEM COMPONENTS
Com.I>_onent
PVModules
Racking System
Inverters
Manufacturer
Trina or comparable
GameChange or comparable
SMA or comparable
Model
TBD
TBD
TBD
Contractor retains the right to change the make and manufacturer of such System components
with components of equivalent size and quality if the specified components are not available,
subject to Company's prior written approval, not to be unreasonably withheld, prior to making
changes thereto.
CONNECTICUT LIGHT & POWER ZREC CONTRACT INFORMATION:
Contract#: L2-0974
Dated: August 15, 2013
*Subject to Governmental Approvals
2377722 v3 1-23-2014 Version ofPlymouth PPA