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ATTACHMENT 3
SAMPLE AGREEMENT
The Sample Agreement will be subject to review and modification by the City
Attorney’s Office.
SLC CONTRACT NO. 57-1-12-5773
Rev. July 10, 2012/ds
SAMPLE AGREEMENT
SOLAR POWER PURCHASE AGREEMENT
by and between
______TBD______________
a _______________________ company
and
SALT LAKE CITY CORPORATION,
a Utah municipal corporation
Dated as of the date the City Recorder attests the applicable City signature
(Which date shall be the recordation date; see stamp on document)
TABLE OF CONTENTS
slc Contract No. 57-1-12-5773 ...................................................................................................... 1
1.
Definitions .......................................................................................................................... 2
2.
Purchase And Sale Of Solar Services .............................................................................. 6
2.1
2.2
3.
Price And Payment ............................................................................................................ 6
3.1
3.2
3.3
3.4
3.5
4.
Consent .................................................................................................................. 10
Installation ............................................................................................................. 10
Conditions Precedent To Commencement Of Construction And Installation ...... 11
Reporting And Testing .......................................................................................... 11
Utility Approvals ................................................................................................... 12
System And Output Ownership............................................................................. 12
Hazardous Materials .............................................................................................. 13
Operation And Maintenance Of System ....................................................................... 14
6.1
6.2
6.3
6.4
7.
Lease........................................................................................................................ 8
Access To Project Site............................................................................................. 8
Use Of Rights .......................................................................................................... 8
Rent ......................................................................................................................... 8
Quiet Enjoyment ..................................................................................................... 9
Insolation ................................................................................................................. 9
Sites Conditions And Utilities ................................................................................. 9
Other City Activities ............................................................................................... 9
Recording/ Third Party Consents ......................................................................... 10
Installation, Ownership And Removal Of The System ................................................ 10
5.1
5.2
5.3
5.4
5.5
5.6
5.7
6.
Initial Payment ........................................................................................................ 6
Price ......................................................................................................................... 6
Taxes ....................................................................................................................... 6
Billing And Payment ............................................................................................... 7
Change In Law ........................................................................................................ 7
Lease And Related Rights................................................................................................. 8
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
5.
Environmental Attributes ........................................................................................ 6
Publicity .................................................................................................................. 6
O&M Work; Phone/Data Line .............................................................................. 14
Malfunctions And Emergencies ............................................................................ 14
Metering ................................................................................................................ 15
Outages .................................................................................................................. 15
Representations And Warranties .................................................................................. 15
Solar Power Purchase Agreement - SLC
7.1
7.2
8.
Representations And Warranties Of Provider ....................................................... 15
Representations And Warranties Of City .............................................................. 16
Covenants ......................................................................................................................... 17
8.1
8.2
Provider’s Covenants ............................................................................................ 17
City’s Covenants ................................................................................................... 18
9.
Insurance ........................................................................................................................ 179
10.
Force Majeure; Casualty; Condemnation .................................................................... 21
10.1
10.2
10.3
11.
Term; City Options; Termination ................................................................................. 22
11.1
11.2
11.3
11.4
11.5
11.6
11.7
12.
City Remedies Upon Default ................................................................................ 26
Provider’s Remedies Upon City Default………………………………………... 26
No Consequential Damages .................................................................................. 27
Effect Of Termination Of Agreement ................................................................... 27
Indemnification................................................................................................................ 27
14.1
14.2
14.3
14.4
14.5
15
City Default ........................................................................................................... 25
Provider Default .................................................................................................... 26
Remedies Following Default ........................................................................................... 26
13.1
13.2
13.3
13.4
14
Term ...................................................................................................................... 22
City Options Upon Cessation Of Business Operations At The Properties ........... 22
City Options Upon Expiration Of Term ................................................................ 23
City Purchase Option Before Expiration Date ...................................................... 24
Payment Of Termination Value On Termination Date ......................................... 24
Provider Termination ............................................................................................ 24
City Termination ................................................................................................... 25
Defaults. ............................................................................................................................ 25
12.1
12.2
13
Force Majeure Events ............................................................................................ 21
Casualty ................................................................................................................. 21
Condemnation ....................................................................................................... 22
Indemnification By Provider ................................................................................. 27
Indemnification By City ........................................................................................ 28
Notice Of Claims ................................................................................................... 28
Defense Of Action ................................................................................................. 28
Survival Of Provisions .......................................................................................... 28
Miscellaneous Provisions ................................................................................................ 28
15.1
15.2
Notices ................................................................................................................... 28
Assignment By City .............................................................................................. 30
15.3
15.4
15.5
15.6
15.7
15.8
15.9
15.10
15.11
15.12
15.13
15.14
15.15
15.16
15.17
15.18
15.19
15.20
15.21
15.22
15.23
15.24
Assignment By Provider ....................................................................................... 29
Change Of Control ................................................................................................ 30
Successors And Assigns ........................................................................................ 30
Entire Agreement .................................................................................................. 30
Amendments To Agreement ................................................................................. 30
Waivers; Approvals ............................................................................................... 30
Partial Invalidity .................................................................................................... 30
Industry Standards ................................................................................................. 31
Counterparts .......................................................................................................... 31
No Third Party Rights ........................................................................................... 31
Liquidated Damages .............................................................................................. 31
No Agency............................................................................................................. 31
No Public Utility ................................................................................................... 31
No Recourse To Affiliates..................................................................................... 31
Cooperation With Financing ................................................................................. 31
Dispute Resolution ................................................................................................ 32
Non-Appropriation ................................................................................................ 32
Governing Law; Jurisdiction; Forum .................................................................... 32
Waiver Of Jury Trial ............................................................................................. 33
Cumulative Remedies ........................................................................................... 33
Headings ................................................................................................................ 33
Additional Documents And Actions ..................................................................... 33
16
Government Records Access And Management Act ............................................... …33
17
Estoppel ............................................................................................................................ 33
18
Waiver Of Sovereign Immunity ..................................................................................... 34
19
Representation Regarding Ethical Standards For City Officers And Employees And
Former City Officers And Employees ……………………………………………….34
Exhibits:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
-
Description of Properties
Description of Project Sites, Performance Requirements and Constraints
Description of System
Pricing
Termination Values
Permitted Liens
Form of Memorandum of Solar Power Purchase Agreement
Schedules:
Schedule 1
-
Performance and Payment Bond Amounts
SLC CONTRACT NO. 57-1-12-5773
Rev. June 26, 2012 lb/bf/ds
SAMPLE AGREEMENT
SOLAR POWER PURCHASE AGREEMENT
This SOLAR POWER PURCHASE AGREEMENT (this ―Agreement‖) is made by and
between TBD, a ____________ (―Provider‖), and Salt Lake City Corporation, a Utah municipal
corporation (―City‖) (each, a ―Party‖ and collectively, the ―Parties‖), and is dated as of the date the
City Recorder attests the applicable City signature (which date shall be the recordation date).
RECITALS
1.
Provider is in the business of developing, owning and managing renewable energy
resources and selling the energy output from such resources;
2.
City owns, directly or indirectly, the Salt Lake City Public Safety Building located
at 475 South 300 East, Salt Lake City, Utah (the ―PSB‖), and the Salt Lake City property located at
1995 West 500 South, Salt Lake City, Utah, specifically the old Redwood Road Landfill property
(―Redwood Road Landfill‖) the legal descriptions of which are set forth in Exhibit A (the
―Properties‖);
3.
Provider desires to install, maintain, own and operate electric grid-connected
photovoltaic solar power plants with a total generating capacity rated at approximately _______ kW
(the ―System‖) on a portion of the Properties, more fully described in Exhibits B and C (the ―Project
Sites‖), and City desires to permit such installation, maintenance, ownership and operation on the
terms and conditions herein contained;
4.
Provider desires to sell, and City desires to purchase, the entire electric energy output
of the System (―Energy‖) pursuant to the terms and conditions herein contained (the ―Solar
Services‖);
5.
The City desires to pre-pay the first five years of energy use with a one-time
purchase amount of $ _________;
NOW THEREFORE, in consideration of the mutual promises set forth below, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
AGREEMENT
1. Definitions. Unless otherwise required by the context in which any term appears:
(a) capitalized terms used in this Agreement shall have the respective meanings set forth in this
Section 1; (b) the singular shall include the plural and vice versa; (c) the words ―herein,‖ ―hereof‖
and ―hereunder‖ shall refer to this Agreement as a whole and not to any particular section or
subsection hereof; and (d) references to this Agreement shall include a reference to all exhibits
hereto, as the same may be amended, modified, supplemented or replaced from time to time.
―Agreement‖ shall mean this Solar Power Purchase Agreement, including the
exhibits hereto.
―Applicable Law‖ shall mean, with respect to any Person, any constitutional
provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision,
certificate, holding, injunction, registration, license, franchise, permit, authorization, guideline,
governmental approval, consent or requirement of any Governmental Authority having jurisdiction
over such Person or its property, enforceable at law or in equity, including the interpretation and
administration thereof by such Governmental Authority.
―Business Confidential Information‖ shall have the meaning set forth in Section 16.
―Business Day‖ shall mean any day other than Saturday, Sunday or any holiday
celebrated by City by closing its general business offices in Salt Lake City, Utah.
―Claim Notice‖ shall have the meaning set forth in Section 14.3.
―Code‖ shall mean the Internal Revenue Code of 1986, as amended.
―Commercial Operation Date‖ shall mean the date, as determined by Provider and
after required testing, on which the System is (i) functionally complete and operating and (ii)
Energy is delivered through the System’s meter and to the Interconnection Point.
―City‖ shall have the meaning set forth in the preamble.
―City Default‖ shall have the meaning set forth in Section 12.1.
―City Hazardous Materials‖ shall have the meaning set forth in Section 5.7.1.
―Disclosing Party‖ shall have the meaning set forth in Section 16.
―Dispute‖ shall have the meaning set forth in Section 15.18.
―Effective Date‖ shall have the meaning set forth in the fifth recital.
―Energy‖ shall have the meaning set forth in the fourth recital.
―Environmental Attributes‖ shall mean, in the generation of Energy, any and all fuel,
emissions, air quality or other environmental characteristics, credits, benefits, reductions, offsets
and allowances (a) resulting from the purchase, generation or use of Energy or the avoidance of the
emission of any gas, chemical or other substance to the air, soil or water attributable to such
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purchase, generation or use, or (b) arising out of any law, rule or regulation; provided, however, the
term ―Environmental Attributes‖ shall exclude any and all state and federal production tax credits,
any investment tax credits, tax incentives or tax grants, and any other tax credits, tax incentives, tax
benefits or tax grants which are or will be generated or earned by solar energy generation.
―Environmental Financial Incentives‖ shall mean each of the following financial
benefits, rebates and incentives that is in effect as of the date of this Agreement or may come into
effect in the future: (i) performance-based incentives under a Governmental Authority’s or a
utility’s program or initiative, incentive tax credits (including investment tax credits arising under
the Code), other tax benefits, and accelerated depreciation, however named or referred to, with
respect to any and all fuel, emissions, air quality, energy generation, or other environmental or
energy characteristics, resulting from the use of solar generation or the avoidance of the emission of
any gas, chemical or other substance into the air, soil or water attributable to the sale of Energy
generated by the System; (ii) all reporting rights with respect to such incentives; and (iii) all
Rebates.
―Expiration Date‖ shall have the meaning set forth in Section 11.1.
―Fair Market Value‖ shall have the meaning set forth in Section 11.3.2.
―Force Majeure Event‖ shall mean, when used in connection with the performance of
a Party’s obligations under this Agreement, any act or event (to the extent not caused by such Party
or its agents, employees or representatives) that is unforeseeable, or being foreseeable, unavoidable
and outside the control of the Party that invokes it, and that renders said Party unable to comply
totally or partially with its obligations under this Agreement. In particular, a Force Majeure Event
shall be considered to include, without limitation, any of the following events:
(a)
war, riot, acts of a public enemy or other civil disturbance;
(b)
acts of God, including but not limited to, storms, floods, lightning,
earthquakes, hailstorms, ice storms, tornados, typhoons, hurricanes,
landslides, volcanic eruptions, range or forest fires, and objects
striking the earth from space (such as meteorites), sabotage or
destruction by a third party of facilities and equipment relating to the
performance by the affected Party of its obligations under this
Agreement; and
(c)
strikes, walkouts, lockouts or similar industrial or labor actions or
disputes.
Notwithstanding the foregoing, such weather, wind and other load related conditions for which the
System is engineered and designed to withstand shall not be deemed a Force Majeure Event.
―Governmental Authority‖ shall mean any federal, state, regional, county, town, city,
or municipal government, whether domestic or foreign, or any department, agency, bureau, or other
administrative, regulatory or judicial body of any such government including, without limitation,
any governmental or quasi-governmental entity or independent system operator or regional
transmission operator.
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―Hazardous Materials‖ shall mean any pollutant, contaminant, hazardous substance,
hazardous waste, medical waste, special waste, toxic substance, petroleum or petroleum-derived
substance, waste or additive, asbestos, polychlorinated biphenyl (PCB), radioactive material, or
other compound, element or substance in any form (including products) regulated, restricted or
addressed by or under any Applicable Law.
―Indemnified Party‖ shall have the meaning set forth in Section 14.3.
―Indemnifying Party‖ shall have the meaning set forth in Section 14.3.
―Initial Payment‖ shall have the meaning set forth in Section 3.1.
―Initial Term‖ shall have the meaning set forth in Section 11.1.
―Insolation‖ shall mean the amount of solar energy per square meter falling on a
particular location, as published by the National Renewable Energy Laboratory.
―Interconnection Point‖ shall have the meaning set forth in Section 5.6.4.
―kWh‖ shall have the meaning set forth in Section 2.
―kWh Rates‖ shall have the meaning set forth in Section 3.2.
―Lease‖ shall have the meaning set forth in Section 4.1.
―Liens‖ shall have the meaning set forth in Section 8.1.6.
―Meter‖ shall have the meaning set forth in Section 6.3.1.
―Monthly Period‖ shall mean the period commencing on the Commercial Operation
Date and ending on the last day of the calendar month in which the Commercial Operation Date
occurs, and, thereafter, all subsequent one (1)-calendar month periods during the Term.
―Party‖ or ―Parties‖ shall have the meaning set forth in the preamble.
―Person‖ shall mean any individual, corporation, partnership, company, joint
venture, association, trust, unincorporated organization, firm or other entity, or a Governmental
Authority.
―Project Sites‖ shall have the meaning set forth in the third recital.
―Properties‖ shall have the meaning set forth in the second recital.
―Provider‖ shall have the meaning set forth in the preamble. For purposes of access
rights and other rights necessary for Provider to perform its obligations hereunder, the term
―Provider‖ shall include Provider’s authorized agents, contractors and subcontractors.
―Provider Default‖ shall have the meaning set forth in Section 12.2.
―Provider Hazardous Materials‖ shall have the meaning set forth in Section 5.7.3.
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―Purchase Price‖ shall mean the sum of (i) the Fair Market Value of the System and
(ii) the Termination Fee, as applicable on the date of purchase.
―Rebates‖ shall mean any and all Governmental Authority or utility rebates or other
funding offered for the development of photovoltaic systems.
―Receiving Party‖ shall have the meaning set forth in Section 16.
―Reporting Rights‖ shall mean the right of Provider to report to any Governmental
Authority or other party, including without limitation under Section 1605(b) of the Energy Policy
Act of 1992 and provisions of the Energy Policy Act of 2005, or under any present or future
domestic, international or foreign emissions trading program, that Provider owns the Environmental
Financial Incentives associated with the Energy.
―Solar Services‖ shall have the meaning set forth in the fourth recital.
―Station Power‖ shall have the meaning set forth in Section 4.7.3
―System‖ shall have the meaning set forth in the third recital including, without
limitation, solar panels, mounting substrates or supports, wiring and connections, power inverters,
service equipment, metering equipment and utility interconnections; provided, however, that the
term System shall only include equipment and materials up to but not including the Interconnection
Point of the System.
―System Installation‖ has the meaning set forth in Section 5.1.1.
―Term‖ shall mean the Initial Term.
―Termination Date‖ shall have the meaning set forth in Section 11.1.
―Termination Fee‖ shall mean the amount specified for the applicable year on the
table in Exhibit E.
―Termination Value‖ shall mean the sum of (i) the Termination Fee, (ii) the value of
any tax benefits being recaptured because of the early termination before the end of the sixth year of
commercial operation, (iii) all costs, if any, (including liquidated damages or penalties) associated
with the termination of any other agreements associated with the System (such as third party
contractor agreements or Environmental Attribute sale agreements), and (iv) the costs of
dismantling, packing, removing and transporting the System and restoring the Project Sites to their
original condition, ordinary wear and tear excepted.
―Transfer Taxes‖ shall have the meaning set forth in Section 3.3.
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2. Purchase and Sale of Solar Services. City agrees to purchase and accept from
Provider, and Provider agrees to sell and deliver to City, one hundred percent (100%) of the Solar
Services during each Monthly Period of the Term in accordance with the terms and conditions set
forth herein. City acknowledges and agrees that it is required to take and/or pay for all the Solar
Services produced by the System. City also acknowledges and agrees that while the Solar Services
are calculated and billed on the basis of kilowatt hours (―kWh‖) of Energy delivered as set forth in
Section 3.2, the Solar Services represent a package of services including the production and supply
of electrical energy output from the System together with any other services associated with solar
energy production that Provider may provide to City.
2.1
Environmental Attributes. City’s purchase of Solar Services includes
Environmental Attributes, however City’s purchase of Solar Services does not include
Environmental Financial Incentives or Reporting Rights, all of which shall be retained and owned
by Provider. If the standards used to qualify the Environmental Attributes to which City is entitled
under this Agreement are changed or modified, Provider shall, at City’s request and expense, use all
reasonable efforts to cause the Environmental Attributes to comply with new standards as changed
or modified. City shall not take any action or suffer any omission that would have the effect of
impairing the value to Provider of the Environmental Financial Incentives. Provider shall not take
any action or suffer any omission that would have the effect of impairing the value to City of the
Environmental Attributes.
2.2
Publicity. Any media outreach regarding this project shall be directed by
City.
3. Price and Payment.
3.1
Initial Payment. City shall pay Provider $ _______ (the ―Initial Payment‖)
on the Commercial Operation Date. Provider will cause the Initial Payment to be applied as a
credit toward the City’s purchases of Solar Services beginning with the first payment, and
continuing monthly thereafter until the total Solar Services provided exceed the value of the Initial
Payment. In the event the Agreement is terminated prior to the total Solar Services provided
exceeding the value of the Initial Payment, the amount of the Initial Payment exceeding the value of
the Solar Services shall be returned to City at the time of termination.
3.2
Price. City shall pay Provider for the Solar Services provided pursuant to the
terms of this Agreement at the rates per kWh (the ―kWh Rates‖) set forth in Exhibit D.
3.3
Taxes. Provider shall pay and be responsible for all sales, use, excise,
transfer, franchise and other similar taxes (―Transfer Taxes‖) that are imposed by any taxing
authority arising out of or with respect to the purchase or sale of the Solar Services (regardless of
whether such Transfer Taxes are imposed on Provider or City), together with any interest, penalties
or additions to tax payable with respect to such Transfer Taxes. Provider will pay and be
responsible for any sales or use tax imposed with respect to Provider’s acquisition and installation
of the System and for any taxes imposed on the Provider’s personal property. Provider shall pay
and be responsible for any and all real property, personal property and privilege taxes imposed or
assessed on the Project Sites or Properties.
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3.4
Billing and Payment. Billing and payment for the Solar Services sold and
purchased under this Agreement and any other amounts due and payable hereunder shall be as
follows:
3.4.1 Invoice. Provider shall provide an invoice to City on a monthly basis,
by the fifteenth (15th) Business Day of each calendar month (or on such other schedule as is
mutually agreed on by Provider and City). The invoice will include (i) the amount of Energy
delivered to City, (ii) the relevant kWh Rate for Energy, and (iii) the total amount to be paid by City
to Provider, for Energy and related Solar Services provided in the preceding month.
3.4.2 Payments. Once the City’s pre-payment credits have been exhausted
and subject to adjustment in accordance with Section 3.4.3, for each Monthly Period during the
Term, City shall pay to Provider the amount invoiced in U.S. Dollars. City may make its payments
to Provider by check or by Automated Clearing House transactions or wire transfers of immediately
available funds to the bank account designated by Provider. All such payments made after the
exhaustion of the pre-payment credits shall be made within thirty (30) days after receipt of the
invoice by City.
3.4.3 Invoice Errors. Within thirty (30) days after City’s receipt of any
invoice, and at any time thereafter, City may provide written notice to Provider of any alleged error
therein. If the notice of alleged error is submitted at or before the payment due date, City shall pay
all undisputed amounts in accordance with Section 3.4.2. If the notice of alleged error is submitted
after City has furnished a payment that includes the alleged error that results in an overpayment by
City, Provider shall, within thirty (30) days after receipt of such notice, issue a refund of the amount
billed in error or provide notice that Provider disagrees with the allegation of error. If Provider
notifies City in writing within thirty (30) days of receipt of any such notice that Provider disagrees
with the allegation of error in the invoice, the Parties shall meet, by telephone conference call or
otherwise, within ten (10) days of Provider’s response for the purpose of attempting to resolve the
dispute. If the Parties are unable to resolve the dispute within thirty (30) days after such initial
meeting, such dispute shall be resolved in accordance with Section 15.18.
3.4.4 Late Payments. Except for payments or refunds of alleged billing
errors pursuant to Section 3.4.3, any payment not made within the time limits specified in Section
3.4.2 shall bear interest from the date on which such payment was required to have been made
through and including the date such payment is actually received by Provider. Such interest shall
accrue at a monthly rate equal to one percent (1%).
3.5
Change in Law. If either Party becomes aware of a change in Applicable
Law, except for any Applicable Law enacted by the City, after the date of this Agreement that
results in a direct and material change in Provider’s costs to provide the Solar Services, such Party
may submit to the other Party a written notice setting forth (i) the citation of the change in
Applicable Law, (ii) the manner in which such change materially increases or decreases Provider’s
costs to provide the Solar Services, and (iii) the Party’s proposed adjustment to the kWh Rates to
reflect such material changes in Provider’s costs. The Parties shall make an adjustment in the kWh
Rates such that the new kWh Rates effectively compensate Provider for one-half (1/2) of the total
cost increase or compensate City for one-half (1/2) of the total cost decrease, as applicable, related
to the change in Applicable Law, which adjustment shall remain in effect over the remaining years
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of the Term or until the Applicable Law that caused such increase or decrease in costs is altered,
repealed, or made inapplicable to the System.
4. Lease and Related Rights.
4.1
Lease. City hereby grants to Provider, and Provider hereby accepts from City
in accordance with the terms hereof an exclusive lease (the ―Lease‖) for the Project Sites, which are
described in Exhibit A, for the sole purposes of installing, operating and maintaining the System
and uses ancillary thereto, and for no other purpose. Use of the Project Sites for any other purpose
shall be a material breach of this Agreement. The Lease shall include the non-exclusive use of
certain portions of the Properties as may be necessary or required by Provider for the temporary
storage, laydown and staging of tools, materials and equipment, the parking of construction crew
vehicles and temporary construction trailers and facilities, and rigging reasonably necessary during
the furnishing, installation, testing, commissioning and, if necessary during any period of repair or
deconstruction, disassembly, decommissioning and removal of the System. Provider shall be
responsible for maintaining the Project Sites in a clean, orderly and safe condition including but not
limited to preventing the placement or accumulation of materials or vegetation that could pose a fire
or safety risk. The Lease granted herein shall survive following the expiration or termination of this
Agreement until such time that the System has been fully removed from the Project Sites as
certified by written notice from Provider to City, such survival period not to exceed one hundred
eighty (180) days. City will not allow any tenancy at-will if any portion of the System has not been
fully removed after 180 days. Any portion of the System remaining after 180 days will be governed
by the provisions of Section 11. City has the right to enter onto the Project Sites for reasonable
purposes related to ownership and maintenance of the Project Sites including inspection of the
Project Sites to ensure maintenance of clean, orderly and safe conditions, or upon reasonable prior
written notice to Provider, provided, however, City shall not unreasonably interfere with the
operations of Provider.
4.2
Access to Project Sites. City also hereby grants to Provider, together with its
employees, representatives, agents and contractors, for a period coterminous with the Lease, a nonexclusive right-of-way to access the Project Sites across or through the Properties and any
surrounding or adjacent lands or buildings owned, leased or under the control of City as may be
reasonably required for (a) the delivery, installation, operation, maintenance, repair and removal of
the System; (b) utility lines, pipes and conduits for the transmission of electricity or otherwise
serving the System; and (c) as may be otherwise reasonably required by Provider in connection with
this Agreement and the System, passage through which is necessary or convenient, to gain access to
the System or the Project Sites. The City may require the Provider to obtain special security
clearances or take other control measures when accessing the Public Safety Building, as detailed in
Exhibits B and C.
4.3
Use of Rights. Provider shall utilize the rights granted hereunder in a manner
that does not unreasonably interfere with City and use of the Properties by City’s guests and
invitees, tenants, licensees or other visitors to the extent commercially practical.
4.4
Rent. Apart from the provision of Solar Services and the sum of One U.S.
Dollar ($1.00) per year declared in hand, no other rent shall be due from Provider hereunder.
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4.5
Quiet Enjoyment. City represents, warrants and covenants that City has
lawful title to the Properties free and clear of all liens and encumbrances except as set forth on
Exhibit F and that Provider shall have quiet and peaceful use, enjoyment and possession of the
rights granted hereunder for the Term. City agrees that this Agreement and any easements,
leaseholds and rights of way granted hereunder run with the Properties and survive any transfer of
all or any portion of the Properties and will be binding upon and benefit successors and assigns.
4.6
Insolation. City acknowledges that Insolation is essential to the value of the
rights granted hereunder. Accordingly, City shall, to the extent it is within City’s power, not permit
any interference with Insolation on and at the Properties to the extent such interference is within the
control of City. City will not construct or permit to be constructed any structure on the Properties
that would adversely affect Insolation levels. Provider shall be responsible for all costs related to
control of Property’s foliage that could interfere with Insolation.
4.7
Sites Conditions and Utilities.
4.7.1 City represents and warrants to Provider that, other than the
conditions and layout of the Redwood Road Landfill property as described in Attachment 4, City is
unaware of and would not reasonably be expected to be aware of any Property conditions or
construction requirements that (a) would materially increase the cost of installing the System at the
Project Sites or would materially increase the cost of maintaining the System at the Project Sites
over the cost that would be typical or customary for solar photovoltaic systems substantially similar
to the System or (b) would adversely affect the ability of the System as designed to produce
electricity once installed.
4.7.2 City shall promptly notify Provider of any change in the condition of
the Properties or any change or anticipated change the City becomes aware of involving adjacent
properties that, in light of the City’s level of knowledge relating to solar electric technology and
installations, it reasonably believes could damage, impair or otherwise adversely affect the System.
4.7.3 City shall provide Provider with Station Power at the PSB during the
term of this Agreement; however the City shall not provide Provider with Station Power at the
Redwood Road Landfill property. For purposes of this Agreement, ―Station Power‖ shall mean
electric energy consumed in the start-up and operation of the System, which is distinct from the
alternating current output of the System.
4.7.4 Provider shall be responsible for providing all other utilities needed
for system installation and operation, including but not limited to water and communications.
4.8
Other City Activities.
4.8.1 City shall not initiate, conduct or permit activities on, in or about the
Properties to the extent such activities are under the commercially reasonable control of the City,
that could damage, impair or otherwise adversely affect the System.
4.8.2 If City determines to repair or replace the roof under any portion of
the Project Sites, then it shall provide reasonable prior notice to Provider (not less than three (3)
months, provided that City shall not be required to provide prior notice if an emergency condition
requiring repair to the roof arises as long as City promptly notifies Provider following the
Page 9 of 63
occurrence of such emergency condition), and at City’s expense, Provider shall disassemble, store
and re-assemble the affected portion of the System at a time and in a manner reasonable to
accommodate such roof work. Storage of the System in accordance with the previous sentence
shall be on the Properties in a location to be designated by City, but in the judgment of Provider
reasonably suitable for storage of the component pieces of the System. City shall not be required to
reimburse Provider for the value of any lost revenues during such roof repair, unless such roof
repair occurs within the first six (6) years of commercial operation, or otherwise extends beyond
fifteen (15) days, or occurs more than once during the Term, in which case City will so reimburse
Provider for such lost revenues. For purposes of this Section, lost revenues shall be based on
delivered Energy averaged over the prior twelve (12) months or if less than twelve (12) months of
historic data is available, Provider shall be entitled to reasonably estimate the amount of revenue
that would have been obtained.
4.9
Recording/ Third Party Consents.
4.9.1 Either Party may record a memorandum of this Agreement,
substantially in the form attached hereto as Exhibit G, in the registry or title records of the Salt Lake
County Recorder.
4.9.2
[Reserved.]
5. Installation, Ownership and Removal of the System.
5.1
Consent.
5.1.1 City hereby consents to the construction and installation of the
System by Provider on the Project Sites (the ―System Installation‖).
5.1.2 Provider shall also have the right from time to time during the term
hereof to (i) to construct, install, own and operate the System on the Project Sites; (ii) to maintain,
clean, repair, replace and dispose of part or all of the System as necessary during the maintenance of
the System; (iii) to add to or remove the System or any part thereof, with City’s prior approval; (iv)
access the Project Sites during normal business hours and at other times as are acceptable to City in
its reasonable business judgment, provided Provider complies with all security procedures required
by City at each Project Site; and (v) to perform (or cause to be performed) all tasks necessary or
appropriate, as reasonably determined by Provider, to carry out the activities set forth in this Section
5.
5.1.3 City acknowledges and consents that the installation of all or a portion
of the System will require placement of the System on the roofs of the buildings, structures and
fixtures appurtenant to the Project Sites or to the ground or a combination thereof.
5.2
Installation. Subject to Section 5.3, Provider will cause the System to be
designed, engineered, installed and constructed substantially in accordance with the terms of this
Agreement and Applicable Law. Before System Installation, City shall have the right to review and
approve, such approval not to be unreasonably withheld, denied, conditioned or delayed, all
construction plans, including engineering evaluations of the impact of the System on the structural
integrity and strength of the location(s) where the System is installed on the Project Sites. If City
fails to approve such construction plans within ______ (_____) Business Days of receipt from
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Provider, such construction plans shall be deemed approved by City. Provider shall procure all
materials and equipment for the System Installation and maintain the same at the Project Sites or
Properties. Provider shall perform all System Installation work at the Project Sites during the days
and hours specified in Exhibits B and C, unless otherwise negotiated in advance, in a manner that
minimizes inconvenience to and interference with City and City’s guests and City’s use of the
Project Sites and the Properties to the extent commercially practical. [Note: hours of access may
vary for each Project Site or Property.] In the event that construction is delayed, Provider shall
be required to pay liquidated damages to the City in an amount equal to $250 for each day of delay,
unless the delay is caused by a Force Majeure Event or such delay is caused solely by the City, or
such delay is caused by any other excused event. Notwithstanding the foregoing, in the event that
Provider determines in its sole discretion that it is unable to install or operate the System at the
Project Sites or interconnect the System to the electrical system at the Properties, it shall be under
no obligation to do so, and this Agreement shall terminate and be of no further force and effect with
respect to the Solar Services related to the System upon written notice from Provider to City to that
effect. Notwithstanding the foregoing, the Provider is responsible for the costs associated with all
connections, interconnections, and upgrades required for the successful completion and operation of
the System with the exception of any additional, unforeseeable System or facility upgrade
requirements made by Rocky Mountain Power as a result of the interconnection application and a
subsequent System impact study and/or facility impact study performed by Rocky Mountain Power.
If unforeseeable costs result from the additional requirements identified by Rocky Mountain Power,
Provider shall pay for any costs up to $25,000 and the City shall pay any costs over $25,000. If the
additional costs exceed $100,000, the City may cancel this Agreement.
5.3
Conditions Precedent to Commencement of Construction and Installation.
Commencement by Provider of System Installation shall be subject to the satisfaction of the
following conditions precedent (in addition to the condition set forth in Section 5.5):
5.3.1 Provider shall have entered into the applicable contract(s) for System
Installation with third party contractors;
5.3.2 Provider shall have obtained the permits, licenses and other approvals
required by Applicable Law to be obtained by Provider;
5.3.3 Provider shall have obtained all relevant inspections or plan reviews
verifying load-bearing capacity and suitability of the Project Sites for construction, installation and
ongoing operation of the System;
5.3.4 Provider shall have obtained insurance or proof of insurance, pursuant
to the terms of this Agreement; and
5.35 City shall have made the repairs or improvements to the Project Sites
described in Exhibit B; provided, however, if the foregoing conditions precedent are not completed
by ____________, 2013, Provider may terminate the Agreement without triggering the default
provisions of this Agreement or any liability under this Agreement.
5.4
Reporting and Testing. At the request of City, Provider shall give City
reports and updates on the progress of System Installation and shall notify City of when Provider
will commence testing of the System. City shall have the right to have its representatives present
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during the testing process, but subject to reasonable written rules and procedures as may be
established by Provider. Energy provided by Provider to City during testing of the System shall be
provided on the same terms and conditions, including price, as applied to Energy provided during
the first year of commercial operation under this Agreement. Once testing is complete and the
System is ready for commercial operation, Provider will notify City of the Commercial Operation
Date for the System.
5.5
Utility Approvals. Provider shall be responsible for preparing applications
and obtaining all permits, licenses and approvals required for the System under this Agreement. The
City may require copies from the Provider, including but not limited to, applications, permits,
licenses and approvals required for the System. Utility approval, interconnection costs, and meter
installation and maintenance shall be the responsibility of the Provider pursuant to this Section 5.5,
Section 5.2, and Section 6.3.1. City shall not make any material changes to its electrical equipment
at the Properties after the date on which the applicable utility interconnection application is
submitted unless any such changes, individually or in the aggregate, would not adversely affect the
approval by such utility of such interconnection. Should the local electric utility fail to approve the
interconnection of the System with respect to the Properties or require equipment in addition to the
equipment set forth in Exhibit C in connection with the Properties, Provider may terminate this
Agreement during the ninety (90) day period following such notification from the local electric
utility. In the event the applicable utility approvals are conditioned upon material upgrades to the
existing electrical infrastructure and neither Party elects to provide for such upgrades, either Party
may terminate this Agreement.
5.6
System and Output Ownership.
5.6.1 Title to System. Provider shall at all times retain title to and be the
legal and beneficial owner of the System, including the right to any and all Environmental
Financial Incentives, which include, without limitation, Provider’s right to retain, sell, transfer or
assign the same. Absent further written election by Provider, the System shall (i) remain the
personal property of Provider, or Provider’s permitted assigns, and shall not attach to or be deemed
a part of, or fixture to, any Properties, and (ii) at all times retain the legal status of personal property
as defined under Article 9a of the Utah Uniform Commercial Code. City warrants and represents
that it shall keep the System free from all liens, claims and encumbrances of its lenders and any
other third parties (other than those created by Provider or its creditors). Provider shall be entitled
to, and is hereby authorized to, file one or more precautionary UCC Financing Statements or fixture
filings, as applicable, in such jurisdictions as it deems appropriate with respect to the System in
order to protect its title to and rights in the System. The Parties intend that neither City nor any
party related to City shall acquire the right to operate the System or be deemed to operate the
System for purposes of Section 7701(e)(4)(A)(i) of the Code, as amended, and the terms of this
Agreement shall be construed consistently with the intention of the Parties.
5.6.2 Energy Delivery. All obligations related to delivering Energy from
the System to the Properties will begin upon the Commercial Operation Date. The Commercial
Operation Date shall occur no later than _____________, 2013. In no event shall Provider have any
liability to City for (i) deliveries of Energy before the Commercial Operation Date, or (ii) delay in
the achievement of the Commercial Operation Date.
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5.6.3 Ownership of Rebates; City Rebate Assistance. All Rebates available
in connection with the System are owned by Provider. City shall take all commercially reasonable
measures to assist Provider in obtaining all Rebates currently available or subsequently made
available in connection with the System, at Provider’s expense. If City fails to act in good faith in
completing documentation or taking commercially reasonable actions reasonably requested by
Provider, and such failure results in the loss of a Rebate, City shall reimburse Provider for the full
amount of such lost Rebate.
5.6.4 Risk of Loss; Exclusive Control. As between the Parties, Provider
will be deemed to be in exclusive control (and responsible for any property damage or injuries to
persons caused thereby) of the Energy up to but excluding the point where the System is
interconnected to City’s electrical system (the ―Interconnection Point‖) and City will be deemed to
be in exclusive control (and responsible for any property damage or injuries to persons caused
thereby) of the Energy at and from the Interconnection Point. Risk of loss related to Energy will
transfer from Provider to City at the Interconnection Point.
5.7
Hazardous Materials.
5.7.1 City Hazardous Materials. Provider shall not be responsible for any
Hazardous Materials encountered at the Project Sites that were not introduced to the Project Sites by
Provider (―City Hazardous Materials‖). City shall indemnify and hold harmless Provider from any
costs or expenses (including reasonable attorneys’ fees) incurred by Provider due to the presence of
unknown or unforeseeable City Hazardous Materials on the Project Sites. Provider shall be
responsible for design and construction costs associated with System Installation on top of the
historic landfill materials present in the Redwood Road Landfill. Upon encountering any City
Hazardous Materials, the presence of which violates Applicable Law, Provider will stop work in the
affected area and duly notify City and, if required by Applicable Law, any Governmental Authority
with jurisdiction over the Project Sites. Notwithstanding the foregoing, with respect to the
Redwood Road Landfill Property, City shall not be obligated to indemnify or hold harmless
Provider as to any costs or expenses arising from any negligence or wrongful conduct of Provider
relating to City Hazardous Materials.
5.7.2 City Remediation. City may opt to remediate the City Hazardous
Materials that violate Applicable Law so that the System may be installed on the Project Sites, or
determine that it is not economically justifiable or is otherwise impractical to remediate the City
Hazardous Materials, in which case (a) this Agreement shall terminate effective as of the delivery of
such notice without any further liability of the Parties to each other with respect to the System
except as provided in this Section 5.7.2, (b) City shall reimburse Provider for all expenses
reasonably incurred by Provider in the System Installation plus the design of the System before the
discovery of the City Hazardous Materials and in demobilizing and decommissioning the System
after the discovery of the City Hazardous Materials, and (c) if City has made the Initial Payment,
Provider shall return all such outstanding pre-payment credits.
5.7.3 Provider Hazardous Materials. Notwithstanding anything herein to
the contrary, City is not responsible for any Hazardous Materials introduced to the Project Sites by
Provider (―Provider Hazardous Materials‖). Provider shall indemnify and hold harmless City from
any costs or expenses (including reasonable attorneys’ fees) incurred by City due to the presence of
Provider Hazardous Materials on the Project Sites.
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6. Operation and Maintenance of System.
6.1
O&M Work; Phone/Data Line.
6.1.1 O&M Work. Provider, at its sole cost and expense, shall provide or
cause a third party to provide operation, repair, monitoring and maintenance services for the System
during the Term, including the monitoring and maintenance of metering equipment used to
determine the quantity of electricity produced by the System.
6.1.2 Phone/Data Line. Provider shall design and install all necessary
equipment and phone/computer/communication lines between the solar equipment and existing,
occupied City offices. City shall properly maintain, pay for and provide access to the necessary
phone, computer, or other communication lines necessary to permit Provider to record the electrical
output of the System for the entire Term as described on Exhibit C.
6.2
Malfunctions and Emergencies.
6.2.1 Each of City and Provider shall cooperate with and notify the other
Party within twenty-four (24) hours following the discovery of any material malfunction in the
operation of the System. Provider and City each shall notify the other Party immediately upon the
discovery of an emergency condition in the System.
6.2.2 Provider shall commence repairs to any malfunction of the System
and restore the supply of Energy as soon as reasonably possible after notice or upon its own
discovery of any interruption in the supply of Solar Services and shall take steps to mobilize
personnel to commence repairs after notice or discovery of a condition requiring repair or other
corrective action. If an emergency condition exists, Provider shall dispatch the appropriate
personnel immediately upon becoming aware thereof to perform the necessary repairs or corrective
action in an expeditious and safe manner. For routine and emergency repairs, the Parties shall
contact the persons set forth below:
For City:
Salt Lake City Corporation
Attn.: City Contracts Administrator, Purchasing
(For U.S. Postal Service delivery)
P.O. Box 145455
Salt Lake City, UT 84114-5455
-OR(For hand delivery or express courier delivery)
451 South State Street, Room 235
Salt Lake City, UT 84111
(In case of Emergency)
Telephone:
Fax:
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6.3
with a copy to:
Vicki Bennett
Salt Lake City Corporation
Public Services Department, Sustainability Division
P.O. Box 145469
Salt Lake City, Utah 84114-5469
For Provider:
TBD
with a copy to:
TBD
Metering.
6.3.1 Maintenance and Testing. Provider shall install, own and maintain a
utility-grade kWh meter with net metering capabilities (―Meter‖) on the Properties for the
measurement of Energy provided to City from the System on a continuous basis. Provider shall test
the Meter in compliance with the manufacturer’s recommendations.
6.3.2 City Audits and Inspections. Once per calendar year, City shall have
the right to audit all such Meter data upon reasonable notice, and any such audit shall be at City’s
sole cost. City shall have a right of access to the Meter at reasonable times and with reasonable
prior notice for the purpose of verifying readings and calibrations.
6.3.3 Adjustments. If testing of the Meter pursuant to Section 6.3.1 or
Section 6.3.2 indicates that the Meter is in error by more than two percent (2%), then Provider shall
promptly repair or replace the Meter. Provider shall make a corresponding adjustment to the
records of the amount of Energy based on such test results for (a) the actual period of time when
such error caused inaccurate meter recordings, if such period can be determined to the mutual
satisfaction of the Parties, or (b) if the actual period cannot be so determined, then an estimated
period equal to one-half (1/2) of the period from the later of (i) the date of the last previous test
confirming accurate metering or (ii) the date the Meter was placed into service; provided, however,
that such estimated period shall in no case exceed one (1) year.
6.4
Outages. Provider shall be entitled to suspend delivery of Energy to
the Properties for the purpose of maintaining and repairing the System and such suspension of
service shall not constitute a breach of this Agreement, provided that Provider shall use
commercially reasonable efforts to minimize any interruption in service to City, and further
provided that, with the exception of interruptions due to a Force Majeure Event, such interruption
lasts no longer than three days with a maximum of 20 days per year.
7. Representations and Warranties. In addition to any other representations and
warranties contained in the Agreement, each Party represents and warrants to the other Party as of
the date of the Agreement the following:
7.1
Representations and Warranties of Provider.
Page 15 of 63
7.1.1 it is duly organized, validly existing and in good standing under the
laws of the state of its formation;
7.1.2 it has the full right and authority to enter into, execute, deliver and
perform its obligations under this Agreement;
7.1.3 it has received all requisite consents and approvals and has taken all
requisite corporate or other action to approve the execution, delivery and performance of this
Agreement;
7.1.4 this Agreement constitutes a legal, valid and binding obligation
enforceable against the Provider in accordance with its terms;
7.1.5 to its knowledge there is no litigation, action, proceeding or
investigation pending or threatened on any basis before any court or other Governmental Authority
by, against, affecting or involving any relevant business, properties or assets (including, without
limitation, with respect to City, the Project Sites or any interest therein) that would affect its ability
to perform its obligations under this Agreement;
7.1.6 its execution of and performance under this Agreement shall not
violate any existing Applicable Law or create a material default under any agreement to which it is
a party; and,
7.1.7 it has not, in the preceding five years, been convicted of violating a
state or federal law regarding the employment of undocumented aliens.
7.2
Representations and Warranties of City
7.2.1 it has the full right and authority to enter into, execute, deliver and
perform its obligations under this Agreement;
7.2.2 it has received all requisite consents and approvals and has taken all
requisite corporate or other action to approve the execution, delivery and performance of this
Agreement;
7.2.3 this Agreement constitutes a legal, valid and binding obligation
enforceable against the City in accordance with its terms;
7.2.4 to its knowledge, except as the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, or other laws affecting creditors’ rights generally or usual
equity principles in the event equitable remedies are sought, no litigation in the state of Utah or
federal courts has been served on City or is threatened on any basis affecting or involving any of
City’s relevant business, properties or assets (including, without limitation, the Project Sites or any
interest therein) that would affect its ability to perform its obligations under this Agreement; and
7.2.5 its execution of and performance under this Agreement shall not
violate any existing Applicable Law or create a material default under any agreement to which it is
a party.
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8. Covenants.
8.1
Provider’s Covenants. As a material inducement to City’s execution and
delivery of this Agreement (subject, however, to Section 5.3 above), Provider covenants and agrees
to the following:
8.1.1 Compliance With City’s Rules. Provider shall comply with the City’s
rules for the Project Sites and other such requirements provided in Schedule 8.1, attached hereto.
8.1.2 Permits and Approvals. While providing Solar Services, Provider
shall obtain and maintain all approvals, consents, licenses, permits, and inspections from relevant
Governmental Authorities, utility personnel, and other agreements and consents reasonably required
to be obtained and maintained by Provider and to enable Provider to perform such work.
8.1.3 Additional Standards. In addition to the City’s rules described in
Schedule 8.1, Provider shall conduct the System Installation with due care by qualified employees,
representatives, agents or contractors of Provider and shall conform to applicable industry standards
and practices, and Applicable Law. If Provider fails to meet such standards, Provider shall perform
the services required to correct any errors and omissions, including, as necessary, any replacement
of the System that is required as a result of Provider’s failure to comply with the standards
described in this Section, so that the System is capable of providing Solar Services in accordance
with Exhibit C and shall do so at Provider’s own cost and without additional charge to City.
8.1.4 System. Provider shall take all commercially reasonable actions
necessary to ensure that the System is capable of providing Solar Services in accordance with
Exhibits B and C.
8.1.5 Health and Safety. Provider shall take all commercially reasonably
necessary safety precautions in providing the Solar Services and shall comply in all material
respects with all Applicable Laws pertaining to the safety of persons and property.
8.1.6 Removal of Liens. Except for the easements and other rights granted
to Provider in this Agreement, Provider shall not directly or indirectly cause, create, incur, assume
or suffer to exist any mortgage, pledge, lien (including mechanics’, labor or materialman’s lien),
charge, security interest, encumbrance or claim of any nature (―Liens‖) on or with respect to the
Properties, the Project Sites or any interest therein; provided that this Section shall not limit Liens
on the System and related assignments of the rights of Provider in the Lease. If Provider breaches
its obligations under this Section, it shall immediately notify City in writing, shall promptly cause
such Lien to be discharged and released of record without cost to City, and shall defend and
indemnify City against all costs and expenses (including reasonable attorneys’ fees) incurred in
discharging and releasing such Lien.
8.1.7 Provider Records. Provider shall maintain and keep complete and
accurate records of its operations hereunder and shall maintain such data as may be necessary to
determine with reasonable accuracy any item relevant to this Agreement. City shall have the right
to examine all such records insofar as may be necessary for the purpose of ascertaining the
reasonableness and accuracy of any statements of costs relating to transactions hereunder.
Page 17 of 63
8.1.8 Labor. Provider shall not employ or contract with undocumented
labor during the Term. Provider shall register and participate in the Status Verification System
before entering into a contract with the City as required by Utah Code Ann. Chapter 63G-12. The
Status Verification System is an electronic system operated by the federal government, through
which an authorized official of a state agency or a political subdivision of the state may inquire by
exercise of authority delegated pursuant to 8 U.S.C. § 1373 to verify the citizenship or immigration
status of an individual within the jurisdiction of the agency or political subdivision. Provider is
individually responsible for verifying the employment status of only new employees who work
under the Provider’s supervision or direction and not those who work for a subcontractor. Provider
shall comply in all respects with the provisions of Utah Code Ann. Chapter 63G-12. Provider’s
failure to so comply may result in the immediate termination of this Agreement.
8.2
City’s Covenants. As a material inducement to Provider’s execution of this
Agreement, City covenants and agrees as follows:
8.2.1 Health and Safety. City shall at all times maintain the Properties
consistent with all Applicable Laws pertaining to the health and safety of persons and property.
8.2.2 Maintenance of Sites. City shall keep the Properties in good order,
condition and repair. City shall give Provider prompt notice of any damage to or defective
condition in any part of the Properties (including mechanical, electrical, plumbing, heating,
ventilating, air conditioning and other equipment, facilities and systems located within or serving
the Properties). City shall exercise reasonable care to keep and make the Properties safe and to
warn those lawfully on the Properties of existing dangers.
8.2.3 Notice of Damage. City shall promptly notify Provider of any matters
it is aware of pertaining to any damage to or loss of the use of the System or that could reasonably
be expected to adversely affect the System.
8.2.4 Liens. City shall not directly or indirectly cause, create, incur, assume
or suffer to exist any Liens on or with respect to the System or any interest therein. City also shall
pay promptly before a fine or penalty may attach to the System any taxes, charges or fees of
whatever type of any relevant Governmental Authority for which City is responsible under Section
3.3. If City breaches its obligations under this Section, it shall immediately notify Provider in
writing, shall promptly cause such Lien to be discharged and released of record without cost to
Provider, and shall indemnify Provider against all costs and expenses (including reasonable
attorneys’ fees and court costs at trial and on appeal) incurred in discharging and releasing such
Lien.
8.2.5 Consents and Approvals. City shall obtain and maintain, and secure
and deliver to Provider copies of, all consents, approvals, permits, licenses, and authorizations
relating to the performance of City’s obligations and the rights granted by City hereunder, and that
are required by the terms, conditions or provisions of any restriction or any agreement or instrument
to which City is a party or by which City is bound, including completing applications for
interconnection with City’s local electric utility. City shall use commercially reasonable efforts to
assist Provider in fulfilling Provider’s responsibilities under Section 8.1.1.
Page 18 of 63
8.2.6 Maintenance of Interconnection. City shall ensure that all of the
facilities to which Energy is delivered hereunder remain interconnected to the electrical grid during
the Term, except as permitted under Section 10.
9. Insurance. The following insurance requirements apply to this Agreement:
A.
GENERAL INSURANCE REQUIREMENTS FOR ALL POLICIES.
(1)
Any insurance coverage required herein that is written on a
―claims made‖ form rather than on an ―occurrence‖ form shall (i) provide full prior acts coverage or
have a retroactive date effective before the date of this Agreement, and (ii) be maintained for a
period of at least three (3) years following the end of the term of this Agreement or contain a
comparable ―extended discovery‖ clause. Evidence of current extended discovery coverage and the
purchase options available upon policy termination shall be provided to City.
(2)
All policies of insurance shall be issued by insurance
companies licensed to do business in the state of Utah and either:
(a)
Currently rated A- or better by A.M. Best Company;
—OR—
(b)
Listed in the United States Treasury Department’s
current Listing of Approved Sureties (Department
Circular 570), as amended.
(3)
Provider shall furnish certificates of insurance, acceptable to
City, verifying the foregoing matters concurrent with the execution hereof and thereafter as
required.
(4)
In the event any work is subcontracted, Provider shall require
its subcontractor, at no cost to City, to secure and maintain all minimum insurance coverages
required of Provider hereunder.
(5)
Provider shall provide written notice to City of any
modification or cancellation of any insurance policy required by this Agreement at least thirty (30)
days before the effective date of such policy modification or cancellation.
B.
REQUIRED INSURANCE POLICIES. Provider, at its own cost,
shall secure and maintain during the term of this Agreement, including all renewal terms, the
following minimum insurance coverage:
(Note: Unless other limits, types of insurance, bonds, or terms are agreed to by the City
Attorney’s Office, the following are the insurance and bond requirements that will be required
for this Agreement.)
(1)
Worker's compensation and employer’s liability insurance
sufficient to cover all of Provider’s employees pursuant to Utah law. In the event any work is
Page 19 of 63
subcontracted, Provider shall require its subcontractor(s) similarly to provide worker’s
compensation insurance for all of the latter’s employees, unless a waiver of coverage is allowed and
acquired pursuant to Utah law.
(2)
Commercial general liability (CGL) insurance with City as an
additional insured, in the minimum amount of $2,000,000 per occurrence with a $3,000,000 general
aggregate and $3,000,000 products and completed operations aggregate. These limits can be
covered either under a CGL insurance policy alone, or a combination of a CGL insurance policy
and an umbrella insurance policy and/or a CGL insurance policy and an excess insurance policy.
The policy shall protect City, Provider, and any subcontractor from claims for damages for personal
injury, including accidental death, and from claims for property damage that may arise from
Provider’s operations under this Agreement, whether performed by Provider itself, any
subcontractor, or anyone directly or indirectly employed by either of them. Such insurance shall
provide coverage for premises operations, acts of independent contractors, products and completed
operations.
(3)
Commercial automobile liability insurance that provides
coverage for owned, hired, and non-owned automobiles used in connection with this Agreement in
the minimum amount of a combined single limit of $2,000,000 per occurrence or $1,000,000
liability per person, $2,000,000 liability per occurrence, and $250,000 property damage. These
limits can be reached either with a commercial automobile liability insurance policy alone, or with a
combination of a commercial automobile liability insurance policy and an umbrella insurance
policy and/or a commercial automobile liability insurance policy and an excess insurance policy. If
the policy only covers certain vehicles or types of vehicles, such as scheduled autos or only hired
and non-owned autos, Provider shall only use those vehicles that are covered by its policy in
connection with any work performed under this Agreement.
—OR IF THERE WILL NOT BE ANY VEHICLE USED IN
OPERATIONS, SUBSTITUE LANGUAGE BELOW—
(3)
Provider shall not operate a vehicle in connection with any
services rendered under this Agreement. Inasmuch as Provider agrees not to operate a vehicle in
connection with services rendered under this Agreement, City shall not require Provider to provide
commercial automobile liability insurance.
(4)
Performance and Payment Bonds. Before City executes this
Agreement, Provider shall file with City a good and sufficient performance bond and a payment
bond (or letter of credit or other similar guarantee), each in the amounts indicated in Schedule 1
attached hereto.
(i)
The bonds shall be executed by Provider and issued by
a company duly and regularly authorized to do a general surety business in the State of Utah and
either (i) named in the current U.S. Treasury Department's listing of approved sureties (Department
Circular 570) (as amended) with an underwriting limitation equal to or greater than the Contract
Price which the Bond guarantees, or (ii) with a current "A-" or better rating and a financial size
category rating of at least a ―VII‖ or better in A.M. Best Co., Inc.’s Best Insurance Reports,
Property and Casualty Edition.
Page 20 of 63
(ii)
The performance bond shall guarantee the faithful
performance of this Agreement by Provider and the payment bond shall guarantee the payment of
labor and materials. The bonds shall inure by their terms to the benefit of the City. Neither this nor
any other provision requiring a performance bond shall be construed to create any rights in any third
party claimant as against the City for performance of the work under this Agreement.
(iii)
If the surety on any bond furnished Provider is subject
to any proceeding under the Bankruptcy Code (Title 11, United States Code) or becomes insolvent
or its right to do business in the State of Utah is terminated or it ceases to meet the requirements of
this section, Provider shall, within 15 days thereafter, substitute another bond and surety, both of
which must be acceptable to the City.
10. Force Majeure; Casualty; Condemnation.
10.1 Force Majeure Events. If either Party is prevented from or delayed in
performing any of its obligations under this Agreement by reason of a Force Majeure Event, such
Party shall notify the other Party in writing as soon as practicable after the onset of such Force
Majeure Event and shall be excused from the performance of its obligations under this Agreement
to the extent that such Force Majeure Event has interfered with such performance. The Party whose
performance under this Agreement is prevented or delayed as the result of a Force Majeure Event
shall use reasonable efforts to remedy its inability to perform. If a Party’s failure to perform its
obligations under this Agreement is due to a Force Majeure Event, then such failure shall not be
deemed a Provider Default or a City Default, as the case may be. Notwithstanding anything in this
Section 10 to the contrary, no payment obligation of City under this Agreement may be excused or
delayed as the result of a Force Majeure Event. If a Force Majeure Event continues for at least one
(1) year then either Party may terminate this Agreement by written notice to the other.
10.2
Casualty.
10.2.1 If at any time during the Term any part of the Properties are so
severely damaged by fire or other casualty that substantial alteration, reconstruction or restoration is
required but the System is capable of producing Energy then City shall elect one of the following
options.
(a)
City may take and pay for all of the Energy that (1) the System is
capable of producing and (2) City is able to use (or for which City
receives credit from the local electric utility under its net metering
program). In such case, this Agreement shall remain in full force and
effect, without change, for the remainder of the Term. If City is
unable to take (or receive credit for) one hundred percent (100%) of
the Energy that the System is capable of producing, Provider shall be
permitted to sell any Energy that City is not able to use (or receive
credit for) to one or more third parties for the remainder of the Term
plus, at Provider’s option, an additional five (5) years.
(b)
If City is unable to use any Energy produced by the System, City may
elect to not alter, reconstruct or restore the Properties but continue to
conduct its business operations at the Properties, in which case
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Provider shall be permitted to (i) keep the System on the Project Sites,
(ii) access, operate and maintain the System, and (iii) sell the Energy
output of the System (including but not limited to Energy and
Environmental Attributes) to one or more third parties for the
remainder of the Term plus, at Provider’s option, an additional five
(5) years. In such case, this Agreement shall terminate with respect to
Sections 2 and 3.2. The remaining terms and conditions of this
Agreement shall remain in full force and effect, without change.
(c)
City may cease its business operations at the Properties, in which case
the provisions of Section 11.2 shall apply.
10.2.2 If at any time during the Term the System is so severely damaged by
fire or other casualty that substantial alteration, reconstruction or restoration is required, then
Provider shall have the right, but not the obligation, to alter, reconstruct or restore the System and if
Provider elects to do so then City shall elect one of the options provided in Section 10.2.1 (a), (b)
and (c). If Provider elects to not alter, reconstruct or restore the System, Provider shall have the
right, upon thirty (30) days prior written notice to City, to terminate this Agreement and remove the
System from the Project Sites in accordance with the provisions of Section 11.6.2.
10.3 Condemnation. If at any time during the Term, any part of the Properties or
System is taken for any public or quasi-public use under Applicable Law, ordinance or regulation
by a Governmental Authority by condemnation or right of eminent domain, then each Party shall be
entitled to separately pursue an award for its respective property interest appropriated as well as any
damages suffered thereby, and each Party hereby waives any right to any award that may be
prosecuted by the other Party.
11. Term; City Options; Termination.
11.1 Term. The initial term of this Agreement (the ―Initial Term‖) shall
commence on the Effective Date and shall expire on the date (the ―Expiration Date‖) that is twenty
(20) years after the Commercial Operation Date, unless and until terminated earlier pursuant to this
Agreement (the date of any such termination, the ―Termination Date‖). This Agreement shall
terminate if the Provider is unable to provide Energy to the City by the date specified in Section
5.6.2.
11.2 City Options Upon Cessation of Business Operations at the Properties. If,
before the end of the Term, City ceases to conduct business operations at the Properties, vacates the
Properties, or is prevented from allowing operation of the System on the Properties (each, a
―Cessation Event‖), in each instance, due to any cause other than those attributable to condemnation
or Force Majeure Events, the following provisions shall apply:
11.2.1 Substitute Project Sites. So long as such Cessation Event does not
impair or reduce any Environmental Attributes or Environmental Financial Incentives that may be
available to the Provider, or otherwise have an adverse tax or economic effect on Provider, City
shall have the right to provide Provider with mutually agreeable substitute Project Sites located
within the same utility district to relocate the affected System(s), which agreement shall not be
unreasonably withheld, or, if not available, in a location with similar Insolation, utility rates,
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Environmental Attributes, and Environmental Financial Incentives. If such alternate Project Sites is
available and is reasonably acceptable to Provider, the definition of Property and/or Project Sites set
forth herein shall thereafter be deemed amended to delete the prior Property and/or Project Sites (as
applicable) and add the new Property and/or Project Sites, but otherwise this Agreement shall
remain in full force in accordance with its terms and shall not be deemed otherwise amended. City
shall pay the reasonable costs arising in connection with the relocation of the System, including
removal costs, installation costs, any applicable interconnection fees, other costs of deployment at
the substitute Project Sites, and lost revenue to Provider based on delivered Energy averaged over
the prior twelve (12) months.
11.2.2 ―Move and Pay‖ Option. So long as such Cessation Event does not
impair or reduce any Environmental Attributes or Environmental Financial Incentives, City may (i)
elect to pay the remaining monthly amounts due under this Agreement to Provider, provided City’s
credit continues to be acceptable to Provider, and cause the System to be kept in operation at the
Project Sites, in each case through the remainder of the Term, or (ii) assign its obligation under this
Agreement to the purchaser of the Project Sites provided that (A) such purchaser assumes such
obligations in writing in an instrument in form and substance satisfactory to Provider and (B) such
assignment is permitted pursuant to Section 15.2.
11.2.3 Termination and Payment of Termination Value. If a Cessation Event
occurs and (i) a substitute Property or Project Sites cannot be located in accordance with Section
11.2.1 and (ii) City elects not to avail itself of the provisions of Section 11.2.1 or Section 11.2.2,
then City shall so notify Provider, Provider shall remove all of its tangible property comprising the
System from the Project Sites by a mutually convenient date within 180 days after City notice and
shall return the Project Sites to its original condition, except for System support structures,
electric/wiring components and ordinary wear and tear, and City shall pay to Provider the thenapplicable Termination Value as liquidated damages in accordance with Section 15.12 hereof,
whereupon this Agreement shall terminate with respect to the Properties.
11.3
City Options Upon Expiration of Term.
11.3.1 Removal or Purchase of System. Upon the Expiration Date, City
shall have the option to: i) require removal of System and pay the Termination Value; or ii)
purchase the System for the Purchase Price by providing written notice to Provider no later than one
hundred and eighty (180) days before the relevant Expiration Date. If City requires removal of the
System and does not exercise such option to purchase the System, Provider shall be obligated to
remove all of its tangible property comprising the System from the Project Sites, at a cost that is
borne by Provider, by a mutually convenient date but in no case later than one hundred eighty (180)
days after the Expiration Date, and in such case the Project Sites shall be returned to their original
condition, except for System support structures, electric/wiring components and ordinary wear and
tear, and Provider shall leave the Project Sites in neat and clean order. If City exercises the option
to purchase the System, City shall pay the Provider the applicable Purchase Price, after which the
System shall transfer to City as-is, where-is. To the extent transferable, the remaining period, if any,
on all warranties for the System will be transferred from Provider to City at City’s sole expense.
11.3.2 The ―Fair Market Value‖ of the System shall be the value determined
by the mutual agreement of City and Provider within ten (10) days after receipt by Provider of
City’s notice of its election to purchase the System and shall reflect the value of the System to an
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unrelated third-party, including the costs to remove the System from the Project Sites and restore
the Project Sites to its original condition. If City and Provider cannot mutually agree to a Fair
Market Value, then the Parties shall select a nationally recognized independent appraiser with
experience and expertise in the solar photovoltaic industry to value such equipment. Such appraiser
shall act reasonably and in good faith to determine the Fair Market Value and shall set forth such
determination in a written opinion delivered to the Parties within thirty (30) days of such appraiser’s
selection. The costs of the appraisal shall be borne by the Parties equally. If the Parties are unable
to agree on the selection of an appraiser, such appraiser shall be jointly selected by the appraiser
firm proposed by City and the appraiser firm proposed by Provider.
11.4 City Purchase Option Before Expiration Date. Provided no City Default shall
have occurred and be continuing, on the sixth, tenth and fifteenth anniversary of the Commercial
Operation Date during the Term of this Agreement, City may elect to purchase the System along
with any associated Environmental Attribute sale agreements and Environmental Attributes, if
applicable. If City elects to so purchase the System and any associated Environmental Attribute sale
agreements, the Purchase Price shall be the sum of (a) the then Fair Market Value of the System and
(b) the then-applicable Termination Fee. Not less than one hundred eighty (180) days before the
exercise of the purchase option, City shall provide written notice to Provider of City’s exercise
thereof. Upon the exercise of the foregoing purchase option plus receipt of the Purchase Price and
all other amounts then owing by City to Provider, the Parties will execute all documents necessary
to cause title to the System to pass to City as-is, where-is; provided, however, that Provider shall
remove any encumbrances placed on the System by Provider or otherwise caused or allowed to be
placed on System by Provider. To the extent transferable, the remaining period, if any, on all
warranties for the System will be transferred from Provider to City at City’s sole expense.
11.5 Payment of Termination Value on Termination Date. In the event that a
Termination Date for the System occurs by reason of a City Default, City shall be required to pay to
Provider the then-applicable Termination Value for the System as liquidated damages in accordance
with Section 15.13 hereof.
11.6
Provider Termination.
11.6.1 Provider shall have the right, upon written notice given in Provider’s
sole and absolute discretion, to terminate this Agreement:
(a)
if any of the conditions precedent in Section 5.3 are not completed
by ___________, 2013;
(b)
as provided in Section 13.1, upon the occurrence of a City Default;
or
(c)
upon the occurrence of an unstayed order of a court or
administrative agency having the effect of subjecting the sales of
Energy to federal or state regulation of prices and/or service.
11.6.2 In the event of a Provider termination under Section 11.6.1, Provider
shall remove all of its tangible property comprising the System from the Project Sites by a mutually
convenient date but in no case later than one hundred eighty (180) days after the Termination Date.
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In the event of a termination under Section 11.6.1(a), such cost to remove the System and restore
the Project Sites shall be borne by Provider. In the event of a termination under Section 11.6.1(b),
such cost to remove the System and restore the Project Sites shall be split by the Parties equally. In
the event of a termination under Section 11.6.1(c), such cost to remove the System and restore the
Project Sites shall be split by the Parties equally. The portion of the Project Sites on which the
System was installed shall be returned to its original condition, except for System support
structures, electric/wiring components and ordinary wear and tear, and Provider shall leave the
portion of the Project Sites on which the System was installed in neat and clean order.
11.7 City Termination. City shall have the right, upon written notice given in
City’s sole and absolute discretion, to terminate this Agreement as provided for in Section 13.1 of
this Agreement, upon the occurrence of a Provider Default.
12. Defaults.
12.1 City Default. The occurrence at any time of any of the following events shall constitute
a ―City Default‖:
12.1.1 Failure to Pay. The failure of City to pay any amounts owing to Provider on or
before the day following the date on which such amounts are due and payable under the terms of
this Agreement and City’s failure to cure each such failure within thirty (30) Business Days after
City receives written notice of each such failure from Provider;
12.1.2 Failure to Maintain Lease. The failure of City to maintain or renew any lease of
the Property, including but not limited to the exercise of any right or option to renew such lease, or
to provide notice to Provider of any change in the terms of any lease of the Properties, including a
change in the identity of the lessor under such lease;
12.1.3. Failure to Perform Other Obligations. Unless due to a Force Majeure Event
excused by Section 10, the failure of City to perform or cause to be performed any other obligation
required to be performed by City under this Agreement, or the failure of any material representation
and warranty set forth herein to be true and correct as and when made; provided, however, that if
such failure by its nature can be cured, then (except for the obligation to allow Provider access to
the System in the event repair or emergency service is required) City shall have a period of thirty
(30) Business Days after receipt of written notice from Provider of such failure to cure the same and
a City Default shall not be deemed to exist during such period; provided, further, that if City
commences to cure such failure during such period and is diligently and in good faith attempting to
effect such cure, said period shall be extended for sixty (60) additional days; provided, finally, that
in any event if such failure shall continue for at least five (5) days and shall result in lost revenue to
Provider, Provider shall be entitled to reasonably estimate the amount of revenue that would have
been obtained and shall invoice City therefore;
12.1.4 City Bankruptcy, Etc. (a) City admits in writing its inability to pay its debts
generally as they become due; (b) City files a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any other applicable law or statute of the United
States of America or any state, district or territory thereof; (c) City makes an assignment for the
benefit of creditors; (d) City consents to the appointment of a receiver of the whole or any
substantial part of its assets; (e) City has a petition in bankruptcy filed against it, and such petition is
Page 25 of 63
not dismissed within ninety (90) days after the filing thereof; (f) a court of competent jurisdiction
enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of
City’s assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety
(90) days from the date of entry thereof; or (g) under the provisions of any other law for the relief or
aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or
any substantial part of City’s assets and such custody or control is not terminated or stayed within
ninety (90) days from the date of assumption of such custody or control.
12.2 Provider Default. The occurrence at any time of the following events shall constitute a
―Provider Default‖:
12.2.1 Failure to Perform Obligations. Unless due to a Force Majeure Event
excused by Section 10, the failure of Provider to perform or cause to be performed any obligation
required to be performed by Provider under this Agreement or the failure of any representation and
warranty set forth herein to be true and correct as and when made; provided, however, that if such
failure by its nature can be cured, then Provider shall have a period of thirty (30) Business Days
after receipt of written notice from City of such failure to Provider to cure the same and a Provider
Default shall not be deemed to exist during such period; provided, further, that if Provider
commences to cure such failure during such period and is diligently and in good faith attempting to
effect such cure, said period shall be extended for a period of time reasonably required to
accomplish such cure;
12.2.2 Provider Bankruptcy, Etc. (a) Provider admits in writing its inability to pay
its debts generally as they become due; (b) Provider files a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state, district or territory thereof; (c) Provider makes
an assignment for the benefit of creditors; (d) Provider consents to the appointment of a receiver of
the whole or any substantial part of its assets; (e) Provider has a petition in bankruptcy filed against
it, and such petition is not dismissed within ninety (90) days after the filing thereof; (f) a court of
competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or
any substantial part of Provider’s assets, and such order, judgment or decree is not vacated or set
aside or stayed within ninety (90) days from the date of entry thereof; or (g) under the provisions of
any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume
custody or control of the whole or any substantial part of Provider’s assets and such custody or
control is not terminated or stayed within ninety (90) days from the date of assumption of such
custody or control.
13 Remedies Following Default.
13.1 City Remedies Upon Default. If a Provider Default as described in Section 12.2 has
occurred, City may terminate this Agreement by written notice and this Agreement shall be of no
further force or effect as of the date the termination notice is given, in which case City may require
Provider to remove all of its tangible property comprising the System from the Project Sites by a
mutually convenient date but in no case later than one hundred eighty (180) days after the
Termination Date, and in such case the Project Sites shall be returned to their original condition,
except for System support structures, electric/wiring components and ordinary wear and tear, and
Provider shall leave the Project Sites in neat and clean order. Provider’s liability hereunder as
liquidated damages shall be in all respects limited to amounts paid to it hereunder during the most
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recent twenty-four (24)-month period, provided that such limitation shall not apply to Provider’s
obligation to return the amount of the Initial Payment exceeding the value of the Solar Services
invoiced to City at the time of termination.
13.2 Provider’s Remedies Upon City Default. In addition to any other remedies available
under this Agreement, at law or in equity, if a City Default as described in Section 12.1 has
occurred, Provider may terminate this Agreement by written notice and this Agreement shall be of
no further force or effect as of the date the termination notice is given and Provider shall have the
right to (a) cause City to pay the applicable Termination Value, and (b) remove all of its tangible
property comprising the System from the Project Sites, at a cost that is borne by the City as part of
the Termination Value, by a mutually convenient date but in no case later than one hundred eighty
(180) days after the Termination Date, and in such case the Project Sites shall be returned to its
original condition, except for System support structures, electric/wiring components and ordinary
wear and tear, and Provider shall leave the Project Sites in neat and clean order.
13.3 No Consequential Damages. NOTHING IN THIS AGREEMENT IS INTENDED
TO CAUSE EITHER PARTY TO BE, AND NEITHER PARTY SHALL BE, LIABLE TO THE
OTHER PARTY FOR ANY LOST BUSINESS, LOST PROFITS OR REVENUES FROM
OTHERS OR OTHER INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES, ALL CLAIMS FOR WHICH ARE HEREBY IRREVOCABLY
WAIVED BY CITY AND PROVIDER. NOTWITHSTANDING THE FOREGOING, NONE OF
THE PAYMENTS FOR ENERGY OR ANY OTHER AMOUNT SPECIFIED AS PAYABLE BY
CITY TO PROVIDER UNDER THE TERMS OF THIS AGREEMENT UPON THE
TERMINATION OF THIS AGREEMENT SHALL BE DEEMED CONSEQUENTIAL
DAMAGES.
13.4 Effect of Termination of Agreement. Upon the Termination Date or the Expiration
Date, as applicable, any amounts then owing by a Party to the other Party shall become immediately
due and payable and the then future obligations of City and Provider under this Agreement shall be
terminated (other than the indemnity obligations set forth in Section 14). Such termination shall not
relieve either Party from obligations accrued before the Termination Date or Expiration Date, as
applicable, or from the obligation to pay the Termination Value.
14 Indemnification.
14.1 Indemnification by Provider. Subject to Section 9, Provider shall fully indemnify,
save harmless and defend City and its agents and employees from and against any and all costs,
claims, losses, and expenses incurred by City in connection with or arising from any claim by a
third party for physical damage to or physical destruction of property, or death of or bodily injury to
any Person, but only to the extent caused by (a) the negligence or willful misconduct of Provider or
its agents or employees or others under Provider’s control or (b) a Provider Default; provided,
however, that Provider’s obligations pursuant to this Section 14.1 shall not extend to claims,
demands, lawsuits or actions for liability to the extent attributable to the negligence or willful
misconduct of City; provided further, however, that nothing in this Section is intended to modify the
limitation of Provider’s liability set forth in Sections 13.1 and 13.3 . Provider’s duty to defend City
and City’s agents and employees shall exist regardless of whether City or its agents or employees,
or Provider or its agents or employees, may ultimately be found to be liable for anyone’s negligence
or other conduct.
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14.2 Indemnification by City. Subject to Section 9, City shall fully indemnify, save
harmless and defend Provider and its agents and employees from and against any and all costs,
claims, losses, and expenses incurred by Provider in connection with or arising from any claim by a
third party for physical damage to or physical destruction of property, or death of or bodily injury to
any Person, but only to the extent caused by (a) the negligence or willful misconduct of City or its
agents or employees or others under City’s control or (b) a City Default; provided, however, that
City’s obligations pursuant to this Section 14.2 shall not extend to claims, demands, lawsuits or
actions for liability to the extent attributable to the negligence or willful misconduct of Provider;
provided further, however, that nothing in this Section is intended to modify the limitation of City’s
liability set forth in Section 13.3 above. City’s duty to defend Provider and Provider’s agents and
employees shall exist regardless of whether Provider or its agents or employees, or City or its agents
or employees, may ultimately be found to be liable for anyone’s negligence or other conduct.
14.3 Notice of Claims. Any Party seeking indemnification hereunder (the ―Indemnified
Party‖) shall deliver to the other Party (the ―Indemnifying Party‖) a notice describing the facts
underlying its indemnification claim and the amount of such claim (each such notice a ―Claim
Notice‖). Such Claim Notice shall be delivered promptly to the Indemnifying Party after the
Indemnified Party receives notice that an action at law or a suit in equity has commenced; provided,
however, that failure to deliver the Claim Notice as aforesaid shall not relieve the Indemnifying
Party of its obligations under this Section, except to the extent that such Indemnifying Party has
been prejudiced by such failure.
14.4 Defense of Action. If requested by an Indemnified Party, the Indemnifying Party shall
assume on behalf of the Indemnified Party, and conduct with due diligence and in good faith, the
defense of such Indemnified Party with counsel reasonably satisfactory to the Indemnified Party;
provided, however, that if the Indemnifying Party is a defendant in any such action and the
Indemnified Party believes that there may be legal defenses available to it that are inconsistent with
those available to the Indemnifying Party, the Indemnified Party shall have the right to select
separate counsel to participate in its defense of such action at the Indemnifying Party’s expense. If
any claim, action, proceeding or investigation arises as to which the indemnity provided for in this
Section 14 applies, and the Indemnifying Party fails to assume the defense of such claim, action,
proceeding or investigation after having been requested to do so by the Indemnified Party, then the
Indemnified Party may, at the Indemnifying Party’s expense, contest or, with the prior written
consent of the Indemnifying Party, which consent shall not be unreasonably withheld, settle such
claim, action, proceeding or investigation. All costs and expenses incurred by the Indemnified
Party in connection with any such contest or settlement shall be paid upon demand by the
Indemnifying Party.
14.5 Survival of Provisions. The provisions of this Section 14 shall survive the expiration
or termination of this Agreement.
15 Miscellaneous Provisions.
15.1 Notices. All notices, communications and waivers under this Agreement shall be in
writing and shall be (a) delivered in person, (b) mailed, postage prepaid, by either registered or
certified mail, return receipt requested, (c) sent by reputable overnight express courier, (d)
transmitted by facsimile where confirmation of successful transmission is received from the
receiving party’s facsimile machine (such transmission to be effective on the day of receipt if
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received before 5:00 p.m. local time on a Business Day or in any other case on the next Business
Day following the day of transmittal) or (e) transmitted by e-mail if receipt of such transmission by
e-mail is specifically acknowledged by the recipient (automatic responses not being sufficient for
acknowledgment), addressed in each case to the addresses set forth below, or to any other address
either of the Parties shall designate in a written notice to the other Party:
For City:
Salt Lake City Corporation
Attn.: City Contracts Administrator, Purchasing
(For U.S. Postal Service delivery)
P.O. Box 145455
Salt Lake City, UT 84114-5455
-OR(For hand delivery or express courier delivery)
451 South State Street, Room 235
Salt Lake City, UT 84111
with a copy to:
Vicki Bennett
Salt Lake City Corporation
Public Services Department, Sustainability Division
P.O. Box 145469
Salt Lake City, Utah 84114-5469
For Provider:
TBD
with a copy to:
TBD
All notices, communications and waivers to City’s lenders or other financiers under this Agreement
shall be to the name and address specified in a notice from City to Provider. All notices sent
pursuant to the terms of this Section 15.1 shall be deemed received (i) if personally delivered, then
on the date of delivery, (ii) if sent by reputable overnight, express courier, then on the next Business
Day immediately following the day sent, or (iii) if sent by registered or certified mail, then on the
earlier of the third (3rd) Business Day following the day sent or when actually received.
15.2 Assignment by City. City shall not assign its interests in this Agreement, nor any part
thereof, without Provider’s prior written consent, which consent shall not be unreasonably withheld
or delayed; provided that City may (i) make an assignment through merger, consolidation or sale of
all or substantially all of City’s stock or assets, and (ii) assign its rights and obligations hereunder to
any successor owner of the Properties and shall require any such successor owner to provide
Provider with a written confirmation of such assignment and assumption; provided, further, that
without Provider’s prior written consent, which consent shall not be unreasonably withheld or
delayed, no such assignment shall release City from its obligations hereunder. Any assignment by
City not permitted under this Section 15.2 shall be void ab initio.
15.3 Assignment by Provider. Provider shall not assign its interests in this Agreement, nor
any part thereof, without City’s prior written consent, which consent shall not be unreasonably
withheld or delayed; provided that Provider may (i) make an assignment to an affiliate of Provider,
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(ii) subject to Section 15.4, make an assignment through merger, consolidation or sale of all or
substantially all of Provider’s stock or assets, provided the assignee is capable of performing
Provider’s obligations under this Agreement, and (iii) make an assignment to a capital provider or
any other lender as part of a financing arrangement entered into in connection with the construction,
ownership or operation of the System; provided further, that without City’s prior written consent,
which consent shall not be unreasonably withheld or delayed, no such assignment shall release
Provider from its obligations hereunder. A direct assignee of Provider’s obligations hereunder shall
assume in writing, in form and content reasonably satisfactory to City, the due performance of all
Provider’s obligations under this Agreement. Any assignment by Provider not permitted under this
Section 15.3 shall be void ab initio.
15.4 Change of Control. In the event of an anticipated change in the holder of a controlling
interest of the Provider, City shall have the right to consent to such change, such consent not to be
unreasonably withheld, conditioned or delayed.
15.5 Successors and Assigns. The rights, powers and remedies of each Party shall inure to
the benefit of such Party and its successors and permitted assigns.
15.6 Entire Agreement. This Agreement (including all exhibits attached hereto and
incorporated herein by this reference) represents the entire agreement between the Parties with
respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous oral
and prior written agreements.
15.7 Amendments to Agreement. This Agreement shall not be amended, modified or
supplemented except in a writing executed by both Provider and City at the time of such
amendment, modification or supplement. Change orders signed by both Parties to this Agreement
with respect to the System, System Installation and Solar Services shall be deemed to be
amendments to this Agreement.
15.8 Waivers; Approvals. No waiver of any provision of this Agreement shall be effective
unless set forth in writing signed by the Party granting such waiver, and any such waiver shall be
effective only to the extent it is set forth in such writing. Failure by a Party to insist upon full and
prompt performance of any provision of this Agreement, or to take action in the event of any breach
of any such provisions or upon the occurrence of any Provider Default or City Default, as
applicable, shall not constitute a waiver of any rights of such Party, and, subject to the notice
requirements of this Agreement, such Party may at any time after such failure exercise all rights and
remedies available under this Agreement with respect to such Provider Default or City Default.
Receipt by a Party of any instrument or document shall not constitute or be deemed to be an
approval of such instrument or document. Any approvals required under this Agreement must be in
writing, signed by the Party whose approval is being sought.
15.9 Partial Invalidity. Subject to Section 3.5, in the event that any provision of this
Agreement is deemed to be invalid by reason of the operation of Applicable Law, Provider and City
shall negotiate an equitable adjustment in the provisions of the same in order to effect, to the
maximum extent permitted by law, the purpose of this Agreement (and in the event that Provider
and City cannot agree then such provisions shall be severed from this Agreement) and the validity
and enforceability of the remaining provisions, or portions or applications thereof, shall not be
affected by such adjustment and shall remain in full force and effect.
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15.10 Industry Standards. Except as otherwise set forth herein, for the purpose of this
Agreement accepted standards of performance within the solar photovoltaic power generation
industry in the relevant market shall be the measure of whether a Party’s performance is reasonable
and timely. Unless expressly defined herein, words having well-known technical or trade meanings
shall be so construed.
15.11 Counterparts. This Agreement may be executed in counterparts, including by
facsimile transmission, each of which shall be deemed an original and all of which when taken
together shall constitute one and the same Agreement.
15.12 No Third Party Rights. This Agreement is solely for the benefit of the Parties and
their respective permitted successors and permitted assigns, and this Agreement shall not otherwise
be deemed to confer upon or give to any other third party any remedy, claim, liability,
reimbursement, cause of action or other right.
15.13 Liquidated Damages. The Parties acknowledge and agree that any amounts payable
by one Party to the other as a result of the Party’s default shall constitute liquidated damages and
not penalties. The Parties further acknowledge that in each case (a) the amount of loss or damages
likely to be incurred is incapable or is very difficult to accurately estimate, (b) the amounts specified
hereunder are a reasonable forecast of just compensation and are not plainly or grossly
disproportionate to the probable loss likely to be incurred by City or Provider as the case may be
and (c) the Parties are sophisticated business parties and have been represented by sophisticated and
able legal and financial counsel and negotiated this Agreement at arm’s length.
15.14 No Agency. This Agreement is not intended, and shall not be construed, to create
any association, joint venture, agency relationship or partnership between the Parties or to impose
any such obligation or liability upon either Party. Neither Party shall have any right, power or
authority to enter into any agreement or undertaking for, or act as or be an agent or representative
of, or otherwise bind, the other Party.
15.15 No Public Utility. Nothing contained in this Agreement shall be construed as an
intent by Provider to dedicate its properties to public use or subject itself to regulation as a public
utility, an electric utility, an investor owned utility, a municipal utility, generation company or a
merchant power plant otherwise known as an exempt wholesale generator.
15.16 No Recourse to Affiliates. This Agreement is solely and exclusively between the
Parties, and any obligations created herein on the part of either Party shall be the obligations solely
of such Party. No Party shall have recourse to any parent, subsidiary, partner, member, affiliate,
lender, director, officer or employee of the other Party for performance or non-performance of any
obligation hereunder, unless such obligations were assumed in writing by the Person against whom
recourse is sought.
15.17 Cooperation with Financing. City acknowledges that Provider may be financing the
System and City shall reasonably cooperate with Provider and its financing parties in connection
with such financing, including (a), subject to Section 20, the furnishing of such information, (b) the
giving of such certificates, and (c) providing such opinions of counsel and other matters as Provider
and its financing parties may reasonably request; provided, that the foregoing undertaking shall not
obligate City to materially change any rights or benefits, or materially increase any burdens,
Page 31 of 63
liabilities or obligations of City, under this Agreement (except for providing notices and additional
cure periods to the financing parties with respect to Provider Defaults as a financing party may
reasonably request).
15.18 Dispute Resolution. All controversies, claims or disputes between the Parties arising
out of or related to this Agreement, or the performance or breach hereof (a ―Dispute‖), that have not
been resolved by informal discussions and negotiations, shall be resolved through the dispute
resolution procedures of this Section 15.18. In the event of any Dispute, either Party may give the
other Party written notice invoking these procedures, which notice shall set forth in reasonable
detail the nature, background and circumstances of the Dispute. Within ten (10) days of receipt of
said written notice, the Parties shall meet at a City location in Salt Lake City, Utah or conference
via telephone, confer and negotiate in good faith to resolve the Dispute. If following such
discussions the Parties are unable to resolve the Dispute, then within ten (10) Business Days, the
senior management of the Parties shall promptly meet, in person, at a City location in Salt Lake
City, Utah, or by conference via telephone or otherwise, in a good faith effort to resolve the
Dispute. If the senior management of the Parties is unable to resolve the dispute, either Party may
request the utilization of the services of a professional mediator who is unaffiliated with either Party
and is knowledgeable in the field of the Dispute, and the other Party or parties to the Dispute shall
cooperate with such request and share the reasonable costs of such mediator. Such mediator’s
decision shall be rendered within thirty (30) days of such mediator’s selection. Without limiting
any of the rights of the Parties under this Agreement, the mediation procedures herein must be
followed by a Party before the pursuit of any formal legal action or proceedings by such Party.
15.19 Non-appropriation. This Agreement is subject to annual appropriation of funding.
The City intends to request the appropriation of funds to be paid for the services provided by
Provider under this Agreement. If funds are not available beyond June 30 of any effective fiscal
year of this Agreement, the City’s obligation for performance of this Agreement beyond that date
shall be null and void. This Agreement shall create no obligation on the City as to succeeding fiscal
years and shall terminate and become null and void on the last day of the fiscal year for which funds
were appropriated and budgeted. Such termination shall not be construed as a breach of this
Agreement or any event of default under this Agreement and such termination shall be without
penalty, whatsoever, and no right of action for damages or other relief shall accrue to the benefit of
Provider, its successors or assigns, as to this Agreement, or any portion thereof, which may
terminate and become null and void. If funds are not appropriated for a succeeding fiscal year to
fund performance by City under this Agreement, City shall promptly notify Provider of such nonfunding and the termination of this Agreement, and in no event later than 30 days before the
expiration of the fiscal year for which funds were appropriated.
15.20 Governing Law; Jurisdiction; Forum. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Utah, without regard to its conflict of
laws principles. Any legal action or proceeding with respect to or arising out of this Agreement
shall be brought in or removed to the courts of the State of Utah and of the United States of
America in and for the State of Utah. By execution and delivery of this Agreement, Provider and
City accept, generally and unconditionally, the jurisdiction of the aforesaid courts. Provider and
City hereby waive any right to stay or dismiss any action or proceeding under or in connection with
this Agreement brought before the foregoing courts on the basis of forum non-conveniens.
Page 32 of 63
15.21 Waiver of Jury Trial. TO THE EXTENT ENFORCEABLE UNDER APPLICABLE
LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY
WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PROVIDER TO ENTER INTO
THIS AGREEMENT.
15.22 Cumulative Remedies. Except as set forth herein, any right or remedy of Provider or
City shall be cumulative and without prejudice to any other right or remedy, whether contained
herein or not.
15.23 Headings. The headings in this Agreement are solely for convenience and ease of
reference and shall have no effect in interpreting the meaning of any provision of this Agreement.
15.24 Additional Documents and Actions. Upon the receipt of a written request from the
other Party, each Party shall execute such additional documents, instruments and assurances and
take such additional actions as are reasonably necessary to carry out the terms and intent hereof.
Neither Party shall unreasonably withhold, condition or delay its compliance with any reasonable
request made pursuant to this Section 15.24.
16 Government Records Access and Management Act.
City is subject to the requirements of the Government Records Access and Management Act,
Chapter 2, Title 63G, Utah Code Annotated or its successor (―GRAMA‖). All materials submitted
by Provider pursuant to this Agreement are subject to disclosure unless such materials are exempt
from disclosure pursuant to GRAMA. The burden of claiming an exemption from disclosure shall
rest solely with Provider. Any materials for which Provider claims a privilege from disclosure shall
be submitted marked as ―Business Confidential‖ and accompanied by a concise statement of
reasons supporting Provider's claim of business confidentiality. City will make reasonable efforts to
notify Provider of any requests made for disclosure of documents submitted under a claim of
business confidentiality. Provider may, at Provider’s sole expense, take any appropriate actions to
prevent disclosure of such material. Provider specifically waives any claims against City related to
disclosure of any materials required by GRAMA.
17 Estoppel.
Either Party, without charge, at any time and from time to time, within ten (10) Business
Days after receipt of a written request by the other Party, shall deliver a written instrument, duly
executed, certifying to such requesting Party, or any other person, firm or corporation specified by
such requesting Party:
17.1.1.1
That this Agreement is unmodified and in full force and effect, or if there has
been any modification, that the same is in full force and effect as so modified, and identifying any
such modification;
Page 33 of 63
17.1.1.2
Whether or not to the knowledge of any such Party there are then existing
any offsets or defenses in favor of such Party against enforcement of any of the terms, covenants
and conditions of this Agreement and, if so, specifying the same and also whether or not to the
knowledge of such Party, the other Party has observed and performed all of the terms, covenants
and conditions on its part to be observed and performed, and if not, specifying the same; and
17.1.1.3
Such other information as may be reasonably requested by a Party.
Any written instrument given hereunder may be relied upon by the recipient of such instrument,
except to the extent the recipient has actual knowledge of facts contained in the certificate.
18 Waiver of Sovereign Immunity.
City covenants that, in the event of any change in the Governmental Immunity Act of Utah,
including Section 63G-7-301(1) of the Utah Code, that would permit City to assert a defense of
sovereign or governmental immunity with respect to its contractual obligations hereunder, City will
not assert such immunity with respect to itself or the revenues and other amounts payable by it
19 REPRESENTATION REGARDING ETHICAL STANDARDS FOR CITY
OFFICERS AND EMPLOYEES AND FORMER CITY OFFICERS AND
EMPLOYEES. Provider represents that it has not: (1) provided an illegal gift or payoff to a
City officer or employee or former City officer or employee, or his or her relative or
business entity; (2) retained any person to solicit or secure this contract upon an agreement
or understanding for a commission, percentage, or brokerage or contingent fee, other than
bona fide employees or bona fide commercial selling agencies for the purpose of securing
business; (3) knowingly breached any of the ethical standards set forth in City's conflict of
interest ordinance, Chapter 2.44, Salt Lake City Code; or (4) knowingly influenced, and
hereby promises that it will not knowingly influence, a City officer or employee or former
City officer or employee to breach any of the ethical standards set forth in City's conflict of
interest ordinance, Chapter 2.44, Salt Lake City Code.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
Page 34 of 63
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement as
of the date set forth above.
SALT LAKE CITY CORPORATION
By _______________________________
Title ______________________________
ATTEST AND COUNTERSIGN:
_______________________
City Recorder
______________
Recordation Date
APPROVED AS TO FORM:
_______________________
Senior City Attorney
TBD
By ________________________________
Title _______________________________
ACKNOWLEDGMENT
State of _____________________
County of ___________________
)
:ss
)
The foregoing Agreement was acknowledged before me this _________ day of
__________________, 2012, by ________________________________, the
(Name of person signing Agreement)
__________________________ of TBD, a (state) (type of entity).
(Title of person signing Agreement)
___________________________________
NOTARY PUBLIC, residing in
___________________________________ County
My Commission
Expires:_________________________
Page 35 of 63
EXHIBIT A
DESCRIPTION OF PROPERTIES
Note: Legal description to be developed based on approved system layout.
Page 36 of 63
EXHIBIT B
DESCRIPTION OF PROJECT SITES, PERFORMANCE REQUIREMENTS AND
CONSTRAINTS
The Project Sites consists of two locations, as described below.
Location #1
Address:
475 South 300 East, Salt Lake City, UT 84111
Site Name: Salt Lake City Public Safety Building (PSB)
Site Security: Unauthorized access to the roof is prohibited
PV Project Scale: 314 kW dc
Site Landlord: Salt Lake City
Site Project Manager: MOCA Systems
Height of Building: ~60’
Area of Solar-Ready Roof: ~22,000 sq ft.
Description of Roof and Roof Condition: New roof, adhered TPO membrane roofing system on
concrete substrate and mechanically fastened TPO membrane roofing system on metal dock
substrate. 60 mils, white, internally fabric or scrim reinforced, uniform, flexible fabric backed
Thermoplastic Polyolefin sheet atop Polyisocyanurate Board Insulation and Solar Reflectance Index
requirement with cover board. Vapor retarder. 15 years warranty from date of substantial
completion.
Site Plan: See Figure 1
Project Performance Requirements and Site Constraints:
The portion of the System at Location #1 shall be a roof-mounted photovoltaic system
approximately 314 kW (DC) in size, consisting of approximately 960 SunPower SPR-327NEWHT-D 327.106 Watt PV modules (or equivalent*). The first year annual production of this
portion of the System is required to be at least 420,000 kWh with an annual degradation thereafter
of no more than 1% per year. An example approximate configuration of modules at Location #1 is
as shown on Figure 2*. Minimum warranty length on modules shall be 25 years. Access paths and
perimeter regions shall be maintained as required by the local fire jurisdiction. Electrical conduits
on the roof will not cross access paths on the roof. The PV arrays shall be mounted on a selfballasting racking system that requires no roof penetrations, with an approximate tilt of 5 degrees
(2.5 degrees on slopes or at roof edge, or as required by manufacturer)*, and evenly load-connected
to two Satcon Technology Corporation 480V PVS-135 inverters (or equivalent*). Minimum
warranty length on inverters shall be 10 years. Inverters will be installed in the equipment yard, on
the east side of the PSB. These inverters will interconnect with the existing building electrical
system at the main distribution panel through a 600 amp circuit breaker to be installed by Provider.
There are two empty conduits (2 ea. 4 inch CND) that run from the main distribution panel, out
adjacent to the planned inverter location in the equipment yard, then from the planned inverter
location up to the roof. Minor roof penetrations may be allowed for electrical
equipment/connections but will need to be coordinated with and installed by the roofer. Slip sheets
may be required by the roofing contractor between all rooftop components and the roof membrane.
Provider will coordinate with roofing contractor to comply with requirements for installing
penetrations and for protecting the roof and the membrane warranty.
The Provider will integrate the PV System with the PSB emergency generators. The PV system
shall be designed to operate such that PV system and emergency generators work together and
continue to provide power to the PSB during a power outage. While under emergency power, the
System must monitor PV production and building load. If PV production exceeds building load
while under emergency power, production from the PV system shall be shut off or ramped down so
as not to exceed building load. During normal power operations, excess power produced by the PV
system shall flow back to the power grid through the net meter.
The Provider will have access to the new roof on January 1, 2013, and the System must be
constructed, connected, and operational by May 1, 2013. During construction, the Provider will be
working on an active construction site that is under the control of Oakland Construction, and must
comply with the requirements established by Oakland Construction including compliance with
Oakland Construction’s safety plans and site work hours (typically 7 am to 3:00 pm Monday
through Friday, or 7:30 am to 3:30 pm Monday through Friday). Provider shall protect the integrity
of the roof membrane throughout the project, and shall repair any damage identified in a postinstallation inspection of the roof.
Upon completing of construction and satisfactory acceptance testing, Provider shall provide City
with design drawings showing the as-built configuration of the entire System, as well as copies of
all documentation for System components including Manufacturer warranties, equipment manuals,
and other documents supplied by the Manufacturer.
Production will be measured using revenue grade data collection equipment supplied by Provider in
addition to a net meter that shall be placed by Rocky Mountain Power. All proposed systems must
also include an online, turnkey, remote data acquisition system available for public viewing in
compliance with Exhibit C, Data Acquisition and Display System.
Provider shall operate and maintain the System in accordance with best practices and manufacturer
requirements, and all operation and maintenance procedures and protocols shall be documented in
an O&M Manual that is provided to the City. Provider will provide classroom and onsite training of
City maintenance personnel regarding interconnection to building electrical systems, best practices
for working near and around installed systems, and in the event of transfer of ownership a
comprehensive training on ongoing operation and maintenance of solar panels and inverters. Access
to the System for operation and maintenance activities after System start-up will entail complying
with security requirements of the Public Safety Building. All Provider personnel or subcontractors
involved in on-site maintenance, repair and operation activities will need to obtain a security
clearance and identification from the Salt Lake City Police Department. Obtaining the necessary
security clearance will require submitting individual information and authorizing/passing a criminal
background check. Routine access to the site will be available to personnel with security
identification cards during normal business hours, M-F 8am to 5pm. After hours response/repair
activities will require coordination with the police department for access.
* In each case ―equivalent‖ or alternate designs will only be as approved by Customer and Provider.
Page 38 of 63
Location #2
Address:
1995 W. 500 South, Salt Lake City, UT 84111
Site Name: Undeveloped land south of Salt Lake City Parks Building, occupied by historical
landfill (the ―Redwood Road Landfill‖, a.k.a. the Redwood Road Dump)
Site Security: None. Site is currently unsecured.
PV Project Scale: ________kW dc to be metered into one or more adjacent facilities on both sides
of 500 South Street.
Site Landlord: Salt Lake City
Size of Site: ~ 3.5 acres within approximately 65 acres of undeveloped land.
Site Plan: See Figure 3 for initial proposed system location. Note that ground surface slopes to the
north at 6 to 8 percent. Final site location and boundaries will be established based on selected
proposal.
Description of Site: The Redwood Road Landfill was a municipal/commercial/industrial landfill
that received a wide variety of city wastes between approximately 1923 and 1962. The historical
landfill was subsequently covered with approximately 2 feet of clean soil to cap the waste and close
the landfill. Since closure, the landfill has undergone several assessments and construction
activities. These are most recently summarized in the Site Reassessment Report dated October 26,
2011 (included in Attachment 4 along with earlier reports on the landfill). The City performed a
preliminary assessment of subsurface methane (lower explosive limit) concentrations. These results
are presented in the ―Former Redwood Road Landfill Methane Investigation Report‖ dated
September 19, 2011 (included in Attachment 4).
Current Regulatory Status: The ―Redwood Road Dump‖ is listed on the Targeted Brownfields
list and on the Comprehensive Environmental Response, Compensation and Liability Act List
(CERCLIS). The Utah Division of Environmental Response and Remediation recently
recommended that an expanded site investigation be performed to assess whether down-gradient
water quality has been impacted by the site. Salt Lake City, as owner of the site, retains
responsibility for the environmental condition and requirements associated with the remaining inplace landfill wastes. The closed landfill also falls under the regulatory authority of Salt Lake
County and Health Regulation #1.
Project Performance Requirements and Site Constraints:
The portion of the System at Location #2 shall be a ground-mounted, ballasted photovoltaic system
_____ kW (DC) in size. The first year annual production of this portion of the System is required to
be at least _________ kWh with a maximum annual degradation thereafter of 1% per year.
Photovoltaic modules, inverters, and ancillary equipment shall be designed and installed such that:
no ground penetrations are required with the exception of limited shallow utility trenches; System
orientation and tilt maximizes annual electrical production; System layout, spacing, and
construction comply with all zoning, building and fire codes and requirements. Warranties on
photovoltaic modules and inverters shall be a minimum of 25 years and 10 years, respectively. Any
ground penetrations in the landfill area must be designed as to avoid creating new or enhanced
pathways for migration of landfill gas or for creating new or increased permeability areas where
precipitation could migrate into the landfill.
Page 39 of 63
Provider will coordinate with the City for the location of a fire line and hydrant, and for an access
road that meets fire code requirements, but installation of the fire line, hydrant, and access road will
be the responsibility of the City. Provider shall work with City to develop the layout and
requirements for these items by no later than __________, 2012 in order to facilitate construction of
these items by the City in 2012. All other site improvements will be the responsibility of the
Provider.
Provider will coordinate with Rocky Mountain Power and Salt Lake City to integrate electricity
from the System at Location #2 with City-owned facilities adjacent to the system. Rocky Mountain
Power has indicated that all adjacent City meters that are on a common rate schedule can be
considered ―aggregated‖ for this project, and that the PV system may be connected at just one of the
meters, if desired. A letter from Rocky Mountain Power confirming this understanding, dated April
18, 2012, is included in Attachment 4.
A list of the facilities adjacent to Location #2 is provided in Table 1, below. Note that these
facilities are located on both the south and north sides of 500 South Street, potentially requiring
running electrical lines under 500 South Street. The City previously installed three 4-inch-diameter
conduits under 500 South Street that are available for this project. The conduits are buried 3 feet
deep, in a trench with telecommunication lines and a fourth, in-use conduit.
The project may require connections or upgrades at one or more transformers on the adjacent City
facilities: two located at 1990 W. 500 South (the Public Service Maintenance Facility – 1,000 kW
transformer and 300 kW transformer), one located at 2005 W. 500 South (the Fuel Facility – 150
kW transformer), and one located at the Salt Lake City Parks Building (1965 W. 500 South -- 300
kW transformer). It is the responsibility of the contractor to verify these transformer locations and
sizes; information provided above is for preliminary planning only. The Provider is responsible for
the costs associated with all connections, interconnections, and upgrades required for the successful
completion and operation of the System with the exception of any additional requirements made by
Rocky Mountain Power as a result of the application and System impact study. If additional costs
result from the additional requirements, the Provider shall pay for any costs up to $25,000 and the
City shall pay any costs over $25,000. If the additional costs exceed $100,000, the City may cancel
this Agreement.
During construction and acceptance testing, the portion of the System located on the Redwood Road
Landfill will be accessible 24 hours each day, seven days each week, through the access gate
located at approximately 1910 West Indiana Street. The portion of the System (including utility and
electrical equipment), if any, located on the adjacent, secured City facilities (including the Fuel
Island site, the Parks Department site, and the Public Service Maintenance Facility site) will be
accessible between 8 am and 5 pm, Monday through Friday, unless alternate arrangements are made
with the City facility operators.
Upon completing construction and satisfactory acceptance testing, Provider shall provide City with
design drawings showing the as-built configuration of the entire System, as well as copies of all
documentation for System components including Manufacturer warranties, equipment manuals, and
other documents supplied by the Manufacturer. Provider shall provide classroom and onsite training
of City maintenance personnel regarding interconnection to building electrical systems, best
practices for working near and around installed systems, and in the event of transfer of ownership a
comprehensive training on ongoing operation and maintenance of solar panels and inverters.
Page 40 of 63
Production shall be measured using revenue grade data collection equipment supplied by Provider
in addition to a net meter that shall be placed by Rocky Mountain Power. All proposed systems
must also include an online, turnkey, remote data acquisition system available for public viewing in
compliance with Exhibit C Data Acquisition and Display System.
Table 1
Approximate Electrical Usage at City Facilities
On or adjacent to Redwood Road Landfill
Subject to Verification by Contractor
Address
1965 W. 500 South
1965 W. 500 South
1990 W 500 S # E
1995 W 500 S
2010 W 500 S
Site Name
Parks Building
Parks Shop
PSMF -- Fleet
Fuel Site
PSMF -- Streets
Meter
73040471
23585143
36402395
36071125
41026508
Current
Projected
Rate
Annual
Schedule*
kwh
23
29,370
6
267,520
6 1,012,900
6
113,600
6
737,000
Projected
Maximum
kW
15
69
307
42
203
* City may request a change or changes to alternative rate schedule(s) at some or all meters to
facilitate the project and obtain the most appropriate service for the City.
Provider shall operate and maintain the System for the term of the Agreement in accordance with
best practices and manufacturer requirements, and all operation and maintenance procedures and
protocols shall be documented in an O&M Manual provided to the City. Security of the System and
System components is the sole responsibility of the Provider. Provider shall be responsible for any
and all damage to the System or loss due to theft, vandalism, or any other accidental, criminal or
mischievous activity. System maintenance includes, but is not limited to, control of vegetation that
may impact system operation. Chemical control of vegetation may only be used if approved by the
City.
Access to the System for operation and maintenance activities after System start-up will be through
the City gate on Indiana Street. The portion of the System located on the Redwood Road Landfill
will be accessible to Provider personnel 24 hours, seven days/week through the Indiana Street gate.
Any portions of the System located on adjacent, secure City facilities will be accessible to Provider
personnel during normal business hours, 8 am to 5 pm, Monday through Friday.
Page 41 of 63
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Copyright (C) 2010 by Colvin Engineering Associates, Inc. Salt Lake City, Utah. All rights reserved. Unauthorized copying and/or use is illegal and subject to prosecution.
A
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ROOF MECHANICAL PLAN
SCALE: 1/8" = 1'-0"
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SC-5
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ROUTE PIPING TO CHILLER CH-2 IN
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KEYED NOTES
TYP.
6
MH504
1
2
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7' - 0"
4' - 0"
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HAS ITS OWN CURB.
2
8
7
6
5
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BP#6 - ADDENDUM NO. 3
BP#6 - ADDENDUM NO. 4
www.gsbsarchitects.com
P 801.521.8600
F
801.521.7913
375 W EST 200 SOUTH
SALT LAKE CITY, UT 84101
ARCHITECTS
GSBS
11.10.2011
11.18.2011
REVISIONS:
Colvin
Engineering
Associates, Inc.
244 West 300 North Suite 200
Salt Lake City, Utah 84103
Phone: (801) 322-2400 / Fax: (801) 322-2416
SLC PUBLIC
SAFETY BUILDING
SALT LAKE CITY, UT
Salt Lake City Corporation
JMN
RLH
2010-024.00
12.07.2011
BID PACKAGE NO. 6 BUILDING AND SITE WORK
CONFORMED SET
DRAWN BY:
CHECKED BY:
OWNER PROJECT NO.:
GSBS PROJECT NO.:
ISSUED DATE:
MECHANICAL ROOF PLAN
MH210
FIGURE 3
EXHIBIT C
DESCRIPTION OF SYSTEM
The approximate layout is as set out in the following diagrams.
The System shall include the following major components:
ITEM
DESCRIPTION
1.0 POWER GENERATION
1.1
2.0 STRUCTURAL COMPONENTS
2.1
2.2
3.0 DC ASSEMBLIES
3.1
3.2
3.3
4.0 AC ASSEMBLIES
4.1
4.2
4.3
4.4
4.5
4.6
5.0 DATA ACQUISITON
5.1
5.2
6.0 ACCESSORIES
6.1
6.2
Page 45 of 63
QTY
*The above list of major components may vary slightly as approved by City and Provider and does not represent every
part in the System.
The System shall meet or exceed the following requirements:
Minimum Technical and Installation Requirements:
The power must be provided at the appropriate voltage for electrically interconnecting to
the Project Site’s voltage service level. The installation and operation of the System shall
not unreasonably interfere with the operations of the Project Sites.
The System shall be designed and installed using UL or ETL listed components,
wherever applicable.
Interconnection of the System shall comply with Rocky Mountain Power’s rules,
regulations and tariffs pertaining to the interconnection and operation of a solar PV
system, or otherwise be approved by Rocky Mountain Power.
Provider shall use commercially reasonable efforts to perform the connection or
interconnection of the System outside of business hours, or during times determined by
City.
Inverters must comply with, without limitation, the following requirements:
o UL Subject 1741, ―Standard for Static Inverters and Charge Controllers for use in
Photovoltaic Power Systems‖
o IEEE 1547, ―Standard for Interconnecting Distributed Resources with Electric
Power Systems‖
o Other codes that will apply include, but are not limited to:

NFPA 70E / NEC 2008
Production Monitoring and Metering
Provider shall provide and install Inverters with a built-in revenue-grade interval data recording
metering and monitoring system. City shall have access to data from these meters on both a near
real time basis, as well as for monthly or billing period data downloads. Downloadable data shall be
in a CSV format. The preferred method for accessing data will be through a password protected
web-site connection.
In addition, Provider shall provide for and install meter bases for utility supplied revenue-grade
interval data recording production meter(s) (―interval meters‖) acceptable to the utility and Interval
meters shall include industry standard telemetry for communication with Ethernet, cellular or other
common output capabilities.
For those solar PV systems that require step up transformers to deliver solar power at the Project
Sites’ service voltage level (i.e. greater than the output voltage level of the inverter) the interval
Page 46 of 63
meter shall either be installed on the output side of the transformer (high voltage side) or the meter
data shall be adjusted to incorporate transformer losses of 2%.
The metered data that is both utilized for calculating invoices and presented for access to the Project
Sites shall reflect this 2% transformer adjustment where applicable.
Provider shall provide for a utility-supplied net meter at the points of interconnection to the extent
required by Rocky Mountain Power.
PV Panel, Inverter and Other Plant Components
Provider shall install PV panels, inverters and other components that meet all applicable Utah
Building Code requirements.
Data Acquisition and Display System
Provider shall provide a turnkey data acquisition and display system that allows City to monitor,
analyze and display electric generation data for each individual site as well as for the aggregate
performance of all sites. The Data acquisition system shall provide to City the ability to integrate
solar energy information and performance of all sites into its website(s) and/or public kiosks.
The System will include a software-based graphical display to provide real-time monitoring of the
output and efficiency of the System for energy production and failure diagnostics. The minimum
inputs shall be real-time PV system DC production, AC production and net metering output. The
graphical display shall be accessible by the City directly through an internet connection.
The data acquisition system shall be designed for turnkey, remote operation. Data shall be
transmitted via internet from each site to a server managed by Provider. Data storage, management
and display will be the responsibility of Provider.
The data acquisition system must not require that a dedicated or always-on personal computer be
located at each site; however, the Host shall be responsible for providing the communication system
and a point of data interconnection to the Internet.
All costs associated for providing and installing the monitoring and data collection system shall be
borne by Provider
Additional Construction Requirements
City Representative. The parties agree that the Salt Lake City ___________________shall act as
City's representative with respect to the work to be performed under the Agreement. The said
________________ shall have complete authority to transmit instruction, receive information, and
interpret and define Salt Lake City policy and decisions, with respect to approvals, materials,
equipment, elements and systems pertinent to the System Installation.
Page 47 of 63
Sites Investigations, Representations, and Photographic Survey.
City assumes no responsibility for any understanding or representations made by any of its officers
or agents, unless such understandings and representations by City are expressly stated in the
Agreement, related agreements to the Agreement, or any amendments of such agreements
including, with respect to the Agreement, changes orders pursuant to Section 15.7 of the
Agreement. Representations made but not so expressly stated and for which liability is not expressly
assumed by City in the Agreement shall be deemed to be for the information of Provider and City
shall not be liable or responsible therefore.
Provider shall give all notices and comply with all federal, state, and local laws, ordinances and
regulations in any manner effecting the conduct of the System Installation, and all such orders and
decrees as exist or may be enacted by bodies or tribunals having any jurisdiction or authority over
the work, and shall indemnify and save harmless City against any claim or liability arising from or
based on the violation of any such law, ordinance, regulation, order, or decree, whether by
him/herself or his/her employees. Notwithstanding the foregoing, Provider does not need to comply
with any laws, ordinances or regulations enacted by City that are reasonably deemed to be
specifically enacted by City to obligate Provider beyond what is set out under the Agreement by
using its jurisdictional authority rather than its the contractual rights as City.
Prior to beginning the System Installation, Provider shall photograph the existing Property. The
purpose of those photographs is to establish existing conditions before construction. Photographs
shall be by a photographer experienced in construction photography and shall show existing
conditions, details and close-ups at each level.
One copy of all photographs shall be labeled and correlated to plan views on contract drawings.
Provider shall deliver all photographs to City before commencing the System Installation. The photos
shall be digital, and clearly marked to identify the location and view of each print, and the date the
photo was taken.
Materials and Workmanship. All equipment, materials and articles incorporated in the work are to
be new and of the most suitable grade of their respective kinds for the purpose and all workmanship
shall be first class. Where equipment, materials, or articles are referred to in the specifications as
"equal to" any particular standard, Provider shall decide the question of equality.
Schedule Report. Provider and City shall prepare and approve the schedule for the System
Installation. The schedule shall be prepared in a form acceptable to City, acting reasonably.
Prosecution of Work. Provider shall keep a copy of the drawings and specifications and shall at all
times give City reasonable access thereto.
Changed Conditions. If, in the course of performing the System Installation, Provider discovers any
(a) subsurface or latent physical conditions at the Property differing materially from those indicated
in System design, or (b) unknown physical conditions at the Property, of an unusual nature,
differing materially from those ordinarily encountered and generally recognized as inherent in work
of the character provided for in the Agreement, Provider shall promptly, and before such conditions
are disturbed, provide written notice to City of such conditions. City shall promptly investigate the
conditions, and if it determines that such conditions do so materially differ and cause an increase or
decrease in the cost of, or the time required for, performance of the Agreement, an equitable
Page 48 of 63
adjustment shall be made and the Agreement modified in writing accordingly. Any claim of
Provider for adjustment hereunder shall not be allowed unless Provider has given notice as required
in this Section.
Delivery, Operation and Storage Areas.
Sufficient room is available at Location #2 (Redwood Road Landfill) to accommodate primary
storage of materials and supplies. Security of any and all materials and supplies stored on this site
is the responsibility of the Provider. To the extent Provider needs to store materials, supplies, and
equipment on Location #1, Provider shall coordinate with the Site Project Manager for the amount
and location of storage space. If insufficient on-site storage is available, Provider shall obtain at its
own expense off-site storage. Provider shall be responsible for the costs of all storage for materials
and supplies. The parties shall coordinate the delivery of materials to the Project Sites to
accommodate the space restrictions and the construction schedule.
Provider shall at all times keep the Project Sites free from unreasonable accumulations of waste
material or rubbish and shall, before completion of the System Installation, remove any rubbish
from and about the Project Sites, and all tools, scaffolding, equipment, and materials not the
property of City. Upon completion of the System Installation, Provider shall leave the System and
Project Sites in a clean, neat and workmanlike condition satisfactory to City. Provider shall at all
times ensure that it does not cause the Properties and public streets to be.
Pre-Construction Conference. A pre-construction conference shall be held before the start of the
System Installation with Provider and representatives of City to review all project drawings,
specifications, methods, schedules, and related application requirements pertaining to the System
Installation; and to establish mutual understanding of all procedures and precautions related to the
proper prosecution of the System Installation. City shall assure the completion of all required
procedures by Provider before the commencement of System Installation by Provider including, but
not limited to, insurance, schedules, and contract documents.
Permits and Fees. Provider shall be responsible for all permits and fees associated with the System
Installation, except as stated in Section 5.2 of the Agreement regarding interconnection costs.
Work Sequence. Provider shall be responsible for the work, means, methods, sequence and
scheduling of the work to complete the System Installation.
Prior Approvals. Provider has identified certain materials and equipment in EXHIBIT C –
DESCRIPTION OF SYSTEM to the Agreement and shall make all reasonable efforts to use those
items. In the event that Provider needs to substitute alternatives, Provider shall provide timely
notice to City.
List of Major Subcontractors. Before commencing System Installation, Provider shall submit to
City a list of all major subcontractors. Provider may make any reasonable changes to the list of
major subcontractors and shall use best efforts to notify City’s project manager.
Provider Supervision. At all times during System Installation, Provider shall employ an
experienced and competent project manager with responsibility for the System. Further, at all times
Page 49 of 63
when System Installation work is ongoing, there shall be at the Project Sites an officer, employee or
representative of Provider with authority to supervise the work.
Warranty.
Provider shall ensure that all warranties that may be in effect at such time are assignable in the
event City exercises its option to purchase the System. Provider shall work with City’s Facilities
Manager and the existing roof manufacturer to ensure that the roof warranties are not voided by the
installation of a solar PV.
Provider shall provide evidence of the following warranties:
5-year complete solar PV system warranty;
25-year solar PV panel warranty;
10-year inverter warranty.
Continuation of the existing roof warranty
Page 50 of 63
EXHIBIT D
PRICING
City shall pay Provider for the Solar Services pursuant to the terms of this Agreement at the kWh
Rate set forth below. Year 1 commences on the Commercial Operation Date. Year 2 shall
commence on the one year anniversary of the Commercial Operation Date, Year 3 on the two year
anniversary of the Commercial Operation Date and so on.
Year
PPA Rate ($/kWh)
Estimated kWh*
Estimated Total
Annual Cost*
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
*Estimated annual kWh and Total Annual Cost to be based on modeled system performance.
Actual payments by the City shall be based on actual, verifiable kWh delivered to City facilities and
the PPA Rate shown above.
EXHIBIT E
TERMINATION VALUES AND PURCHASE PRICES
The Termination Value shall mean the sum of (i) the Termination Fee specified for the applicable
year of commercial operation on the table below, (ii) the value of any tax benefits being recaptured
because of the early termination before the end of the sixth year of commercial operation, (iii) all
costs, if any, (including liquidated damages or penalties) associated with the termination of any
other agreements associated with the System (such as third party contractor agreements or
Environmental Attribute sale agreements), and (iv) the costs of dismantling, packing, removing and
transporting the System and restoring the Project Sites to their original condition, ordinary wear and
tear excepted.
The Purchase Price shall mean the sum of (i) the Fair Market Value in the year of the purchase and
(ii) the Termination Fee specified for the year of purchase on the table below.
During Year
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Termination Fee
EXHIBIT F
PERMITTED LIENS
Note: To be completed.
EXHIBIT G
FORM OF MEMORANDUM OF SOLAR POWER PURCHASE AGREEMENT
See attached.
MEMORANDUM OF SOLAR POWER PURCHASE AGREEMENT
THIS MEMORANDUM OF SOLAR POWER PURCHASE AGREEMENT (the
―Memorandum‖), is dated this ____ day of ___________, 2012, by and between SALT LAKE
CITY CORPORATION, a Utah municipal corporation (―City‖), with an address of
____________________________________,
and
____________________,
a
_________________________________ (hereinafter referred to as ―Provider‖), with an address of
____________________________________________________.
RECITALS
1.
City is the fee simple owner of a certain tract of land more particularly described in
EXHIBIT A, which is attached hereto and hereby incorporated herein (the ―Property‖), located in
Salt Lake County, Utah.
2.
City has entered into that certain Solar Power Purchase Agreement dated
_____________, ____ (the ―Agreement‖), with Provider, relating to the Property, which Agreement
is for a term of _________ (__) years commencing on ___________________ and ending
_________________________, which Agreement includes the right of Provider to install, operate
and maintain on the Property an electric grid-connected photovoltaic solar power plant with a total
generating capacity rated at approximately [__] kW owned by Provider (the ―System‖).
3.
The Agreement includes a grant of certain easements and other rights on and over
portions of the Property including but not limited to an exclusive easement for the installation,
operation and maintenance of the System on and over that portion of the Property described on
EXHIBIT B attached hereto and hereby incorporated herein.
4.
City and Provider desire to execute this Memorandum to give public record notice of
the Agreement, Provider’s easement and other rights in and to the Property and Provider’s
ownership of the System and appurtenances thereto.
NOTICE
This Memorandum is hereby executed for the purpose of recording in the office of the
County Recorder for Salt Lake County, Utah, in order to give public record notice of:
(a)
The Agreement and the terms and provisions set forth therein;
(b)
The existence of all easements and other rights granted to Provider in the Agreement
relating to the Property;
(c)
Provider’s ownership of and exclusive title to the System and appurtenances thereto;
and
The prohibition on City or any person other than Provider granting or creating a lien or
encumbrance on the System or any appurtenances thereto.
The provisions of this Memorandum do not in any way change or affect the terms, covenants and
conditions of the Agreement, all of which terms, covenants and conditions shall remain in full force
and effect.
[Signature page follows.]
IN WITNESS WHEREOF, this Memorandum has been executed and delivered as of the
day, month and year first above written.
CITY:
By:
Name Printed:
Title:
PROVIDER:
By:
Name Printed:
Title:
STATE OF
COUNTY OF
)
) SS.
)
The foregoing Memorandum of Solar Power Purchase Agreement was acknowledged before me the
_____ day of _____________, 2012, by _____________________, the ___________________ of
Salt Lake City Corporation, a Utah municipal corporation.
Name:
Notary Public, State of ___________
My Commission:
[NOTARIAL SEAL]
STATE OF
COUNTY OF
)
) SS.
)
The foregoing Memorandum of Solar Power Purchase Agreement was acknowledged before me
this _____ day of ________________, 2012, by ___________________, the
_____________________ of __________________________, a
____________________________.
Name:
Notary Public, State of ___________
My Commission:
[NOTARIAL SEAL]
This instrument was drafted by and after recording should be returned to ___________________ of
_________________________________, _________________________________________.
SCHEDULE 1
PERFORMANCE AND PAYMENT BOND AMOUNTS
Performance Bond
Time Period
From Effective Date of Solar
Power Purchase Agreement to
Commercial Operation Date
Amount of Bond
Full Amount of Project
Construction Cost
Expiration
Commercial Operation Date
Sufficient amount to ensure
operation and maintenance of
System through end of Term
Earlier of end of Term or
Termination
Amount of Bond
Expiration
From Effective Date of Solar
Power Purchase Agreement to
Commercial Operation Date
[$_____________]
Commercial Operation Date
From Commercial Operation
Date to System removal or
end of Term
[$_____________]
Later of end of Term or
System removal
From Commercial Operation
Date to end of Term
Payment Bond
Time Period