BOARD OF SELECTMEN MEETING DRAFT MINUTES June 5, 2013
The regular meeting of the Board of Selectmen was held at 4:30 p.m. on Wednesday, June 5, 2013, in the first floor conference room of Independence Hall.
Members Present: Selectman Kevin P. Kiley and Selectman Cristin McCarthy Vahey
Members Absent: First Selectman Michael C. Tetreau
1) Others Present: Ed Boman, Assistant Director, Department of Public Works; Sherri Steeneck; Ginna Paules,Youth Services and Program Coordinator for Fairfield Recreation; Sara Levy, Fairfield Health Department; Jim Kennelly, Chairman of FairTV; Andrew Graceffa, Chairman of the Fairfield Bicycle and Pedestrian Plan Advisory Committee; Fairfield Bicycle and Pedestrian Plan Advisory Committee: Meg Cappodanno, Kirstin Etela, Jack Franzen, Betsy Gardner, Alyssa Israel, Clif Meyers, Larry Ogren and Katina Wolfe; Bharat Bhalla, HCC Member; Kristin Tierrney, Library Board of Trustees; Jason Bluestein, Principal of Burr ES; Elizabeth McGoey, Principal of Stratfield ES; Judy Ewing, First Selectman’s Building Committee Liaison; Lisa Havey, PTA Council President; Ann Stamler, RTM District 5; Owen Kenny and family; Brendan McMahon and family; Michelle McCabe and family; Ion Balan; Victoria Frankenburg; Michael Widmer; Gerry Speno, General Manager, FairTv; Soundview; Genny Reilly, Fairfield Citizen News; Greg Canuel, Fairfield Daily Post; Meg Grosso, Fairfield Minuteman Newspaper
2) CALL TO ORDER Selectman McCarthy Vahey called the meeting to order at 4:30 pm
3) PLEDGE OF ALLEGIANCE Selectman McCarthy Vahey asked for a moment of silence in memory of First Selectman Tetreau’s mother Mrs. Rowena Tetreau.
4) WEDNESDAY’S PET – presented by Sherri Steeneck Ms. Steeneck introduced Vera and Mo who are: Lhasa Apso and poodle mix, 7 years old and very friendly. To adopt go to 211 One Rod Highway. The adoption rate is very high in town.
5) RECOGNITION Recognition of the 2013 Secretary of the State Contest Winners.
- Owen Kenny, 2nd place– wrote an essay about the American turtle, Stratfield ES - Brendan McMahon, 3rd place - PowerPoint presentation about submarines, Burr ES - Anastasia Mardovina, Mill Hill ES, could not attend
6) MINUTES To consider and act upon the minutes of: i) Special Meeting of May 14, 2013 ii) Regular Meeting of May 15, 2013 iii) Special Meeting of May 22, 2013
Selectman Kiley made a motion to approve items 5i-5iii. Selectman McCarthy Vahey seconded the motion.
Selectman Kiley suggested that the approval of the minutes be postponed until First Selectman Tetreau would be in attendance.
Selectman Kiley made a motion to postpone the minutes in items 5i-5iii until a date certain of the next regular meeting on June 19, 2013. Selectman McCarthy Vahey seconded the motion.
The motion carried 2:0.
7) RESIGNATIONS (for information only) Fire Commission Richard Z. Popilowski, (R), 18 Canterbury Lane, term 11/10–11/15 (Resignation Date: 05/17/2013)
Golf Commission Tammi Kay Peterson, (U), 240 Oakwood Drive, term 04/09-04/14 (Resignation Date: 05/13/2013)
Riverfield School Building Committee Dorothy D. Domeika, (R), 245 Unquowa Road (Resignation Date: 05/23/2013)
Selectman McCarthy Vahey thanked the members who had served.
8) FIRST SELECTMAN APPOINTMENTS (for information only) Conservation Commission (from alternate to full member) Samuel G. Boyarsky, (D), 200 Autumn Ridge Road, term 11/12-11/17 (To replace Letitia Ferguson who resigned – Appointment Date: 05/28/2013)
9) APPOINTMENTS Land Acquisition Commission i. Ion D. Balan, (U), 1600 Kings Highway East, term 11/10 – 11/14 (alternate) (To replace Philip Dwyer who resigned) ii. Victoria H. Frankenburg, (U), 149 South Street, term 11/09-11/13 (To replace Stanley Garrell who resigned) iii. Michael D. Widmer, (U), 279 Brookside Drive, term (11/12-11/16) (alternate) (To replace Karen Hinch whose term expired)
Selectman Kiley made a motion to approve the Land Acquisition Commission appointments in items 8i-8iii. Selectman McCarthy Vahey seconded the motion.
Selectman Kiley and Selectman McCarthy Vahey thanked the 3 new appointees for volunteering and all the important work that is before them.
The motion carried 2:0.
10) BOARD OF SELECTMEN APPROVAL Board of Library Trustees Michelle L. McCabe, (D), 1060 Merritt Street, term 07/13 – 07/19 (to replace Mary Ellen McLean whose term is expiring) (Appointed by Board of Library Trustees with Board of Selectmen approval)
Selectman Kiley made a motion to approve the appointment of Mrs. McCabe to the Library Board of Trustees in item 9. Selectman McCarthy Vahey seconded the motion.
Selectman Kiley and Selectman McCarthy Vahey thanked Mrs. McCabe and her children and the Library Board of Trustees.
Mrs. McCabe is thrilled to be appointed to the Library Board of Trustees and looking forward to helping the libraries.
The motion carried 2:0.
11) REQUEST USE OF TOWN GREEN To hear, consider and act upon a request from the Hindu Cultural Center of Connecticut for use of Town Hall Green for their 7th annual Heritage India Festival Sunday, September 29, 2013 from 10 am – 5 pm.
Dr. Bhalla: retired Fairfield University professor of Finance, former chairman of the Hindu Cultural Center. Thanked the town for providing the location for the event for the 7th year.
Selectman Kiley made a motion to approve the request by the Hindu Cultural Center of CT for the use of the Town Hall Green in item 10. Selectman McCarthy Vahey seconded the motion.
The motion carried 2:0.
12) DIRECTOR OF PUBLIC WORKS To hear, consider and approve the granting of an easement to Skyview Solar for the purpose of erecting a photovoltaic electric generation system at the Postol Recreation Center parking lot at 75 Mill Plain Road for the sole benefit of the Postol Recreation Center, the term of the agreement being twenty years.
Selectman Kiley made a motion to grant an easement to Skyview Solar at the Postol Recreation Center at 75 Mill Plain Road in item 11. Selectman McCarthy Vahey seconded the motion.
Mr. Boman explained the 8.8 cent price fixed for 20 years and 100,000 kilowatt hours/year that the system would provide. Easement is necessary as the system will not be placed on a roof due to its weight, but in the back half of the parking lot which also allows for a bigger system. Attorney Lesser, Town Attorney, has reviewed and approved the document. The next steps are to approach the RTM for the easement and then the Town Planning and Zoning for site planning approval and process. There will be a 30-45 day construction period during the summer. Mr. Boman explained how the interviewing process works on selecting a company. He also discussed the risk factors. Mr. Boman said the company will maintain the systems with no town responsibility for repair unless it is damaged by the private sector. Future projects will include schools and therefore his department is working with Tom Cullen and Sal Morabito at the Board of Education. Optional charging stations are free of charge.
The motion carried 2:0.
13) DIRECTOR OF PUBLIC WORKS To hear, consider and approve the granting of an easement to Skyview Solar for the purpose of erecting a photovoltaic electric generation system on the roof of Operation Hope at 50 Nichols Street for the sole benefit of Operation Hope, the term of the agreement being twenty years.
Selectman Kiley made a motion to grant an easement to Skyview Solar for Operation Hope at 50 Nichols Street in item 12. Selectman McCarthy Vahey seconded the motion.
Mr. Boman reported that he noticed an inconsistency in the agreement which has since been changed to read correctly in paragraph 5 to place the system on the roof. Attorney Lesser, Town Attorney has reviewed and approved the document. Most of the work will be done on the outside of the building.
Selectman McCarthy Vahey congratulated Mr. Boman who recently won the Power of Change award in Hartford.
The motion carried 2:0.
14) DIRECTOR OF PUBLIC WORKS To hear, consider and act upon the following resolution as requested by the Director of Public Works:
RESOLVED, that the First Selectman is authorized to accept a grant from the United Illuminating Company in the amount of $15,000 from the Company’s “Bright Ideas” program; and
FURTHER RESOLVED, that the First Selectman be authorized to expend the $15,000 towards the cost of a wireless energy management system for Independence Hall; and
FURTHER RESOLVED, that the First Selectman is authorized to execute, on behalf of the Town of Fairfield, any and all necessary documents that facilitate the Town’s participation in United Illuminating’s Bright Ideas Grant program.
Selectman Kiley made a motion to accept a grant from the United Illuminating Company in item 13. Selectman McCarthy Vahey seconded the motion.
Mr. Boman explained that the grant came about due to the many programs that town people who have participated in through UI. The Town will attempt to save 20% of electrical usage over the next five years. Some of the savings came about because of equipment installed in treatment plant during upgrade and the lighting system installed in the library.
FOLLOW-UP: Selectmen asked about breakout in documentation. Mr. Boman will look into finding that information.
Mr. Boman explained how the wireless energy management system works: heating and cooling, lighting, roof top units, motion, alarms and sound system. The system is user friendly. Town is buying the system which equates to major public savings.
Mr. Graceffa,165 York Road: would like to see if possible to explore a webportal for any of these systems.
Mr. Boman: System is controlled locally.
The motion carried 2:0.
15) DIRECTOR OF PARKS AND RECREATION To hear, consider and act upon the following resolution as recommended by the Director of Parks and Recreation:
RESOLVED, that Michael C. Tetreau, First Selectman of the Town of Fairfield, be, and hereby is, authorized to apply for the 2013-2014 Fairfield Youth Services State Grant in the amount of $28,729 and to execute such documents as are necessary to facilitate such application, and
FURTHER RESOLVED, that the town match funds for said grant in the amount of $28,729 already contained in the FY 2013-2014 budget in Personnel Services, and
FURTHER RESOLVED, that upon receipt of such grant, grant funds may be expended as set forth in the grant documents. (item postponed from May 15, 2013 meeting)
Selectman Kiley made a motion to authorize applying for the Fairfield Youth Services State Grant and for the town to match funds in item 14. Selectman McCarthy Vahey seconded the motion.
Ms. Paules, Youth Services and Program Coordinator for Fairfield Recreation: The department has been receiving the grant since 1988 from the State Department of Education. The Youth Services Department merged with Fairfield Recreation in 1996. The funds are already contained in the Parks and Rec budget.
The Selectmen thank Mr. Paules for all her work and the importance of this committee. The grant is about how best to meet the needs of the kids and risky behavior.
Selectman McCarthy Vahey: asked about “non-gathered” programming in addition to “gathered” programming, i.e. getaway nights for teens and social media.
Ms. Paules: Jennifer Parsons, Getaway Teens Director, maintains a Facebook page. Grant will help in reaching out to the students in town who are participants and non- participants. $6,000 of the grant goes toward Fairfield Counseling Services for mental health services for youth and families.
The motion carried 2:0.
16) BICYCLE AND PEDESTRIAN PLAN ADVISORY COMMITTEE To hear, consider and act upon the following resolution:
RESOLVED, that in accordance with a request from the Bicycle and Pedestrian Plan Advisory Committee, the Fairfield Bicycle & Pedestrian Master Plan be, and hereby is approved.
Selectman Kiley made a motion to approve the bicycle and pedestrian plan set forth by the advisory committee item. Selectman McCarthy Vahey seconded the motion.
Mr. Graceffa, Chairman of the Fairfield Bicycle and Pedestrian Plan Advisory Committee: Thanked his committee members who were in attendance at today’s meeting as well as several of the Committee Advisors: Sara Levy, Fairfield Health Department; William Hurley, Town Engineer, Selectman McCarthy Vahey and the Bridgeport Greater Regional Council. Explained how the process has been community driven with over 100 residents attending the round table discussions back in 2011.
Plan is made up of 7 major components (see Master Plan – Draft 8): - Complete Streets policy: how it impacts - bicyclists, pedestrians, drivers and transit users - Enforcement: coordinating with Police Dept. educating users - Infrastructure: provided maps for the different routes - Education: coordinating with the schools, procedures and safety measures - Institutional Planning: standing committee is formed to bring in all the departments - Planning Recommendations: 4 recommendations - Immediate Actions: what committee would like to see happen
Selectman Kiley and Selectman McCarthy Vahey recommend moving the dialogue forward, but also recommend postponing this item.
Selectman Kiley: asked about the education process for all citizens and implementing a plan considering the infrastructure of the town.
Mr. Graceffa: explained the multi departmental approach, i.e. rules of the road for cyclists, town publishing the rules of the road on the town website; working with public schools, driving schools, senior center, etc. The committee recognizes the limitation of the physical space and funding. The committee is not proposing to expand any roads. The committee has recommendations for sidewalks at several high volume core pedestrian areas throughout town, i.e. downtown and beach areas.
Jack Franzen, 2760 Congress Street, Vice Chairman of the committee: Committee’s approach is specific to Fairfield’s infrastructure, including roads, historic district, Metro North, highways. Compliance: no direct cost to town as the developer will install cross walks, lighting and bike racks, etc. Talked about plantings and curb cuts. Working with local businesses.
Alyssa Israel, 679 Rowland Road: Secretary of the Advisory Committee: document, research and collaboration has set up the committee to receive grant funding: private, state and federal governments.
Meg Capodanno, 170 Middlebrook Drive: Supports this plan as a parent of 3 young children, avid runner, cyclist, and PTA Health Safety and Fitness committee, former PTA President.
Betsy Gardner, 882 Reef Road: Representing the Senior Center. Professor Emeritus at Fairfield University where she taught a seminar on aging. This has been a very collaborative group.
Clif Meyers, 180 Linley Drive: He studies the percentage of cyclists, pedestrians and cars in town and has found very few cyclists and pedestrians. The plan is not a major financial outlay, but long term investment of changing people’s behavior.
Sara Levy, Public Health Educator at the Fairfield Health Department: very excited about this program because it offers healthy lifestyle choices. Talked about state and federal agencies that are pro active living and healthy eating lifestyle choices. Spoke about prior grants and working with other town departments and the schools to integrate bike and pedestrian safety into the summer camps.
Selectman McCarthy Vahey: This is a very collaborative group with a level of technical detail and sophistication being presented in the plan. Discussed examples of why this plan is so important i.e. Bridgeport train crash, North Benson recent work, sidewalks being removed.
Selectman McCarthy Vahey made a motion to postpone approval of the bicycle and pedestrian plan in item 15 to a date certain of the next BOS meeting on June 19, 2013. Selectman Kiley seconded the motion.
The motion carried 2:0.
17) FAIRTV OPERATIONAL COMMITTEE To hear an update from the FairTV Operational Committee.
Jim Kennelly, Chairman of FairTV: Has been a member of the committee for the past five years. Operational committee was reauthorized in 2012 by Town. Meet monthly and provided reports on expenses. Over 160 hours of original programing for the two Fairfield channels 78 & 79. Expansion of live programming of meetings both through Cablevision and on the internet, Facebook page, Fairfield Public Library – One Book One Town. Upgraded sound equipment and cameras. Mr. Spenno, has been working with two high schools interns. Committee is working on a permanent FairTv commission. Salaries for staff for 2013-14 comparable to nearby towns. Set of procedures initiated by member Tom Flynn. Committee works within their budget. Discussed the Cable Advisory Council Region 2 which oversees several towns. Members on this committee from Fairfield are Donald Leslie, Town of Fairfield, IT Director, Pam Jones, Tom Flynn and Gerry Speno, General Manager of FairTV. Requesting reauthorization of this commission and members for 2013-14. Will be presenting their ordinance language to RTM. Committee is sunsetted through June 30th and therefore need to either extend the existing committee or reauthorized them in order to meet in July. Requesting that the town provide office space to FairTV as the server is currently in the basement of SIH in a hallway. Town IT Department has been very supportive and helpful. Committee Members should not be limited by party politics of potential nominees but need some technical background and commitment.
Selectman Kiley: Asked about the process in place to assure independent oversight.
Mr. Kennelly: FairTV charge has language that includes duties, schedules and rules. Education and Government t access channels, i.e.: BOS, BOE, BOF, TP&Z, RTM, parades, non-partisan meetings, graduations, etc.
FOLLOW-UP: asked for examples of system reporting. Suggests putting into the document a reporting schedule to the BOS.
Selectman McCarthy Vahey: Addressed the ordinance language going before the RTM which will hopefully eventually make it into the Town Charter. May need to extend the committee since it takes time to pass an ordinance. Increase in compensation is within their budget.
18) TOWN ATTORNEY To hear an update on the Fire Department Staffing.
Selectman McCarthy Vahey made a motion to postpone hearing an update on the Fire Department staffing in item 17 to a date certain of the next regular meeting of June 19, 2013. Selectman Kiley seconded the motion.
The motion carried 2:0.
19) BOARD OF EDUCATION To hear, consider and act upon the following resolution as requested by the Superintendent of Schools:
RESOLVED, that the Town of Fairfield (1) establish the Fairfield Ludlowe High School Building Committee; (2) authorize the preparation of schematic drawings and outline specifications for this project; and (3) authorize the Board of Education to file an application for a school building grant.
Selectman Kiley made a motion to approve item 18 which includes: establishing a Fairfield Ludlowe High School Building Committee, authorizing the preparation of schematic drawings and outline specifications and authorizing the Board of Education to file an application for a school building grant. Selectman McCarthy Vahey seconded the motion.
Selectman McCarthy Vahey had spoken with Mr. Cullen regarding the June 30th application deadline BOS and the RTM are required to accept this language. Since the committee does not currently have members schematic drawings can not be requested. BOE does have the authority to file an application for a grant.
Selectman Kiley and Selectman McCarthy Vahey are willing to move forward on this item.
Judy Ewing, First Selectman’s Building Committee Liaison: attended Board of Finance meeting where they approved the funding for the FLHS project. Recommends moving this project forward.
The motion carried 2:0.
20) TAX COLLECTOR Refunds
None
21) To hear, consider and act upon any communications. None
22) To hear, consider and act upon any other business which shall properly come before this meeting. None
23) ADJOURN
Selectman Kiley made a motion to adjourn the meeting at 6:50 pm. Selectman McCarthy Vahey seconded the motion.
The motion carried 2:0.
Respectfully submitted,
Charlotte Leslie Recording Secretary
BOARD OF SELECTMEN MEETING DRAFT MINUTES July 2, 2013
The regular meeting of the Board of Selectmen was held at 4:30 p.m. on Tuesday, July 2, 2013, in the first floor conference room of Independence Hall.
Members Present: First Selectman Michael C. Tetreau, Selectman Kevin P. Kiley, Selectman Cristin McCarthy Vahey Others Present: Alex Trembicki, Ann Stamler, Bill McDonagh and Haliday, Gerry Speno, Soundview, Sherri Steeneck, Genny Reilly, Rich Speciale, Meg Grosso, Judy Ewing, Dorothea Brennan, William McDonald, Sal Morabito, Jay Wolk, Chief Dick Felner
1) CALL TO ORDER First Selectman Tetreau called the meeting to order at 4:30 pm.
2) PLEDGE OF ALLEGIANCE Following the pledge of allegiance, First Selectman Tetreau called for a moment of silence for the firemen who lost their lives in Arizona.
3) WEDNESDAY’S PET – presented by Sherri Steeneck As part of the adopt a pet program, Sherri Steeneck introduced Haliday, a three year old gray cockatoo that is very friendly. The bird is located at the Town’s animal shelter at 211 Richard White Way. The bird costs $5 which includes a cage. Anyone seeking to adopt a pet can call 254- 4857.
4) MINUTES To consider and act upon the minutes of: i) Regular Meeting of June 5, 2013 (item postponed from June 19, 2013 meeting) Selectman McCarthy Vahey made a motion to postpone the item to a date certain of July 17, 2013. Selectman Kiley seconded the motion which carried 3-0.
ii) Regular Meeting of June 19, 2013 Selectman McCarthy Vahey made a motion to approve the item. Selectman Kiley seconded the motion.
First Selectman Tetreau made an amendment to add to the recognition item that, “On behalf of the Fairfield State Delegation, State Representative Tony Hwang honored Jeff Keith and the CT Challenge for their outstanding work.
Selectman Kiley seconded the amendment which carried 3-0. The main motion, as amended, carried 3-0.
5) REAPPOINTMENTS Town Facilities Commission (requires RTM approval) i. Donald C. DiMartino, (R), 84 Sunset Circle, term 07/13 – 07/16 ii. Terri F. Leopold, (U), 146 Coleman Road, term 07/13 – 07/16 iii. Richard A. Speciale, (R), 112 Homestead Lane, term 07/13 - 07/16 Selectman Kiley made a motion to approve items 5i-5iii. Selectman McCarthy Vahey seconded the motion.
Each Selectman thanked those being reappointed.
The motion carried 3-0.
6) APPOINTMENTS Fire Commission Dorothea E. Brennan, (R), 1246 Fairfield Beach Road, term 11/10 – 11/15 (To replace Richard Popilowski who resigned) Selectman Kiley made a motion to approve the item. Selectman McCarthy Vahey seconded the motion.
Selectman Kiley thanked Ms. Brennan and said she has served the town well on many boards. Selectman McCarthy Vahey echoed Selectman Kiley’s comment that Ms. Brennan will add a balance to the Commission with her perspectives and experiences. Selectman McCarthy Vahey said it’s important to open up the process more and balance boards with new members and those with past experience like Ms. Brennan. First Selectman Tetreau said Ms. Brennan is very active in the community.
The motion carried 3-0.
Riverfield School Building Committee (requires RTM approval) William T. McDonald, (R), 288 Adley Road (To replace Dorothy Domeika who resigned) Selectman McCarthy Vahey made a motion to approve the item. Selectman Kiley Vahey seconded the motion.
After each Selectman thanked Mr. McDonald for serving, the motion carried 3-0.
Town Facilities Commission (requires RTM approval) Walter J. Donne, (U), 54 Cedarhurst Lane, term 07/13 – 07/16 (To replace Edwin Hill whose term expired) First Selectman Tetreau said Mr. Donne withdrew his name from consideration for this appointment so there would be no vote.
7) FAIRFIELD LUDLOWE HIGH SCHOOL WINDOWS BUILDING COMMITTEE CHARGE To review, modify and approve the Fairfield Ludlowe High School Windows Building Committee Charge approved by the Board of Selectmen on June 6, 2012. Selectman McCarthy Vahey made a motion to approve the item. Selectman Kiley seconded the motion.
First Selectman Tetreau said he is fine with starting off the Committee with five members and expanding membership later on. He said there is a rationale for the project attached to the Charge along with the bond resolution.
Selectman McCarthy Vahey made an amendment to remove the word “windows” from the phrase Fairfield Ludlowe HS Building Committee is all sections in the Charge; remove the words “upgrading and renovation of windows at this school” in the first paragraph and replace it with “school expansion and renovation along with window and roof replacement at this school” so the sentence now reads, “A Fairfield Ludlowe HS Building Committee (FLHSBC) shall be established to plan, coordinate and supervise necessary school expansion and renovation along with window and roof replacement at
this school;” and add the following sentence in the fourth paragraph after the second sentence: “The Committee shall work within the budgeted amount of $11,630,000 as per the attached bond resolution.”
Selectman Kiley seconded the amendment which carried unanimously.
Selectman McCarthy Vahey asked about the timeline the First Selectman’s Office is asking for in regards to interested candidates sending resumes by July 12, 2013. First Selectman Tetreau said the deadline was given so that the Selectmen may vote on candidates at its next meeting so those appointments can be put on the July RTM agenda and the planning phase of the project can at least start this summer. The RTM does not meet in August.
The main motion, as amended, carried 3-0.
8) TOWN ATTORNEY To hear an update on the Fire Department Staffing. (item postponed from June 19, 2013 meeting) Attorney Alex Trembicki said he attended the May 9, 2013 Fire Commission meeting at the direction of the Board of Selectmen as did Attorney Dick Saxl on behalf of Chief Dick Felner. Mr. Saxl submitted a report and updated document to the Commission.
Mr. Trembicki said the Commission voted on two resolutions at this meeting. One requires all promotions to come before the Commission and the other is for issues regarding discrepancies on provisional and acting appointments be addressed in the next negotiations during the collective bargaining contract.
Mr. Trembicki discussed a letter from Hooker & Holcombe on the actuarial impact of the increase in final pay for nine recent retirements. This letter was not part of Mr. Trembicki’s report in May to the Commission—it was requested by CFO Bob Mayer. First Selectman Tetreau said he spoke with former Commission Chair Dick Popilowski in January on the Commission’s responsibilities in respect to the Contract and suggested the Commission receive an orientation on its role and on FOI and other rules. Chief Felner said there has not yet been an orientation.
Selectman McCarthy Vahey said she attended the May Fire Commission meeting and asked if there was follow-up since that meeting on how the promotion process or the lateral transfers come to the Commission. She wants to be clear on the process if there is a change in procedures. Chief Felner said the Commission will approve all promotions going forward in front of the public, not in private executive session.
Selectman McCarthy Vahey asked the reason for the requirement in Appendix D. Chief Felner said the contract states a fireman serves in a position for three years and then moves on to learn a new position. Mr. Trembicki said this makes sense but it did not occur with the laterals.
Mr. Trembicki said he does not agree that applicable law is the charter. He said collective bargaining governs and the town charter speaks to some issues. Mr. Trembick said the Charter states the Commission approves promotions and transfers. Mr. Trembicki explained the distinction between acting and provisional. Selectman Kiley asked Mr. Trembicki if the Commission should have been informed on promotions.
Mr. Trembicki said he can’t speak for the Commission but there are rules and an approval process should have been in place even though he understood Storm Sandy affected timing of exams. Selectman McCarthy Vahey said Commission members should be clear on their role.
Selectman Kiley asked to go through the report. He asked about the role of the Fire Chief and First Selectman. First Selectman Tetreau said the Charter spells out promotions and appointments and the contract governs. He said the Chief knows his personnel best. There was brief discussion on overtime for laterals and provisional, the Collective Bargaining Agreement, transfer issues and past practice. Regarding past practice, Selectman McCarthy Vahey said it’s critical to open up the process and be clear about it, especially with new firemen. Selectman McCarthy Vahey said it doesn’t make sense that a fireman who is about to retire is given a new position that can’t be experienced. Chief Felner said he followed the seniority list when making promotions. He said all four steps in Exhibit C were taken and all parties agreed. Mr. Trembicki said all the firemen he spoke to brought up cutbacks and a large population of firemen were eligible to retire.
First Selectman Tetreau said the Selectmen can attend the next Commission meeting on FOI. Selectman McCarthy Vahey thanked all Fairfield firemen for their good work. She is thankful to Chief Felner but doesn’t agree with some of the decisions made on promotions, especially with the laterals. Selectman Kiley said he disagrees with the management decisions that impacted the retirement system. First Selectman Tetreau said administration actions taken included putting a promotion list in place and making the Fire Commission aware of its obligations.
9) TAX COLLECTOR To consider and act upon any tax refunds as recommended by the Tax Collector. There were no tax refunds.
10) To hear, consider and act upon any communications. First Selectman Tetreau announced the Town and Chamber are co-sponsoring the Sidewalk Sales Event on July 27, 2013. He also invited the public to attend a second PURA hearing in Fairfield on the Aquarion Water rate increases on July 9, 2013 at 6:30 pm at FWHS.
11) To hear, consider and act upon any other business which shall properly come before this meeting. There was no other business.
12) ADJOURN Selectman Kiley made a motion to adjourn the meeting at 6:28 pm. Selectman McCarthy Vahey seconded the motion which carried 3-0.
Respectfully submitted, ______
______Jennifer S. Carpenter Recording Secretary ______
SPECIAL BOARD OF SELECTMEN MEETING DRAFT MINUTES July 30, 2013
A special meeting of the Board of Selectmen was held at 5:00 p.m. on Tuesday, July 30, 2013, in the first floor conference room of Independence Hall.
Members Present: First Selectman Michael C. Tetreau, Selectman Kevin P. Kiley, Selectman Cristin McCarthy Vahey Others Present: Meg Grosso, Genny Reilly, Ann Stamler, Rev. Alida Ward, Anthony Calabrese, Judy Ewing, Bill McDonagh, Sherri Steeneck, Gerry Speno, Soundview, John Morgan, Marc Andre, Laura Fasano, Ellen Gould, Marc Donald, Donna Ertel, Joseph Pagnozzi, Robert Sickeler, Ann Marie Guzzi, Kiernan Black and Erin Marie McCurley
1) CALL TO ORDER First Selectman Tetreau called the meeting to order at 5 pm.
2) PLEDGE OF ALLEGIANCE
3) WEDNESDAY’S PET – presented by Sherri Steeneck As part of the adopt a pet program, Sherri Steeneck introduced Hip and Hop, two rabbits, that cost either $5 or are no charge. They live at the Town’s animal shelter, 211 One Rod Highway. Anyone seeking to adopt a pet can call 254- 4857. Ms. Steeneck announced that the Bridgeport Animal Shelter has one cat left for adoption.
4) RECOGNITION Recognition of Fairfield Girl Scouts winning the Girl Scout Gold Award After taking up items 5-8, the Board of Selectmen honored three girl scouts with proclamations. The scouts described the projects they worked on to earn the Girl Scout Gold Award, the highest award a girl can earn.
5) RESIGNATIONS (for information only) Historic District Commission Peter P. Petron, (D), 415 Old Post Road, term 11/10 – 11/15 (Resignation Date: 07/10/2013) Town Plan and Zoning Commission i. Bryan L. LeClerc, (R), 188 Henderson Road, term 11/11 – 11/15 (Resignation Date: 07/03/2013) ii. Gerald F. Alessi, (R), 582 Shrub Oak Lane, term 11/09 – 11/13 (alternate) (Resignation Date: 7/24/2013 – to move to full member)
6) REAPPOINTMENTS Ethics Commission (requires RTM approval) i. Martha S. Brooks, (D), 1821 Jennings Road, term 7/13 – 7/15 ii. Thomas J. Drew, (D), 151 Blue Ridge Road, term 7/13 – 7/15 iii. David P. Schmidt, (R), 61 Partridge Lane, term 7/13 – 7/15 Selectman Cristin McCarthy Vahey made a motion to approve the item. Selectman Kiley seconded the motion.
Selectman McCarthy Vahey thanked the members and said the public can get in touch with the Commission by contacting the Town Clerk’s Office or Commission Chair.
First Selectman Tetreau added the public can call the First Selectman’s Office to reach the Commission.
The motion carried 3-0.
7) FIRST SELECTMAN APPOINTMENTS (for information only) Conservation Commission Richard A. D’Amico, (R), 1353 Brooklawn Avenue, term 11/09 – 11/14 (alternate) (To replace Letitia Ferguson who moved to full member)
8) APPOINTMENTS Burr Gardens Advisory Committee Jennifer B. Downing, (U), 1197 Mine Hill Road, term 11/10 – 11/13 (To replace Ken Placko who moved to a liaison position)
Selectman Kiley made a motion to approve the item. Selectman McCarthy Vahey seconded the motion which carried 3-0.
Historic District Commission (requires RTM approval) i. Margaret Browning Kufferman, (U), 877 Westport Turnpike, term 11/10 – 11/15 (to replace Peter Petron who resigned) Selectman Kiley made a motion to approve the item. Selectman McCarthy Vahey seconded the motion which carried 3-0.
ii. John Morgan, (R), 147 Algonquin Road, term 11/11 – 11/16 (alternate) (To replace Margaret Kufferman who moved to full member) Selectman Cristin McCarthy Vahey made a motion to approve the item. Selectman Kiley seconded the motion which carried 3-0.
Human Services Commission Alida Ward, (D), 3192 Bronson Road, term 11/09 – 11/13 (To replace Elizabeth B. O’Connell who resigned) Selectman Kiley made a motion to approve the item. Selectman McCarthy Vahey seconded the motion.
Selectman McCarthy Vahey said the Commission has been working very hard and it will continue to address issues pertaining to disabled persons and seniors. First Selectman Tetreau thanked Reverend Ward for serving.
The motion carried 3-0.
Town Plan and Zoning Commission i. Gerald F. Alessi, (R), 582 Shrub Oak Lane, term 11/11 – 11/15 (To replace Bryan LeClerc who resigned) Selectman Kiley made a motion to approve the item. Selectman McCarthy Vahey seconded the motion.
Selectman McCarthy Vahey said Mr. Alessi has been a faithful member as an alternate and she is glad he will now serve as a full member.
The motion carried 3-0.
ii. Anthony R. Calabrese, (R), 216 Autumn Ridge Road, term 11/09 – 11/13 (alternate) (To replace Gerald Alessi who is moving to full member) Selectman Cristin McCarthy Vahey made a motion to approve the item. Selectman Kiley seconded the motion.
Selectman Kiley thanked all volunteers who serve on all of the Town’s boards and commissions.
The motion carried 3-0.
9) FAIRFIELD LUDLOWE HIGH SCHOOL BUILDING COMMITTEE APPOINTMENTS To hear, consider and act upon the following appointments to the Fairfield Ludlowe High School Building Committee (requires RTM approval):
i. Marc G. Andre, (D), 130 Lakeview Drive ii. Marc A. Donald, (U), 360 Szost Drive iii. Donna B. Ertel, (D), 375 South Benson Road iv. Terri F. Leopold , (U), 146 Coleman Road v. Joseph R. Pagnozzi, (R), 1496 Fairfield Woods Road vi. Robert Sickeler, (U), 175 Wakeman Road vii. David F. Weber, (D), 1654 North Benson Road
Selectman Kiley made a motion to approve the item. Selectman McCarthy Vahey seconded the motion.
Selectman Kiley thanked everyone for serving. He said the Board is here to support them on this important project. Selectman McCarthy Vahey encouraged the Committee to reach out and ask questions. First Selectman Tetreau thanked the appointees for serving.
The motion carried 3-0.
10) REVIEW AND APPROVE DEPARTMENT HEAD COMPENSATION Selectman Kiley made a motion to approve the item. Selectman McCarthy Vahey seconded the motion.
First Selectman Tetreau said the Town Charter states that raises and compensation for department heads get Selectmen approval. Selectman McCarthy Vahey said the Board of Selectmen does not have day-to-day interactions with departments and she was not ready to approve the item today. She said Storm Sandy is one example of department heads going above and beyond for the Town. Selectman McCarthy Vahey asked First Selectman Tetreau if he has been working with department heads about their department’s goals. First Selectman Tetreau said he has discussed goals with department heads. He then briefly discussed what the departments do and talked about challenges and problems they solve. Selectman Kiley said this is a new process and a new vote to his memory. He said the town is a service organization and provides a high level of service. He said the 14 department heads on the list report to the First Selectman daily. The First Selectman has the most knowledge about department heads’ skills, successes and failures so Selectman Kiley said he relies on the First Selectman’s opinions and interactions with the department heads. Selectman Kiley said the First Selectman knows best how department heads set goals and what processes are in place when improvements are needed.
The motion carried 3-0.
11) TAX COLLECTOR To consider and act upon any tax refunds as recommended by the Tax Collector. The total amount of tax refunds as recommended by the Tax Collector is $114,574,85.
Selectman McCarthy Vahey made a motion to approve the item. Selectman Kiley seconded the motion which carried 3-0.
12) ADJOURN Selectman Kiley made a motion to adjourn the meeting at 5:39 pm. Selectman McCarthy Vahey seconded the motion which carried 3-0.
Respectfully submitted, ______
______Jennifer S. Carpenter Recording Secretary ______
Golf Commission
Seat Name Position Party Term Term End Start 1 Curley, Craig Andrew Chairman R 4/1/2009 4/1/2014 2 [VACANT] * 4/1/2009 4/1/2014 3 Lustig, Jordan R D 4/1/2009 4/1/2014 4 Slane, Jack D 4/1/2010 4/1/2015 5 Janis, Andrew J D 4/1/2010 4/1/2015 6 Morris, Ryan William R 4/1/2011 4/1/2016 7 Albrecht, Edna L D 4/1/2011 4/1/2016
Full Party Count
Vacant 1 Democrats 4 Republicans 2 Total Full 7
The Golf Commission oversees the management and operation of the two municipal golf courses in town - the South Pine Creek Golf Course and H. Smith Richardson Golf Course.
8/16/2013 3:30:16 PM Town of Fairfield Office of the First Selectman Fairfield, Connecticut 06824 BOARDS AND COMMISSIONS QUESTIONNAIRE
To be considered for appointment to a Board or Commission please fill out this form, save a copy and email the saved copy, along with a copy of your resume, to the First Selectman’s office at [email protected]. Please note that your resume and completed ƋƵĞƐƚŝŽŶŶĂŝƌĞ are public documents. If you have any questions please contact Kathleen Griffin at 203-256-3030 or [email protected].
Board/Commission: ______Golf Commission Date: ______8/7/2013
Name: ______Phillip Collin, P.E. Email: [email protected] Address: ______111 Arbor Terrace Home Phone: ______203.292.6683 ______Southport, CT 06890 Work Phone : ______212.915.9544 Cell Phone: ______203.912.3376
1. How did you learn about this position? Through Michael Herley, our Public Health & Safety Chariman
______2. Why are you interested in serving and how can you contribute to this board / commission? This exciting opportunity will give me the chance to participate in and make a contribution to the the town that my wife and I have decided to raise our young family in. I am confident that my occupation as a professional civil engineer and lover of the game will enable me to be a dedicated and effective contributor to the commission's objectives. My wife has found great reward serving as the Tri-Chair of the Junior League of Eastern Fairfield County's annual art show for the past two years and I look forward to having a similar experience on The Golf Commission. ______3. Have you attended any meetings or reviewed past minutes / agendas? If yes, please specify. ______I have never attended a meeting but have read the 2013 minutes 4. Have you spoken with the chair, any members, or the appropriate Department Head? ______No 5. Have you read the written description of the board’s role? ______Yes 6. Do you have any potential conflict of interest? ______No 7. Do you know the time, date and location of meetings and will you be able to attend and fulfill the obligations of the position? ______Yes 8. Participation requires that you are registered voter in the town of Fairfield. Additionally, the town charter requires that party balance be maintained on all boards/commissions. Are you registered to vote and what is your party affiliation? ______Yes, Independent 9. Use this space to ask any questions you may have or to provide additional information you’d like to share. Resume provided as requested PHILLIP P. COLLIN, P.E. [email protected] BRIEF BIO
Phil is a registered professional engineer who has over 20 years of progressively responsible experience in transportation infrastructure procurement, design and construction. He currently serves as Vice President for HNTB Corporation where he leads the Program Controls Department and serves clients such as the Port Authority of New York and New Jersey, the Metropolitan Transportation Authority and the New York State and City Departments of Transportation.
EXPERIENCE January 2011 – Present
HNTB Corporation New York, NY Vice President – Project Executive Fulltime Project Executive for HNTB Corporation on the Port Authority of New York & New Jersey’s Goethals Bridge Replacement Project. As Project Executive, developed and executed a strategic plan to broaden existing as-needed engineering services contract into a full program development, management and oversight contract through the procurement and design & construction phases (6 year term) on this design, build, finance, maintain (DBFM) project. To date, realized over $10 million in contract supplements. Currently developing full scope and fee for design & construction phase services expected to exceed $35 million (non-compete). As a member of the overall project team working directly under the Authority’s Program Director, performing the following procurement phase functions: Authored portions of the Request for Proposal (Project Agreement, General Conditions and Requirements and Provisions for Work) Lead the development of a SharePoint based “collaboration portal” for management of documents, communication and submittals with each of the shortlisted Proposers Leading the development of several electronic content management system (ECMS) modules to automate various processes throughout the program Leading various efforts for compliance with the FHWA Major Projects’ requirements such as Value Engineering, Risk-based Cost Estimate Review (CER), Project Management Plan (PMP) and Quality Assurance Program (QAP) Managing the master schedule development and updating procedure during the procurement phase Providing specialized guidance, opinion and recommendations to the Authority for overall organizational, management, execution and audit processes through design and construction
July 2008 – January 2011 HNTB Corporation New York, NY Vice President New York Sales Manager; Assisted in delivering $63 million gross sales in 2010 Department Leader for NY construction practice; Led growth of department from staff of 2 to 18 in a 2-year period (yearly revenue $3.8 million) National PM/CM subject matter expertise group member advancing best practice, profitable growth and technology within the overall corporate strategic initiatives Risk Manager for the preliminary and final design efforts of the $1.3 billion Portal Bridge Capacity Enhancements Program for the New Jersey Transit Corporation and $1 billion DBFM Goethals Bridge Modernization Program Client Service Team leader/member for MTA, NYSDOT, NYSDOT, NYCEDC, NJ Transit and Port Authority of New York and New Jersey New York Operations Manager (September – March 2009)
February 2006 – June 2008 Carter & Burgess New York, NY Vice President, Transportation Programs Program/Construction Manager for the New York City Economic Development Corporation $150 million East River Waterfront Esplanade and Piers project Provided expert testimony and claims consulting for confidential clientele in areas of schedule delay analysis and impact cost evaluation (construction claims supporting the owner) Responsible for developing highway/bridge market sector within Transportation Programs Unit in the areas of program management, construction management and project controls. Notable wins included PM/CM for the $150 million Phase 1 East River Waterfront Esplanade & Piers project for NYCEDC and construction inspection services for the Interchange 17 toll elimination project for NJTA. Coordinated marketing efforts with other C&B offices for project controls and PM/CM pursuits nationwide Chaired C&B national Project Controls Practice Area Leadership (PAL) committee
[email protected] 2 Home Phone: 203.292.6683
Member of the national PM/CM PAL committee
October 2005 – January 2006 DMJM Harris New York, NY By Merger of CTE Engineers with sister AECOM company DMJM Harris, maintained title of Associate Vice President and Project Controls Manager Responsible for a combined staff of 37 NY Metro Region employees providing scheduling, claims analysis, estimating, document management and administration Coordinated directly with PM/CM National Practice in creating Metro Region “Center of Excellence” for project control support nationally. Successfully integrated Metro staff on projects and pursuits in Texas, Minnesota, Wisconsin and Canada Actively involved in overall vision of PM/CM practice, business development and operations Managed CE&I contracts for MTA Bridges & Tunnels (on-call), NYCDOT (multiple contracts) and NYCEDC (Arthur Kill Lift Bridge Painting and Rehabilitation)
1990 – October 2005 CTE Engineers, Inc. New York, NY Associate Vice President, Director – Project Control Division (1996- 2005) Managed staff of 12 scheduling, document control and claims specialists Created department in 1997 and grew to over $1.75 million in yearly revenue through internal value-added service, independent pursuits and integrated PM/CM pursuits Provided high level schedule control, claims management and reporting on over $1 billion of capital construction (servicing various clients including NYSDOT, NYSTA, NYCT, TBTA, MNR and ConnDOT) Provided contract time determinations, constructability reviews and value engineering during preconstruction on a variety of transportation infrastructure projects/programs saving stakeholders hundreds of thousands of capital dollars and months of non-use of the facilities (servicing CDOT, VDOT, CTA and NYCT) ISO9001:2000 integration team member successful in passing Phase 1 external audit with score of 95 Project Manager – NYCDOT Construction Inspection Services (1999-
[email protected] 3 Home Phone: 203.292.6683
2003) Managed staff of 20 construction supervision personnel with annual revenue of approximately $2.2 million Provided Resident Engineering and Inspection services on over $100 million in bridge and roadway construction Negotiated and administered all contractual obligations with the client Implemented training for new recruits, succession planning and employee retention
Project Manager/Project Engineer – Various Projects (1990-2000) Managed a $450,000 cost plus contract for railroad engineering services for the new Bear Stearns World Headquarters as part of the design/build development team. (increased contract value by 25% through negotiated increases in scope) Managed a lump sum contract for inspection services, condition rating and capital cost estimate for privatization of the Detroit- Windsor Tunnel for Macquarie North America, LTD. (bringing the project in at 67% of the total lump sum budget) Provided Office Engineering/Inspection on over $250 million of construction (roadway and bridge projects for various clients including NYSDOT, NJDOT, NYSTA and MNR) Provided design engineering for various projects including bridge drainage rehabilitation (Triborough & Bronx-Whitestone Bridges) and bridge/highway replacement and rehabilitation Project Coordinator/Assistant PM for biennial bridge inspection programs for the Brooklyn Bridge (NYSDOT) and Triborough Bridge (MTAB&T)
1988 – 1990 Camp, Dresser & McKee Boston, MA Intern/Assistant Staff Engineer – Infiltration/Inflow Investigations Initiated and lead series of house-to-house inspections for sources of infiltration/inflow into the sanitary sewer system (town of Stoneham and city of Attleboro) Provided project reporting and assisted in recommendations for mitigation
[email protected] 4 Home Phone: 203.292.6683
EDUCATION 1985 – 1990 University of Lowell Lowell, MA B.S., Civil Engineering 1999 – 2002 New Jersey Institute of Technology Newark, NJ M.S., Engineering Management
OTHER QUALIFICATIONS Licensed Professional Engineer in NY & NJ since 1995.
Co-authored white paper entitled “Challenges to successfully implementing a public-private partnership project, Best practices for P3 project delivery”, 2011 Published white paper entitled “Contemporaneous Scheduling and Delay Analysis as Part of CM Services” and presented at the 2004 CMAA National Conference. CMAA Metro NY/NJ Board of Directors (2006/2007) Active member ACEC, ASCE, ASHE, GCA and CMAA
[email protected] 5 Home Phone: 203.292.6683 Town Facilities Commission
Seat Name Position Party Term Term End Start 1 Rosenbaum, Howard CHAIR U 7/1/2011 7/1/2014 2 Jones, Kenneth D D 7/1/2011 7/1/2014 3Ackley, Harry R. R 7/1/2011 7/1/2014 4Caruso, Nicholas F R 7/1/2012 7/1/2015 5[VACANT] * 7/1/2012 7/1/2015 6Speciale, Richard A R 7/1/2010 7/1/2013 7Hill, Edwin G U 7/1/2010 7/1/2013 8DiMartino, Donald C R 7/1/2010 7/1/2013 9Leopold, Terri F U 7/1/2010 7/1/2013 ALT1[VACANT] * 7/1/2010 7/1/2013
Full Alternate Party Count Party Count
Vacant11 Vacant Democrats 1 Total ALT 1 Republicans 4
Unaffiliated 3 Total Full 9
The Town Facilities Commission oversees all municipal and school construction projects in town and advises individual building committees that have been set up to accomplish those projects.
8/16/2013 3:56:51 PM Re: TOWN FACILITIES COMMISSION Date: August 15, 2013
Name: Kimberly Lucchesi Marshall email: [email protected] [email protected] Address: 180 Brookbend Road phone 1: 203 650 1932 Fairfield 06824 phone 2: 203 254 0707 Party: Democrat phone3: 203 744 2780
QUESTIONNAIRE FOR BOARD / COMMISSION APPLICANTS 1. How did you learn about this position? Office of the First Selectman
2. Why are you interested in serving and how can you contribute to this board / commission? I have spent my career working in the construction industry, and am knowledgeable about aspects of exterior envelope construction. I also have an interest in historic preservation due to projects I have been involved in.
3. Have you attended any meetings or reviewed past minutes / agendas? If yes, please specify.I have reviewed meeting minutes and agendas, but not attended any TFC meetings. I have attended many building committee meetings as I have been serving on the Fairfield Woods Building Committee since June 2009 and am the current chair of the Osborn Hill School Building Committee.
4. Have you spoken with the chair, any members, or the appropriate Department Head? No, I have not.
5. Have you read the written description of the board’s role? Yes
6. Do you have any potential conflict of interest? I work for a roofing contractor. I am not presently an owner of the company although I was one in the past. In the event of a potential conflict of interest, I can either not vote or my company would not bid any work involving roofing.
7. Do you know the time, date and location of meetings and will you be able to attend and fulfill the obligations of the position? Yes
8. Participation requires that you are registered voter in the town of Fairfield. Additionally, the town charter requires that party balance be maintained on all boards/commissions. Are you registered to vote and what is your party affiliation? I am registered as a Democrat
9. Do you have any questions? Not at this time.
Kimberly Lucchesi Marshall 180 Brookbend Road Fairfield, Ct 06824 203 254 0707/203 650 1932
EDUCATION:
Boston College Newton College of the Sacred Heart Chestnut Hill, MA
B. A. Architectural History 1971-1975
Columbia University School of Architecture, Planning and Preservation New York, NY
Graduate Coursework September 2008- May 2009
EXPERIENCE:
Barrett Roofing Danbury, CT
Vice President 1975-2000 Director of Business Development 2009-present
Estimating, Project Management, Contract Administration, New Business Development
Responsible in these capacities for projects of all sizes and durations, for clients ranging from general contractors, construction managers, and directly for private and public owners
ADDITONAL INFORMATION:
Chair of the Management/Labor Negotiating Committee for Local #12- 1990-2000 Chair of the Health and Welfare Fund for Local #12- 1992-2002 Executive Board Member of the Connecticut Roofing Contractors’ Association, holding position of Treasurer, Secretary, Vice President, President- three year periods per position 1990-2002 Member of the Advisory Committee for the Northeast Roofing Contractors-1993-1998 Executive Board Member of the Bellarmine Guild at Fairfield Prep, chairing various committees [including four years for Prep Pride, the school store]-2001-2008 Co Chair of the Landmark Campaign, a $20,000,000 capital project for new additions and renovations at Fairfield Prep- 2003-2005 Member of the House Committee at Brooklawn Country Club-2002-2009 Member of the Fairfield Woods Middle School Building Committee 2009-2013 Winton Park Executive Committee member 2011-present Osborn Hill Elementary School Building Committee Chair 2013-2014
From: Brian Bidolli, Greater Bridgeport Regional Council Re: Change of Government for Greater Bridgeport Regional Council To: Board of Selectmen Date: August 18, 2013
The specific legislation requiring this change is contained in Section 250 of HB 6706 as follows. A link to the full bill, which serves as the overall state budget implementer can be found at: http://www.cga.ct.gov/asp/cgabillstatus/cgabillstatus.asp?selBillType=Bill&bill_num=HB- 6706
Sec. 250. (NEW) (Effective from passage) (a) On or before January 1, 2015, each regional planning agency created pursuant to sections 8-31a to 8-37a, inclusive, of the general statutes, revision of 1958, revised to January 1, 2013, and each regional council of elected officials created pursuant to sections 4-124c to 4-124h, inclusive, of the general statutes, shall be restructured to form a regional council of governments as provided in section 4-124j of the general statutes, as amended by this act.
(b) A regional council of governments may accept or participate in any grant, donation or program available to any political subdivision of the state and may also accept or participate in any grant, donation or program made available to counties by any other governmental or private entity. Notwithstanding the provisions of any special or public act, any political subdivision of the state may enter into an agreement with a regional council of governments to perform jointly or to provide, alone or in cooperation with any other entity, any service, activity or undertaking that the political subdivision is authorized by law to perform. A regional council of governments established pursuant to this section may administer and provide regional services to municipalities and may delegate such authority to subregional groups of such municipalities. Regional services provided to member municipalities shall be determined by each regional council of governments and may include, without limitation, the following services: (1) Engineering; (2) inspectional and planning; (3) economic development; (4) public safety; (5) emergency management; (6) animal control; (7) land use management; (8) tourism promotion; (9) social; (10) health; (11) education; (12) data management; (13) regional sewerage; (14) housing; (15) computerized mapping; (16) household hazardous waste collection; (17) recycling; (18) public facility siting; (19) coordination of master planning; (20) vocational training and development; (21) solid waste disposal; (22) fire protection; (23) regional resource protection; (24) regional impact studies; and (25) transportation.
(c) On January 1, 2014, and annually thereafter, each regional planning agency, regional council of elected officials and regional council of governments, shall submit a report to the Secretary of the Office of Policy and Management and to the joint standing committee of the General Assembly having cognizance of matters relating to municipalities. Such report shall include the following: (1) A description of any regional program, project or initiative provided or planned by such regional council of governments; (2) a description of any expenditure, including the source of funding, spent on each such regional program, project or initiative and a cost-benefit analysis for such expenditure; (3) a list of existing services provided by a municipality or by the state that, in the opinion of the regional council of governments, could be transferred to such regional council of governments and any efficiency associated with such transfer; (4) a discussion and review of the performance of any regional program, project or initiative, including any recommendations for legislative action; and (5) specific annual goals and objectives and quantifiable outcome measures for each program, project or initiative administered or provided by such regional council of governments. Resolution of Endorsement
Greater Bridgeport Regional Council of Governments
WHEREAS, General Assembly Bill No. 6706, AN ACT IMPLEMENTING PROVISIONS OF THE STATE BUDGET FOR THE BIENNIUM ENDING JUNE 30, 2015 CONCERNING GENERAL GOVERNMENT includes amendments to the composition of council of governments, council of elected officials, and regional planning agencies in designated planning regions; and
WHEREAS, the Greater Bridgeport Regional Council (GBRC) created pursuant to sections 4- 124c to 4-124h of the general statutes currently operates as a regional council of governments as provided in section 4-124j of the Connecticut General Statutes on or before January 1, 2015 as amended; and
WHEREAS, in accordance with the procedures set forth in Section 4-124j of the Connecticut General Statutes, as amended, the Greater Bridgeport Regional Council has endorsed section 4-124i through 4-124p, inclusive, of the Connecticut General Statutes as amended, by resolution to amend the current designation by the State of Connecticut Office of Policy and Management to be constituted as a regional council of governments.
WHEREAS, the Greater Bridgeport Regional Council shall be in compliance with the provisions of General Assembly Bill No. 6706, AN ACT IMPLEMENTING PROVISIONS OF THE STATE BUDGET FOR THE BIENNIUM ENDING JUNE 30, 2015 CONCERNING GENERAL GOVERNMENT
BE IT RESOLVED, the Representative Town Meeting of the Town of Fairfield hereby ratifies the action of the Greater Bridgeport Regional Council to become a Council of Governments as determined at a meeting of the regional planning organization held on June 12, 2013, toward that end, the Greater Bridgeport Regional Council formally adopted section 4-124i through 4-124p, inclusive, of the Connecticut General Statutes, in accordance with the procedures set forth in section 4-124j of the Connecticut General Statutes.
BE IT FURTHER RESOLVED, that this resolution shall go into effect upon the enactment and approval of enabling legislation of member municipalities of the Region.
To: Board of Selectmen
From: Edward Boman
Date: August 16, 2013
RE: Request for appropriation of $1,300,000 to install a microgrid at the Police Headquarters, Fire Headquarters and Operation Hope
------
1. Background—The State of Connecticut created the microgrid program as a result of the three long and extensive power outages the State suffered over the last two years from storm damage. In many examples critical municipal services and communications systems were disrupted for extended periods of time. The microgrid program is an attempt to insure reliable electricity, heating, and telephone communications for critical services.
2. Purpose and Justification—The purpose of this Public Safety Microgrid is to provide such reliability to the Police headquarters, the ECC, fire Headquarters, Operation Hope and the cell tower.
The Justification is obvious: the citizens of Fairfield may require a higher amount of emergency services during extreme storm events. Police, fire and, ambulances and other emergency vehicles must continue to function. Communications are essential between and among the affected department and between the citizens and the departments. Cell phone communications with these critical departments may be a necessity if phone lines are down in the street.
3. Detailed Description of Proposal—The project is an attempt to use a variety of power resources, including green power, to provide all the electricity required for a number of critical public safety facilities and services of the Town of Fairfield, during an emergency event when normal power sources are interrupted. It is also an attempt to increase reliability through distributed energy sources, and, at the same to reduce costs to the taxpayer over the long run. (See Attachment)
4. Reliability of Estimated Costs—The grant eligible costs were presented to DEEP by Schneider Electric, the Town’s chosen vender and approved. The Town’s share is based on a quote to Schneider by Yankee Electric. By accepting the grant the Town and Schneider are committed to these amounts. The contract between Schneider Electric is a design-build at a fixed cost of $1,282,657. The balance of $17,343 is contingency for the Town.
5. Increased Efficiency—Not applicable
6 Additional Long Range Costs --None
7. Additional Use or Demand on Existing Facilities—None anticipated 8. Alternatives to this Request—If we do nothing to improve the reliability of the utilities to these Facilities, the Town remains at risk for the loss of some critical public safety services during severe weather.
9. Safety and Loss Control—The microgrid will improve public safety as described above and improve risk management during storm and other emergency events.
10. Environmental Considerations—The installation of photovoltaic generators on the roofs of Operation Hope and Fire headquarters will improve air quality as they are zero emission generators. The conversion of the emergency generator from diesel to natural gas will also reduce emissions of both greenhouse gasses and criteria pollutants regulated by the Clean Air Act. The emergency generator will be installed above the 100 year flood plain elevation.
11. Insurance—NA
12. Financing—The DEEP financing of the $1,167,659 has already been approved The $132,341 must be financed by the Town.
13. Other Considerations—None
14. Other Approvals-- Board of Finance—September 3,2013 RTM--- September 23, 2013
TO: Board of Selectmen
FROM: Edward Boman
DATE: August 16, 2013
RE: C-Pace contract approval
1. Background—In 2012 Connecticut passed a new law that provides owners of commercial, including multi-family properties of 5 or more units, and industrial property with access to a new form of financing for building energy upgrades: Connecticut Property Assessed Clean Energy (C-PACE). The Clean Energy Finance and Investment Authority CEFIA) was charged to implement the program. The loans are then attached to the property (not the property owner) as a lien. The Tax Collector receives the payments and forwards them to the loan company. The lien takes senior position to any mortgage, and is subordinated only to property taxes. As such, permission of the mortgage holder is necessary.
2. Purpose and Justification---To attract private capital into the clean energy market and to increase the value of private commercial and industrial properties, reduce energy costs , stimulate the economy, create jobs and reduce greenhouse gasses and criteria pollutants.
3. Detailed Description of Proposal---There is no appropriation required. The C-Pace program works in this way:
CEFIA will publish a list of pre-qualified energy auditors and contractors for the program Building owner works withone of the preapproved list to define the energy project Application for assistance made to CEFIA Funding approved and installation completed Work is certified Lien is placed on property for up to 20 years Payment collected same as taxes Payment sent to state
4.Reliability of Estimated Cost—Not Applicable
5. Increased Efficiency or Productivity—Not Applicable
6. Additional Long-Range Costs---The only future long range costs are minimal administrative costs in the Tax Collector’s office which are reimbursable from CEFIA.
7. Additional Use or Demand on Existing Facilities—Not Applicable
8. Alternatives to This Request—Do nothing and deprive eligible commercial and industrial property owners of a low cost way to improve the value and energy efficiency of their properties. 9. Safety and :Loss Control—Not Applicable
10.Environmental Considerations—As previously stated, C-Pace can result in lower emissions of greenhouse gasses and criteria pollutants such as particulate matter. Energy efficiency will also help conserve depletable natural resources.
11. Insurance—Not Applicable
12. Financing—Not Applicable
13. Other Considerations—None
14. Other Approvals—RTM---September 23, 2013. COMMERCIAL PROPERTY ASSESSED CLEAN ENERGY (“C-PACE”) AGREEMENT
THIS AGREEMENT is made and entered into as of the ____ day of ______, 20__, by and between ______, CONNECTICUT, a municipal corporation organized and existing under the laws of the State of Connecticut (the “Municipality”), and the CLEAN ENERGY FINANCE AND INVESTMENT AUTHORITY, a public instrumentality and political subdivision of the State of Connecticut established under Public Act No. 11-80 (and codified in Section 16-245n of the Connecticut General Statutes) (the “Authority”).
RECITALS
, Commercial Property Assessed Clean Energy (C-PACE) is a program to facilitate loan financing for clean energy improvements to commercial properties by utilizing a state or local assessment mechanism to provide security for repayment of the loans.
, Public Act No. 12-2 of the June 12, 2012 Special Session of the Connecticut General Assembly (the “Act”) established a C-PACE program in Connecticut.
, Section 157 of the Act directed the Authority to establish a commercial sustainable energy program, and authorized the Authority to make appropriations for and issue bonds, notes or other obligations to finance the program costs. A commercial sustainable energy program is a program that facilitates energy improvements to commercial or industrial property and utilizes municipal benefit assessments authorized by the Act as security for financing the energy improvements.
, to secure financing for the program, the Authority and the municipality are authorized to enter into a written agreement, as approved by the municipality’s legislative body, pursuant to which the municipality has agreed to assess, collect, remit and assign, benefit assessments to the Authority in return for energy improvements for benefited property owners within the municipality and for costs reasonably incurred by the municipality in performing such duties.
, this Agreement constitutes the written agreement authorized by the Act.
NOW THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein and in order to effectuate the purposes of the Act, it is hereby agreed as follows:
Section 1 - Definitions.
(a) “Energy improvements” means any renovation or retrofitting of qualifying commercial real property to reduce energy consumption or installation of a renewable energy system to service qualifying commercial real property, provided such renovation, retrofit or installation is permanently fixed to such qualifying commercial real property. (b) “Qualifying commercial real property” means any commercial or industrial property, regardless of ownership, that meets the qualifications established for the commercial sustainable energy program.
(c) “Commercial or industrial property” means any real property other than a residential dwelling containing less than five dwelling units.
(d) “Benefitted property owner” means an owner of qualifying commercial real property who desires to install energy improvements and provides free and willing consent to the benefit assessment against the qualifying commercial real property.
(e) “Commercial sustainable energy program” means a program that facilitates energy improvements and utilizes the benefit assessments authorized by this Agreement as security for the financing of the energy improvements.
(f) “Benefit assessment” means the assessment authorized by the Act.
Section 2 - Obligations of the Authority.
(a) Program Requirements. Pursuant to the Act, the Authority:
(1) shall develop program guidelines governing the terms and conditions under which state financing may be made available to the commercial sustainable energy program, including, in consultation with representatives from the banking industry, municipalities and property owners, developing the parameters for consent by existing mortgage holders and may serve as an aggregating entity for the purpose of securing state or private third-party financing for energy improvements pursuant to the Act,
(2) shall receive and review applications submitted by benefitted property owners within the Municipality for financing of energy improvements, and approve or disapprove such applications in accordance with underwriting procedures and requirements established by the Authority,
(3) shall prepare and deliver to the Municipality an annual report which shall contain information related to each qualifying commercial real property within the Municipality, including:
i. A list of each qualifying commercial real property for which the benefitted property owner executed a financing agreement during the prior year; ii. A list of each qualifying commercial real property where all obligations under the financing agreement have been satisfied or paid in full during the prior year, including the satisfaction date and a copy of the notice of satisfaction; iii. the total benefit assessment payments made to the Authority in respect of all qualifying commercial real properties; and
- 2 - iv. for each non-satisfied (not paid in full) benefit assessment (including each benefit assessment approved in the prior year): A. the date of the financing agreement, B. the outstanding amount of the financing, C. the total principal balance and accrued interest outstanding, and D. the annual payment(s) due to the Authority (which shall include principal and accrued interest) associated with such benefit assessment (including the amount of accrued interest on the initial payment, if different).
(4) shall establish the position of commercial sustainable energy program liaison within the Authority,
(5) shall establish a loan loss reserve or other credit enhancement program for qualifying commercial real property,
(6) may use the services of one or more private, public or quasi-public third-party administrators to administer, provide support or obtain financing for the commercial sustainable energy program, and
(7) shall adopt standards to ensure that the energy cost savings of the energy improvements over the useful life of such improvements exceed the costs of such improvements.
(b) Project Requirements. If a benefitted property owner requests financing from the Authority for energy improvements under the Act, the Authority shall:
(1) require performance of an energy audit or renewable energy system feasibility analysis on the qualifying commercial real property that assesses the expected energy cost savings of the energy improvements over the useful life of such improvements before approving such financing,
(2) impose requirements and criteria to ensure that the proposed energy improvements are consistent with the purpose of the commercial sustainable energy program, and
(3) require that the property owner provide written notice, not less than thirty days prior to the recording of any lien securing a benefit assessment for energy improvements for such property, to any existing mortgage holder of such property, of the property owner’s intent to finance such energy improvements pursuant to the Act.
(c) Financing Agreement for Project. The Authority may enter into a financing agreement with the property owner of qualifying commercial real property. The financing agreement shall clearly state the estimated benefit assessment that will be levied against the qualifying commercial real property upon completion of the energy improvements. The Authority shall disclose to the property owner the costs and risks associated with participating in
- 3 - the commercial sustainable energy program, including risks related to the failure of the property owner to pay the benefit assessment provided for in the financing agreement. The Authority shall disclose to the property owner the effective interest rate on the benefit assessment, including fees charged by the Authority to administer the commercial sustainable energy program, and the risks associated with variable interest rate financing, if applicable. The Authority shall notify the property owner that such owner may rescind any financing agreement entered into not later than three business days after such financing agreement is executed by the property owner and delivered to the Authority. The financing agreement shall provide for the consent of existing mortgage holders for the benefit assessment lien to be continued, recorded and released by the Municipality, as required by the Act and described in Section 3(c) herein.
(d) Determination of Estimated and Final Benefit Assessments and Payments.
(1) In connection with the completion and execution of the financing agreement, the Authority shall determine the estimated benefit assessment and provide written notice of the estimated benefit assessment to the Municipality.
(2) Upon completion of the energy improvements to the qualifying commercial property, the Authority shall determine the final benefit assessment, including fees charged by the Authority to administer the commercial sustainable energy program, and shall set a fixed or variable rate of interest for the repayment of the benefit assessment amount. Such interest rate, as may be supplemented with state or federal funding as may become available, shall be sufficient to pay the financing and administrative costs of the commercial sustainable energy program, including delinquencies. The Authority shall provide written notice of the final benefit assessment and interest rate to the Municipality.
(3) It is anticipated that the Authority will decide that the benefit assessment shall be payable in two equal payments respectively payable on July 1 and January 1 of each year so that they are due at the same time as the installments of the Municipality’s real property taxes. If the Municipality changes its practices concerning the billing of annual real property taxes as to the number of installments and their due dates, the Authority will change its practices to the extent possible to correspond with the Municipality’s practices.
Section 3 - Obligations of the Municipality.
(a) Placing of Caveat on Land Records. Upon receiving written notice from the Authority of the estimated benefit assessment as provided in Section 2(d)(1) herein, the Municipality shall promptly place a caveat on the land records (on a form provided by the Authority after consultation with the municipality) indicating that a benefit assessment and lien is anticipated upon completion of energy improvements for the qualifying commercial real property. The Authority will reimburse the municipality the cost charged by the Town Clerk for recordation of the caveat.
(b) Levy of Benefit Assessment. Upon receiving written notice from the Authority of the final benefit assessment as provided in Section 2(d)(2) herein, the Municipality shall promptly levy on the next grand list the benefit assessment against the qualifying commercial
- 4 - real property especially benefitted by the energy improvements financed by the Authority, and shall place a lien on the qualifying commercial real property to secure payment of the benefit assessment. As provided in the Act, the benefit assessments levied (on a form provided by the Authority after consultation with the municipality) pursuant to this Agreement and the interest, fees and any penalties thereon shall constitute a lien against the qualifying commercial real property on which they are made until they are paid. The Authority will reimburse the municipality the cost charged by the Town Clerk for recording the lien. Such lien shall be levied and collected in the same manner as the property taxes of the Municipality on real property, including, in the event of default or delinquency, with respect to any penalties, fees and remedies and lien priorities as provided by the Act.
(c) Continuation, Recording and Release of Lien. As provided in the Act, each benefit assessment lien shall be continued, recorded and released in the manner provided for property tax liens, subject to the consent of existing mortgage holders, and shall take precedence over all other liens or encumbrances except a lien for taxes of the Municipality on real property, which lien for taxes shall have priority over such benefit assessment lien. The Authority shall provide to the Municipality written notice of the consent of existing mortgage holders for the lien to be continued, recorded and released by the Municipality.
(d) Assignment of Benefit Assessment Lien.
(1) Upon the written request of the Authority, the Municipality shall assign to the Authority any and all liens filed by the Municipality’s tax collector, as provided in this Agreement. The Authority may sell or assign, for consideration, any and all liens received from the Municipality. The assignee or assignees of such liens shall have and possess the same powers and rights at law or in equity as the Authority and the Municipality and its tax collector would have had if the lien had not been assigned with regard to the precedence and priority of such lien, the accrual of interest and the fees and expenses of collection. The assignee shall have the same rights to enforce such liens as any private party holding a lien on real property, including, but not limited to, foreclosure and a suit on the debt. Costs and reasonable attorneys’ fees incurred by the assignee as a result of any foreclosure action or other legal proceeding brought pursuant to the assignment and directly related to the proceeding shall be taxed in any such proceeding against each person having title to any property subject to the proceedings. Such costs and fees may be collected by the assignee at any time after demand for payment has been made by the assignee.
(2) The Municipality hereby acknowledges that the Authority may sell or assign any and all liens received from the Municipality under Section 3(d) of this Agreement to a trustee for the benefit of the holders of the Authority’s bonds, notes or other obligations issued to finance the costs of the commercial sustainable energy program, and that the holders of the Authority’s bonds, notes or other obligations will rely on the Municipality to levy, collect and remit the benefit assessments to the Authority. Therefore, the Municipality unconditionally agrees that in the event the Municipality does not discharge its duties under this Agreement, the trustee shall have the right to enforce the Municipality’s obligations under this Agreement by institution of legal action against the Municipality.
(e) Billing and Collection; Payment to the Authority.
- 5 -
(1) The Municipality shall bill the benefit assessments in the same manner and at the same time as it bills its real property taxes. The benefit assessment payments shall be a separate clearly defined line item or separate bill and shall be due on the same dates as the Municipality’s real property taxes. The amount of the benefit assessment will be recorded on the Municipality’s tax rolls in the same manner as any other benefit assessment, such that the public will have access to its existence and payment status. The penalties and interest on delinquent benefit assessments shall be charged in the same manner and rate as the Municipality charges for delinquent real property taxes.
(2) Payments of the benefit assessments collected by the Municipality shall be segregated from all other funds of the Municipality and deposited in a separate account for the benefit of the Authority and identifying the Authority as the beneficial owner. The Municipality disclaims any ownership interest or other interests in such account or the amount collected.
(3) The Municipality shall pay all amounts collected with respect to the benefit assessments within any calendar month to the Authority or its assignee no later than the last business day of the second month after the month that the amounts are collected. The Municipality will provide monthly collection reports to the Authority, and the Authority, at its own expense, shall have the right to audit the records relating to the benefit assessments upon reasonable notice at reasonable times. The Authority and Municipality agree to provide each other with such reasonable information as they may request and the Authority and the Municipality agree to provide such information in a computer format satisfactory to the other.
(f) Collection of Delinquent Payments.
(1) If (i) the benefit assessment liens have not been assigned to the Authority pursuant to Section 3(d) of this Agreement, or (ii) the Authority makes a written request to the Municipality for its assistance in the collection of delinquent benefit assessments and related charges, the Municipality, in its sole discretion, and the Authority may enter into a separate agreement for those services, which agreement shall provide for compensation to be paid to the Municipality for its collection services. The agreement may provide for the Municipality to pursue the collection of any delinquent benefit assessments with the same diligence it employs in the collection of the Municipality’s real property taxes, including the commencement of foreclosure proceedings to the extent provided by the then-current statutes of the State of Connecticut, and to take such actions that are required to preserve the lien securing delinquent benefit assessments. The agreement may also provide that the Authority shall have the right to take over the enforcement of any delinquent benefit assessments upon written notice to the Municipality, and thereupon the Municipality will have no further responsibility to collect such amount.
(2) The Municipality will provide written notice to the Authority of any sale or assignment of its real property taxes or any institution of a judicial foreclosure or other proceeding against any real property for delinquent real property taxes if such real property is subject to a lien securing a delinquent benefit assessment. Similarly, the Authority shall provide
- 6 - written notice to the Municipality of the institution of a judicial foreclosure or other proceeding against any qualified commercial real property for a delinquent benefit assessment.
(g) Promotion of Program; Assistance for Authority Financing.
(1) The Municipality shall use good faith efforts to assist the Authority in local marketing efforts and outreach to the local business community to encourage participation in the commercial sustainable energy program, such as including commercial sustainable energy program information on the Municipality’s website, distributing an informational letter from chief elected official to local businesses regarding the program, and conducting one or more business roundtable event(s).
(2) The Municipality shall use good faith efforts to assist in gathering and providing information for the Authority to offer, sell and issue its bonds, notes or other obligations to provide funds for the commercial sustainable energy program.
Section 4 - Indemnification.
The Authority agrees that it will protect, defend, indemnify and hold harmless the Municipality and its officers, agents and employees to the extent of available proceeds derived from the benefit assessments from and against all claims, demands, causes of action, damages, judgments, losses and expenses, including reasonable attorney’s fees, arising out of or in connection with the performance of the services to be provided by the Municipality under this Agreement. This provision shall survive termination of this Agreement.
Section 5 - Term.
The term of this Agreement shall commence upon the date first written above. This Agreement shall be in full force and effect until all of the benefit assessments have been paid in full or deemed no longer outstanding.
Section 6 -Default.
Each party shall give the other party written notice of any breach of any covenant or agreement under this Agreement and shall allow the defaulting party 30 days from the date of its receipt of such notice within which to cure any such default or, if it cannot be cured within the 30 days, to commence and thereafter diligently pursue to completion, using good faith efforts to effect such cure and to thereafter notify the other party of the actual cure of any such default. The parties shall have all other rights and remedies provided by law, including, but not limited to, specific performance, provided however, in no event shall either party have the right to terminate this Agreement prior to the expiration of the Term, except as provided in accordance with Section 7(c) of this Agreement.
Section 7 - Miscellaneous Provisions.
- 7 - (a) Assignment or Transfer. Except as provided in Section 3(d) hereof, a party may not assign or transfer its rights or obligations under this Agreement to another unit of local government, political subdivision or agency of the State of Connecticut or to a private party or entity without the prior written consent of the other party and, if required, the prior approval of the holders of the Authority’s bonds, notes or other obligations. If approval of the assignment by the holders of the Authority’s bonds, notes or other obligations is required, such approval shall be obtained in accordance with the indenture or other documents entered into by the Authority in connection with the bonds, notes or other obligations.
(b) Amendment and Termination. After the Authority sells and issues its bonds, notes or other obligations to finance the costs of the commercial sustainable energy program, this Agreement may not be amended or terminated by the parties without the prior approval of the holders of the Authority’s bonds, notes or other obligations, which approval shall be obtained in accordance with the indenture or other documents entered into by the Authority in connection with the bonds, notes or other obligations.
(c) Severability. If any clause, provision or section of this Agreement is held to be illegal or invalid by any court, the invalidity of the clause, provision or section will not affect any of the remaining clauses, provisions or sections, and this Agreement will be construed and enforced as if the illegal or invalid clause, provision or section has not been contained in it.
(d) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together shall constitute but one and the same instrument.
(e) Notices. All notices, requests, consents and other communications shall be in writing and shall be delivered, mailed by first class mail, postage prepaid, or overnight delivery service, to the parties, as follows:
If to the Municipality:
______
If to the Authority:
Clean Energy Finance and Investment Authority 865 Brook Street Rocky Hill, Connecticut 06067 Attention: President
- 8 - (g) Amendment and Waivers. Except as otherwise set forth in this Agreement, any amendment to or waiver of any provision of this Agreement must be in writing and mutually agreed to by the Authority and the Municipality.
(h) Applicable Law and Venue. This Agreement and its provisions shall be governed by and construed in accordance with the laws of the State of Connecticut. In any action, in equity or law, with respect to the enforcement or interpretation of this Agreement, venue shall be in the State of Connecticut.
(i) Entire Agreement. This instrument constitutes the entire agreement between the parties and supersedes all previous discussions, understandings and agreements between the parties relating to the subject matter of this Agreement.
(j) Headings. The headings in this Agreement are solely for convenience, do not constitute a part of this Agreement and do not affect its meaning or construction.
(k) Affirmation of Applicable Executive Orders. To the extent applicable to this Agreement, Municipality acknowledges that it will be required to comply with the provisions of the following Executive Orders: Executive Order No. 7C of Governor M. Jodi Rell, promulgated July 13, 2006, concerning contracting reforms; Executive Order No. 14 of Governor M. Jodi Rell, promulgated April 17, 2006, concerning procurement of cleaning products and services; Executive Order No. 16 of Governor John G. Rowland, promulgated August 4, 1999, concerning violence in the workplace; Executive Order No. 17 of Governor Thomas J. Meskill, promulgated February 15, 1973, concerning the listing of employment openings; and Executive Order No. 3 of Governor Thomas J. Meskill, promulgated June 16, 1971, concerning labor employment practices.
[Remainder of this Page Intentionally Left Blank]
- 9 - IN WITNESS WHEREOF, the Municipality and the Authority have each caused this Agreement to be executed and delivered as of the date indicated above:
(SEAL)
ATTEST: [CITY/TOWN OF ______]
______By: ______
Its: ______
As to the signatory of the Municipality above, Signed and delivered in the presence of:
______Name: Name:
APPROVED AS TO FORM:
______[Town Attorney/Corporation Counsel]
CLEAN ENERGY FINANCE AND INVESTMENT AUTHORITY
By: ______Bryan T. Garcia, President
As to the signatory of the Authority above, signed and delivered in the presence of:
______Name: Name:
2396839v1
- 10 - The Clean Energy Opportunity for Commercial Buildings in CT
Property Assessed Clean Energy Program Description In 2012, Connecticut passed legislation enabling Connecticut’s Commercial & Industrial PACE (C-PACE) Property Assessed Clean Energy or “PACE”, an program, which is administered by the Clean Energy innovative financing model that will allow building Finance and Investment Authority (CEFIA), offers owners across the state to access cleaner, cheaper, and financing to commercial, industrial, and multi-family more reliable energy. Hundreds of millions of dollars in property owners. This game-changing program is energy upgrades are possible in Connecticut and PACE available statewide; any interested municipalities can will enable our state to access the private capital to opt-in through an agreement with CEFIA. Eligible finance it. upgrades will reduce the energy consumption and / or provide clean energy to the property. Although there is How does PACE financing work? no financing minimum, PACE financing is best suited for PACE is a tax-lien financing program that allows capital improvements greater than $150,000. interested property owners to finance qualifying energy There are 4 steps to accessing PACE financing: efficiency and clean energy improvements on their 1. Choose your upgrades. Work with an energy audi- buildings through an additional charge (“assessment”) tor or contractor to identify projects that reduce on their property tax. Similar to a sewer tax assessment, energy use and will be eligible for PACE financing. capital provided under a PACE program is secured by a 2. Apply on CEFIA’s C-PACE website for financing. lien on the owner’s property tax bill and paid back over CEFIA will work with you to secure low-cost time. Like other benefit assessments, the PACE lien is financing. a non-accelerating, senior lien secured by the property. 3. Install project and get funding. When approved, The repayment obligation transfers automatically to the CEFIA will request a lien to be placed on your next owner if the property is sold. Because the payment property and funding will be dispersed once the is tied to the property tax, low interest capital can be project is completed. raised from the private sector with no government 4. Make Payments. Repay your PACE financing financing required. This arrangement spreads the cost through a line item on your property tax bill over of clean energy improvements – such as energy efficient the course of up to 20 years. If you sell the prop- boilers, upgraded insulation, new windows, or solar erty, the assessment stays with the building. installations – over the expected life of the measure. What types of buildings are eligible? CEFIA’s “open market” PACE program • LOCATION: The property is located within a In the initial phase of the C-PACE program in municipality that has adopted a resolution joining Connecticut, CEFIA is pursuing an owner-arranged the C-PACE program. program. In this model, financing is provided by private • OWNERSHIP: The applicant is the legal owner investors. Investors are attracted to the security of of the property and all the legal owners of such the tax lien and work directly with property owners property agree to participate. to negotiate rates and terms. CEFIA acts as a conduit for the repayment of the assessment and also as a • PROPERTY TYPE: The property must be non- matchmaker connecting property owners with private residential, or 5 or more dwelling units, and pay market financing partners. Various credit enhancements property taxes or have a property tax ID. may be available to accelerate the use and adoption of • PROPERTY-BASED DEBT: The property must be this financial program. current on property tax and assessment payments. The property owner must not have any involuntary The “pooled bond/warehouse” liens, defaults, or judgments applicable to the model for PACE subject property. Once the PACE program ramps up to scale, CEFIA • LENDER CONSENT: The property owner must intends to explore developing a pooled bond model provide evidence that the mortgage holder(s) on for PACE. In this model, CEFIA will secure a line of the property consents to the PACE assessment, if credit from a private investor to use in funding the applicable. PACE program. The private investor will warehouse the assessments until they reach a certain amount and then What types of upgrades are eligible? CEFIA would issue a bond to replenish the line of credit.
Benefits of PACE Financing PACE financing offers a broad range of benefits to municipalities, building owners, mortgage holders, investors and energy efficiency / renewable energy contractors. A complete discussion of these benefits can be found online at www.ctcleanenergy.com/CPACEbenefits
FOR MORE INFORMATION • High efficiency lighting • Heating ventilation air conditioning (HVAC) up- Contact Jessica Bailey, grades and controls Director, Commercial and Industrial PACE • High efficiency chillers, boilers, furnaces and water Clean Energy Finance and Investment Authority heating systems [email protected] • Building enclosure/envelope improvements • Building automation (energy management) systems (860) 257-2888 • Renewable energy systems • See www.ctcleanenergy.com/cpace or visit ctcleanenergy.com/cpace for a complete list
Energize Connecticut— programs that help you save money and use clean, affordable energy—is a partnership of the Energy Efficiency Fund, the Clean Energy Finance and Investment Authority, and your local electric and gas utilities and is funded by a charge on customer energy bills.
Oct 2012 C-PACE: Commercial & Industrial Property Assessed Clean Energy
Jessica Bailey Director, C-PACE Clean Energy Finance and Investment Authority [email protected] 1 Who is CEFIA? Strategic Focus – Vision and Mission
Help ensure Connecticut’s energy security and community prosperity by realizing its environmental and economic opportunities through clean energy finance and investments.
Support the Governor’s and legislature’s energy strategy to achieve cleaner, cheaper and more reliable sources of energy while creating jobs and supporting local economic development
2 CEFIA’s goals
3 “Property Assessed Clean Energy” Funding
Creates an innovative financing structure that funds RE&EE upgrades in buildings Defines energy upgrades are a public benefit and can be financed through same assessment mechanism used to finance sewers and sidewalks Provides 100% low cost, long term funding for qualified energy upgrades Allows repayment through property tax assessment over 20 years Requires energy upgrades to pay for themselves with energy savings Senior PACE lien stays with the property if it changes owners and doesn’t accelerate in case of default Why do we need PACE Why Hasn’t More Happened on Energy Efficiency
REFERENCES EE Indicator – NA 2010, Johnson Controls and International Facilities Management Association (IFMA) 5 PACE programs around the country
6 Connecticut’s Legislation
C-PACE:
Enables commercial and industrial property owners to access financing for qualified energy upgrades and repay the loan through a benefit assessment on their property tax. Requires the consent of the existing mortgage lender. Enables municipalities to opt-in through approval of their legislative body through “written agreement, as approved by its legislative body, with the authority” Enables CEFIA to administer a statewide program and to aggregate demand for this financing tool from around the state to further drive down cost of capital for building owners
7 Opportunity for Commercial Building Efficiency
36,000 commercial buildings 20% energy savings in 10% of buildings = $43 million/year in energy savings Upfront cost = $164 million Avg. payback under 4 years Savings continue after that Local job creation
Business competitiveness 8 Benefits to Key Stakeholders
Municipality –promotes economic development, creates local jobs, reduces energy costs for businesses, reduces pollution
Property owner: low cost, long term financing to improve building energy use
Existing lenders – lowers operating costs for building, increases value of building
Project lenders – provides low risk investment due to the senior lien status of PACE
Contractor – offers customer financing for upgrades
9 There are 4 steps to accessing PACE financing:
1. Choose your upgrades. Work with an energy auditor or contractor to identify projects that reduce energy use and will be eligible for PACE financing.
2. Apply on CEFIA’s C-PACE website for financing. CEFIA will work with you to secure low-cost financing.
3. Install project and get funding. When approved, CEFIA will request a lien to be placed on your property and funding will be dispersed once the project is completed.
4. Make Payments. Repay your PACE financing through a line item on your property tax bill over the course of up to 20 years. If you sell the property, the assessment stays with the building.
C-PACE Financing Mechanics
11 What’s Eligible
High efficiency lighting Combustion and burner Heating ventilation air upgrades conditioning (HVAC) upgrades Fuel switching New automated building and Water conservation measures HVAC controls to the extent they save energy Variable speed drives (VSDs) on Heat recovery and steam traps motors fans and pumps Building enclosure/envelope High efficiency chillers, boilers, improvements and furnaces Building automation (energy High efficiency hot water management) systems heating systems Renewable energy systems.
What’s Not
Appliances, e.g., refrigerators, Any measure that is easily dishwashers, etc. removed or not permanently Plug load devices installed Vending machine controls Any measure that does not result Any package of measures with a in improved water or energy weighted average effective efficiency or renewable energy useful life (EUL) that does not generation meet or exceed the life of the Extending natural gas lines to loan the property line to enable a Any package of measures that PACE-eligible gas conversion does not achieve an energy project. savings (over the life of the loan) to [total project] investment ratio > 1
CEFIA’s role: Designing the Program
Municipal Working Group*: secure participation from municipalities in the C- PACE program through legal agreement with CEFIA (CT Conference of Municipalities, Bridgeport, West Hartford, Hartford, Fairfield, Westport, Norwalk, Middletown, Meriden, and New Haven)
Program Guidelines Working Group: develop qualified technical requirements and financial standards to govern the program (Guidelines published Oct 2012)
Capital Sourcing Working Group: to use the power of CEFIA as aggregator of C-PACE deals and state “green bank” to attract lowest cost capital to program
Marketing, Education, and Outreach Working Group: to build pipeline of demand for C-PACE funded upgrades throughout CT
• Municipal working group is open to all • Bridgeport passed enabling resolution 9/17/2012 14 Municipal Working Group: CEFIA-Municipality MOU
Role of CEFIA: Design program requirements Financing requirements: enter into a financing agreement with the property owner of qualifying commercial real property. Determine the estimated benefit assessment and provide written notice of the estimated benefit assessment to the Municipality
Role of Municipalities: Placing of Caveat on Land Records Levy of Benefit Assessment Continuation, Recording and Release of Lien Assignment of Benefit Assessment Lien Billing and Collection; Payment to CEFIA
Municipal Working Group: CEFIA-Municipality Legal Agreement
A written agreement, as approved by the municipality’s legislative body, pursuant to which the municipality has agreed to assess, collect, remit and assign, benefit assessments to the Authority in return for energy improvements for benefited property owners within the municipality and for costs reasonably incurred by the municipality in performing such duties. Fairfield’s building stock
Sector Total SF Total Bldgs Average Average Size Total Unique Average Vacancy Year Built* (SF) Owners**
Class A 1.4M 10 2002 140,000 10 55%
Class B 0.7M 45 1975 18,000 38+ 15%
Class C 1.3M 110 1947 11,000 100+ 6%
Industrial 1.2M 42 1953 28,000 35+ 15%
Retail 2.7M 210 1961 13,000 185+ 6%
Hospitality 50,000 1 1958 50,000 1 n/a
Source: CoStar May 2012 * Average age is true building age, and does not address major rehabilitation ** Represents the buildings for which data was available, which in all cases was the vast majority but not all, thus the use of +s. For instance, data was available for 1,970 of the 2,215 Class B Office buildings.
Questions?
Jessica Bailey 708.261.3695 [email protected] SOLAR POWER PURCHASE AGREEMENT
Dated as of August __, 2013
by and between
GRE 321 Fairfield LLC, as Provider
and
TOWN OF FAIRFIELD, as Host
SOLAR POWER PURCHASE AGREEMENT
This SOLAR POWER PURCHASE AGREEMENT (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Agreement”), dated as of August __, 2013 (the “Effective Date”), is by and between GRE 321 Fairfield LLC, a limited liability company duly formed under the laws of the State of Connecticut (“Provider”), and the TOWN OF FAIRFIELD, a Connecticut municipality (“ Host”).
RECITALS:
WHEREAS, the Host owns the site, located at 705 Richard White Way Fairfield, CT, as more fully described in Schedule A of Appendix I (the “Site”);
WHEREAS, Provider has inspected the Site and made a preliminary determination that it contains adequate space and conditions to host a solar photovoltaic system as more fully described in Section 1 and Schedule B of Appendix I (the “System”); and
WHEREAS, Provider desires to sell, and Host desires to purchase, the Solar Services (as hereinafter defined), consisting of the delivery of Class I renewable electrical energy (the “Energy”) generated by the System to be installed at the Site and other services pursuant to the terms and conditions set forth herein.
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 word “including” shall mean “including, without limitation”; (d) references to “Sections” and “Appendices” shall be to sections and appendices hereof; (e) the words “herein,” “hereof’ and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection hereof; and (f) references to this Agreement shall include a reference to all appendices hereto, as the same may be amended, modified, supplemented or replaced from time to time.
“Agreement” shall have the meaning set forth in the preamble.
“Applicable Law” shall mean, with respect to any Governmental Authority, 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 such Governmental Authority, enforceable at law or in equity, along with the interpretation and administration thereof by any Governmental Authority.
“Commercial Operation Date” shall have the meaning set forth in Section 3.4.
“Confidential Information” shall have the meaning set forth in Section 15.
“Contract Year” means each twelve (12)-month period commencing on the Commercial Operation Date or an anniversary thereof and ending on the day immediately before the next anniversary of the Commercial Operation Date.
“Effective Date” shall have the meaning set forth in the preamble.
“Energy” shall have the meaning set forth in the recitals hereof.
“Environmental Attributes” shall mean (i) any and all environmental credits, benefits, emissions reductions, offsets and allowances, howsoever entitled, in respect of the System or Energy therefrom that is in effect as of the Effective Date or may come into effect in the future, including, without limitation, tradable renewable energy certificates, green-e tags, allowances, reductions or other transferable indicia denoting carbon offset credits or indicating generation of a particular quantity of energy from a renewable energy source by a renewable energy facility attributed to the Energy during the Term created, including under a renewable energy, emission reduction, or other reporting program adopted by a Governmental Authority, or for which a registry and a market exists (which, as of the Effective Date are certificates minted by NEPOOL Generation Information System (“NEPOOL-GIS”) in accordance with NEPOOL-GIS operating rules) or for which a market may exist at a future time; and (ii) all Reporting Rights with respect to any of the above.
“Environmental Financial Incentives” shall mean each of the following financial rebates and incentives that is in effect as of the Effective Date or may come into effect in the future: (i) performance-based incentives, rebates and any other incentives under the federal government’s, any state’s, any municipality’s, or any utility’s solar program or initiative, incentive tax credits (including investment tax credits arising under the Internal Revenue Code of 1986) other tax benefits or grants in lieu thereof (including without limitation the monetization of tax benefits), and accelerated depreciation (collectively, “incentives”), howsoever 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 construction, ownership or operation of the System or 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; and (ii) all Reporting Rights with respect to any of the above.
“Expiration Date” shall have the meaning set forth in Section 10.1.
“Force Majeure Event” shall mean any act, event or circumstance that prevents or delays, in whole or in part, a Party from performing its obligations in accordance with this Agreement (other than the payment of money), if such act, event or circumstance is beyond the reasonable control, and not the result of the fault or negligence, of such Party. Subject to the foregoing conditions, Force Majeure Event may include any of the following:
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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 (other than any contractor retained by or on behalf of the 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.
A Force Majeure Event shall not be based on the economic hardship of either Party or the failure of the Host’s landlord, if any.
“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.
“Host” shall have the meaning set forth in the preamble.
“Host Default” shall have the meaning set forth in Section 11.1.
“kWh” shall mean a kilowatt-hour .
“kWh Rates” shall have the meaning set forth in Section 6.1.
“Lender” means (i) any Person who has or will provide debt and/or equity financing to Provider or an affiliate of Provider to finance all or part of the System costs, (ii) any Person to whom Provider has sold or conveyed the System, as applicable, and leased back the System under a sale-leaseback arrangement, and (iii) any Person to whom Provider has otherwise sold or conveyed the System where such Person acquires the tax credits or other benefits of the System and Provider retains or receives back a leasehold or other interest in the System such that Provider has the rights and authority to perform its obligations as Provider hereunder, together with any agents or designees of the Persons in (i), (ii) and (iii) above.
“Meter” shall have the meaning set forth in Section 4.2.1.
“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 (l) calendar month periods during the Term.
“Monthly Production” shall mean, for each Monthly Period, the amount of Energy delivered during such Monthly Period.
“O&M Work” shall have the meaning set forth in Section 4.1.1.
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“Party” shall mean each of Host and Provider.
“Person” shall mean any individual, corporation, partnership, company, joint venture, association, trust, unincorporated organization or Governmental Authority.
“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 and responsibilities hereunder, the term “Provider” shall include Provider’s authorized agents, contractors and subcontractors, provided such agents, contractors and subcontractors satisfy the insurance requirement herein and name the Host as an additional insured on each policy. It shall be the Provider’s duty and responsibility to ensure and confirm that agents, contractors and subcontractors comply with such insurance requirements.
“Provider Default” shall have the meaning set forth in Section 11.2.
“Purchase Price” shall have the meaning set forth in Section 10.2.2.
“Renewal Rate” shall mean the fair market price for electricity generated by solar photovoltaic systems as determined by agreement of the Parties or through the appraisal process applicable to the purchase option contained in this Agreement.
“Reporting Rights” means the right to report ownership of the Environmental Attributes or the Environmental Financial Incentives associated with the System or Energy therefrom to any federal, state, or local agency, authority or other party or Governmental Authority, 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.
“Site” shall have the meaning set forth in the first recital or any alternative location for the System.
“Solar Insolation” shall mean the amount of kWhs per square meter falling on a particular location, as published by the National Renewable Energy Laboratory.
“Solar Services” shall mean all services provided to Host by Provider hereunder, including, without limitation, the provision of Energy and O&M Work.
“System” shall mean the solar photovoltaic system installed pursuant to this Agreement at the Site and more fully described in Schedule B of Appendix I hereto; provided, however, that the term “System” shall only include equipment and materials up to but not including the delivery point of the System.
“Term” shall have the meaning set forth in Section 10.1.
“Termination Date” shall have the meaning set forth in Section 10.1.
“Termination Value” shall mean, on any date of termination, the applicable amount specified for the Contract Year in which such date falls on Schedule D of Appendix I to
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this Agreement.
“Taxes” shall have the meaning set forth in Section 6.2.
2. Purchase and Sale of Energy and Solar Services.
Host shall purchase Energy and Solar Services from Provider for delivery directly on site . Provider shall sell to Host all of the Energy generated by the System during the Term and provide all services to the System necessary for the proper and efficient operation of the System during the Term, all in accordance with the terms and conditions set forth herein.
3. Construction, Installation and Testing of System.
With respect to the Site on which the System is to be installed:
3.1 Critical Milestones.
3.1.1 Provider shall achieve the following development milestones on or before the date(s) set forth in the subsections below:
a. Confirmation that Provider has responded to solicitations by electric distribution companies for renewable energy credits from Class I generation projects that emit no pollutants pursuant to Public Act 11-80 § 107, no later than the first permitted date to apply for such energy credits pursuant to Public Act 11- 80. If Provider is unsuccessful during the first round of solicitations, Provider shall respond to the next available solicitation for energy credits pursuant to Public Act 11-80.
b. demonstration of the financial capability to proceed with the development and construction of the System, no later than January 1, 2015.
c. receipt of all permit(s) necessary to construct the System, no later than January 1, 2015;
d. commencement of actual construction activities on the Site, no later than January 1, 2015; and
e. achievement of Commercial Operation Date no later than July 1, 2015.
3.1.2 Subject to Section 3.2, Provider will cause the System to be designed, engineered, installed and constructed at the Site substantially in accordance with the terms of this Agreement. Host shall grant Provider with continuous and uninterrupted access to the Site throughout the Term of this Agreement to conduct activities necessary to perform its responsibilities in accordance with the terms and conditions set forth herein. Subject to all rights to cure, Host disruption of Providers access shall be a Host Default as that term is defined herein in Section 11.1.
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3.2 Conditions Precedent to Commencement of Construction and Installation.
Commencement by the Provider of construction and installation activities shall be subject to the satisfaction of the following conditions precedent:
3.2.1 If applicable, Provider shall have closed full financing for the Solar System to be performed at the Site and Host shall have provided such consents, certifications, representations, information, opinions or other documents as the Lender or Provider may have reasonably requested pursuant to Section 14.17(g);
3.2.2 Provider shall have entered into the applicable contract(s) for construction and installation of the System, subject to the terms of the applicable financing, if any;
3.2.3 Provider shall have obtained the permits, licenses and other approvals required by Applicable Law to be obtained by Provider prior to such commencement. Provider shall notify Host in writing promptly if any permits, licenses or approvals are denied or if any third party has taken action that may hinder or delay the construction and installation of the System; and
3.2.4 Provider shall have received satisfactory notice that the applications for Environmental Financial Incentives for the System at the Site have been accepted and approved by the appropriate governing agency.
provided, however, if any of the foregoing conditions precedent are not completed by January 1, 2015, Provider or Host shall have the option to terminate this Agreement without triggering the default provisions of this Agreement and without triggering any liability under this Agreement. Alternatively, in the event that such conditions precedents are not satisfied by such date, the Parties may mutually agree in writing to amend this Agreement to revise the Commercial Operation Date and term of this Agreement.
3.3 Utility Approvals.
Notwithstanding that Provider shall have the primary responsibility for preparing applications and obtaining all permits, licenses and approvals required for the performance of work under this Agreement, Host agrees to assist Provider in obtaining necessary permits, licenses and approvals in connection with the installation, operation and maintenance of the System, including the submission of applications for interconnection of the System with the local electric utility. Should the local electric utility fail to approve the interconnection of the System with respect to the Site or require equipment in addition to the equipment set forth in Schedule B of Appendix I, Provider may, at Provider’s option, terminate this Agreement in whole immediately subsequent to notification from the local utility.
3.4 Energy Delivery.
The date on which the delivery of Energy to the delivery point commences (the “Commercial Operation Date”) shall be the earlier of July 1, 2015 or the date on
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which all of the following shall have occurred: (a) Provider shall have certified to Host that the System is substantially complete and capable of regular commercial operation in accordance with good practices and manufacturer guidelines for all material components and that all performance testing has been satisfactorily completed, (b) all permits and licenses required to be obtained under Applicable Law in connection with the operation of the System shall have been obtained and be in full force and effect, and (c) Provider shall have entered into an interconnection agreement with the local electricity utility and completed all interconnection requirements.
4. Operation and Maintenance of System.
4.1 O&M Work; Phone/Data Line.
4.1.1 O&M Work. Provider shall provide operation, repair, monitoring and maintenance services to the System during the Term of this Agreement, including the monitoring and maintenance of metering equipment determining the quantity of electricity produced by the System (collectively, the “O&M Work”) in accordance with all applicable laws, codes, regulations and requirements by any Government Authority, electric distribution company, ISO- NE or other entity necessary for operation of the System. Provider shall provide Host with access to real-time online data measuring the performance of the System during the Term of the Agreement.
4.2 Metering.
4.2.1 Maintenance and Testing. Provider shall install, maintain and test all utility- grade kilowatt-hour (“kWh”) meter(s) (“Meter”) at the Site for the measurement of Energy provided to Host at the delivery point where Energy is delivered to the Host, which shall measure the kWh output of the System on a continuous basis. Provider shall furnish a copy of all technical specifications and accuracy calibrations for the Meter, as well as all metering data and Energy production calculations. Provider shall test the Meter in compliance with manufacturer’s recommendations. All Meters shall be installed consistent with all requirements and good practices specified by Connecticut Light and Power and ISO-NE.
4.2.2 Host Audits and Inspections. All Meters shall be tested annually at Provider’s expense and Provider shall provide a copy of the results to Host. Once per calendar year and after reasonable written notice, Host shall have the right to audit all such Meter data and witness testing of the Meters and the System’s output at a mutually agreed to date and time, and any such audit shall be at Host’s sole cost and expense. Host shall have a right of access to all Meters at reasonable times and with reasonable prior notice for the purpose of verifying readings and calibrations.
4.2.3 Adjustments. If testing of a Meter pursuant to Section 4.2.1 or Section 4.2.2 indicates that such Meter is in error by more than two percent (2%), then Provider shall promptly repair or replace such 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
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satisfaction of the Parties, or (b) if such period cannot be so determined, then a 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 and (ii) the date the Meter was placed into service; provided, however, that such period shall in no case exceed three (3) years.
4.3 Title to System.
Provider, or Provider’s permitted assigns, shall at all times retain title to and be the legal and beneficial owner of the System, including the right to any tax credits available under federal or state law, and the System shall remain the property of Provider or Provider’s assigns.
5. Purchase of Solar Services.
With respect to the System installed on the Site pursuant to this Agreement:
5.1 Purchase Requirement.
Host agrees to purchase one hundred percent (100%) of the Energy delivered to the delivery point during the Term of this Agreement following the Commercial Operation Date, but in no event prior to the Commercial Operation Date. While the Solar Services are calculated and billed on the basis of kWh of Energy as set forth in Section 6, Host acknowledges and agrees that such 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 Host. The payment for Solar Services is calculated to include all of the above services in the price per kWh of Energy provided to the delivery point by the System. Neither Party may claim that by this Agreement Provider is an electric utility subject to regulation as an electric utility or subject to regulated electricity rates. Provider shall not claim to be providing electric utility services to Host and shall not interfere with Host’s ability to select an electric utility provider or another supplier except that, to the extent Host has a choice in selecting an electric utility provider or electricity provider, Host shall not select an electric utility provider or electricity provider that requires, as part of their conditions for service, removal or discontinued operation of the System or the sales hereunder.
5.2 Environmental Attributes; Environmental Financial Incentives.
5.2.1 Environmental Attributes. All Environmental Attributes and associated Reporting Rights available in connection with the System and Energy therefrom are retained and owned by Provider or its assignees. Host shall take all reasonable measures to assist Provider in obtaining all Environmental Attributes currently available or subsequently made available in connection with the System and Energy therefrom. At Provider’s request and expense, Host shall execute all such documents and instruments necessary or desirable to effect or evidence Provider’s or its assignee’s right, title and interest in and to the Environmental Attributes. If the standards used to qualify the Environmental Attributes to which Provider is entitled under this Agreement are changed or modified, Host shall, at Provider’s request and expense, use all
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reasonable efforts to cause the Environmental Attributes to comply with new standards as changed or modified. Host shall not be required to incur any costs or expenses related to such efforts unless reimbursed by the Provider.
5.2.2 Environmental Financial Incentives. All Environmental Financial Incentives and associated Reporting Rights available in connection with the System and Energy therefrom are retained and owned by Provider or its assignee. Host shall take all reasonable measures to assist Provider in obtaining all Environmental Financial Incentives currently available or subsequently made available in connection with the System and Energy therefrom. At Provider’s request and expense, Host shall execute all such documents and instruments necessary or desirable to effect or evidence Provider’s or its assignee’s right, title and interest in and to the Environmental Financial Incentives. If the standards used to qualify the Environmental Financial Incentives to which Provider is entitled under this Agreement are changed or modified, Host shall, at Provider’s request and expense, use all reasonable efforts to cause the Environmental Financial Incentives to comply with new standards as changed or modified. Host shall not be required to incur any costs or expenses related to such efforts unless reimbursed by the Provider.
5.2.3 Press Statements. To avoid any conflicts with fair trade rules regarding claims of solar or renewable energy use, Host and Provider may by mutual written agreement set forth specific statements that may be used by Host in any press releases that address Host’s use of solar or renewable energy provided pursuant to this Agreement.
5.2.4 Host Covenan ts. Host shall not take any action or suffer any omission that would have the effect of impairing the value to the Provider of the Environmental Attributes and Environmental Financial Incentives. Host shall be solely responsible for notifying Provider of any action or omission that could impair such value and for consulting with Provider as necessary to prevent impairment of the value of Environmental Attributes and Environmental Financial Incentives.
5.2.5 Tax Credits. Provider or its assignee will at all times retain all tax credits and depreciation associated with the System.
6. Price and Payment.
6.1 Price.
Host shall pay Provider for the Solar Services provided pursuant to the terms of this Agreement at the rate of $0.139 per kWh, escalated two percent (2%) each Contract Year (the “kWh Rates”) as set forth in Schedule C of Appendix I, plus any additional amount required pursuant to Section 6.2. Notwithstanding the foregoing, in the event that Host elects to renew this Agreement pursuant Section 10.2.1, Host shall pay the Renewal Rate for Solar Services provided during such renewal period.
6.2 Taxes.
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6.2.1 Host Taxes. Provider shall invoice Host for, and Host shall pay (and shall indemnify and hold Provider harmless on an after-tax basis from and against) all sales, use, excise, ad valorem, transfer and other similar taxes imposed on the sale of Energy produced by the System and delivered to the Host (“Taxes”), but excluding in all events taxes based on or measured by net income, that are imposed by any taxing authority arising out of or with respect to the purchase of the Solar Services (regardless of whether such Taxes are imposed Host), together with any interest, penalties or additions to tax payable with respect to such Taxes, unless such interest, penalties or additions to tax payable with respect to such Taxes are due to Provider’s failure to timely remit any such Taxes or to file any returns required by the appropriate taxing authority, and Provider shall indemnify and hold Host harmless in such excepted cases. Host shall have no obligation or duty to pay or reimburse Provider for such Taxes accrued during periods when Provider fails to deliver Energy from the System to the Host for reasons other than Force Majeure.
6.2.2 Provider Taxes. Provider will pay and hold harmless Host from any sales or use tax imposed upon Host arising from this Agreement, other than as set forth in the preceding Section 6.2.1, including but not limited to Provider’s manufacture, installation and acquisition of the System. Provider shall also pay all property taxes on the System and hold harmless the Host.
6.3 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:
6.3.1 Payments. Subject to adjustment in accordance with the following sentences of this Section 6.3.1, Host shall pay to Provider for each Monthly Period during the Term within thirty (30) days after receipt of any invoice a payment for the Energy delivered by the System during each such Monthly Period equal to the product of: (a) Monthly Production for the System for the relevant month multiplied by (b) the kWh Rate for Energy relating to the System set forth in Appendix I Schedule C, which payment shall be made by check to:
GRE 321 Fairfield LLC 10 Main St. Suite E Middletown, CT 06457
Payment may also be made by wire transfer of immediately available funds upon receipt of specific instructions by Provider or can be processed online via a Host account at www.greenskies.com. All payments hereunder shall be made without setoff or deduction. Upon receipt of written direction and instructions from Provider and Provider’s lender, all payments to be made by the Host to the Provider under this Agreement shall be made directly to the Provider’s lender or its agent designated in a writing addressed to Host and executed by Provider from time to time.
6.3.2 Invoice Errors. Within thirty (30) days after receipt of any invoice, Host may provide written notice to Provider of any alleged error therein. Host shall pay all undisputed amounts, including the undisputed portion of any invoice, in accordance with the instructions set
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forth for payment under Section 6.3.1. If Provider notifies Host in writing within thirty (30) days of receipt of 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 Host’s response for the purpose of attempting to resolve the dispute. The parties shall assign senior management or the Host’s equivalent to resolve the dispute and participate in discussion or conference calls regarding the same. If the parties are unable to resolve the dispute within thirty (30) days after such initial meeting than either party may seek to resolve such dispute in the courts of the State of Connecticut.
6.3.3 If the Parties are unable to resolve the dispute within thirty (30) days after such initial meeting, the parties may jointly agree to submit the dispute to arbitration administered by the JAMS in accordance with its then-existing Comprehensive Arbitration Rules & Procedures. The parties agree arbitration shall take place in Connecticut before a single arbitrator selected in accordance with the rules. The decision of the arbitrator in the matter shall not be binding upon the Parties. The Parties agree that the arbitrator shall have the power to recommend damages (but not consequential damages), injunctive relief and reasonable attorneys’ fees and expenses to either Party in such arbitration; provided that this arbitration provision does not prevent either Party from seeking interim injunctive relief from a court in order to preserve the status quo. Pending the resolution of such dispute and arbitration, the rights and obligations of the Provider and Host shall continue in accordance with the terms hereof, including without limitation Provider’s obligation to continue providing the Solar Services hereunder and Host’s obligation to compensate Provider as set forth in this Agreement for all such Solar Services rendered.
6.3.4 Late Payments. Any payment not made within the time limits specified in Section 6.3.1 shall bear interest accruing from the date becoming past due until paid in full at a rate per annum equal to the lesser of (i) the Federal Funds Rate and (b) the maximum rate allowed by applicable law.
7. General Covenants.
7.1 Covenants of Provider.
As a material inducement to Host’s execution and delivery of this Agreement, Provider covenants and agrees to the following:
7.1.1 Permits and Approvals. Provider shall obtain and maintain all approvals, consents, licenses, permits, and inspections from relevant Governmental Authorities, utility personnel, and the Site’s owners, including but not limited to those permits and approvals listed in Schedule E of Appendix I, and other agreements and consents required to be obtained and maintained by Provider and to enable Provider to perform the duties set forth in this Agreement, with the exception of those consents, approvals, permits, licenses and authorizations which are the responsibility of Host. Provider shall deliver copies of all permits and approvals obtained pursuant to this Section to Host.
7.1.2 Title to System and Solar Services. Provider shall have good and marketable title to the System as well as all Solar Services, including Energy, sold to Host under
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this agreement free and clear of any and all liens, charges and encumbrances, other than those permissible and involved with the financing of the System by Provider.
7.1.3. Organization and Good Standing Power and Authority. Provider is a limited liability company organized, validly existing and in good standing under the laws of Connecticut. Provider has all requisite power and authority to execute, deliver and perform the obligations of this Agreement subject to receiving any permits or approval necessary from Governmental Authorities.
7.1.2 Provider Records. Provider shall 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. Host 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.
7.2 Covenants of Host.
As a material inducement to Provider’s execution of this Agreement, Host covenants and agrees as follows:
7.2.1 Consents and Approvals. Host shall obtain and maintain, and secure and deliver to Provider copies of, all consents, approvals, permits, licenses, and authorizations relating to the performance of Host’s obligations and the rights granted by Host hereunder, and that are required by the terms, conditions or provisions of any restriction or any agreement or instrument to which Host is a party or by which Host is bound, including completing applications for interconnection with Host’s local electric utility. Host shall use good faith efforts to assist Provider in fulfilling Provider’s responsibilities under Section 7.1.1.
7.2.2 Maintenance of Interconnection. Host shall ensure that all of the facilities to which Energy is delivered hereunder remain interconnected to the electrical grid during the entire Term.
7.2.3 Host Records. Host shall 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. Provider 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.
8. Insurance Requirements.
8.1 Provider’s Insurance.
Provider shall maintain, at its sole expense, commercial general liability insurance, including products and completed operations and personal injury insurance, as well as Automobile Insurance in a minimum amount of one million dollars ($1,000,000) per occurrence and in the aggregate, endorsed to provide contractual liability in said amount, specifically covering Provider’s obligations under this Agreement and naming Host as an additional insured. The minimum coverage
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amount of $1,000,000 per occurrence and in the aggregate may be satisfied by a combination of a general liability policy and an excess/umbrella liability policy. Provider, if it has employees, shall also maintain at all times during the term of this Agreement workers’ compensation insurance coverage in accordance with the applicable requirements of federal and state law. Within thirty (30) days after execution of this Agreement and upon Host’s request annually thereafter, Provider shall deliver to Host certificates of insurance evidencing such coverage, which shall specify that Host shall be given at least thirty (30) days’ prior written notice by the applicable insurer in the event of any material modification, cancellation or termination of coverage. Such insurance shall be primary coverage without right of contribution from any insurance of Host, and shall include provisions regarding waiver of subrogation.
8.2 Property Insurance.
Provider shall cause to be provided and maintained, at its sole cost, “all-risk” property insurance covering the System during all periods that Provider is the beneficial owner of such System. Such insurance shall be primary coverage without right of contribution from any insurance of Provider.
9. 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 Host Default, as the case may be. Notwithstanding anything in this Section 9 to the contrary, no payment obligation of Host under this Agreement for amounts due and owning for Solar Services already provided may be excused or delayed as the result of a Force Majeure Event. In case a Force Majeure Event continues for at least eighteen (18) months, then either Party may terminate this Agreement by written notice to the other.
10. Term; Host Options; Termination.
10.1 Term.
The term of this Agreement 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 (the “Term”), unless and until terminated earlier pursuant to Sections 3.2, 3.3, 9, 10.2.2, 10.3, 10.4 or 12 (the date of any such termination, the “Termination Date”).
10.2 Host Options Upon Expiration of Term.
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10.2.1 Extension of Term. Upon prior written notice to Provider and Lender at least one-hundred eighty (180) days prior to the Expiration Date, Host shall have the option to renew the term of this Agreement for one (1) additional five (5) year period at the Renewal Rate escalated annually at a rate mutually agreed to by the parties.
10.2.2 Option to Purchase. At any time after the expiry of the Fifth (5th) Contract Year, the Host, upon at least ninety (90) days written notice to the Provider and Lender (which notice cannot be given before the expiry of the Fifth (5th) Contract Year), may purchase the System from the Provider for a purchase price equal to the Fair Market Value of the System or the applicable Termination Value in Column A of Schedule D, whichever is greater (the “Purchase Price”). The “Fair Market Value” shall be determined by an appraisal conducted by a mutually acceptable independent appraiser with expertise related to the System. The cost of the appraiser shall be borne by the parties equally. This Agreement shall terminate effective upon the Host’s payment to Provider of the Purchase Price and the transfer of the System to Host.
10.3 Provider Termination.
Provider shall have the right, in Provider’s sole and absolute discretion, to terminate this Agreement upon written notice:
10.3.1 of 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 provided the Provider sends written notice within 30 days of the issuance or occurrence of such order;
10.3.2 if the elimination or alteration of one or more Environmental Financial Incentives or other change in law results in a material adverse economic impact on Provider, provided the Provider sends written notice within 30 days of the effective date of such elimination, alteration or change in law;
10.3.3 if the annual Solar Insolation is less than or equal to 90% of historical averages as measured by long-term weather data (minimum of five (5) years) collected at the Site.
A Provider termination under this Section 10.3 shall not be deemed a default by Host hereunder.
10.4 Host Termination.
Host shall have the right, in Host’s sole and absolute discretion, to terminate this Agreement upon written notice to Provider and Lender:
10.4.1 that Host failed to obtain annual budget appropriations sufficient to pay for the Solar Services and all other charges required pursuant to this Agreement in any fiscal year during the Term;
10.4.2 of the occurrence of an unstayed order of a court or administrative agency having the effect of requiring the Host to remove or substantially remove the System from the
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Site for any reason.
A Host termination under this Section 10.4 shall not be deemed a default by Host hereunder.
11. Defaults.
11.1 Host Default.
The occurrence at any time of any of the following events shall constitute a “Host Default”:
11.1.1 Failure to Pay. The failure of Host to make any payment of undisputed amounts owing to Provider and such failure is not cured by Host within thirty (30) days after Host receives written notice of each such failure from Provider;
11.1.2 Failure to Perform Other Obligations. Unless due to a Force Majeure Event excused by Section 9, the failure of Host to perform or cause to be performed any other material obligation required to be performed by Host 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 Host shall have a period of thirty (30) business days after receipt of written notice from Provider of such failure to Host to cure the same and a Host Default shall not be deemed to exist during such period; provided, further, that if Host commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, at Provider’s sole discretion, said period may be extended for up to one hundred twenty (120) additional days; or
11.1.3 Bankruptcy, Etc. (a) Host admits in writing its inability to pay its debts generally as they become due; (b) Host 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) Host makes an assignment for the benefit of creditors; (d) Host consents to the appointment of a receiver of the whole or any substantial part of its assets; (a) Host 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 Host’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 Host’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.
11.1.4 Site Access. Host fails to grant Provider with continuous and uninterrupted access to the Site throughout the Term of this Agreement so that Provider can perform its responsibilities in accordance with the terms and conditions set forth herein.
11.2 Provider Default.
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The occurrence at any time of the following event shall constitute a “Provider Default”:
11.2.1 Failure to Perform Obligations. Unless due to a Force Majeure Event excused by Section 9, 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 Host 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 one-hundred twenty (120) additional days; or
11.2.2 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.
11.2.3 Failure to Meet Critical Milestones. The Provider’s failure to meet any of the Critical Milestones by the dates set forth in Section 3.1.1 above.
12. Remedies Following Default.
12.1 Host’s Remedies Upon Occurrence of a Provider Default.
12.1.1 Termination. In addition to any other remedies available under this Agreement or at law, if a Provider Default as described in Section 11.2 above has occurred and is continuing, and if Provider fails to correct or cure the conditions causing such Provider Default within thirty (30) days after the date on which Host gives Provider and Lender written notice of Host’s intent to terminate this Agreement as a result of such Provider Default, then, subject to Section 14.17 and any other Lender rights agreed to in writing by Host, this Agreement shall terminate and be of no further force or effect as of the last day of such thirty (30) day period. Host shall also have the right to purchase the Solar System for Fair Market Value or the applicable Termination Value in Column A of Schedule D, whichever is greater. The Host must send the Provider and Lender notice of its intent to exercise its right to purchase within ten (10) days after the termination date. If the Host does not exercise its right to purchase, the Provider
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must remove the Solar System from the Site within sixty (60) days and restore the Site to its condition prior to installation excluding normal wear and tear.
12.2 Provider’s Remedies Upon Host Default.
In addition to any other remedies available under this Agreement or at law, if a Host Default as described in Section 11.1 has occurred and is continuing, and if Host fails to correct or cure the conditions causing such Host Default within ten (10) days after the date on which Provider gives Host written notice of Provider’s intent to terminate this Agreement as a result of such Host Default, then this Agreement shall terminate and be of no further force or effect as of the last day of such ten (10) day period; and Provider shall have the right to cause Host to pay (and Host shall have the obligation to pay to Provider) the applicable Termination Value in Column A of Schedule D of Appendix I provided Provider must remove the Solar System from the Site within sixty (60) days and restore the Site to its condition prior to installation excluding normal wear and tear.
12.3 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 Host and Provider under this Agreement shall be terminated. Such termination shall not relieve either Party from obligations accrued prior to the effective date of termination or expiration.
13. No Consequential Damages. The parties agree that neither party is entitled to or can recover consequential damages from the other parties under this Agreement.
14. Miscellaneous Provisions.
14.1 Notices.
All notices, communications and waivers under this Agreement shall be in writing and shall be (a) delivered in person or (b) mailed, postage prepaid, either by registered or certified mail, return receipt requested or (c) sent by reputable overnight express courier, addressed in each case to the addresses set forth below, or to any other address either of the parties to this Agreement shall designate in a written notice to the other Party:
If to Provider:
GRE 321 Fairfield LLC Attn: Andrew Chester 10 Main St. Suite E Middletown, CT 06457
With copy to Provider’s lenders or other parties designated in writing by Provider
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from time to time.
If to Host:
Town of Fairfield Attn: ______
All notices, communications and waivers to Host’s lenders or other financiers under this Agreement shall be to the name and address specified in a notice from Host to Provider. All notices sent pursuant to the terms of this Section 14.1 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.
14.2 Representations and Warranties.
14.2.1 Provider Representations. Provider hereby represents and warrants that:
(a) It is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Connecticut and has all requisite limited liability company power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;
(b) The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary limited liability company action;
(c) This Agreement is a legal, valid and binding obligation of Provider enforceable against Provider in accordance with its terms, subject to the qualification, however, that the enforcement of the rights and remedies herein is subject to (i) bankruptcy and other similar laws of general application affecting rights and remedies of creditors and (ii) the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law);
(d) To the best knowledge of Provider, as of the date of execution hereof, no governmental approval (other than any governmental approvals that have been previously obtained or disclosed in writing to Host) is required in connection with the due authorization, execution and delivery of this Agreement by Provider or the performance by Provider of its obligations hereunder which Provider has reason to believe that it will be unable to obtain in due course on or before the date required for Provider to perform such obligations;
(e) Neither the execution and delivery of this Agreement by Provider nor compliance by Provider with any of the terms and provisions hereof (i) conflicts with, breaches or contravenes the provisions of the articles of formation or operating agreement of
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Provider or any contractual obligation of Provider or (ii) results in a condition or event that constitutes (or that, upon notice or lapse of time or both, would constitute) an event of default under any material contractual obligation of Provider.
14.2.2 Host Representations. Host hereby represents and warrants that:
(a) It is a municipal entity, duly organized, validly existing and in good standing under the laws of the state of its formation and has all requisite power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;
(b) The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate action;
(c) This Agreement is a legal, valid and binding obligation of Host enforceable against Host in accordance with its terms, subject to the qualification, however, that the enforcement of the rights and remedies herein is subject to (i) bankruptcy and other similar laws of general application affecting rights and remedies of creditors and (ii) the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law);
(d) Neither the execution and delivery of this Agreement by Host nor compliance by Host with any of the terms and provisions of this Agreement (i) conflicts with, breaches or contravenes the provisions of the Charter and By-Laws of Host, or any contractual obligation of Host, or (ii) results in a condition or event that constitutes (or that, upon notice or lapse of time or both, would constitute) an event of default under any contractual obligation of Host.
14.3 Assignment.
Neither Host nor Provider shall assign its interests in this Agreement, nor any part thereof, without the other parties prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Host consent shall not be required for Provider to assign this Agreement for collateral purposes to one or more Lenders in connection with financing of the System, provided that Provider shall provide Host with written notice of such assignment prior there to.
14.4 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.
14.5 Entire Agreement.
This Agreement (including all appendices and schedules attached hereto) represents the entire agreement between the parties to this Agreement with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous oral and prior written agreements.
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14.6 Amendments to Agreement.
This Agreement shall not be amended, modified or supplemented without the written agreement of Provider and Host at the time of such amendment, modification or supplement.
14.7 Waivers; Approvals.
No waiver of any provision of this Agreement shall be effective unless set forth in writing signed by the Party making 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 Host 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 Host 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.
14.8 Partial Invalidity.
In the event that any provision of this Agreement is deemed to be invalid by reason of the operation of Applicable Law, Provider and Host 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 Host 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.
14.9 Execution in Counterparts.
This Agreement may be executed in counterparts, and all said counterparts when taken together shall constitute one and the same Agreement.
14.10 Governing Law; Jurisdiction; Forum.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Connecticut. Parties irrevocably agree that any action, suit or proceeding by or among Provider and Host may be brought in whichever of the Courts of the State of Connecticut, Middlesex County, or the U.S. District Court for the District of Connecticut, has subject matter jurisdiction over the dispute and waive objections that Parties may now or hereafter have regarding the choice of forum whether on personal jurisdiction, venue, forum non conveniens. Nothing in this Agreement shall affect the right to service of process in any other
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manner permitted by law. Host and Provider further agree that final judgment against it in any action or proceeding shall be conclusive, unless appealed, and may be enforced by suit on the judgment, a certified or exemplified copy of which shall be conclusive evidence of the fact and the amount of such judgment.
14.11 Attorneys’ Fees.
If any action shall be instituted in connection with this Agreement, the Party prevailing in such action shall be entitled to recover from the other Party all of its reasonable costs and expenses incurred in connection with such action by arbitration or other legal proceeding, including reasonable attorneys’ fees.
14.12 No Third Party Rights.
This Agreement is only for the benefit of the parties to this Agreement, their successors and permitted assigns (including any lender or lessor of Provider) and Persons expressly benefited by the indemnity provisions of this Agreement. No other Person (including, without limitation, tenants of the Site) shall be entitled to rely on any matter set forth in, or shall have any rights on account of the performance or non-performance by any Party of its obligations under, this Agreement.
14.13 Treatment of Additional Amounts.
The Parties hereto acknowledge and agree that any amounts payable by one Party to the other as a result of the payor’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 difficult to precisely estimate, (b) the amounts specified hereunder bear a reasonable proportion and are not plainly or grossly disproportionate to the probable loss likely to be incurred by Host 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.
14.14 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.
14.15 No Public Utility.
Nothing contained in this Agreement shall be construed as an intent by Provider to dedicate its property to public use or subject itself to regulation as a “public utility” under Connecticut law.
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14.16 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, affiliated company, 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.
14.17 Lender Accommodations.
Host acknowledges that Provider may be financing the System with debt or equity financing and may enter into a sale-leaseback of the System or a partnership flip from, to or with one or more Lenders and that Provider’s obligations may be secured by, among other collateral, one or more pledges or collateral assignments of this Agreement and a first security interest in the System. In order to facilitate such necessary financing, with respect to any Lender, Host agrees as follows:
(a) Consent to Collateral Assignment. Host consents to both the sale of the System to Lender and the collateral assignment by Provider to Lender, of Provider’s right, title and interest in and to this Agreement.
(b) Rights Upon Event of Default. Lender, as owner of the System, or as collateral assignee of this Agreement, shall be entitled to exercise, in the place and stead of Provider, any and all rights and remedies of Provider under this Agreement in accordance with the terms of this Agreement. Lender shall have the right, but not the obligation, to pay all sums due under this Agreement and to perform any obligation required of Provider hereunder or to cure any default of Provider hereunder in the time and manner provided by the terms of this Agreement subject to the additional Lender cure period set forth below. Upon the exercise of remedies under its security interests or enforcement rights in the System, Lender shall (A) cause the purchaser or transferee of the System to assume the Provider’s rights and obligations under this Agreement and (B) give notice to Host of the transferee or assignee of this Agreement. Any such exercise of remedies shall not constitute a default under this Agreement.
(c) Right to Cure. Host will not exercise any right to terminate this Agreement unless it shall have given Lender prior written notice of its intent to terminate this Agreement based on a Provider Default specifying the condition giving rise to such right, and Lender shall not have cured the Provider Default giving rise to the right of termination within thirty (30) days after such notice or (if longer) the periods provided for in this Agreement; provided that if such Provider Default reasonably cannot be cured by Lender within such period and Lender commences and diligently pursues cure of such Provider Default within such period, such period for cure will be extended for a reasonable period of time under the circumstances, such period not to exceed an additional ninety (90) days.
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The Parties’ respective obligations will otherwise remain in effect during any cure period.
(d) Change in Lender. Host acknowledges and agrees that Provider may change Lender at any time, in Provider’s sole discretion, and Host shall abide by such new contact information and payment directions as instructed by Provider.
(e) Security Interest. In the event that Provider grants a security interest in the System to Lender, Host consents to any required filing to perfect such a security interest so long as that filing clearly documents the parties’ intent that the System is considered personal property only and is not considered a fixture to the Site. Such filing shall not create any interest in or lien upon the real property or the interest of Host therein and shall expressly disclaim the creation or such an interest or lien, provided that Provider shall be permitted to make a prophylactic fixture filing with regard to the System.
(f) Third Party Beneficiary. Host agrees and acknowledges that Lender is a third party beneficiary of the provisions of this Section 14.17.
(g) Acknowledgement and Confirmation. To facilitate Provider obtaining financing of the System, Host shall provide such consents to collateral assignment, certifications, representations, information, opinions or other documents as may be reasonably requested by Provider or its Lenders in connection with the financing of the System, provided, however, that Host shall have no obligation to provide any such consent, certification, representation, information or other document, or enter into any agreement, that materially changes any rights or benefits, or materially increases any burdens, liabilities or obligations of Host, under this Agreement (except as otherwise contemplated herein).
14.18 Service Contract.
The Parties intend this Agreement to be a “service contract” within the meaning of Section 7701(e)(3) of the Internal Revenue Code of 1986.
15. Confidential Information.
Each Party (the “Receiving Party”) shall not use for any purpose other than performing the Work under this Agreement or divulge, disclose, produce, publish, or permit access to, without the prior written consent of the other Party (the “Disclosing Party”), any Confidential Information of the Disclosing Party. “Confidential Information” does not include (a) information known to the Receiving Party prior to obtaining the same from the Disclosing Party; (b) information in the public domain at the time of disclosure by the Receiving Party; (c) information obtained by the Receiving Party from a third party who did not receive same, directly or indirectly, from the Disclosing Party or (d) information subject to the Connecticut Freedom of Information laws. The Receiving Party
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shall use the standard of care that the Receiving Party uses to preserve its own Confidential Information to prevent unauthorized use or disclosure of such Confidential Information. Notwithstanding anything herein to the contrary, the Receiving Party has the right to disclose Confidential Information without the prior written consent of the Disclosing Party: (i) as required by any court or other Governmental Authority, or by any stock exchange on which the shares of any Party are listed, (ii) as otherwise required by law, (iii) to the extent necessary in endorsing the Agreement, (iv) as advisable or required in connection with any government or regulatory filings, including without limitation, filings with any regulating authorities covering the relevant financial markets, (v) to its attorneys, accountants, financial advisors or other agents, in each case bound by confidentiality obligations, (vi) to banks, investors and other financing sources and their advisors, in each case bound by confidentiality obligations; or (vii) in connection with an actual or prospective merger or acquisition or similar transaction where the party receiving the Confidential Information is bound by confidentiality obligations.
16. Estoppel.
Either Party hereto, without charge, at any time and from time to time, within ten (l0) business days after receipt of a written request by the other party hereto for purposes related to financing or financial accounting, shall deliver a written instrument, duly executed, certifying to such requesting party, or any other person, firm or corporation specified by such requesting party:
a) 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;
b) 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
c) Such other information as may be reasonably requested by a Party hereto.
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.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date set forth above.
PROVIDER:
GRE 321 Fairfield LLC
By: Name: Title: Date:
HOST:
THE TOWN OF FAIRFIELD
By: Name: Title: Date:
APPENDIX I to Power Purchase Agreement
This Appendix I consists of four (4) schedules.
1. Schedule A: Description of Site. The Site for the installation of the System pursuant to this Agreement is described in Schedule A to this Appendix I.
2. Schedule B: Description of System. The System to be installed at the Site subject to this Agreement shall be as described in Schedule B to this Appendix I.
3. Schedule C: Pricing. The kWh Rates with respect to the System to be installed pursuant to this Agreement shall be as specified in Schedule C to this Appendix I.
4. Schedule D: Termination Values. The Termination Values with respect to the System to be installed pursuant to this Agreement shall be as specified in Schedule C to this Appendix I.
Appendix I-Schedule A
DESCRIPTION OF SITE
The arrays will be installed on the roof of the property at 705 Richard White Way, in Fairfield, CT, 06824 on Property owned fee simple by the Host, specifically, in the areas demarcated below. Site and Specifications are subject to final engineering review.
Appendix I – Schedule B
DESCRIPTION OF SYSTEM
Provider reserves the right to install substitute equipment based on the state of market and technology conditions immediately prior to procurement.
Technical Specifications • Rated Photovoltaic Array Capacity (STC): 194.590 kW • Photovoltaic Panel Manufacturer: JA Solar • Photovoltaic Panel Model Number: JAM6 72 300-320 • Quantity of Photovoltaic Panels: 638 • String Size: 11 • Quantity of Strings: 58 • Rated Inverter Capacity:150 kW • Inverter Manufacturer: Solectria • Inverter Model Number: (2) PVI 75 kW
Project Specs
The PV modules being installed are reliable, durable and highly efficient PV modules with a 10- year product guarantee. The panels also carry a 25-year manufacturer output warranty that they will provide at least 80% of their PTC rating. This project aligns 638 modules on a parcel of land owned by the Provider.
DC power from the solar modules will be routed in electrical conduit to the inverters. AC power from the inverters will be routed to the main electrical service entrance to be installed on the parcel owned by the Provider. A revenue grade kWh meter will be installed in order to determine the net energy production for the system. All electricity carrying both AC and DC power will be installed according to the National Electric Code, as well as any State or Local code that may be applicable. All components of the system are UL listed.
Appendix I – Schedule C
PRICING
The following pricing is based on the Standard System Design Package.
kWh Rates for y Solar Services
Contract Year $/kWh
1 0.099 2 0.101 3 0.103 4 0.105 5 0.107 6 0.109 7 0.111 8 0.114 9 0.116 10 0.118 11 0.121 12 0.123 13 0.126 14 0.128 15 0.131 16 0.133 17 0.136 18 0.139 19 0.141 20 0.144
Appendix I-Schedule D
TERMINATION VALUES
The following Termination Values are based on the Standard System Design Package.
Applicable Date: Column A:
Contract Year Termination Value 1 $729,014.84 2 $580,095.79 3 $509,519.20 4 $446,752.59 5 $387,183.75 6 $328,328.77 7 $310,416.28 8 $294,634.47 9 $278,005.29 10 $260,497.77 11 $242,079.89 12 $222,718.60 13 $202,379.78 14 $181,028.20 15 $158,627.46 16 $135,140.01 17 $110,527.07 18 $84,748.60 19 $57,763.27 20 $29,528.42
Appendix I-Schedule E
PERMITS AND APPROVALS
1. Interconnection Application
2. Building Permit
3. Electrical Permit
4. Electric Utility Contingent Approval
5. Interconnection Agreement
6. Municipal Certificate of Completion
7. Electric Utility Witness Test
8. Electric Utility Approval to Operate
SOLAR POWER PURCHASE AGREEMENT
Dated as of August __, 2013
by and between
GRE 320 Fairfield LLC, as Provider
and
TOWN OF FAIRFIELD, as Host
SOLAR POWER PURCHASE AGREEMENT
This SOLAR POWER PURCHASE AGREEMENT (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Agreement”), dated as of August __, 2013 (the “Effective Date”), is by and between GRE 320 Fairfield LLC, a limited liability company duly formed under the laws of the State of Connecticut (“Provider”), and the TOWN OF FAIRFIELD, a Connecticut municipality (“ Host”).
RECITALS:
WHEREAS, the Host owns the site, located at 100 Mona Terrace in Fairfield, CT, as more fully described in Schedule A of Appendix I (the “Site”);
WHEREAS, Provider has inspected the Site and made a preliminary determination that it contains adequate space and conditions to host a solar photovoltaic system as more fully described in Section 1 and Schedule B of Appendix I (the “System”); and
WHEREAS, Provider desires to sell, and Host desires to purchase, the Solar Services (as hereinafter defined), consisting of the delivery of Class I renewable electrical energy (the “Energy”) generated by the System to be installed at the Site and other services pursuant to the terms and conditions set forth herein.
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 word “including” shall mean “including, without limitation”; (d) references to “Sections” and “Appendices” shall be to sections and appendices hereof; (e) the words “herein,” “hereof’ and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection hereof; and (f) references to this Agreement shall include a reference to all appendices hereto, as the same may be amended, modified, supplemented or replaced from time to time.
“Agreement” shall have the meaning set forth in the preamble.
“Applicable Law” shall mean, with respect to any Governmental Authority, 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 such Governmental Authority, enforceable at law or in equity, along with the interpretation and administration thereof by any Governmental Authority.
“Commercial Operation Date” shall have the meaning set forth in Section 3.4.
“Confidential Information” shall have the meaning set forth in Section 15.
“Contract Year” means each twelve (12)-month period commencing on the Commercial Operation Date or an anniversary thereof and ending on the day immediately before the next anniversary of the Commercial Operation Date.
“Effective Date” shall have the meaning set forth in the preamble.
“Energy” shall have the meaning set forth in the recitals hereof.
“Environmental Attributes” shall mean (i) any and all environmental credits, benefits, emissions reductions, offsets and allowances, howsoever entitled, in respect of the System or Energy therefrom that is in effect as of the Effective Date or may come into effect in the future, including, without limitation, tradable renewable energy certificates, green-e tags, allowances, reductions or other transferable indicia denoting carbon offset credits or indicating generation of a particular quantity of energy from a renewable energy source by a renewable energy facility attributed to the Energy during the Term created, including under a renewable energy, emission reduction, or other reporting program adopted by a Governmental Authority, or for which a registry and a market exists (which, as of the Effective Date are certificates minted by NEPOOL Generation Information System (“NEPOOL-GIS”) in accordance with NEPOOL-GIS operating rules) or for which a market may exist at a future time; and (ii) all Reporting Rights with respect to any of the above.
“Environmental Financial Incentives” shall mean each of the following financial rebates and incentives that is in effect as of the Effective Date or may come into effect in the future: (i) performance-based incentives, rebates and any other incentives under the federal government’s, any state’s, any municipality’s, or any utility’s solar program or initiative, incentive tax credits (including investment tax credits arising under the Internal Revenue Code of 1986) other tax benefits or grants in lieu thereof (including without limitation the monetization of tax benefits), and accelerated depreciation (collectively, “incentives”), howsoever 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 construction, ownership or operation of the System or 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; and (ii) all Reporting Rights with respect to any of the above.
“Expiration Date” shall have the meaning set forth in Section 10.1.
“Force Majeure Event” shall mean any act, event or circumstance that prevents or delays, in whole or in part, a Party from performing its obligations in accordance with this Agreement (other than the payment of money), if such act, event or circumstance is beyond the reasonable control, and not the result of the fault or negligence, of such Party. Subject to the foregoing conditions, Force Majeure Event may include any of the following:
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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 (other than any contractor retained by or on behalf of the 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.
A Force Majeure Event shall not be based on the economic hardship of either Party or the failure of the Host’s landlord, if any.
“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.
“Host” shall have the meaning set forth in the preamble.
“Host Default” shall have the meaning set forth in Section 11.1.
“kWh” shall mean a kilowatt-hour .
“kWh Rates” shall have the meaning set forth in Section 6.1.
“Lender” means (i) any Person who has or will provide debt and/or equity financing to Provider or an affiliate of Provider to finance all or part of the System costs, (ii) any Person to whom Provider has sold or conveyed the System, as applicable, and leased back the System under a sale-leaseback arrangement, and (iii) any Person to whom Provider has otherwise sold or conveyed the System where such Person acquires the tax credits or other benefits of the System and Provider retains or receives back a leasehold or other interest in the System such that Provider has the rights and authority to perform its obligations as Provider hereunder, together with any agents or designees of the Persons in (i), (ii) and (iii) above.
“Meter” shall have the meaning set forth in Section 4.2.1.
“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 (l) calendar month periods during the Term.
“Monthly Production” shall mean, for each Monthly Period, the amount of Energy delivered during such Monthly Period.
“O&M Work” shall have the meaning set forth in Section 4.1.1.
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“Party” shall mean each of Host and Provider.
“Person” shall mean any individual, corporation, partnership, company, joint venture, association, trust, unincorporated organization or Governmental Authority.
“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 and responsibilities hereunder, the term “Provider” shall include Provider’s authorized agents, contractors and subcontractors, provided such agents, contractors and subcontractors satisfy the insurance requirement herein and name the Host as an additional insured on each policy. It shall be the Provider’s duty and responsibility to ensure and confirm that agents, contractors and subcontractors comply with such insurance requirements.
“Provider Default” shall have the meaning set forth in Section 11.2.
“Purchase Price” shall have the meaning set forth in Section 10.2.2.
“Renewal Rate” shall mean the fair market price for electricity generated by solar photovoltaic systems as determined by agreement of the Parties or through the appraisal process applicable to the purchase option contained in this Agreement.
“Reporting Rights” means the right to report ownership of the Environmental Attributes or the Environmental Financial Incentives associated with the System or Energy therefrom to any federal, state, or local agency, authority or other party or Governmental Authority, 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.
“Site” shall have the meaning set forth in the first recital or any alternative location for the System.
“Solar Insolation” shall mean the amount of kWhs per square meter falling on a particular location, as published by the National Renewable Energy Laboratory.
“Solar Services” shall mean all services provided to Host by Provider hereunder, including, without limitation, the provision of Energy and O&M Work.
“System” shall mean the solar photovoltaic system installed pursuant to this Agreement at the Site and more fully described in Schedule B of Appendix I hereto; provided, however, that the term “System” shall only include equipment and materials up to but not including the delivery point of the System.
“Term” shall have the meaning set forth in Section 10.1.
“Termination Date” shall have the meaning set forth in Section 10.1.
“Termination Value” shall mean, on any date of termination, the applicable amount specified for the Contract Year in which such date falls on Schedule D of Appendix I to
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this Agreement.
“Taxes” shall have the meaning set forth in Section 6.2.
2. Purchase and Sale of Energy and Solar Services.
Host shall purchase Energy and Solar Services from Provider for delivery directly on site . Provider shall sell to Host all of the Energy generated by the System during the Term and provide all services to the System necessary for the proper and efficient operation of the System during the Term, all in accordance with the terms and conditions set forth herein.
3. Construction, Installation and Testing of System.
With respect to the Site on which the System is to be installed:
3.1 Critical Milestones.
3.1.1 Provider shall achieve the following development milestones on or before the date(s) set forth in the subsections below:
a. Confirmation that Provider has responded to solicitations by electric distribution companies for renewable energy credits from Class I generation projects that emit no pollutants pursuant to Public Act 11-80 § 107, no later than the first permitted date to apply for such energy credits pursuant to Public Act 11- 80. If Provider is unsuccessful during the first round of solicitations, Provider shall respond to the next available solicitation for energy credits pursuant to Public Act 11-80.
b. demonstration of the financial capability to proceed with the development and construction of the System, no later than January 1, 2015.
c. receipt of all permit(s) necessary to construct the System, no later than January 1, 2015;
d. commencement of actual construction activities on the Site, no later than January 1, 2015; and
e. achievement of Commercial Operation Date no later than July 1, 2015.
3.1.2 Subject to Section 3.2, Provider will cause the System to be designed, engineered, installed and constructed at the Site substantially in accordance with the terms of this Agreement. Host shall grant Provider with continuous and uninterrupted access to the Site throughout the Term of this Agreement to conduct activities necessary to perform its responsibilities in accordance with the terms and conditions set forth herein. Subject to all rights to cure, Host disruption of Providers access shall be a Host Default as that term is defined herein in Section 11.1.
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3.2 Conditions Precedent to Commencement of Construction and Installation.
Commencement by the Provider of construction and installation activities shall be subject to the satisfaction of the following conditions precedent:
3.2.1 If applicable, Provider shall have closed full financing for the Solar System to be performed at the Site and Host shall have provided such consents, certifications, representations, information, opinions or other documents as the Lender or Provider may have reasonably requested pursuant to Section 14.17(g);
3.2.2 Provider shall have entered into the applicable contract(s) for construction and installation of the System, subject to the terms of the applicable financing, if any;
3.2.3 Provider shall have obtained the permits, licenses and other approvals required by Applicable Law to be obtained by Provider prior to such commencement. Provider shall notify Host in writing promptly if any permits, licenses or approvals are denied or if any third party has taken action that may hinder or delay the construction and installation of the System; and
3.2.4 Provider shall have received satisfactory notice that the applications for Environmental Financial Incentives for the System at the Site have been accepted and approved by the appropriate governing agency.
provided, however, if any of the foregoing conditions precedent are not completed by January 1, 2015, Provider or Host shall have the option to terminate this Agreement without triggering the default provisions of this Agreement and without triggering any liability under this Agreement. Alternatively, in the event that such conditions precedents are not satisfied by such date, the Parties may mutually agree in writing to amend this Agreement to revise the Commercial Operation Date and term of this Agreement.
3.3 Utility Approvals.
Notwithstanding that Provider shall have the primary responsibility for preparing applications and obtaining all permits, licenses and approvals required for the performance of work under this Agreement, Host agrees to assist Provider in obtaining necessary permits, licenses and approvals in connection with the installation, operation and maintenance of the System, including the submission of applications for interconnection of the System with the local electric utility. Should the local electric utility fail to approve the interconnection of the System with respect to the Site or require equipment in addition to the equipment set forth in Schedule B of Appendix I, Provider may, at Provider’s option, terminate this Agreement in whole immediately subsequent to notification from the local utility.
3.4 Energy Delivery.
The date on which the delivery of Energy to the delivery point commences (the “Commercial Operation Date”) shall be the earlier of July 1, 2015 or the date on
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which all of the following shall have occurred: (a) Provider shall have certified to Host that the System is substantially complete and capable of regular commercial operation in accordance with good practices and manufacturer guidelines for all material components and that all performance testing has been satisfactorily completed, (b) all permits and licenses required to be obtained under Applicable Law in connection with the operation of the System shall have been obtained and be in full force and effect, and (c) Provider shall have entered into an interconnection agreement with the local electricity utility and completed all interconnection requirements.
4. Operation and Maintenance of System.
4.1 O&M Work; Phone/Data Line.
4.1.1 O&M Work. Provider shall provide operation, repair, monitoring and maintenance services to the System during the Term of this Agreement, including the monitoring and maintenance of metering equipment determining the quantity of electricity produced by the System (collectively, the “O&M Work”) in accordance with all applicable laws, codes, regulations and requirements by any Government Authority, electric distribution company, ISO- NE or other entity necessary for operation of the System. Provider shall provide Host with access to real-time online data measuring the performance of the System during the Term of the Agreement.
4.2 Metering.
4.2.1 Maintenance and Testing. Provider shall install, maintain and test all utility- grade kilowatt-hour (“kWh”) meter(s) (“Meter”) at the Site for the measurement of Energy provided to Host at the delivery point where Energy is delivered to the Host, which shall measure the kWh output of the System on a continuous basis. Provider shall furnish a copy of all technical specifications and accuracy calibrations for the Meter, as well as all metering data and Energy production calculations. Provider shall test the Meter in compliance with manufacturer’s recommendations. All Meters shall be installed consistent with all requirements and good practices specified by Connecticut Light and Power and ISO-NE.
4.2.2 Host Audits and Inspections. All Meters shall be tested annually at Provider’s expense and Provider shall provide a copy of the results to Host. Once per calendar year and after reasonable written notice, Host shall have the right to audit all such Meter data and witness testing of the Meters and the System’s output at a mutually agreed to date and time, and any such audit shall be at Host’s sole cost and expense. Host shall have a right of access to all Meters at reasonable times and with reasonable prior notice for the purpose of verifying readings and calibrations.
4.2.3 Adjustments. If testing of a Meter pursuant to Section 4.2.1 or Section 4.2.2 indicates that such Meter is in error by more than two percent (2%), then Provider shall promptly repair or replace such 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
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satisfaction of the Parties, or (b) if such period cannot be so determined, then a 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 and (ii) the date the Meter was placed into service; provided, however, that such period shall in no case exceed three (3) years.
4.3 Title to System.
Provider, or Provider’s permitted assigns, shall at all times retain title to and be the legal and beneficial owner of the System, including the right to any tax credits available under federal or state law, and the System shall remain the property of Provider or Provider’s assigns.
5. Purchase of Solar Services.
With respect to the System installed on the Site pursuant to this Agreement:
5.1 Purchase Requirement.
Host agrees to purchase one hundred percent (100%) of the Energy delivered to the delivery point during the Term of this Agreement following the Commercial Operation Date, but in no event prior to the Commercial Operation Date. While the Solar Services are calculated and billed on the basis of kWh of Energy as set forth in Section 6, Host acknowledges and agrees that such 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 Host. The payment for Solar Services is calculated to include all of the above services in the price per kWh of Energy provided to the delivery point by the System. Neither Party may claim that by this Agreement Provider is an electric utility subject to regulation as an electric utility or subject to regulated electricity rates. Provider shall not claim to be providing electric utility services to Host and shall not interfere with Host’s ability to select an electric utility provider or another supplier except that, to the extent Host has a choice in selecting an electric utility provider or electricity provider, Host shall not select an electric utility provider or electricity provider that requires, as part of their conditions for service, removal or discontinued operation of the System or the sales hereunder.
5.2 Environmental Attributes; Environmental Financial Incentives.
5.2.1 Environmental Attributes. All Environmental Attributes and associated Reporting Rights available in connection with the System and Energy therefrom are retained and owned by Provider or its assignees. Host shall take all reasonable measures to assist Provider in obtaining all Environmental Attributes currently available or subsequently made available in connection with the System and Energy therefrom. At Provider’s request and expense, Host shall execute all such documents and instruments necessary or desirable to effect or evidence Provider’s or its assignee’s right, title and interest in and to the Environmental Attributes. If the standards used to qualify the Environmental Attributes to which Provider is entitled under this Agreement are changed or modified, Host shall, at Provider’s request and expense, use all
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reasonable efforts to cause the Environmental Attributes to comply with new standards as changed or modified. Host shall not be required to incur any costs or expenses related to such efforts unless reimbursed by the Provider.
5.2.2 Environmental Financial Incentives. All Environmental Financial Incentives and associated Reporting Rights available in connection with the System and Energy therefrom are retained and owned by Provider or its assignee. Host shall take all reasonable measures to assist Provider in obtaining all Environmental Financial Incentives currently available or subsequently made available in connection with the System and Energy therefrom. At Provider’s request and expense, Host shall execute all such documents and instruments necessary or desirable to effect or evidence Provider’s or its assignee’s right, title and interest in and to the Environmental Financial Incentives. If the standards used to qualify the Environmental Financial Incentives to which Provider is entitled under this Agreement are changed or modified, Host shall, at Provider’s request and expense, use all reasonable efforts to cause the Environmental Financial Incentives to comply with new standards as changed or modified. Host shall not be required to incur any costs or expenses related to such efforts unless reimbursed by the Provider.
5.2.3 Press Statements. To avoid any conflicts with fair trade rules regarding claims of solar or renewable energy use, Host and Provider may by mutual written agreement set forth specific statements that may be used by Host in any press releases that address Host’s use of solar or renewable energy provided pursuant to this Agreement.
5.2.4 Host Covenants. Host shall not take any action or suffer any omission that would have the effect of impairing the value to the Provider of the Environmental Attributes and Environmental Financial Incentives. Host shall be solely responsible for notifying Provider of any action or omission that could impair such value and for consulting with Provider as necessary to prevent impairment of the value of Environmental Attributes and Environmental Financial Incentives.
5.2.5 Tax Credits. Provider or its assignee will at all times retain all tax credits and depreciation associated with the System.
6. Price and Payment.
6.1 Price.
Host shall pay Provider for the Solar Services provided pursuant to the terms of this Agreement at the rate of $0.139 per kWh, escalated two percent (2%) each Contract Year (the “kWh Rates”) as set forth in Schedule C of Appendix I, plus any additional amount required pursuant to Section 6.2. Notwithstanding the foregoing, in the event that Host elects to renew this Agreement pursuant Section 10.2.1, Host shall pay the Renewal Rate for Solar Services provided during such renewal period.
6.2 Taxes.
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6.2.1 Host Taxes. Provider shall invoice Host for, and Host shall pay (and shall indemnify and hold Provider harmless on an after-tax basis from and against) all sales, use, excise, ad valorem, transfer and other similar taxes imposed on the sale of Energy produced by the System and delivered to the Host (“Taxes”), but excluding in all events taxes based on or measured by net income, that are imposed by any taxing authority arising out of or with respect to the purchase of the Solar Services (regardless of whether such Taxes are imposed Host), together with any interest, penalties or additions to tax payable with respect to such Taxes, unless such interest, penalties or additions to tax payable with respect to such Taxes are due to Provider’s failure to timely remit any such Taxes or to file any returns required by the appropriate taxing authority, and Provider shall indemnify and hold Host harmless in such excepted cases. Host shall have no obligation or duty to pay or reimburse Provider for such Taxes accrued during periods when Provider fails to deliver Energy from the System to the Host for reasons other than Force Majeure.
6.2.2 Provider Taxes. Provider will pay and hold harmless Host from any sales or use tax imposed upon Host arising from this Agreement, other than as set forth in the preceding Section 6.2.1, including but not limited to Provider’s manufacture, installation and acquisition of the System. Provider shall also pay all property taxes on the System and hold harmless the Host.
6.3 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:
6.3.1 Payments. Subject to adjustment in accordance with the following sentences of this Section 6.3.1, Host shall pay to Provider for each Monthly Period during the Term within thirty (30) days after receipt of any invoice a payment for the Energy delivered by the System during each such Monthly Period equal to the product of: (a) Monthly Production for the System for the relevant month multiplied by (b) the kWh Rate for Energy relating to the System set forth in Appendix I Schedule C, which payment shall be made by check to:
GRE 320 Fairfield LLC 10 Main St. Suite E Middletown, CT 06457
Payment may also be made by wire transfer of immediately available funds upon receipt of specific instructions by Provider or can be processed online via a Host account at www.greenskies.com. All payments hereunder shall be made without setoff or deduction. Upon receipt of written direction and instructions from Provider and Provider’s lender, all payments to be made by the Host to the Provider under this Agreement shall be made directly to the Provider’s lender or its agent designated in a writing addressed to Host and executed by Provider from time to time.
6.3.2 Invoice Errors. Within thirty (30) days after receipt of any invoice, Host may provide written notice to Provider of any alleged error therein. Host shall pay all undisputed amounts, including the undisputed portion of any invoice, in accordance with the instructions set
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forth for payment under Section 6.3.1. If Provider notifies Host in writing within thirty (30) days of receipt of 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 Host’s response for the purpose of attempting to resolve the dispute. The parties shall assign senior management or the Host’s equivalent to resolve the dispute and participate in discussion or conference calls regarding the same. If the parties are unable to resolve the dispute within thirty (30) days after such initial meeting than either party may seek to resolve such dispute in the courts of the State of Connecticut.
6.3.3 If the Parties are unable to resolve the dispute within thirty (30) days after such initial meeting, the parties may jointly agree to submit the dispute to arbitration administered by the JAMS in accordance with its then-existing Comprehensive Arbitration Rules & Procedures. The parties agree arbitration shall take place in Connecticut before a single arbitrator selected in accordance with the rules. The decision of the arbitrator in the matter shall not be binding upon the Parties. The Parties agree that the arbitrator shall have the power to recommend damages (but not consequential damages), injunctive relief and reasonable attorneys’ fees and expenses to either Party in such arbitration; provided that this arbitration provision does not prevent either Party from seeking interim injunctive relief from a court in order to preserve the status quo. Pending the resolution of such dispute and arbitration, the rights and obligations of the Provider and Host shall continue in accordance with the terms hereof, including without limitation Provider’s obligation to continue providing the Solar Services hereunder and Host’s obligation to compensate Provider as set forth in this Agreement for all such Solar Services rendered.
6.3.4 Late Payments. Any payment not made within the time limits specified in Section 6.3.1 shall bear interest accruing from the date becoming past due until paid in full at a rate per annum equal to the lesser of (i) the Federal Funds Rate and (b) the maximum rate allowed by applicable law.
7. General Covenants.
7.1 Covenants of Provider.
As a material inducement to Host’s execution and delivery of this Agreement, Provider covenants and agrees to the following:
7.1.1 Permits and Approvals. Provider shall obtain and maintain all approvals, consents, licenses, permits, and inspections from relevant Governmental Authorities, utility personnel, and the Site’s owners, including but not limited to those permits and approvals listed in Schedule E of Appendix I, and other agreements and consents required to be obtained and maintained by Provider and to enable Provider to perform the duties set forth in this Agreement, with the exception of those consents, approvals, permits, licenses and authorizations which are the responsibility of Host. Provider shall deliver copies of all permits and approvals obtained pursuant to this Section to Host.
7.1.2 Title to System and Solar Services. Provider shall have good and marketable title to the System as well as all Solar Services, including Energy, sold to Host under
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this agreement free and clear of any and all liens, charges and encumbrances, other than those permissible and involved with the financing of the System by Provider.
7.1.3. Organization and Good Standing Power and Authority. Provider is a limited liability company organized, validly existing and in good standing under the laws of Connecticut. Provider has all requisite power and authority to execute, deliver and perform the obligations of this Agreement subject to receiving any permits or approval necessary from Governmental Authorities.
7.1.2 Provider Records. Provider shall 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. Host 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.
7.2 Covenants of Host.
As a material inducement to Provider’s execution of this Agreement, Host covenants and agrees as follows:
7.2.1 Consents and Approvals. Host shall obtain and maintain, and secure and deliver to Provider copies of, all consents, approvals, permits, licenses, and authorizations relating to the performance of Host’s obligations and the rights granted by Host hereunder, and that are required by the terms, conditions or provisions of any restriction or any agreement or instrument to which Host is a party or by which Host is bound, including completing applications for interconnection with Host’s local electric utility. Host shall use good faith efforts to assist Provider in fulfilling Provider’s responsibilities under Section 7.1.1.
7.2.2 Maintenance of Interconnection. Host shall ensure that all of the facilities to which Energy is delivered hereunder remain interconnected to the electrical grid during the entire Term.
7.2.3 Host Records. Host shall 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. Provider 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.
8. Insurance Requirements.
8.1 Provider’s Insurance.
Provider shall maintain, at its sole expense, commercial general liability insurance, including products and completed operations and personal injury insurance, as well as Automobile Insurance in a minimum amount of one million dollars ($1,000,000) per occurrence and in the aggregate, endorsed to provide contractual liability in said amount, specifically covering Provider’s obligations under this Agreement and naming Host as an additional insured. The minimum coverage
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amount of $1,000,000 per occurrence and in the aggregate may be satisfied by a combination of a general liability policy and an excess/umbrella liability policy. Provider, if it has employees, shall also maintain at all times during the term of this Agreement workers’ compensation insurance coverage in accordance with the applicable requirements of federal and state law. Within thirty (30) days after execution of this Agreement and upon Host’s request annually thereafter, Provider shall deliver to Host certificates of insurance evidencing such coverage, which shall specify that Host shall be given at least thirty (30) days’ prior written notice by the applicable insurer in the event of any material modification, cancellation or termination of coverage. Such insurance shall be primary coverage without right of contribution from any insurance of Host, and shall include provisions regarding waiver of subrogation.
8.2 Property Insurance.
Provider shall cause to be provided and maintained, at its sole cost, “all-risk” property insurance covering the System during all periods that Provider is the beneficial owner of such System. Such insurance shall be primary coverage without right of contribution from any insurance of Provider.
9. 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 Host Default, as the case may be. Notwithstanding anything in this Section 9 to the contrary, no payment obligation of Host under this Agreement for amounts due and owning for Solar Services already provided may be excused or delayed as the result of a Force Majeure Event. In case a Force Majeure Event continues for at least eighteen (18) months, then either Party may terminate this Agreement by written notice to the other.
10. Term; Host Options; Termination.
10.1 Term.
The term of this Agreement 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 (the “Term”), unless and until terminated earlier pursuant to Sections 3.2, 3.3, 9, 10.2.2, 10.3, 10.4 or 12 (the date of any such termination, the “Termination Date”).
10.2 Host Options Upon Expiration of Term.
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10.2.1 Extension of Term. Upon prior written notice to Provider and Lender at least one-hundred eighty (180) days prior to the Expiration Date, Host shall have the option to renew the term of this Agreement for one (1) additional five (5) year period at the Renewal Rate escalated annually at a rate mutually agreed to by the parties.
10.2.2 Option to Purchase. At any time after the expiry of the Fifth (5th) Contract Year, the Host, upon at least ninety (90) days written notice to the Provider and Lender (which notice cannot be given before the expiry of the Fifth (5th) Contract Year), may purchase the System from the Provider for a purchase price equal to the Fair Market Value of the System or the applicable Termination Value in Column A of Schedule D, whichever is greater (the “Purchase Price”). The “Fair Market Value” shall be determined by an appraisal conducted by a mutually acceptable independent appraiser with expertise related to the System. The cost of the appraiser shall be borne by the parties equally. This Agreement shall terminate effective upon the Host’s payment to Provider of the Purchase Price and the transfer of the System to Host.
10.3 Provider Termination.
Provider shall have the right, in Provider’s sole and absolute discretion, to terminate this Agreement upon written notice:
10.3.1 of 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 provided the Provider sends written notice within 30 days of the issuance or occurrence of such order;
10.3.2 if the elimination or alteration of one or more Environmental Financial Incentives or other change in law results in a material adverse economic impact on Provider, provided the Provider sends written notice within 30 days of the effective date of such elimination, alteration or change in law;
10.3.3 if the annual Solar Insolation is less than or equal to 90% of historical averages as measured by long-term weather data (minimum of five (5) years) collected at the Site.
A Provider termination under this Section 10.3 shall not be deemed a default by Host hereunder.
10.4 Host Termination.
Host shall have the right, in Host’s sole and absolute discretion, to terminate this Agreement upon written notice to Provider and Lender:
10.4.1 that Host failed to obtain annual budget appropriations sufficient to pay for the Solar Services and all other charges required pursuant to this Agreement in any fiscal year during the Term;
10.4.2 of the occurrence of an unstayed order of a court or administrative agency having the effect of requiring the Host to remove or substantially remove the System from the
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Site for any reason.
A Host termination under this Section 10.4 shall not be deemed a default by Host hereunder.
11. Defaults.
11.1 Host Default.
The occurrence at any time of any of the following events shall constitute a “Host Default”:
11.1.1 Failure to Pay. The failure of Host to make any payment of undisputed amounts owing to Provider and such failure is not cured by Host within thirty (30) days after Host receives written notice of each such failure from Provider;
11.1.2 Failure to Perform Other Obligations. Unless due to a Force Majeure Event excused by Section 9, the failure of Host to perform or cause to be performed any other material obligation required to be performed by Host 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 Host shall have a period of thirty (30) business days after receipt of written notice from Provider of such failure to Host to cure the same and a Host Default shall not be deemed to exist during such period; provided, further, that if Host commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, at Provider’s sole discretion, said period may be extended for up to one hundred twenty (120) additional days; or
11.1.3 Bankruptcy, Etc. (a) Host admits in writing its inability to pay its debts generally as they become due; (b) Host 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) Host makes an assignment for the benefit of creditors; (d) Host consents to the appointment of a receiver of the whole or any substantial part of its assets; (a) Host 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 Host’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 Host’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.
11.1.4 Site Access. Host fails to grant Provider with continuous and uninterrupted access to the Site throughout the Term of this Agreement so that Provider can perform its responsibilities in accordance with the terms and conditions set forth herein.
11.2 Provider Default.
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The occurrence at any time of the following event shall constitute a “Provider Default”:
11.2.1 Failure to Perform Obligations. Unless due to a Force Majeure Event excused by Section 9, 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 Host 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 one-hundred twenty (120) additional days; or
11.2.2 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.
11.2.3 Failure to Meet Critical Milestones. The Provider’s failure to meet any of the Critical Milestones by the dates set forth in Section 3.1.1 above.
12. Remedies Following Default.
12.1 Host’s Remedies Upon Occurrence of a Provider Default.
12.1.1 Termination. In addition to any other remedies available under this Agreement or at law, if a Provider Default as described in Section 11.2 above has occurred and is continuing, and if Provider fails to correct or cure the conditions causing such Provider Default within thirty (30) days after the date on which Host gives Provider and Lender written notice of Host’s intent to terminate this Agreement as a result of such Provider Default, then, subject to Section 14.17 and any other Lender rights agreed to in writing by Host, this Agreement shall terminate and be of no further force or effect as of the last day of such thirty (30) day period. Host shall also have the right to purchase the Solar System for Fair Market Value or the applicable Termination Value in Column A of Schedule D, whichever is greater. The Host must send the Provider and Lender notice of its intent to exercise its right to purchase within ten (10) days after the termination date. If the Host does not exercise its right to purchase, the Provider
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must remove the Solar System from the Site within sixty (60) days and restore the Site to its condition prior to installation excluding normal wear and tear.
12.2 Provider’s Remedies Upon Host Default.
In addition to any other remedies available under this Agreement or at law, if a Host Default as described in Section 11.1 has occurred and is continuing, and if Host fails to correct or cure the conditions causing such Host Default within ten (10) days after the date on which Provider gives Host written notice of Provider’s intent to terminate this Agreement as a result of such Host Default, then this Agreement shall terminate and be of no further force or effect as of the last day of such ten (10) day period; and Provider shall have the right to cause Host to pay (and Host shall have the obligation to pay to Provider) the applicable Termination Value in Column A of Schedule D of Appendix I provided Provider must remove the Solar System from the Site within sixty (60) days and restore the Site to its condition prior to installation excluding normal wear and tear.
12.3 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 Host and Provider under this Agreement shall be terminated. Such termination shall not relieve either Party from obligations accrued prior to the effective date of termination or expiration.
13. No Consequential Damages. The parties agree that neither party is entitled to or can recover consequential damages from the other parties under this Agreement.
14. Miscellaneous Provisions.
14.1 Notices.
All notices, communications and waivers under this Agreement shall be in writing and shall be (a) delivered in person or (b) mailed, postage prepaid, either by registered or certified mail, return receipt requested or (c) sent by reputable overnight express courier, addressed in each case to the addresses set forth below, or to any other address either of the parties to this Agreement shall designate in a written notice to the other Party:
If to Provider:
GRE 320 Fairfield LLC Attn: Andrew Chester 10 Main St. Suite E Middletown, CT 06457
With copy to Provider’s lenders or other parties designated in writing by Provider
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from time to time.
If to Host:
Town of Fairfield Attn: ______
All notices, communications and waivers to Host’s lenders or other financiers under this Agreement shall be to the name and address specified in a notice from Host to Provider. All notices sent pursuant to the terms of this Section 14.1 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.
14.2 Representations and Warranties.
14.2.1 Provider Representations. Provider hereby represents and warrants that:
(a) It is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Connecticut and has all requisite limited liability company power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;
(b) The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary limited liability company action;
(c) This Agreement is a legal, valid and binding obligation of Provider enforceable against Provider in accordance with its terms, subject to the qualification, however, that the enforcement of the rights and remedies herein is subject to (i) bankruptcy and other similar laws of general application affecting rights and remedies of creditors and (ii) the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law);
(d) To the best knowledge of Provider, as of the date of execution hereof, no governmental approval (other than any governmental approvals that have been previously obtained or disclosed in writing to Host) is required in connection with the due authorization, execution and delivery of this Agreement by Provider or the performance by Provider of its obligations hereunder which Provider has reason to believe that it will be unable to obtain in due course on or before the date required for Provider to perform such obligations;
(e) Neither the execution and delivery of this Agreement by Provider nor compliance by Provider with any of the terms and provisions hereof (i) conflicts with, breaches or contravenes the provisions of the articles of formation or operating agreement of
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Provider or any contractual obligation of Provider or (ii) results in a condition or event that constitutes (or that, upon notice or lapse of time or both, would constitute) an event of default under any material contractual obligation of Provider.
14.2.2 Host Representations. Host hereby represents and warrants that:
(a) It is a municipal entity, duly organized, validly existing and in good standing under the laws of the state of its formation and has all requisite power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;
(b) The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate action;
(c) This Agreement is a legal, valid and binding obligation of Host enforceable against Host in accordance with its terms, subject to the qualification, however, that the enforcement of the rights and remedies herein is subject to (i) bankruptcy and other similar laws of general application affecting rights and remedies of creditors and (ii) the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law);
(d) Neither the execution and delivery of this Agreement by Host nor compliance by Host with any of the terms and provisions of this Agreement (i) conflicts with, breaches or contravenes the provisions of the Charter and By-Laws of Host, or any contractual obligation of Host, or (ii) results in a condition or event that constitutes (or that, upon notice or lapse of time or both, would constitute) an event of default under any contractual obligation of Host.
14.3 Assignment.
Neither Host nor Provider shall assign its interests in this Agreement, nor any part thereof, without the other parties prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Host consent shall not be required for Provider to assign this Agreement for collateral purposes to one or more Lenders in connection with financing of the System, provided that Provider shall provide Host with written notice of such assignment prior there to.
14.4 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.
14.5 Entire Agreement.
This Agreement (including all appendices and schedules attached hereto) represents the entire agreement between the parties to this Agreement with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous oral and prior written agreements.
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14.6 Amendments to Agreement.
This Agreement shall not be amended, modified or supplemented without the written agreement of Provider and Host at the time of such amendment, modification or supplement.
14.7 Waivers; Approvals.
No waiver of any provision of this Agreement shall be effective unless set forth in writing signed by the Party making 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 Host 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 Host 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.
14.8 Partial Invalidity.
In the event that any provision of this Agreement is deemed to be invalid by reason of the operation of Applicable Law, Provider and Host 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 Host 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.
14.9 Execution in Counterparts.
This Agreement may be executed in counterparts, and all said counterparts when taken together shall constitute one and the same Agreement.
14.10 Governing Law; Jurisdiction; Forum.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Connecticut. Parties irrevocably agree that any action, suit or proceeding by or among Provider and Host may be brought in whichever of the Courts of the State of Connecticut, Middlesex County, or the U.S. District Court for the District of Connecticut, has subject matter jurisdiction over the dispute and waive objections that Parties may now or hereafter have regarding the choice of forum whether on personal jurisdiction, venue, forum non conveniens. Nothing in this Agreement shall affect the right to service of process in any other
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manner permitted by law. Host and Provider further agree that final judgment against it in any action or proceeding shall be conclusive, unless appealed, and may be enforced by suit on the judgment, a certified or exemplified copy of which shall be conclusive evidence of the fact and the amount of such judgment.
14.11 Attorneys’ Fees.
If any action shall be instituted in connection with this Agreement, the Party prevailing in such action shall be entitled to recover from the other Party all of its reasonable costs and expenses incurred in connection with such action by arbitration or other legal proceeding, including reasonable attorneys’ fees.
14.12 No Third Party Rights.
This Agreement is only for the benefit of the parties to this Agreement, their successors and permitted assigns (including any lender or lessor of Provider) and Persons expressly benefited by the indemnity provisions of this Agreement. No other Person (including, without limitation, tenants of the Site) shall be entitled to rely on any matter set forth in, or shall have any rights on account of the performance or non-performance by any Party of its obligations under, this Agreement.
14.13 Treatment of Additional Amounts.
The Parties hereto acknowledge and agree that any amounts payable by one Party to the other as a result of the payor’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 difficult to precisely estimate, (b) the amounts specified hereunder bear a reasonable proportion and are not plainly or grossly disproportionate to the probable loss likely to be incurred by Host 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.
14.14 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.
14.15 No Public Utility.
Nothing contained in this Agreement shall be construed as an intent by Provider to dedicate its property to public use or subject itself to regulation as a “public utility” under Connecticut law.
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14.16 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, affiliated company, 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.
14.17 Lender Accommodations.
Host acknowledges that Provider may be financing the System with debt or equity financing and may enter into a sale-leaseback of the System or a partnership flip from, to or with one or more Lenders and that Provider’s obligations may be secured by, among other collateral, one or more pledges or collateral assignments of this Agreement and a first security interest in the System. In order to facilitate such necessary financing, with respect to any Lender, Host agrees as follows:
(a) Consent to Collateral Assignment. Host consents to both the sale of the System to Lender and the collateral assignment by Provider to Lender, of Provider’s right, title and interest in and to this Agreement.
(b) Rights Upon Event of Default. Lender, as owner of the System, or as collateral assignee of this Agreement, shall be entitled to exercise, in the place and stead of Provider, any and all rights and remedies of Provider under this Agreement in accordance with the terms of this Agreement. Lender shall have the right, but not the obligation, to pay all sums due under this Agreement and to perform any obligation required of Provider hereunder or to cure any default of Provider hereunder in the time and manner provided by the terms of this Agreement subject to the additional Lender cure period set forth below. Upon the exercise of remedies under its security interests or enforcement rights in the System, Lender shall (A) cause the purchaser or transferee of the System to assume the Provider’s rights and obligations under this Agreement and (B) give notice to Host of the transferee or assignee of this Agreement. Any such exercise of remedies shall not constitute a default under this Agreement.
(c) Right to Cure. Host will not exercise any right to terminate this Agreement unless it shall have given Lender prior written notice of its intent to terminate this Agreement based on a Provider Default specifying the condition giving rise to such right, and Lender shall not have cured the Provider Default giving rise to the right of termination within thirty (30) days after such notice or (if longer) the periods provided for in this Agreement; provided that if such Provider Default reasonably cannot be cured by Lender within such period and Lender commences and diligently pursues cure of such Provider Default within such period, such period for cure will be extended for a reasonable period of time under the circumstances, such period not to exceed an additional ninety (90) days.
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The Parties’ respective obligations will otherwise remain in effect during any cure period.
(d) Change in Lender. Host acknowledges and agrees that Provider may change Lender at any time, in Provider’s sole discretion, and Host shall abide by such new contact information and payment directions as instructed by Provider.
(e) Security Interest. In the event that Provider grants a security interest in the System to Lender, Host consents to any required filing to perfect such a security interest so long as that filing clearly documents the parties’ intent that the System is considered personal property only and is not considered a fixture to the Site. Such filing shall not create any interest in or lien upon the real property or the interest of Host therein and shall expressly disclaim the creation or such an interest or lien, provided that Provider shall be permitted to make a prophylactic fixture filing with regard to the System.
(f) Third Party Beneficiary. Host agrees and acknowledges that Lender is a third party beneficiary of the provisions of this Section 14.17.
(g) Acknowledgement and Confirmation. To facilitate Provider obtaining financing of the System, Host shall provide such consents to collateral assignment, certifications, representations, information, opinions or other documents as may be reasonably requested by Provider or its Lenders in connection with the financing of the System, provided, however, that Host shall have no obligation to provide any such consent, certification, representation, information or other document, or enter into any agreement, that materially changes any rights or benefits, or materially increases any burdens, liabilities or obligations of Host, under this Agreement (except as otherwise contemplated herein).
14.18 Service Contract.
The Parties intend this Agreement to be a “service contract” within the meaning of Section 7701(e)(3) of the Internal Revenue Code of 1986.
15. Confidential Information.
Each Party (the “Receiving Party”) shall not use for any purpose other than performing the Work under this Agreement or divulge, disclose, produce, publish, or permit access to, without the prior written consent of the other Party (the “Disclosing Party”), any Confidential Information of the Disclosing Party. “Confidential Information” does not include (a) information known to the Receiving Party prior to obtaining the same from the Disclosing Party; (b) information in the public domain at the time of disclosure by the Receiving Party; (c) information obtained by the Receiving Party from a third party who did not receive same, directly or indirectly, from the Disclosing Party or (d) information subject to the Connecticut Freedom of Information laws. The Receiving Party
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shall use the standard of care that the Receiving Party uses to preserve its own Confidential Information to prevent unauthorized use or disclosure of such Confidential Information. Notwithstanding anything herein to the contrary, the Receiving Party has the right to disclose Confidential Information without the prior written consent of the Disclosing Party: (i) as required by any court or other Governmental Authority, or by any stock exchange on which the shares of any Party are listed, (ii) as otherwise required by law, (iii) to the extent necessary in endorsing the Agreement, (iv) as advisable or required in connection with any government or regulatory filings, including without limitation, filings with any regulating authorities covering the relevant financial markets, (v) to its attorneys, accountants, financial advisors or other agents, in each case bound by confidentiality obligations, (vi) to banks, investors and other financing sources and their advisors, in each case bound by confidentiality obligations; or (vii) in connection with an actual or prospective merger or acquisition or similar transaction where the party receiving the Confidential Information is bound by confidentiality obligations.
16. Estoppel.
Either Party hereto, without charge, at any time and from time to time, within ten (l0) business days after receipt of a written request by the other party hereto for purposes related to financing or financial accounting, shall deliver a written instrument, duly executed, certifying to such requesting party, or any other person, firm or corporation specified by such requesting party:
a) 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;
b) 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
c) Such other information as may be reasonably requested by a Party hereto.
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.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date set forth above.
PROVIDER:
GRE 320 Fairfield LLC
By: Name: Title: Date:
HOST:
THE TOWN OF FAIRFIELD
By: Name: Title: Date:
APPENDIX I to Power Purchase Agreement
This Appendix I consists of four (4) schedules.
1. Schedule A: Description of Site. The Site for the installation of the System pursuant to this Agreement is described in Schedule A to this Appendix I.
2. Schedule B: Description of System. The System to be installed at the Site subject to this Agreement shall be as described in Schedule B to this Appendix I.
3. Schedule C: Pricing. The kWh Rates with respect to the System to be installed pursuant to this Agreement shall be as specified in Schedule C to this Appendix I.
4. Schedule D: Termination Values. The Termination Values with respect to the System to be installed pursuant to this Agreement shall be as specified in Schedule C to this Appendix I.
Appendix I-Schedule A
DESCRIPTION OF SITE
The arrays will be installed on the roof of the property at 100 Mona Terrace, in Fairfield, CT, 06824 on Property owned fee simple by the Host, specifically, in the areas demarcated below. Site and Specifications are subject to final engineering review.
Appendix I – Schedule B
DESCRIPTION OF SYSTEM
Provider reserves the right to install substitute equipment based on the state of market and technology conditions immediately prior to procurement.
Technical Specifications • Rated Photovoltaic Array Capacity (STC): 325.435 kW • Photovoltaic Panel Manufacturer: JA Solar • Photovoltaic Panel Model Number: JAM6 72 300-320 • Quantity of Photovoltaic Panels: 1067 • String Size: 11 • Quantity of Strings: 97 • Rated Inverter Capacity: 266 kW • Inverter Manufacturer: Solectria • Inverter Model Number: SGI 266 kW
Project Specs
The PV modules being installed are reliable, durable and highly efficient PV modules with a 10- year product guarantee. The panels also carry a 25-year manufacturer output warranty that they will provide at least 80% of their PTC rating. This project aligns 1067 modules on a parcel of land owned by the Provider.
DC power from the solar modules will be routed in electrical conduit to the inverters. AC power from the inverters will be routed to the main electrical service entrance to be installed on the parcel owned by the Provider. A revenue grade kWh meter will be installed in order to determine the net energy production for the system. All electricity carrying both AC and DC power will be installed according to the National Electric Code, as well as any State or Local code that may be applicable. All components of the system are UL listed.
Appendix I – Schedule C
PRICING
The following pricing is based on the Standard System Design Package.
kWh Rates for y Solar Services
Contract Year $/kWh
1 0.099 2 0.101 3 0.103 4 0.105 5 0.107 6 0.109 7 0.111 8 0.114 9 0.116 10 0.118 11 0.121 12 0.123 13 0.126 14 0.128 15 0.131 16 0.133 17 0.136 18 0.139 19 0.141 20 0.144
Appendix I-Schedule D
TERMINATION VALUES
The following Termination Values are based on the Standard System Design Package.
Applicable Date: Column A:
Contract Year Termination Value 1 $1,225,077.62 2 $974,825.65 3 $856,224.78 4 $750,748.22 5 $650,645.39 6 $551,742.17 7 $521,641.01 8 $495,120.36 9 $467,175.76 10 $437,755.13 11 $406,804.68 12 $374,268.89 13 $340,090.39 14 $304,209.98 15 $266,566.52 16 $227,096.89 17 $185,735.92 18 $142,416.32 19 $97,068.66 20 $49,621.22
Appendix I-Schedule E
PERMITS AND APPROVALS
1. Interconnection Application
2. Building Permit
3. Electrical Permit
4. Electric Utility Contingent Approval
5. Interconnection Agreement
6. Municipal Certificate of Completion
7. Electric Utility Witness Test
8. Electric Utility Approval to Operate
SOLAR SERVICES AGREEMENT
By and Between
Skyview Fairfield LLC (“Seller”)
and
(“Purchaser”)
Dated as of ______, 2013
CONFIDENTIAL
SOLAR SERVICES AGREEMENT
This Solar Services Agreement (this “Agreement”) is made this ___ day of _____ 2013, by and between Skyview Fairfield LLC, a Delaware limited liability company (the “Seller”), and The Town of Fairfield, a municipal corporation (the “Purchaser”). Seller and Purchaser are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.
WITNESSETH:
WHEREAS, Seller desires to construct a solar energy or systems with a total nameplate capacity rated at approximately 147KW DC (as further defined in Article I of this Agreement, each a “System” and collectively, the “Systems”) at certain of Purchaser’s facilities (“Facility” or “Facilities”), on which real property Seller is receiving an easement and license from Purchaser pursuant to a Solar Easement and License Agreement, dated as of even date herewith and attached hereto as Exhibit A (the “Solar Easement”), such real property more particularly described in the Solar Easement and incorporated herein by reference (the “Site”, “Property” or Sites”); and
WHEREAS, Seller desires to sell and deliver to Purchaser, and Purchaser desires to purchase and receive from Seller, all electricity generated by the Systems for the term of this Agreement and otherwise on terms and subject to the conditions provided herein.
NOW THEREFORE, in consideration of the mutual obligations and undertakings herein contained, and intending to be legally bound hereby, the Parties hereto agree as follows:
ARTICLE I DEFINITIONS
Unless otherwise required by the context in which any term appears: (i) capitalized terms used in this Agreement shall have the meanings specified in this Article I; (ii) the singular shall include the plural and vice versa; (iii) references to “articles”, “Sections”, “schedules”, “annexes”, “appendices” or “exhibits”, if any, shall be to Articles, Sections, Schedules, Annexes, Appendices or Exhibits hereof; (iv) all references to a particular entity shall include a reference to such entity’s successors and permitted assigns; (v) the words “herein,” “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular Article or subparagraph hereof; (vi) all accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States of America, consistently applied; (vii) references to this Agreement shall include a reference to all appendices, annexes, schedules and exhibits hereto, as the same may be amended, modified, supplemented or replaced from time to time; and (viii) the masculine shall include the feminine and neuter and vice versa. The Parties have collectively prepared this Agreement, and none of
2 the provisions hereof shall be construed against one Party on the ground that such Party is the author of this Agreement or any part hereof.
Certain terms in this Agreement shall be defined as follows:
“Affiliate” shall mean, with respect to a person or entity, each person or entity that directly, or indirectly controls, is controlled by or is under common control with, such person or entity. For purposes of this definition, “control” (including, with its correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any such person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting securities or by contract or otherwise.
“Applicable Laws” shall mean, with respect to any Person, all laws, statutes, codes, acts, treaties, ordinances, orders, judgments, writs, decrees, injunctions, rules, regulations, governmental approvals, licenses and permits, directives and requirements of all regulatory and other governmental authorities.
“Business Day” shall mean each Monday through and including Friday during the Term other than nationally recognized holidays.
“Code” shall mean the Internal Revenue code of 1986, as amended.
“Commercial Operation Date” shall mean the occurrence of Seller certifying to Purchaser that (i) the electric generating equipment and control systems of the System have been completely installed and commissioned, including, but not limited to, the process of starting up, testing and normalization of all operating systems, and (ii) the System has demonstrated that it has generated and delivered Energy Output to the Delivery Point.
“Delivery Point” shall mean the meter point at which Energy Output from the System is delivered to the Facility.
“Dispute” shall have the meaning assigned to such term in Section 24.1.
“Emission Credits” shall mean all rights, credits (including tax credits), rebates, benefits, reductions, offsets and allowances and entitlements of any kind, known or unknown at the time of this Agreement, that are or become available to Seller from the environmental attributes of the System or the generation of the Energy Output, or otherwise from the development or installation of the System or the production, sale, purchase, consumption or use of the Energy Output, including, but not limited to, renewable energy credits, tradable renewable certificates, portfolio energy credits, carbon credits, allowances and emission reduction credits and offsets, whether arising under federal, state or local law, international treaty, trade association membership or the like, and the right to apply for any such credits.
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“Energy Output” shall mean the actual net kilowatt hours (kWh) of energy generated by the System and delivered or made available for delivery to the Delivery Point in any given period of time.
“Expiration Date” shall have the meaning assigned to such term in Section 6.1.
“Event of Default” shall have the meaning assigned to such term in Section 14.1.
“Fair Market Value” means the value of the System as determined by the mutual agreement of Purchaser and Seller. If Purchaser and Seller 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 taking into account this Agreement, the Solar Easement, the Green Tags, Rebates and Emission Credits and any contract for the sale thereof. 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. The valuation made by the appraiser shall be binding on the Parties in the absence of fraud or manifest error. The costs of the appraiser shall be borne by the Parties equally. If the Parties are unable to agree on the selection of an appraiser, such appraiser shall be selected by random lot from two firms proposed by each Party.
“Force Majeure” shall have the meaning assigned to such term in Article XX.
“Forward Contract” shall have the meaning assigned to such term in Title 11 of the United States Code.
“Forward Contract Merchant” shall have the meaning assigned to such term in Title 11 of the United States Code.
“Green Tags” shall mean the characteristics of electric power generation at the System that have intrinsic value, separate and apart from the Energy Output, arising from the perceived environmental benefits of the System or the Energy Output, including but not limited to all environmental and other attributes that differentiate the System or the Energy Output from energy generated by fossil-fuel based generation units, fuels or resources, characteristics of the System that may results in the avoidance of environmental impacts on air, soil or water, such as the absence of emission of any oxides of nitrogen, sulfur or carbon or of mercury, or other gas or chemical, soot, particulate matter or other substances attributable to the System or the compliance of the System or the Energy Output with the law, rules and standards of the United Nations Framework convention on Climate Change (the “UNFCCC”) or the Kyoto protocol to the UNFCCC or crediting “early action” with a view thereto, or laws or regulations involving or administered by the Clean Air Markets Division of the Environmental Protection Agency or successor administrator or any state or federal entity given jurisdiction over a program involving transferability of rights arising from Green Tags and Reporting Rights.
“Indemnified Party” shall have the meaning assigned to such term in Section 22.3.
“Indemnifying Party” shall have the meaning assigned to such term in Section 22.3.
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“Interconnection Agreement” means an interconnection agreement entered into by and between Purchaser and the Utility that provides for the System to be interconnected with the Utility’s electricity distribution system, and for energy to flow from the System to such system, and from such system to the Energy Output Delivery Point, under the net metering provisions of the Utility’s tariff.
“kW” shall mean a kilowatt DC of capacity.
“kWh” shall mean a kilowatt hour AC of Energy Output.
“Lender(s)” shall mean any and all individuals or entities or successors in interest thereof lending money or extending credit to Seller or an Affiliate of Seller, or investing equity in Seller or an Affiliate of Seller in a manner that will provide certain of the tax benefits from the System to such individual or entity or successor in interest; (i) for the construction, term or permanent financing of the System; (ii) for working capital or other ordinary business requirement of the System (including but not limited to) the maintenance, repair, replacement or improvement of the System; (iii) for any development financing, bridge financing, credit enhancement or interest rate protection in connection with the System; (iv) for the ownership and operation of the System; or (v) for the purchase of the System and related rights and obligations of Seller.
“Lien” shall mean any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, mechanic’s liens and other liens arising under law, and any agreement to give any security interest).
“Lost Output” means the sum of (a) the metered quantity of Energy Output delivered to, but not accepted by, Purchaser at the Delivery Point and (b) the estimated Energy Output if such Energy Output had been delivered by such System.
“Meter” shall mean an instrument or instruments meeting applicable Utility electric industry standards used to measure and record the volume and other required delivery characteristics of the Energy Output delivered hereunder.
“Modules” shall mean the photovoltaic cells described in the module product specifications attached hereto as Exhibit C or equivalent.
“O&M Work” shall have the meaning assigned to such term in Section 9.1.
“Operating Procedures” shall have the meaning assigned to such term in Article VII.
“Person” shall mean an individual, partnership, corporation, company, business trust, joint stock Purchaser, trust, unincorporated association, joint venture, governmental authority, limited liability Purchaser or any other entity of whatever nature.
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“Property” shall have the meaning assigned to such term in the Recitals to this Agreement.
“Proprietary Information” shall have the meaning assigned to such term in Section 19.6.
“Prudent Operating Practices” shall mean the practices, methods and standards of professional care, skill and diligence engaged in or approved by a significant portion of the electric generation industry for facilities of similar size, type, and design, that in the exercise of reasonable judgment, in light of the facts known at the time would have been expected to accomplish results consistent with law, regulation, reliability, safety, environmental protection, applicable codes, and standards of economy and expedition.
“Purchased Energy” shall mean electric Energy Output generated by the System and made available to Purchaser at the Delivery Point. Such Energy Output shall not be reduced or netted against any amount of Energy Output required by Seller for use in the operation of the System and shall not be subject to any right of offset or abatement.
“Rebate” shall mean any and all incentives under any demand-side management or energy efficiency programs offered by a utility company, a third-party provider or the State of Connecticut, or other incentive programs offered by the State of Connecticut and the right to claim income tax credits under Section 45 or 48 of the Code or any state tax law or income tax deductions under the Code or any state tax law.
“Reporting Rights” means the right of Seller to report to any federal, state or local agency, 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 Seller owns the Green Tags, and the Rebates and Emission Credits associated with the Energy Output.
“Site” shall have the meaning set forth in the Recitals.
“Solar Easement” shall mean the Solar Easement and License Agreement dated [ ], 2013, by and between Seller and Purchaser providing Seller sufficient access to each site in connection with the installation, maintenance and operation of the System.
“System” shall have the meaning set forth in the Recitals and further described in certain of the attachments to this Agreement.
“Target Date” has the meaning given to it in Section 6.2 (c).
“Term” shall have the meaning set forth in Article VI.
“Termination Value” shall mean the values set forth or described in Exhibit F to this Agreement.
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“Transferor” shall have the meaning assigned to such term in Section 19.1.
“Transferee” shall have the meaning assigned to such term in Section 19.1.
“Transmission System” shall mean the electrical transmission system or “grid” owned by Utility.
“Utility” shall mean the electric distribution company responsible for electric energy transmission and distribution service at the Site. The Parties acknowledge and agree that, as of the date of this Agreement, the Utility is United Illuminating.
ARTICLE II SALE AND PURCHASE OF ENERGY; RISK OF LOSS; EXCLUSIVE CONTROL
Section 2.1 Summary Description. Seller will, at Seller’s sole cost and expense, cause the System to be constructed pursuant to a turnkey engineering, procurement and construction agreement, and will, own, operate, and maintain the System, which shall be a photovoltaic system consisting of a combination of ground mount structures, rooftop structures and raised ground mount structures, Modules and ancillary equipment located at the Site. Exhibit B to this Agreement, which is attached hereto and made a part hereof, provides a more detailed description of the System, including identification of the equipment and components which are to make up the System.
(a) Seller shall procure all materials and equipment for the System.
(b) Seller shall perform installation work in compliance with local codes and during hours approved by Purchaser’s Project Manager (defined in Solar Easement), in a manner that minimizes inconvenience to and interference with Purchaser and its use of the Property to the extent commercially practicable.
(c) In the event that Seller determines in its sole discretion within thirty (30) days of the Effective Date that it is unable to install the System on the Property, it shall be under no obligation to do so, and this Agreement shall terminate and be of no further force and effect.
Section 2.2 Delivery. In accordance with the terms and conditions hereof, commencing on the Commercial Operation Date and continuing throughout the remainder of the Term, Seller shall sell and deliver to Purchaser at the Delivery Point as and when available, and Purchaser shall purchase and accept from Seller at the Delivery Point, all of the Energy Output generated by the System. Purchaser shall pay Seller a purchase price equal to the Energy Output multiplied by the applicable rates set forth in Exhibit D. Such amount shall be paid in accordance with Article III hereof. Purchaser acknowledges and understands that solar power is an intermittent resource and that the output of the System, which is dependent on the sun and other factors, will constantly vary and that no particular amount of Energy Output is guaranteed or represented in amount or time of delivery. Purchaser further acknowledges that it must retain a primary source of power from Utility to continue to operate its Facilities.
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Section 2.3 Purchaser’s Failure to Accept Delivery. On and after the Commercial Operation Date if, when there exists no breach or default by Seller under this Agreement, Purchaser fails to accept all or any amount of the Energy Output for any reason other than an event of Force Majeure, Purchaser shall pay to Seller as liquidated damages an amount equal to the sum of (i) the product of (A) the applicable rates set forth in Exhibit D for such unaccepted Energy Output and (B) the metered quantity of Energy Output delivered to, but not accepted by Purchaser at the Delivery Point and (ii) amounts that would have been otherwise received by Seller in connection with the Seller’s sale of Emissions Credits, Green Tags or Rebates associated with such Energy Output. In the event of a Force Majeure effecting Purchaser’s ability to accept all or any amount of the Energy Output required by the Facilities, then Purchaser shall reimburse Seller for the unaccepted Energy Output in the manner set forth in this Section 2.3, from the proceeds from any insurance policies required to be maintained by Purchaser as set forth in Article XXIII. Except as provided in Section 2.4 and 2.6 below, the damages provided in this Section 2.3 shall be the sole and exclusive remedy of Seller for any failure of Purchaser to accept delivery of Energy Output that it is required to accept hereunder; provided, however, that the foregoing shall not limit Seller’s rights to pursue its remedies for nonpayment hereunder in the event that amounts due under this Section 2.3 are not paid when due.
Section 2.4 Excused Delivery. On and after the Commercial Operation Date, if, when there exists no breach or default by Seller under this Agreement, Seller is prevented from being able to deliver Energy Output to Purchaser or any other person (such that no metering of such Energy Output has occurred) due to Purchaser’s negligence or failure to act in accordance with Prudent Operating Practice or Purchaser’s breach of or failure to perform its obligations under this Agreement, then Purchaser shall pay liquidated damages to Seller for each hour during which delivery cannot occur, which liquidated damages shall be calculated in the manner set forth in Section 2.7.
Section 2.5 Seller’s Failure to Deliver. The Parties acknowledge that the Energy Output delivered hereunder is delivered “as available” to Purchaser and Seller’s failure to deliver Energy Output for any reason shall not give rise to any default, claim or damages by Purchaser hereunder.
Section 2.6 Curtailment. Purchaser shall have the right to request curtailment of Energy Output upon sufficient prior notice to Seller, and Seller shall curtail Energy Output pursuant to such request. Purchaser shall reimburse Seller for all standard, customary and documented costs and expenses in any way connected with the curtailment of Energy Output pursuant to this Section 2.6, including but not limited to, expenses associated with shutting down and/or relocating any or all of the Systems. The Parties agree Purchaser will be allotted the number of kilowatt hours for curtailment per annum for maintenance, repairs, or movement (the “Curtailment Allotment”) as is set forth in Exhibit H. If Purchaser wishes to curtail Energy Output for maintenance, repairs, or movement, Purchaser shall provide Seller with two (2) Business Days prior notice of such intended curtailment, including details of the duration of such curtailment. Upon receipt of such notice, Seller shall monitor the Energy Output during such curtailment period and calculate the quantity of kilowatt hours of Energy Output that have been lost during such period due to Purchaser’s curtailment in the same manner as done for liquidated
8 damages. Within thirty (30) days of the end of such curtailment period, Seller shall provide Purchaser with its calculation of the quantity of kilowatt hours of Energy Output that were lost during such curtailment period together with back up evidence of such calculation which is reasonably satisfactory to Purchaser. Purchaser’s Curtailment Allotment for such year shall be reduced by the number of kilowatt hours set forth on such calculation. Any unused Curtailment Allotment shall roll over and accumulate with the next year’s Curtailment Allotment for a maximum of the latest five (5) years on an ongoing basis. Within forty-five (45) days after each anniversary of the Commercial Operating Date, Seller shall provide Purchaser with a written report providing an accounting of the curtailment total, the curtailment used, and the curtailment remaining. Each year will begin at the anniversary of the Commercial Operation Date. The Parties agree that if the number or duration exceed this allotment during periods when Purchaser invokes such curtailment option (i) Purchaser shall pay to Seller liquidated damages for the Energy Output not sold that would have been due to Seller had such curtailment of Energy Output not occurred, which liquidated damages shall be calculated in the manner set forth in Section 2.7 and (ii) Seller shall have no obligation to remarket the Energy Output that is curtailed as a result of Purchaser invoking the Curtailment Allotment. The remedy provided in this Section 2.6 shall be the sole and exclusive remedy of Seller for any such voluntary curtailment requested by Purchaser. Seller will have no obligation to reimburse Purchaser if the Curtailment Allotment is not used by the Purchaser in any given year.
Section 2.7 Liquidated Damages. Liquidated damages pursuant to Section 2.4 and 2.6 shall be calculated for each hour during that delivery does not occur according to the following formula:
(Price x EEO) + Lost Revenue
where the above items have the following meanings:
Price = applicable rates set forth in Exhibit D for such estimated Energy Output if such Energy Ouput had been delivered
EEO = The estimated energy output that would have been achieved during the hour or hours to which the above formula is being applied, calculated by applying the sunlight data for each such hour available from the supervisory control and data acquisition system at the System to the rated output for the Modules; provided, however, that the rated output for the Modules shall be the manufacturer’s stated nominal output.
Lost Revenue = Amounts that would have been otherwise received by Seller in connection with the Seller’s sale of Emissions Credits, Green Tags or Rebates associated with EEO.
The liquidated damages set forth in this Article II are a reasonable estimate of the damages the other Party will suffer in the event of nonperformance as set forth herein and are not intended as a penalty.
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ARTICLE III BILLING AND PAYMENT
Billing and payment for amounts due and payable hereunder shall be as follows:
Section 3.1 Invoices . Seller shall submit a monthly invoice to Purchaser. Each invoice shall include the kWh, and applicable rates for the applicable pricing periods.
Section 3.2 Payment. Purchaser shall make payment to Seller or to any person designated by Seller in writing by the tenth (10th) calendar day following the date of Seller’s invoice. All invoices shall be submitted for payment with supporting documentation in duplicate to Purchaser at the address specified herein. Purchaser shall pay to Seller or to any person designated by Seller in writing, by check or wire transfer of immediately available funds to an account specified in writing by Seller or by any other means agreed to by the Parties in writing from time to time, the amount due in such invoice. If Purchaser in good faith disputes an invoice, Purchaser shall provide Seller with a written explanation specifying in detail the basis for the dispute, and Purchaser shall pay the undisputed portion of the invoice in accordance with these payments terms. Disputed portions of Seller’s invoice shall be due and payable no later than thirty (30) days after resolution of the dispute. Payments of disputed amounts shall in no way waive Purchasers right to contest charges. Any amount not paid when due under this Agreement shall accrue interest at the lesser of 12% per annum or the highest rate permitted under applicable law. In the event the Parties are unable to resolve any dispute, Section 24.1 (b) shall be applied as the methodology to resolve any dispute. In the event that Seller is the prevailing party, the provisions herein for interest costs on unpaid invoices shall prevail.
Section 3.3 Errors. Within thirty (30) Business Days after receipt of any invoice, either Party may provide written notice to the other Party of any alleged error in such invoice.
Section 3.4 Billing Disputes. Any Dispute with respect to the amount set forth as due in any invoice shall be resolved pursuant to Article XXIV.
ARTICLE IV TITLE AND RISK OF LOSS
Section 4.1 Risk of Loss and Exclusive Control. Title and risk of loss of the Energy Output shall pass from Seller to Purchaser upon delivery of the Energy Output at the Delivery Point. All deliveries of Energy Output hereunder shall be in the form of three-phase, sixty-cycle alternating current or similar current to properly integrate with the Facility’s electrical system. Purchaser shall purchase and accept delivery of metered Energy Output at the Delivery Point. As between the Parties, Seller will be deemed to be in exclusive control and responsible for any property damage or injuries to persons caused thereby of the Energy Output up to but excluding the point where the system is interconnected to Purchaser’s electrical intertie (the “Delivery Point”) and Purchaser will be deemed to be in exclusive control and responsible for any property damage or injuries to persons caused thereby of Energy Output at and from the
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Delivery Point. Risk of loss related to Energy Output will transfer from Seller to Purchaser at the Delivery Point. Purchaser shall be responsible for arranging delivery of Energy Output from the Delivery Point to Purchaser and any installation and operation of equipment on Purchaser’s side of the Delivery Point necessary for acceptance and use of the Energy Output. The Parties acknowledge that adjustments in the terms and conditions of this Agreement may be appropriate to account for rule changes in the respective Utility or Utility control areas, by the respective independent system operators, or their successors, that could not be anticipated at the date of execution of this Agreement or that are beyond the control of the Parties, and the Parties agree to make such commercially reasonable amendments as are reasonably required to comply therewith.
Section 4.2 Title to the System.
(a) Seller shall at all times retain title to and be the legal and beneficial owner of the System and all alterations, additions or improvements made thereto by Seller, and the System shall remain the property of Seller or its successors and assigns. Seller shall be entitled to, and is hereby authorized to, file one or more precautionary financing statements or fixture filings in such jurisdictions as it deems appropriate with respect to the System in order to protect its rights in the system. In no event shall anyone claiming by, through, or under Purchaser (including but not limited to any present or future mortgagee of the Site) have any rights in or to the System at any time. Purchaser acknowledges and agrees that Seller may be required to grant or cause to be granted to a lender a security interest in the System and Purchaser expressly disclaims and waives any rights it may have in the System, at any time and from time to time, pursuant to this Agreement, at law or in equity.
(b) The Parties specifically acknowledge and agree that Seller shall be the owner of the System for federal income tax purposes, and in that connection, shall be entitled to the depreciation deductions associated with the System as well as any tax credits or other tax benefits provided under the Code to which such owner of the System may be entitled.
(c) Nothing in this Agreement shall be construed to convey to Purchaser a license or other right to trademarks, copyrights, technology or other intellectual property of Seller.
(d) Unless transferred as set forth herein, Seller, or Seller’s permitted assigns, shall at all times, retain title to and be the legal and beneficial owner of the System and the System shall remain the property of the Seller of Seller’s permitted assigns.
ARTICLE V CURTAILMENT AND MODIFICATION BY SELLER
Section 5.1 Curtailment. From time to time, Seller may curtail deliveries of Energy Output. Subject to available sunlight, Seller shall resume deliveries of Energy Output as soon after curtailment as is reasonably possible and safe in accordance with the Operating Procedures and Prudent Operating Practices.
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Section 5.2 Modification of the System. Seller may modify, alter, or otherwise change the System without the prior written consent of Purchaser as required by Prudent Operating Practices or Applicable Law, so long as such modifications, alterations, or other changes would not reasonably be expected to result in materially reducing the capacity or materially impacting the operations of the System or the capability of the System to operate.
ARTICLE VI TERM, TERMINATION AND COMMERCIAL OPERATION
Section 6.1 Term and Termination
(a) Term. The Term shall commence on the date hereof and continue until the sooner of (i) the date that is twenty (20) years from the first day of the month following the month in which the Commercial Operation Date occurs (the “Expiration Date”) or (ii) the date of occurrence of an Event of Default pursuant to Article XIV or the occurrence of any event described in Section 6.1(b) or Section 6.1(c) below (the “Termination Date”).
(b) Early Termination by Seller. Seller shall have the right, but not the obligation, to terminate this Agreement prior to the Expiration Date only upon the occurrence of:
(i) an unstayed order of a court or administrative agency having the effect of subjecting the sales of Energy Output to federal or state regulation of prices and/or service;
(ii) elimination or alteration of one or more Green Tags, Rebates or Emission Credits or other change in law that results in a material adverse economic impact on Seller; or
(iii) an annual level or direct beam solar resource availability that is less than or equal to ninety percent (90%) of historical averages as measured by long term weather data (minimum of five (5) years) collected at the Site and/or other reliable calibrated and appropriate weather station representative of the Site; or
(iv) the termination of the Site Easement for any reason prior to the Expiration Date.
In the event that Seller terminates this Agreement pursuant to this Section 6.1(b), this Agreement shall terminate without triggering the default provisions of this Agreement or the Termination Value set forth in Exhibit F, and with no liability of either Party to the other Party except such amounts then due and owing under this Agreement as of the date of such termination.
(c) Termination for Seller’s Failure to Deliver Energy Output. In the event that the System fails to deliver Energy Output for twenty-four (24) consecutive months, and provided Purchaser’s acts, actions or inaction or those of its employees, contractors or agents
12 or a Force Majeure event has not prevented the System from operating during such time, this Agreement may be terminated by Purchaser and the System shall be removed from the Property by Seller as set forth in Section 6.1(e).
(d) Termination Value for Purchaser’s Default. In the event that the Termination Date has occurred for reasons attributable to an Event of Default by Purchaser, then Purchaser (i) shall be required to pay to Seller any amount owed by Purchaser to Seller for Energy Output delivered prior to the Termination Date, and, as liquidated damages, the higher of the Fair Market Value of the System or the Termination Value as set forth within Exhibit F and (ii) Purchaser shall elect for Seller either to (A) remove the System from the Property and restore the Site as provided in Section 6.1(e) below or (B) execute all documents necessary to cause all right, title and interest in and to the System to be transferred to Customer “as-is, where- is, with all faults” on the Termination Date; provided, however, prior to Seller’s receipt of any amounts owed to Seller by Purchaser (including amounts set forth in Section 6.1(d)(i)), Seller shall have no obligation to remove the System pursuant to Section 6.1(d)(ii)(A) or transfer title to the System pursuant to Section 6.1(d)(ii)(B). The Parties agree and acknowledge that given the complexity of the technology used by the System and the volatility of energy markets, actual damages to Seller would be difficult if not impossible to ascertain, and the applicable Fair Market Value or Termination Value is a reasonable approximation of the damages suffered by Seller as a result of early termination of this Agreement.
(e) Removal of Facility on Termination. On the Expiration Date or the Termination Date, Seller shall remove the System from the Site by a mutually convenient date but in no case later than one hundred eighty (180) days after such Expiration Date or Termination Date, subject to Purchaser’s reimbursement of Seller’s reasonable costs of removal if removal occurs as a result of early termination pursuant to Section 6.1(d) or Section 6.2(c) of this Agreement, and at Seller’s expense at the end of the term of the Agreement or if removal occurs as a result of early termination by Seller pursuant to Section 6.1(b) of this Agreement or Section 6.1(c) of this Agreement, or as a result an Event of Default by the Seller. In any event, Purchaser shall provide Seller with reasonable access to perform such activities. In any event, Seller shall leave the site in neat and clean order except for ordinary wear and tear, and any holes left in a building upon which the System has been installed, including on the roof thereof, shall be sealed and made water tight.
(f) Purchase Option upon Expiration. In connection with the Expiration Date and so long as no Event of Default by the Purchaser is continuing at such time, Seller grants to Purchaser the option to purchase the System at the greater of the Fair Market Value or the applicable Termination Value as shown in Exhibit F. Not less than one hundred and eighty (180) days prior to the Expiration Date, Purchaser shall provide written notice to Seller of Purchaser’s exercise of this option. Upon the exercise of the foregoing purchase option plus receipt of the Fair Market Value or Termination Value, as applicable, Parties will execute all documents necessary to cause all right, title and interest in and to the System to be transferred to Customer “as-is, where-is, with all faults” on the Expiration Date.
(g) Purchase Option. Purchaser may elect to purchase each System or the entire System on the tenth anniversary of the Commercial Operation Date of such System,
13 provided that no Purchaser default shall have occurred and be continuing (the “Purchase Option”). If Purchaser elects to purchase a System or the entire System pursuant to the Purchase Option, the purchase price shall be the greater of the Fair Market Value or the Termination Value as shown on Exhibit F.
(h) RESERVED.
(i) Environmental Attributes. For the avoidance of doubt, if Purchaser obtains title to a System pursuant to Sections 6.1(e), (f) or (g), Seller shall retain all rights, titles and interest in any Rebates, Emission Credits and Green Tags, federal, state or local tax credits or exemptions attributable to the installation of the System or the production of Energy Output from the date hereof through the applicable Termination Date (such attributes retained by Seller, the “Retained Attributes”). If Purchaser receives any payments in exchange for or in any way connected to such Retained Attributes, then Purchase shall promptly transfer such payments to an account or place as Seller shall designate to Purchaser in writing. For the avoidance of doubt, Purchaser shall retain all Rebates, Emission Credits, Green Tags, federal, state or local tax credits or exemptions, including all RECs, attributable to the production of the Energy Output after the Termination Date (those attributes, the “Purchaser Attributes”). If Seller receives any payments in exchange for or in any way connected to such Purchaser Attributes, then Seller shall promptly transfer such payments to an account or place as Purchaser shall designate to Seller in writing. Purchaser and Seller shall consent and agree to and execute any assignments or other acknowledgements needed to (i) transfer the rights, title and interest in Rebates, Emission Credits Green Tags, Retained Attributes or Purchaser Attributes in accordance with the terms of this Agreement and (ii) permit Seller to deliver Rebates, Emission Credits and Green Tags to Utility pursuant to a Solar Renewable Energy Credit Purchase Agreement or other documentation by Utility.
(j) If there is an event, including without limitation a default, termination right, Purchase Option or Force Majeure, that triggers the expiration, suspension or termination of this Agreement with respect to a System but such event does not trigger the same result for the other Systems, then this Agreement shall remain in full force and effect with respect to each such other System.
Section 6.2 Construction and Commercial Operation of the System.
(a) Seller shall install or cause to be installed the System, which, upon the Commercial Operation Date, is targeted to have an aggregate approximate nameplate generating capacity rating as shown in Exhibit A.
(b) Promptly following the execution of this Agreement, Seller shall commence pre-installation activities relating to the System, which shall include, without limitation, the following:
(i) Obtain or cause to be obtained: (A) financing for installation and operation of the System and (B) self-generation incentive credits for operation of the System;
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(ii) obtain or cause to be obtained the right to use the Site under the standard Solar Easement on a long-term basis, for the installation, maintenance and operation of the System;
(iii) obtain all government approvals, permits, contracts, and agreements required for installation, operation and maintenance of the System and Site and delivery of Energy Output to Purchaser;
(iv) obtain all necessary authority from the other regulatory entities for the operation of the System and sale and delivery of Energy Output to Purchaser; and
(v) enter into contract(s) for installation of the System, subject to the terms of any proposed financing.
(c) Seller shall (i) use commercially reasonable efforts to cause the installation of the System to be completed and to cause the System to achieve the Commercial Operation Date on or before [ ] (the “Target Date”). Successful completion of Sections 6.2(b)(i) thru (v) shall be conditions precedent to Seller’s obligations to install and operate the System and otherwise perform its obligations under this Agreement. If the activities contemplated in Sections 6.2(b)(i) thru (v) are not completed by the Target Date, Seller shall have the option to terminate the Agreement without triggering the default provisions of this Agreement or any liability under this Agreement. Alternatively, in the event that such conditions precedent are not satisfied by the Target Date, the Parties may mutually agree to amend this Agreement to revise the Target Date and Term of this Agreement.
(d) Seller shall take commercially reasonable measures to prevent activities associated with installation, operating and maintenance of the System from disrupting or interfering with Purchaser’s activities at the Sites.
(e) Seller and Purchaser hereby agree and acknowledge that Purchaser shall have no ownership interest in the System and no responsibility for its operation or maintenance other than using reasonable efforts to protect the System against vandalism and other destruction. Neither Purchaser nor any party related thereto shall have the right or be deemed to operate the System for purposes of Section 7701(e)(4)(A)(i) of the Internal Revenue Code.
(f) All property insurance and property taxes shall be the responsibility of Purchaser.
(g) Notwithstanding any other provision of this Agreement, the effectiveness of this Agreement, including the obligations and responsibilities of the Parties, is contingent upon the arrangement and entering into of the Solar Easement Agreement attached as Exhibit A for the length of this Agreement between Purchaser and Seller.
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(h) Purchaser shall not cause or permit any interference with the System’s insolation and access to sunlight, as such access exists as of the effective date of this Agreement.
(i) Purchaser shall effect the execution of all agreements required for Utility interconnection of the System no later than the Commercial Operation Date including, without limitation, the Interconnection Agreement. Failure of the Purchaser to effect the execution of all agreements required for interconnection by the Commercial Operation Date shall constitute an Event of Default under this Agreement.
ARTICLE VII OPERATING PROCEDURES
Seller and Purchaser will endeavor to develop written operating procedures (“Operating Procedures”) before the Commercial Operation Date, which Operating Procedures shall only be effective as between Seller and Purchaser if made by mutual written agreement of Seller and Purchaser. The Parties agree that the Operating Procedures they will endeavor to establish the protocol under which the Parties will perform their respective obligations under this Agreement, which will include, but will not be limited to, procedures concerning (A) the method of day-to- day communications; (B) operations and maintenance schedule (C) meter reading protocol; and (D) reporting of scheduled maintenance, maintenance outages and forced outages of the System as a means of securing effective cooperation and interchanges of information and of providing consultation on a prompt and orderly basis between Seller and Purchaser to address various administrative, commercial and technical issues which may arise in connection with the System.
ARTICLE VIII GOVERNMENTAL AND OTHER APPROVALS
Section 8.1 Approvals. Except with respect to governmental approvals, licenses and permits that may be required to allow Purchaser to perform its obligations hereunder, Seller shall secure and maintain at no cost to Purchaser those governmental approvals, permits (including environmental permits), licenses, easements, rights-of-way, releases and other approvals necessary for the construction, maintenance and operation of the System. Section 8.2 Assistance. Upon the request of a Party, Purchaser and Seller shall use their commercially reasonable efforts to assist one another in obtaining and retaining credits, permits, licenses, releases and other approvals necessary for the design, construction, engineering operation and maintenance of the System. Each Party shall reimburse the other for out-of-pocket costs reasonably incurred by a Party in assisting the other under this Article VIII and as mutually agreed upon by the Parties. Further, the Parties agree that they will support and cooperate with one another in the defense of any action of any regulatory body or Governmental Authority having jurisdiction over the System that could adversely affect this Agreement; provided however, such support and cooperation shall not include the reimbursement of out-of- pocket expenses incurred by the other Party.
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ARTICLE IX OPERATIONS AND MAINTENANCE
Section 9.1 O&M Work. Seller, at its sole cost and expense, shall provide operation, repair, monitoring and maintenance services to the System during the Term of this Agreement, including the monitoring and maintenance of metering equipment determining the quantity of electricity produced by the System (collectively, the “O&M Work”). Seller shall perform the O&M Work at such times and in such a manner as Seller determines is appropriate and in accordance with the Operating Procedures and Prudent Operating Practices. Purchaser shall not perform any work on the System. Purchaser shall unconditionally indemnify Seller for any work performed by Purchaser; and, Seller shall unconditionally indemnify Purchaser for any work performed by Seller.
Section 9.2 Phone Data Line. Purchaser shall properly maintain, pay for and use commercially reasonable efforts to provide access to the necessary phone, computer, or other communication lines necessary to permit Seller to record the electrical output of the Systems for the entire Term.
Section 9.3 Malfunctions and Emergencies. Purchaser shall notify Seller within twenty-four (24) hours following the discovery by it of (i) any material malfunction in the operation of the System or (ii) an interruption in the supply of Energy Output. Seller and Purchaser shall each designate personnel and establish procedures such that Purchaser may provide notice of such conditions requiring Seller’s repair or alteration. Seller and Purchaser each shall notify the other Party immediately upon the discovery of an emergency condition in the System. Seller shall commence repairs to the System and restore the supply of Energy Output as soon as reasonably practicable after notice or upon its own discovery during normal business hours and 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, Seller shall attempt to dispatch the appropriate personnel promptly 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 identified in the list set forth in Exhibit G and as changed from time to time by written notice to the other Party.
ARTICLE X TAXES
Seller shall be solely responsible for any tax relating to the construction, ownership, operation, and maintenance or leasing of the System or its components or appurtenances. Purchaser shall pay all taxes imposed by any taxing authority arising out of and with respect to the purchase or sale of the Energy Output purchased from Seller, including but not limited to sales taxes due with respect to the sale and purchase of the Energy Output as well as any taxes resulting from an increase in the assessed value of the Property caused by the installation of the System. If any taxes are assessed against the generation, sale, delivery or consumption of Energy
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Output, Purchaser shall either pay or reimburse Seller for all such amounts due, including any taxes assessed thereon, in accordance with the terms of Article III hereof, except any income taxes (or an alternative to income taxes) imposed on Seller based on such sales.
ARTICLE XI OFFSETS, ALLOWANCES, CREDITS
Section 11.1 Green Tags. Seller shall own and retain all present and future rights, titles and interest in any Emission Credits and Green Tags and in any present or future, now known or unknown, federal, state or local tax credits or exemptions attributable to the installation of the System or the production of Energy Output therefrom, including but not limited to sales tax exemptions, rebates or incentives relating to equipment installed as part of the System or property tax exemptions or credits.
Section 11.2 Rebates. All Rebates available in connection with the System installed on the Property are owned by Seller. Purchaser shall take all reasonable measures to assist Seller in obtaining all Rebates currently available or subsequently made available in connection with the System. If Purchaser fails to act in good faith in completing documentation or taking actions reasonably requested by Seller, and such failure results in a loss of a Rebate, Purchaser shall reimburse Seller for the full amount of such lost Rebate.
Section 11.3 Reporting Rights. Seller shall retain the Reporting Rights and the exclusive rights to claim that: (a) the Energy Output was generated by the System; (b) Seller is responsible for the delivery of the Energy Output to the Delivery Point; (c) Seller is responsible for the reductions in emissions of pollution and greenhouse gases resulting from the generation of the Energy Output and the delivery thereof to the Delivery Point; and (d) Seller is entitled to all credits, certificates, registrations, etc., evidencing or representing any of the foregoing.
Section 11.4 Impairment of Green Tags, Rebates and Emission Credits.
(a) For all Emission Credits, Green Tags, Rebates an federal, state or local tax credits or exemptions attributable to the installation or operation of the System that are in effect as of the Commercial Operation Date, Purchaser shall not take any action or suffer any omission at the Site that would have the effect of impairing the value to the Seller of such Green Tags, Emission Credits and Rebates. Purchaser shall be solely responsible for notifying Seller of any action or omission that could impair such value and for consulting with Seller as necessary to prevent impairment of the value of the Green Tags, Emission Credits and Rebates.
(b) For all Emission Credits, Green Tags, Rebates an federal, state or local tax credits or exemptions attributable to the installation or operation of the System that come into effect after the Commercial Operation Date, Purchaser shall use commercially reasonable efforts to not take any action or suffer any omission at the Site that would have the effect of impairing the value to the Seller of such Green Tags, Emission Credits and Rebates.
ARTICLE XII
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REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 12.1 Purchaser represents and warrants that:
(a) It is a municipal corporation in the State of Connecticut; that it has the power and authority to enter into and perform this Agreement; and that the execution, delivery and performance of this Agreement has been duly authorized by all necessary action. Purchaser covenants that during the Term it shall remain a duly organized and validly existing legal entity with authority to conduct business in the State of Connecticut and shall have the power and authority to perform this Agreement; and
(b) No suit, action, arbitration, legal, administrative or other proceeding is pending or, to the best of Purchaser’s knowledge, has been threatened against Purchaser that would affect the validity or enforceability of this Agreement or the ability of Purchaser to fulfill its commitments hereunder, or that would, if adversely determined, have a material adverse effect on Purchaser’s performance of this Agreement; and
(c) The execution, delivery and performance of this Agreement by Purchaser will not result in a breach of, default under or violation of any Applicable Law, or the provisions of any authorization or in a breach of, default under or violation of any provision of its articles of incorporation or bylaws or any promissory note, indenture or any evidence of indebtedness or security therefore, material lease, material contract or other material agreement by which it or its property is bound; and
(d) This Agreement constitutes a legal, valid and binding obligation enforceable against Purchaser in accordance with its terms, except as the enforceability of such terms may be limited by applicable bankruptcy, reorganization, insolvency or similar laws affecting the enforcement of creditor’s rights generally.
ARTICLE XIII REPRESENTATIONS AND WARRANTIES OF SELLER
Section 13.1 Seller represents and warrants that:
(a) It is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware that it has the power and authority to enter into and perform this Agreement; and that the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on its part. Further, Seller covenants that during the Term it shall remain a duly organized and validly existing legal entity with authority to conduct business in the State of Connecticut and shall have the power and authority to perform this Agreement; and
(b) It is in compliance in all material respects with all requirements of federal, state and local safety standards, codes and regulations applicable to the System, including those laws applicable to the protection of the Parties’ employees and members of the public. Said laws include, but are not limited to the Occupational Safety and Health Act of 1970
19 as amended, and those prohibiting discrimination against any employee or applicant for employment because of race, creed, color, sex, national origin, age or disability; and
(c) No suit, action, arbitration, legal, administrative or other proceeding is pending or, to the best of Seller’s knowledge, has been threatened against Seller that would affect the validity or enforceability of this Agreement or the ability of Seller to fulfill its commitments hereunder, or that would, if adversely determined have a material adverse effect on Seller’s Performance of this Agreement; and
(d) The execution, delivery and performance of this Agreement by Seller will not result in a breach of, default under or violation of any Applicable Law, or the provisions of any authorization or a breach of, default under or violation of any provision of its certificate of formation or other organizational documents or any promissory note, indenture or any evidence of indebtedness or security therefore, material lease, material contract or other material agreement by which it or its property is bound;
(e) This Agreement constitutes a legal, valid and binding obligation enforceable against Seller in accordance with its terms, except as the enforcement of such terms may be limited by applicable bankruptcy, reorganization, insolvency or similar laws affecting the enforceability of creditor’s rights generally.
ARTICLE XIV EVENTS OF DEFAULT AND REMEDIES
Section 14.1 The following shall constitute an “Event of Default” hereunder:
(a) A failure by a Party to pay any amount due hereunder where such failure is not cured within fifteen (15) calendar Business days after receipt of written notice by the non-defaulting Party of such failure to pay such amounts due hereunder; or
(b) Except as otherwise provided in Article XX, any other default that has a material adverse impact on the non-defaulting Party in the event such default is not cured within thirty (30) calendar days after receipt of written notice of the default from the non- defaulting Party setting forth in reasonable detail the nature of such default; provided, that in the case of any such default that cannot be reasonably cured within the thirty (30) calendar days, then the defaulting Party shall have additional time, but in any event not longer than one hundred eighty (180) days, to cure the default if it commences in good faith to cure the default within such thirty (30) calendar day cure period and it diligently and continuously pursues such cure; or provided, however, any amount due shall continue to accrue interest during any such cure period as set forth in Section 3.2; or
(c) A Party’s dissolution or liquidation; a Party’s making a general assignment of its assets for the benefit of creditors; a Party’s filing of a voluntary petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or after the filing of a case in bankruptcy
20 or any proceeding under any other insolvency law against a Party, a Party’s failure to obtain a dismissal of such filing within sixty (60) calendar days after the date of such filing; or
(d) Any representation or warranty furnished by a Party in connection with this Agreement was false or misleading in any material respect when made, unless the fact, circumstance or condition that is the subject of such representation or warranty is made true within thirty (30) calendar days after the other Party has given the defaulting Party written notice thereof, provided, however, that if the fact, circumstance or condition that is the subject of such representation or warranty cannot be corrected within thirty (30) calendar days; or if such fact, circumstance or condition being otherwise than as first represented does not materially adversely affect the non-defaulting Party, then the defaulting Party shall have additional time, but in any event not longer than one hundred eighty (180) days, to cure the default if it commences in good faith within such thirty (30) calendar day cure period to correct the fact, circumstance or condition that is the subject of such representation or warranty and it diligently and continuously proceeds with all due diligence to correct the fact, circumstance or condition that is the subject of such representation or warranty; or
(e) A failure by the Purchaser to effect the execution of the Interconnection Agreement by the Commercial Operation Date; or
(f) Purchaser breaches the Solar Easement; or
(g) If (x) at any time a Downgrade Event (as defined below) occurs with respect to the Purchaser and, in such event, Purchaser does not provide Performance Assurance (as defined below) in an amount determined by Seller in a commercially reasonable manner, within thirty (30) days of receipt of notice from Seller, that such Performance Assurance will be required or (y) the Performance Assurance, if any, is amended, modified or terminated without the prior written consent of Seller. A “Downgrade Event” shall be deemed to have occurred if (1) Purchase was, on the date of this Agreement, rated at least Investment Grade (as defined below), and Purchaser ceases to be rated at least Investment Grade, which is defined herein as possessing a Credit Rating (as defined below) of Baa3 or better by Moody’s Investors Service, Inc. (or its successor), or BBB- or better by Standard and Poor’s Ratings Services (a division of McGraw-Hill) (or its successor), (2) Purchaser was on the date of this Agreement not rated at least Investment Grade, Purchaser at any time fails to maintain Performance Assurance of a type and in amount reasonably required by Seller, if any, or (3) Purchaser makes any public announcement the effect of which creates a reasonable insecurity in Purchaser’s ability to perform its obligations herein. “Performance Assurance” shall mean collateral in the form of either cash, letter(s) of credit, or other security reasonably acceptable to Seller. “Credit Rating” shall mean, with respect to an entity on any date of determination, the respective rating then assigned to its unsecured and senior long-term debt or deposit obligations (not supported by third-party credit enhancement) by Standard and Poor’s Ratings Services (a division of McGraw- Hill), Moody’s Investors Service, Inc., or their respective successors.
Section 14.2 Upon the occurrence of an Event of Default, the non-defaulting Party may exercise any one or more of the following remedies:
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(a) Exercise all remedies available under this Agreement or under Applicable Law after the applicable cure period, including, but not limited to the remedies set forth in Article VI hereto; or
(b) After notice and a right to cure as specified in Section 14.1, terminate this Agreement by delivery of a written notice to defaulting Party declaring termination.
Section 14.3 Except as specifically provided herein, each and every right, power and remedy of a Party, whether specifically stated in this Agreement or otherwise existing, may be exercised concurrently or separately from time to time, and so often and in such order as may be deemed expedient by the exercising Party. No delay or omission of a Party in the exercise of any right, power or remedy shall impair or operate as a waiver thereof or of any other right, power or remedy.
ARTICLE XV NO PARTNERSHIP/INDEPENDENT SELLER
Section 15.1 No Partnership. Notwithstanding any provision of this Agreement, the Parties do not intend to create hereby any lease, joint venture, partnership or association taxable as a corporation or other entity for the conduct of any business for profit. Neither Party shall have any right, power or authority to enter any agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of the other Party.
Section 15.2 Changes to Agreement. If it should appear that one or more changes to this Agreement would be required in order to prevent the creation of a partnership for United States federal tax purposes between Seller and Purchaser, the Parties agree to negotiate promptly in good faith with respect to such changes.
Section 15.3 Independent Contractors. The Parties agree that they are independent contractors and shall be at all times solely responsible for themselves, as well as their respective officers, directors, members, partners, employees, agents, and contractors as to workmanship, accidents, injuries, wages, supervision and control. This Agreement may not be altered in any manner so as to change the relationship or responsibilities of the Parties as independent contractors.
ARTICLE XVI METER MAINTENANCE AND RECORDS
Section 16.1 Energy Output delivered by Seller to Purchaser hereunder shall be measured by electric watt-hour meters located at the Delivery Point.
(a) Seller shall own, operate, maintain and read the utility-grade kilowatt-hour (“kWh”) Meter for the measurement of Energy Output provided to Purchaser.
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Upon Purchaser’s written request, Seller shall furnish a copy of all technical specifications and accuracy calibrations for the Meter.
(b) Purchaser shall have the right to install check meters and associated metering equipment and shall have reasonable access to Seller’s metering equipment for purposes of testing. Seller shall test the Meter annually at the request of Purchaser.
(c) Each Party shall have the right to be present when the other Party is performing maintenance on the metering equipment, provided that the Party performing maintenance gives the other Party reasonable notice of the scheduled maintenance time.
(d) All records, reports and data concerning the System shall be and remain the property of Seller, although Purchaser shall have the right to use the same as may be required to perform and administer this Agreement.
(e) Adjustments. If testing of a Meter pursuant to Section 16.1(b) indicates that such Meter is in error by less than two percent (2%), then Purchaser shall reimburse Seller for costs associated with testing the Meter. If testing of a Meter pursuant to Section 16.1(b) indicates that such Meter is in error by two percent (2%) or more, then Seller shall promptly repair or replace such Meter at its sole expense. Seller shall make a corresponding adjustment to the records of the amount of Energy Output 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 such period cannot be so determined, then a 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 and (ii) the date the Meter was placed into service; provided, however, that such period shall in no case exceed two (2) years whereupon the Parties shall make such payments as are appropriate to reflect such correction in Energy Output amounts.
(f) Any Dispute arising out of the reading of the Meter or any metering equipment shall be resolve pursuant to Article XXIV.
ARTICLE XVII RIGHTS AND OBLIGATIONS OF PURCHASER
Section 17.1 Access. Upon reasonable notice given to Seller, Purchaser (or its agent) shall have access to the System at all reasonable times to observe the construction, operation and maintenance of the System and to access documents relating to the System for purposes of this Agreement; provided, however, that Purchaser shall comply with Seller’s written safety guidelines and risk management procedures copies of which shall be provided to Purchaser by Seller.
Section 17.2 Compliance with Applicable Laws. For purposes of Section 18.1, Purchaser shall comply in all material respects with all Applicable Laws, including but not limited to environmental laws, workers’ compensation laws, unemployment insurance laws, and health and safety laws.
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Section 17.3 Security. Purchaser shall provide and take reasonable measures for security and protection of the System, including commercially reasonable monitoring, if any.
Section 17.4 Liens. Purchaser 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 on or with respect to the System or any interest therein. Purchaser 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 Purchaser is responsible. If Purchaser breaches its obligations under this Section 17.4, it shall immediately notify Seller in writing, shall promptly cause such liens to be discharged and released of record without cost to Seller, and shall indemnify Seller against all costs and expenses (including reasonable attorneys’ fees and court costs at trial and on appeal) incurred in discharging and releasing such liens.
ARTICLE XVIII RIGHTS AND OBLIGATIONS OF SELLER
Section 18.1 Subject to the terms and conditions of this Agreement, Seller shall design, construct, operate, maintain and own or lease the System. Purchaser shall maintain the phone line and data line access, all in accordance with Prudent Operating Practices.
Section 18.2 Seller shall comply in all material respects with all Applicable Laws, including but not limited to environmental laws, workers’ compensation laws, unemployment insurance laws, and health and safety laws.
ARTICLE XIX PUBLICITY AND PROPRIETARY INFORMATION
Section 19.1 Proprietary Information. Except as otherwise provided herein including within subsection (e) of Section 19.4, any Proprietary Information of a Party (the “Transferor”) which is disclosed to or otherwise received or obtained by the other Party (the “Transferee”) incident to this Agreement shall be held, in confidence, and the Transferee shall not publish or otherwise disclose any such Proprietary Information to any Person for any reason or purpose whatsoever, or use any such Proprietary Information for its own purposes or for the benefit of any Person, without the prior written approval of the Transferor, which approval may be granted or withheld by the Transferor in its sole discretion. Without limiting the generality of the foregoing, each Party shall observe the same safeguards and precautions with regard to Proprietary Information which such Party observes with respect to its own information of the same or similar kind.
Section 19.2 Disclosure to Affiliates. Each Party agrees that it will make available Proprietary Information received from the other Party to its Affiliates and its and their employees, agents, contractors and advisors only on a need-to-know basis, and that all Persons to whom such Proprietary Information is made available will be made aware of the confidential
24 nature of such Proprietary Information, and will be required to agree to hold such Proprietary Information in confidence under terms substantially identical to the terms hereof.
Section 19.3 Publicity.
(a) The Parties share a common desire to generate favorable publicity regarding the System and their association with them. The Parties shall use commercially reasonable efforts to coordinate the issuance of press releases regarding the System
(b) Purchaser shall have the right to publicize that it is serving as a “solar host” for the System and to display photographs of the System in its advertising and promotional materials, provided that any such materials identify Seller as the owner, operator and developer of the System. Without limiting the foregoing, the System shall be named “Fairfield Theater Workshop Solar Facility” as applicable. On all signage at the Site, and in all publicly distributed materials and other public communications issued by either Party that refer to a System by name, such name shall be followed by a statement to the effect that Seller owns and operates the System.
Section 19.4 Notwithstanding the foregoing:
(a) A Transferee may provide any Proprietary Information to any governmental authority having jurisdiction over or asserting a right to obtain such information, provided that (i) the disclosure of such Proprietary Information is required by Applicable Law, or such governmental authority orders that such Proprietary Information be provided, and (ii) the Transferee promptly advises the Transferor of any request for such information by such governmental authority and cooperates in giving the Transferor an opportunity to present objections, requests for limitation, and/or requests for confidentiality or other restrictions on disclosure or access, to such governmental authority.
(b) Seller may disclose Proprietary Information to any governmental authority in connection with the application for any license or other authorization, provided, however, that Seller shall make use of any applicable policy or regulation of the governmental authority that allows for the filing of Proprietary Information under seal or other confidentiality procedures.
(c) Seller may disclose Proprietary Information to any prospective Lender for purposes of such party’s evaluation in connection with the provision of debt or equity financing (including equity contributions or commitments), refinancing of any such financing, or any guarantee, insurance or credit support for or in connection with such financing or refinancing, in connection with the construction, ownership, operation or maintenance of the System, or any part thereof; provided that the recipient of any such Proprietary Information agrees in writing to maintain such information in confidence under terms substantially identical to those contained in this Agreement. Seller shall vigorously enforce the terms of any such confidentiality agreement.
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(d) Either Party may disclose Proprietary Information to the extent that such disclosure is required pursuant to the rules of any securities exchange to the extent such Party is subject to regulation.
Section 19.5 In the event of a breach or threatened breach of the provisions of Section 19.1 by any Transferee, the Transferor shall be entitled to an injunction restraining such Party from such breach. Nothing contained herein shall be construed as prohibiting the Transferor from pursuing any other remedies available at law or equity for such breach or threatened breach of this Agreement.
Section 19.6 Definition of Proprietary Information:
(a) The term “Proprietary Information” means all information, written or oral, which has been or is disclosed by the Transferor, or which otherwise becomes known to the Transferee or any Person in a confidential relationship with, the Transferee, and which (A) relates to matters such as patents, trade secrets, research and development activities, draft or final contracts or other business arrangements, books and records, budgets, cost estimates, pro forma calculations, engineering work product, environmental compliance, vendor lists, suppliers, manufacturing processes, energy consumption, pricing information, private processes, and other similar information, as they may exist from time to time, or (B) the Transferor expressly designates in writing to be confidential.
(b) Proprietary Information shall exclude information falling into any of the following categories:
(i) Information that, at the time of disclosure hereunder, is in the public domain, other than information that entered the public domain by breach of this Agreement or any other agreement, or in violation of any Applicable Law;
(ii) Information that, after disclosure hereunder, enters the public domain, other than information that entered the public domain by breach of this Agreement or any other agreement, or in violation of any Applicable Law;
(iii) Information, other than that obtained from third parties, that prior to disclosure hereunder, was already in the recipient’s possession, either without limitation on disclosure to others or subsequently becoming free of such limitation; (iv) Information obtained by the recipient from a third party having an independent right to disclose the information; or
(v) Information that is obtained through independent research without use of or access to the Proprietary Information.
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Section 19.7 The obligations of the Parties under this Article XIX shall remain in full force and effect for one (1) year following the expiration or termination of this Agreement.
ARTICLE XX FORCE MAJEURE
Section 20.1 The term “Force Majeure,” as used in this Agreement, means causes or events beyond the reasonable control of, and without the fault or negligence of the Party claiming Force Majeure or its contractors or subcontractors, including, without limitation, acts of God, sudden actions of the elements such as floods, earthquakes, volcanoes, meteorites, hurricanes, cloud cover, wind speeds in excess of safe installation or working limits of the Modules or tornadoes; decrease in solar radiation from any cause; sabotage; vandalism beyond that which could reasonably be prevented by the Party claiming the Force Majeure; terrorism; war; riots; fire; explosion; blockage, insurrection, or inability (despite due diligence), to obtain or maintain required licenses, permits, or approvals for the construction and operation of the System under the terms of this Agreement; any failure or inability to obtain necessary machinery, equipment, materials or spare parts, but only to the extent such failure or inability is caused by an event of Force Majeure, including, but not limited to, any order to Seller to take any action, that prevents Seller from delivering Energy Output under this Agreement. Notwithstanding the foregoing, Force Majeure shall not include strikes, slow downs, or labor disruptions (even if such difficulties could be resolved by conceding to the demands of a labor group); the adoption or change in (or change in the interpretation of) any rule or regulation or judicial decision lawfully imposed by Federal, state, or local government bodies.
Section 20.2 Neither Party shall be considered to be in default in the performance of any obligations in this Agreement (other than obligations to pay money, including, without limitation, for sales and purchases of Energy Output pursuant to Article II) when a failure of performance shall be due to an event of Force Majeure, and any time periods for such performance shall be extended during an event of Force Majeure, provided that (i) the nonperforming Party gives the other Party prompt written notice describing the particulars of the event of the Force Majeure; (ii) the suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure; (iii) the non-performing Party proceeds with reasonable diligence to remedy its inability to perform, mitigates the effects of the Force Majeure event and provides regular progress reports to the other Party describing actions taken to end the Force Majeure; and (iv) when the non-performing Party is able to resume performance of its obligations under this Agreement, the non-performing Party shall provide written notice of its ability to resume performance of its obligations under this Agreement and shall promptly resume such performance.
ARTICLE XXI WARRANTIES AND PERFORMANCE GUARANTY
Section 21.1 Warranty. Seller warrants that (i) the Energy Output provided by Seller under this Agreement at the Delivery Point shall be produced by a photovoltaic system consisting of Modules and suitable for use in a commercial operations for utility interconnection,
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(ii) title to the Energy Output delivered at the Delivery Point shall pass from Seller to Purchaser free of any liens created by Seller, and (iii) the System will be install in accordance with the plans and specifications approved by the Purchaser or Purchaser’s Agent.
Section 21.2 Performance Standard. Seller shall undertake commercially reasonable efforts to operate and maintain the System in accordance with the Operating Procedures and Prudent Operating Practices.
Section 21.3 Limitation of Warranty. EXCEPT AS SET FORTH IN ARTICLE XIII AND SECTION 21.1, SELLER MAKES NO WARRANTY EXPRESS OR IMPLIED UNDER THIS AGREEMENT. ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER WARRANTIES, WHETHER BASED ON STATUTE, CONTRACT, TORT OR OTHERWISE (OTHER THAN AS SET FORTH IN ARTICLE XIII AND SECTION 21.1) ARE HEREBY COMPLETELY AND IRREVOCABLY WAIVED BY PURCHASER.
ARTICLE XXII INDEMNIFICATION Section 22.1 Indemnification by Seller. Seller shall fully indemnify, save harmless and defend Purchaser or any of its officers, directors, employees, contractors and agents from and against any and all costs, claims, and expenses incurred by such parties 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, gross negligence or willful misconduct of Seller or its agents or employees or others under Seller’s control or (b) Seller’s Default.
Section 22.2 Indemnification by Purchaser. Purchaser shall fully indemnify, save harmless and defend Seller or any of its officers, directors, employees, contractors and agents from and against any and all costs, claims, and expenses incurred by such parties 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 extend caused by (a) the negligence, gross negligence or willful misconduct of Purchaser or its agents or employees or other’s under Purchaser’s control or (b) Purchaser’s Default.
Section 22.3 Defense of Action. If requested by a party seeking indemnification (the “Indemnified Party”), the other 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 shave the right to select separate counsel to participate in its defense of such action at the Indemnified Party’s expense. If any claim, action , proceeding or investigation arises as to which the indemnity provided for in this section 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
28 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.
Section 22.4 Percentage Share of Negligence. It is the intent of the Parties hereto that where fault, acts or omissions are determined to be contributory, principles of comparative negligence will be followed and each Party shall bear the proportionate cost of any loss, damage, expense and liability attributable to that Party’s negligence, acts or omissions.
Section 22.5 Limitation of Liability. Neither party shall be liable to the other Party or its indemnified persons of any special, punitive, exemplary, indirect or consequential damages, or losses or damages for lost revenues or lost profits, whether foreseeable or not, arising out of, or in connection with this Agreement, except for losses or damages arising out of (a) a Party’s willful misconduct or gross negligence or fraud or (b) a third party claim against a Party, to the extent permitted by law.
ARTICLE XXIII INSURANCE
Section 23.1 Insurance. [AMOUNTS AND COVERAGES TBD]
Section 23.2 Certificates of Insurance. Each Party shall provide certificates of insurance to the other during the Term certifying that such coverages shall remain in effect for the duration of this Agreement; provided, however, that Purchaser shall deliver certificates of insurance to Seller during the Term with a satisfactory loss payable endorsement naming Seller as a loss payee, or in the case of any real property, an additional insured, such endorsements to contain a waiver of warranties. All certificates of insurance shall state that prior to cancellation, non-renewal or any material change, thirty (30) Business Days written notice shall be given to Purchaser. Failure of Purchaser to enforce the minimum insurance requirements listed above shall not relieve Seller of responsibility for maintaining these coverages.
Section 23.3 Occurrence Policy. All insurance required hereunder shall provide insurance for occurrences from the date hereof throughout the later of the expiration or termination hereof.
Section 23.4 All such insurance coverages shall be provided by an actuarially sound self-insurance program reasonably acceptable to the Purchaser or by policies of insurance issued by insurers licensed to insure risks in the State and rated “A” or better by Standard & Poor’s Corporation or “AX” by AMBest.
ARTICLE XXIV DISPUTES
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Section 24.1 Any dispute, controversy or claim arising out of or in connection with this Agreement (a “Dispute”) shall be resolved in accordance with this Article XXIV. Upon the occurrence of a Dispute:
(a) Either Party may deliver a notice to the other Party requesting the Dispute be referred to that Party’s management. Any such notice shall include the names of the managers to resolve the Dispute. Any such notice shall be delivered within a reasonable period of time after the Dispute arises. Within seven (7) Business Days after a receipt of notice, the other Party shall provide written notice to the requesting Party indicating a schedule for Dispute resolution, which resolution shall commence within fourteen (14) Business Days of the notice of Dispute.
(b) If, after such Dispute resolution in accordance with paragraph (a) above remains unresolved, either Party may require that a non-binding mediation take place. In such mediation, representatives of the Parties with authority to resolve the Dispute shall meet for at least three (3) hours with a mediator whom they choose together. If the Parties are unable to agree on a mediator, then either Party is hereby empowered to request the American Arbitration Association to appoint a mediator. The mediator’s fee and expenses shall be paid one-half by each Party.
(c) Any Dispute not resolved to the mutual satisfaction of the Parties pursuant to paragraphs (a) and (b) above each Party shall retain the right, but not the obligation, to pursue any legal or equitable remedy available to it in a court of competent jurisdiction.
(d) Either Party may seek a restraining order, temporary injunction, or other provisional judicial relief if the Party, in its sole judgment, believes that such action is necessary to avoid irreparable injury or to preserve the status quo. The Parties shall continue in good faith in the procedures hereunder despite any requests for provisional relief.
(e) During the conduct of any Dispute resolution procedures pursuant hereto the Parties shall continue to perform their respective obligations by virtue of the matters in Dispute.
(f) No termination of this Agreement following an Event of Default shall relieve the defaulting Party of its liability and obligations hereunder, and the non-defaulting Party may take whatever action may appear necessary or desirable to enforce performance and observance of any obligations under this Agreement pursuant to Article XIV, and the rights given hereunder.
ARTICLE XXV MISCELLANEOUS
Section 25.1 Audit Review. Both Parties shall keep a record of all invoices, receipts, charts, computer printouts, punch cards or magnetic tapes related to the volume or price of the Purchased Energy. Such records shall be made available for inspection by either Party
30 upon reasonable notice at the principal place of business of the non-requesting Party during regular business hours.
(a) Copies of requested materials shall be made for the requesting Party and reasonable costs of reproduction shall be borne by the requesting Party.
(b) Access to records for the above audit purposes or for technical review purposes shall be kept on record for a minimum of five (5) years.
Section 25.2 Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut. Venue for any proceeding relating to this Agreement shall be in the State of Connecticut Superior Court in the Fairfield Judicial District or in the Federal District Court for the District of Connecticut, located in Bridgeport.
Section 25.3 Notice. Any notice, demand, request, consent, approval confirmation, communication or statements which is required or permitted under this Agreement shall be in writing and shall be given or delivered by personal service, telecopy, Federal Express or comparable overnight delivery service, or by deposit in the United States Post Office, postage prepaid, by registered or certified mail, addressed to the Party receiving notice as specified below. Changes in such address and/or contact persons named shall be made by notice similarly given. Notices given by personal service or sent by telecopy shall be deemed given the day so given or sent. Notices mailed or sent by a delivery service or by registered or certified mail as provided herein shall be deemed given on the third Business Day following the date so mailed or on the date of actual receipt, whichever is earlier.
PURCHASER: Town of Fairfield 725 Old Post Road Fairfield, Connecticut 06824
SELLER: Skyview Fairfield LLC 114 South Pearl Street, Port Chester, New York 10573 Attn: Andy Karetsky 203.249.3973 [email protected]
Section 25.4 Complete Agreement; Modification. The terms and provisions contained in this Agreement and referenced documents constitute the entire Agreement between Purchaser and Seller and shall supersede all previous communications, representations, or agreements, either oral or written, between Purchaser and Seller with respect to the sale of Energy Output from the System. No amendment or modification of this Agreement shall be
31 binding on either Party unless such amendment is reduced to writing and signed by authorized representatives of both Parties.
Section 25.5 Third Party Beneficiaries. Except as otherwise expressly provided herein, this Agreement is for the sole benefit of the Parties hereto, and nothing in this Agreement or any action taken hereunder shall be construed to create any duty, liability or standard of care to any Person not a Party to this Agreement. Except as specifically otherwise provided herein, no Person shall have any rights or interest, direct or indirect in this Agreement.
Section 25.6 Successors and Assigns. Seller and Purchaser each is bound and the officers, successor, legal representatives and assigns of Seller and Purchaser are hereby bound to the other party to this Agreement and to the officers, successors, legal representatives and assigns of such other party, in respect of all covenants, agreements, and obligations of this Agreement. Neither Party shall assign, sublet, or transfer any rights under or interest in this Agreement to anyone or grant a Lien against this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld, conditioned or delayed; provided, however, that Seller may, without the consent of Purchaser, assign its rights and obligations under this Agreement or grant a Lien against this Agreement. The Seller’s consent to any such assignment shall not be deemed unreasonably withheld if the transferee does not have an equal to or great level of creditworthiness or credit rating as the Purchaser has as of the Effective Date, as determined by the Seller in its reasonable discretion. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement nor alter any warranty and maintenance obligations owned by the assignor. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
Section 25.7 Savings Clause. Each term and condition of this Agreement is deemed to have independent effect and the invalidity of any partial or whole paragraph or article shall not invalidate the remaining paragraphs or articles. The obligation to perform all of the terms and conditions of this Agreement shall remain in effect regardless of the performance of any invalid term by the other Party.
Section 25.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for all purposes, be deemed an original and all such counterparts, taken together, shall constitute one and the same instrument.
Section 25.9 Forward Contract. The Parties acknowledge and agree that this Agreement and the transactions consummated under this Agreement constitute a “forward contract” within the meaning of the United States Bankruptcy Code and that Seller is a “forward contract business” within the meaning of the United States Bankruptcy Code.
Section 25.10 RESERVED.
Section 25.11 Removal of Liens. Purchaser will ensure that no liens of whatever type will be filed, lodged or attached to the System (other than those created by Seller or its creditors). If any such liens are filed, lodged or attached to the System, Purchaser will do all acts
32 and things at the Purchaser’s expense to remove such liens and agrees to fully indemnify Seller for any loss and damage that Seller suffers as a result of a lien on or over the System. Seller 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 rights in the System.
Section 25.12 Estoppel. Either Party hereto, without charge, at any time and from time to time, within five (5) business days after receipt of a written request by the other Party hereto, shall deliver a written instrument, duly executed, certifying to such requesting Party, or any other person, firm or corporation specified by such requesting Party: (i) 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; (ii) 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 (iii) such other information as may be reasonably requested by a Party hereto. 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.
Section 25.13 Non-Disturbance Agreement. Except as set forth in as “Permitted Liens” in the Solar Easement Exhibit A attached hereto, Purchaser covenants that it will obtain a non-disturbance agreement (“NDA”) from any third party who now has or may in the future obtain an interest in the Property, including, without limitation, any lenders to Purchaser, Purchaser’s landlord, which NDA shall (a) acknowledge and consent to Seller’s rights in the Property, (b) acknowledge that the third party has no interest in the System and shall not gain any interest in the System by virtue of the Parties’ performance or breach of this Agreement and (c) subordinates any lien the third party may have in and to the System and other property that is or may from time to time hereafter be located at the Property.
Section 25.14 Cooperation with Financing. Purchaser acknowledges that Seller may be financing the Agreement and Purchaser agrees that it shall reasonably cooperate with Seller and its financing parties in connection with such financing, including (a) the furnishing of such information, and (b) the giving of such certificates; provided, that the foregoing undertaking shall not obligate Purchaser to materially change any rights or benefits, or materially increase any burdens, liabilities or obligations of Purchaser under this Agreement (except for providing notices and additional cure periods to the financing parties with respect to events of defaults with respect to Seller as a financing party may reasonably request).
Section 25.15 Due Authority. The Parties hereby represent and warrant that the individual executing this Agreement on behalf of such Party is duly authorized to execute and deliver this Agreement on behalf of such Party and that this Assignment is binding upon such Party in accordance with its terms.
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Section 25.16 Service Contract. The Parties acknowledge and agree that, for accounting or tax purposes, this Agreement is not and shall not be construed as a lease and, pursuant to Section 7701(e)(3) of the Code, this Agreement is and shall be deemed to be a service contract with respect to the sale to the Purchaser of electric energy produced at an alternative energy facility.
Section 25.17 Attorney Fees. In the event that any court or arbitration proceeding is brought under or in connection with this Easement Agreement, the prevailing party in such proceeding (whether at trial or on appeal) shall be entitled to recover from the other party all costs, expenses, and reasonable attorneys’ fees incident to any such proceeding. The term “prevailing party” as used herein shall mean the party in whose favor the final judgment or award is entered in any such judicial or arbitration proceeding.
[SIGNATURE PAGE FOLLOWS]
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This Agreement is executed the day and year first above written.
SELLER:
Skyview Fairfield LLC
By: ______
Its: ______
PURCHASER: [CT ENTITY]
By: ______
Name:
Its:
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SOLAR SERVICES AGREEMENT
Exhibit A
Solar Easement Agreement
KNOW YE that the TOWN OF FAIRFIELD, a municipal corporation located in the County of Fairfield in the State of Connecticut (referred to herein as "Grantor" or the “Town”) for One ($1.00) Dollar and other consideration, the receipt and sufficiency of which is hereby acknowledged does hereby grant to Skyview Fairfield LLC, a Connecticut limited liability company, its successors and assigns, (referred to herein as “Grantee”), an easement over and under that certain parcel of real property located at 70 Sanford Street, and Located within the Town (the “Subject Property”) with the easement granted hereunder more fully described as set forth in this “Agreement.”
W I T N E S S E T H:
WHEREAS, Grantor is the owner of the Subject Property and has entered into a Solar Services Agreement, as of the date hereof (the “Solar Agreement”), for the purpose of allowing Grantee to construct, operate and maintain a solar photovoltaic generation system (the “Solar System”) and, under certain circumstances following termination or expiration of the Solar Agreement according to its terms, remove the Solar System from the Subject Property.
WHEREAS, the Grantee will install the Solar System on the roof of the building located on the Subject Property, and install aboveground and belowground electrical conductors and appurtenant fixtures on the Subject Property, including on or outside structures located on the Subject Property, and connect the Solar System to the public utility grid, all as set forth on the engineering drawings, renderings, construction permits, site plans, plat maps and other relevant documentation for such Solar System (collectively, the “Site Plans”), which Site Plans have received, or will receive, all necessary planning and zoning approvals and building and other permits required by the Town, including approvals and permits issued by the Department of Public Works, the Building Department, and any other department authorized to issue such approvals and permits (collectively, together with any other legislative body or administrative agency of the Town, the “Town Agencies”).
WHEREAS, Grantor is willing to grant and convey to the Grantee an easement over the Subject Property for the purposes of providing access to the Subject Property for the installation, maintenance, operation and, if applicable, removal of the Solar System.
NOW THEREFORE, the parties hereto, hereby agree as follows:
1. Grantor hereby grants to Grantee and its successors and assigns, during the term of the Solar Agreement, as the same may be modified or extended, and for a period of 180 days thereafter, an easement to install the Solar System on the Subject Property as provided in the Solar Agreement and in a manner consistent with the Site Plans (including such amendments or
Docs\Solar Services Agr variances that may be approved or required from time to time by the Town Agencies), and, during the term of the Solar Agreement, to enter the Subject Property for the purpose of maintenance, operation and, if applicable, removal of the Solar System.
2. This easement shall extend to the interiors and exteriors of any structures located on the subject property if and to the extent that access to such structures is required to allow Grantee or its employees, contractors, agents or assigns to access such structures for the purpose of carrying out Grantee’s obligations or exercising its rights under this easement or the Solar Agreement.
3. In exercising its rights under this easement, Seller shall perform installation, maintenance and removal work in compliance with local codes and during hours approved by a an employee or contractor who may be designated by the Town from time to time (the “Project Manager”), in a manner that minimizes inconvenience to and interference with Grantor and its use of the Subject Property to the extent commercially practicable. During its access to the Subject Property, the Grantee shall comply, and shall cause its employees, contractors and agents to comply, in all material respects with all applicable laws, including but not limited to environmental laws, workers’ compensation laws, unemployment insurance laws, and health and safety laws.
4. Grantor shall ensure, at its own expense, that no structure, vegetation, activity, or land use of Grantor, except utility lines, antennas, wires, and poles shall cast a shadow on the Solar System during the times specified unless such structure, vegetation, activity, or land use exists on the effective date of this easement and is not required to be removed or is excepted by the terms of this instrument. A shadow shall not be cast from 3 hours before noon to 3 hours after noon from September 22 through March 21 and from 4 hours before noon to 4 hours after noon from March 22 to September 21, all times being Eastern Standard Time.
5. In the event that any damage is caused to the easement area due to the negligence of any party, then the party causing such damage shall be wholly responsible to repair the same.
6. During the term of the Solar Agreement, and for a period of 180 days thereafter, the grant of the foregoing easement shall constitute a covenant running against the Subject Property and shall be binding upon the parties hereto, their respective successors and assigns, and all future owners or occupants of said premises and shall run in favor of the parcels described herein and the parties hereto, their respective successors and assigns and all future owners or occupants of said premises.
7. 180 days after the termination or expiration of the Solar Agreement, the easement granted herein shall be deemed abandoned. Upon abandonment, this Agreement shall terminate,
Docs\Solar Services Agr and Grantor and Grantee shall execute and record on the land records such documents as may be necessary to evidence said termination and, if requested by Grantor, Grantee shall immediately restore the easement area as far as practicable to the condition in which it existed prior to the execution of this agreement, except as otherwise provided in the Solar Agreement.
8. Grantor represents that it has not permitted or engaged in the use of, and has no knowledge of, any substance, chemical or waste located on, under or about the Subject Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulations (collectively “Hazardous Substance”). Neither Grantor nor Grantee will introduce or use any such Substance on, under or about the Subject Property in violation of any applicable law or regulation. No underground storage tanks for petroleum or any other Substance, or underground piping or conduits, are or have previously been located on the Subject Property, and no asbestos containing insulation or products containing PCB or other Substances have been placed anywhere on the Subject Property by Grantor or, to Grantor’s knowledge, by any prior owner or user of the Subject Property (except for such asbestos containing insulation located in or on structures on the Subject Property that will not be disturbed by the construction, installation, operation or removal of the Solar System in accordance with the Site Plans. Grantor and Grantee shall each defend, indemnify, protect and hold the other party harmless from and against all claims, costs, fines, judgments and liabilities, including reasonable attorney’s fees and costs, arising out of or in connection with the presence, storage, use or disposal of any Hazardous Substance on, under or about the Subject Property caused by the acts, omissions or negligence of the indemnifying party and their respective agents, contractors and employees. The foregoing indemnity shall survive any termination of this Agreement.
9. This Agreement (including the Site Plans, which are incorporated herein by reference) and the Solar Agreement (including exhibits and appendices thereto) constitute the entire agreement and understanding of Grantor and Grantee with respect to the subject matter of this Agreement, and supersedes all offers, negotiations and any other written or verbal agreements; (b) any amendments to this Agreement must be in writing and executed by both parties; (c) this Agreement is governed by the laws of the State of Connecticut; and (d) if any term of this Agreement is found to be void or invalid, such provision shall be fully severable herefrom and such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect, and this Agreement shall be reformed and construed as if such invalid provisions had never been contained herein, and if possible, such provisions shall be reformed to the maximum extent permitted under applicable law to render the same valid, operative and enforceable to reflect the intent of the Parties as expressed herein.
10. IN WITNESS WHEREOF, the parties hereto, by their hands and seal, have caused these presents to be executed on this ______day of September, 2013.
Docs\Solar Services Agr
11.
GRANTOR GRANTEE TOWN OF FAIRFIELD Skyview Fairfield LLC
By: ______By: ______[______] Managing Member Duly authorized Duly authorized
STATE OF CONNECTICUT STATE OF CONNECTICUT ss: ______, 2013 ss: ______, 2013 COUNTY OF FAIRFIELD COUNTY OF FAIRFIELD
Before me, the undersigned officer, personally Before me, the undersigned officer, personally appeared [______], known to me (or appeared [______], known to me (or satisfactorily proven), signer and sealer of the satisfactorily proven), signer and sealer of the foregoing instrument, who acknowledged the foregoing instrument, who acknowledged the signing of same to be his free act and deed in signing of same to be his free act and deed in such capacity as [______]. such capacity as [______]. ______Commissioner of Superior Court/ Notary Commissioner of Superior Court/ Notary Public Public
Docs\Solar Services Agr
SOLAR SERVICES AGREEMENT
Exhibit B
System Specifications
Location: 70 Sanford Street Fairfield, Connecticut
System Size (Nameplate Capacity):
[147 kw DC]
Installation Type: Rooftop Solar
Module Type: JA Solar or similar
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SOLAR SERVICES AGREEMENT
Exhibit C
Module Description
______
(as described in the attached Exhibit C-1)
Docs\Solar Services Agr
SOLAR SERVICES AGREEMENT
Exhibit D
Energy Rates
Pursuant to Section 2.2 the kWh Rates paid during the term of this Agreement are as follows:
Year Rate 1$ 0.1350 2$ 0.1357 3$ 0.1364 4$ 0.1370 5$ 0.1377 6$ 0.1384 7$ 0.1391 8$ 0.1398 9$ 0.1405 10 $ 0.1412 11 $ 0.1419 12 $ 0.1426 13 $ 0.1433 14 $ 0.1440 15 $ 0.1448 16 $ 0.1455 17 $ 0.1462 18 $ 0.1469 19 $ 0.1477 20 $ 0.1484
Docs\Solar Services Agr
SOLAR SERVICES AGREEMENT
Exhibit E
(intentionally omitted)
Docs\Solar Services Agr
SOLAR SERVICES AGREEMENT
Exhibit F
Termination Value Schedule
The Termination Value for the Systems is set forth below. The Termination Value for each System shall equal the product of (i) the capacity in Watts DC of such System and (ii) the Value per Watt due in a year or, at any point within such year, set forth in the table below.
Termination Year Value Value / Watt 1 N/A 2 N/A 3 N/A 4 N/A 5 N/A 6 347,505.53$ 3.1591$ 7 329,946.13$ 2.9995$ 8 311,598.85$ 2.8327$ 9 292,423.85$ 2.6584$ 10 272,379.29$ 2.4762$ 11 251,421.27$ 2.2856$ 12 229,503.65$ 2.0864$ 13 206,578.03$ 1.8780$ 14 182,593.56$ 1.6599$ 15 157,496.87$ 1.4318$ 16 131,231.91$ 1.1930$ 17 120,796.63$ 1.0982$ 18 109,840.02$ 0.9985$ 19 98,335.99$ 0.8940$ 20 86,257.19$ 0.7842$
Docs\Solar Services Agr
SOLAR SERVICES AGREEMENT
Exhibit G
Emergency Contacts
For Seller: Andy Karetsky Skyview Fairfield LLC 114 South Pearl Street, Port Chester, New York 10573 203.249.3973 [email protected]
For Purchaser: [ ]
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SOLAR SERVICES AGREEMENT
Exhibit H
Curtailment Allotment
Pursuant to Section 2.6 the number of kWh that Purchaser may curtail per year:
Year KwH 1 5,038 2 5,013 3 4,988 4 4,963 5 4,938 6 4,913 7 4,889 8 4,864 9 4,840 10 4,816 11 4,792 12 4,768 13 4,744 14 4,720 15 4,697 16 4,673 17 4,650 18 4,626 19 4,603 20 4,580
Docs\Solar Services Agr
SOLAR SERVICES AGREEMENT
By and Between
Skyview Fairfield LLC (“Seller”)
and
(“Purchaser”)
Dated as of ______, 2013
CONFIDENTIAL
SOLAR SERVICES AGREEMENT
This Solar Services Agreement (this “Agreement”) is made this ___ day of _____ 2013, by and between Skyview Fairfield LLC, a Delaware limited liability company (the “Seller”), and The Town of Fairfield, a municipal corporation (the “Purchaser”). Seller and Purchaser are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.
WITNESSETH:
WHEREAS, Seller desires to construct a solar energy or systems with a total nameplate capacity rated at approximately 29KW DC (as further defined in Article I of this Agreement, each a “System” and collectively, the “Systems”) at certain of Purchaser’s facilities (“Facility” or “Facilities”), on which real property Seller is receiving an easement and license from Purchaser pursuant to a Solar Easement and License Agreement, dated as of even date herewith and attached hereto as Exhibit A (the “Solar Easement”), such real property more particularly described in the Solar Easement and incorporated herein by reference (the “Site”, “Property” or Sites”); and
WHEREAS, Seller desires to sell and deliver to Purchaser, and Purchaser desires to purchase and receive from Seller, all electricity generated by the Systems for the term of this Agreement and otherwise on terms and subject to the conditions provided herein.
NOW THEREFORE, in consideration of the mutual obligations and undertakings herein contained, and intending to be legally bound hereby, the Parties hereto agree as follows:
ARTICLE I DEFINITIONS
Unless otherwise required by the context in which any term appears: (i) capitalized terms used in this Agreement shall have the meanings specified in this Article I; (ii) the singular shall include the plural and vice versa; (iii) references to “articles”, “Sections”, “schedules”, “annexes”, “appendices” or “exhibits”, if any, shall be to Articles, Sections, Schedules, Annexes, Appendices or Exhibits hereof; (iv) all references to a particular entity shall include a reference to such entity’s successors and permitted assigns; (v) the words “herein,” “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular Article or subparagraph hereof; (vi) all accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States of America, consistently applied; (vii) references to this Agreement shall include a reference to all appendices, annexes, schedules and exhibits hereto, as the same may be amended, modified, supplemented or replaced from time to time; and (viii) the masculine shall include the feminine and neuter and vice versa. The Parties have collectively prepared this Agreement, and none of
2 the provisions hereof shall be construed against one Party on the ground that such Party is the author of this Agreement or any part hereof.
Certain terms in this Agreement shall be defined as follows:
“Affiliate” shall mean, with respect to a person or entity, each person or entity that directly, or indirectly controls, is controlled by or is under common control with, such person or entity. For purposes of this definition, “control” (including, with its correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any such person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting securities or by contract or otherwise.
“Applicable Laws” shall mean, with respect to any Person, all laws, statutes, codes, acts, treaties, ordinances, orders, judgments, writs, decrees, injunctions, rules, regulations, governmental approvals, licenses and permits, directives and requirements of all regulatory and other governmental authorities.
“Business Day” shall mean each Monday through and including Friday during the Term other than nationally recognized holidays.
“Code” shall mean the Internal Revenue code of 1986, as amended.
“Commercial Operation Date” shall mean the occurrence of Seller certifying to Purchaser that (i) the electric generating equipment and control systems of the System have been completely installed and commissioned, including, but not limited to, the process of starting up, testing and normalization of all operating systems, and (ii) the System has demonstrated that it has generated and delivered Energy Output to the Delivery Point.
“Delivery Point” shall mean the meter point at which Energy Output from the System is delivered to the Facility.
“Dispute” shall have the meaning assigned to such term in Section 24.1.
“Emission Credits” shall mean all rights, credits (including tax credits), rebates, benefits, reductions, offsets and allowances and entitlements of any kind, known or unknown at the time of this Agreement, that are or become available to Seller from the environmental attributes of the System or the generation of the Energy Output, or otherwise from the development or installation of the System or the production, sale, purchase, consumption or use of the Energy Output, including, but not limited to, renewable energy credits, tradable renewable certificates, portfolio energy credits, carbon credits, allowances and emission reduction credits and offsets, whether arising under federal, state or local law, international treaty, trade association membership or the like, and the right to apply for any such credits.
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“Energy Output” shall mean the actual net kilowatt hours (kWh) of energy generated by the System and delivered or made available for delivery to the Delivery Point in any given period of time.
“Expiration Date” shall have the meaning assigned to such term in Section 6.1.
“Event of Default” shall have the meaning assigned to such term in Section 14.1.
“Fair Market Value” means the value of the System as determined by the mutual agreement of Purchaser and Seller. If Purchaser and Seller 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 taking into account this Agreement, the Solar Easement, the Green Tags, Rebates and Emission Credits and any contract for the sale thereof. 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. The valuation made by the appraiser shall be binding on the Parties in the absence of fraud or manifest error. The costs of the appraiser shall be borne by the Parties equally. If the Parties are unable to agree on the selection of an appraiser, such appraiser shall be selected by random lot from two firms proposed by each Party.
“Force Majeure” shall have the meaning assigned to such term in Article XX.
“Forward Contract” shall have the meaning assigned to such term in Title 11 of the United States Code.
“Forward Contract Merchant” shall have the meaning assigned to such term in Title 11 of the United States Code.
“Green Tags” shall mean the characteristics of electric power generation at the System that have intrinsic value, separate and apart from the Energy Output, arising from the perceived environmental benefits of the System or the Energy Output, including but not limited to all environmental and other attributes that differentiate the System or the Energy Output from energy generated by fossil-fuel based generation units, fuels or resources, characteristics of the System that may results in the avoidance of environmental impacts on air, soil or water, such as the absence of emission of any oxides of nitrogen, sulfur or carbon or of mercury, or other gas or chemical, soot, particulate matter or other substances attributable to the System or the compliance of the System or the Energy Output with the law, rules and standards of the United Nations Framework convention on Climate Change (the “UNFCCC”) or the Kyoto protocol to the UNFCCC or crediting “early action” with a view thereto, or laws or regulations involving or administered by the Clean Air Markets Division of the Environmental Protection Agency or successor administrator or any state or federal entity given jurisdiction over a program involving transferability of rights arising from Green Tags and Reporting Rights.
“Indemnified Party” shall have the meaning assigned to such term in Section 22.3.
“Indemnifying Party” shall have the meaning assigned to such term in Section 22.3.
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“Interconnection Agreement” means an interconnection agreement entered into by and between Purchaser and the Utility that provides for the System to be interconnected with the Utility’s electricity distribution system, and for energy to flow from the System to such system, and from such system to the Energy Output Delivery Point, under the net metering provisions of the Utility’s tariff.
“kW” shall mean a kilowatt DC of capacity.
“kWh” shall mean a kilowatt hour AC of Energy Output.
“Lender(s)” shall mean any and all individuals or entities or successors in interest thereof lending money or extending credit to Seller or an Affiliate of Seller, or investing equity in Seller or an Affiliate of Seller in a manner that will provide certain of the tax benefits from the System to such individual or entity or successor in interest; (i) for the construction, term or permanent financing of the System; (ii) for working capital or other ordinary business requirement of the System (including but not limited to) the maintenance, repair, replacement or improvement of the System; (iii) for any development financing, bridge financing, credit enhancement or interest rate protection in connection with the System; (iv) for the ownership and operation of the System; or (v) for the purchase of the System and related rights and obligations of Seller.
“Lien” shall mean any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, mechanic’s liens and other liens arising under law, and any agreement to give any security interest).
“Lost Output” means the sum of (a) the metered quantity of Energy Output delivered to, but not accepted by, Purchaser at the Delivery Point and (b) the estimated Energy Output if such Energy Output had been delivered by such System.
“Meter” shall mean an instrument or instruments meeting applicable Utility electric industry standards used to measure and record the volume and other required delivery characteristics of the Energy Output delivered hereunder.
“Modules” shall mean the photovoltaic cells described in the module product specifications attached hereto as Exhibit C or equivalent.
“O&M Work” shall have the meaning assigned to such term in Section 9.1.
“Operating Procedures” shall have the meaning assigned to such term in Article VII.
“Person” shall mean an individual, partnership, corporation, company, business trust, joint stock Purchaser, trust, unincorporated association, joint venture, governmental authority, limited liability Purchaser or any other entity of whatever nature.
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“Property” shall have the meaning assigned to such term in the Recitals to this Agreement.
“Proprietary Information” shall have the meaning assigned to such term in Section 19.6.
“Prudent Operating Practices” shall mean the practices, methods and standards of professional care, skill and diligence engaged in or approved by a significant portion of the electric generation industry for facilities of similar size, type, and design, that in the exercise of reasonable judgment, in light of the facts known at the time would have been expected to accomplish results consistent with law, regulation, reliability, safety, environmental protection, applicable codes, and standards of economy and expedition.
“Purchased Energy” shall mean electric Energy Output generated by the System and made available to Purchaser at the Delivery Point. Such Energy Output shall not be reduced or netted against any amount of Energy Output required by Seller for use in the operation of the System and shall not be subject to any right of offset or abatement.
“Rebate” shall mean any and all incentives under any demand-side management or energy efficiency programs offered by a utility company, a third-party provider or the State of Connecticut, or other incentive programs offered by the State of Connecticut and the right to claim income tax credits under Section 45 or 48 of the Code or any state tax law or income tax deductions under the Code or any state tax law.
“Reporting Rights” means the right of Seller to report to any federal, state or local agency, 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 Seller owns the Green Tags, and the Rebates and Emission Credits associated with the Energy Output.
“Site” shall have the meaning set forth in the Recitals.
“Solar Easement” shall mean the Solar Easement and License Agreement dated [ ], 2013, by and between Seller and Purchaser providing Seller sufficient access to each site in connection with the installation, maintenance and operation of the System.
“System” shall have the meaning set forth in the Recitals and further described in certain of the attachments to this Agreement.
“Target Date” has the meaning given to it in Section 6.2 (c).
“Term” shall have the meaning set forth in Article VI.
“Termination Value” shall mean the values set forth or described in Exhibit F to this Agreement.
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“Transferor” shall have the meaning assigned to such term in Section 19.1.
“Transferee” shall have the meaning assigned to such term in Section 19.1.
“Transmission System” shall mean the electrical transmission system or “grid” owned by Utility.
“Utility” shall mean the electric distribution company responsible for electric energy transmission and distribution service at the Site. The Parties acknowledge and agree that, as of the date of this Agreement, the Utility is United Illuminating.
ARTICLE II SALE AND PURCHASE OF ENERGY; RISK OF LOSS; EXCLUSIVE CONTROL
Section 2.1 Summary Description. Seller will, at Seller’s sole cost and expense, cause the System to be constructed pursuant to a turnkey engineering, procurement and construction agreement, and will, own, operate, and maintain the System, which shall be a photovoltaic system consisting of a combination of ground mount structures, rooftop structures and raised ground mount structures, Modules and ancillary equipment located at the Site. Exhibit B to this Agreement, which is attached hereto and made a part hereof, provides a more detailed description of the System, including identification of the equipment and components which are to make up the System.
(a) Seller shall procure all materials and equipment for the System.
(b) Seller shall perform installation work in compliance with local codes and during hours approved by Purchaser’s Project Manager (defined in Solar Easement), in a manner that minimizes inconvenience to and interference with Purchaser and its use of the Property to the extent commercially practicable.
(c) In the event that Seller determines in its sole discretion within thirty (30) days of the Effective Date that it is unable to install the System on the Property, it shall be under no obligation to do so, and this Agreement shall terminate and be of no further force and effect.
Section 2.2 Delivery. In accordance with the terms and conditions hereof, commencing on the Commercial Operation Date and continuing throughout the remainder of the Term, Seller shall sell and deliver to Purchaser at the Delivery Point as and when available, and Purchaser shall purchase and accept from Seller at the Delivery Point, all of the Energy Output generated by the System. Purchaser shall pay Seller a purchase price equal to the Energy Output multiplied by the applicable rates set forth in Exhibit D. Such amount shall be paid in accordance with Article III hereof. Purchaser acknowledges and understands that solar power is an intermittent resource and that the output of the System, which is dependent on the sun and other factors, will constantly vary and that no particular amount of Energy Output is guaranteed or represented in amount or time of delivery. Purchaser further acknowledges that it must retain a primary source of power from Utility to continue to operate its Facilities.
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Section 2.3 Purchaser’s Failure to Accept Delivery. On and after the Commercial Operation Date if, when there exists no breach or default by Seller under this Agreement, Purchaser fails to accept all or any amount of the Energy Output for any reason other than an event of Force Majeure, Purchaser shall pay to Seller as liquidated damages an amount equal to the sum of (i) the product of (A) the applicable rates set forth in Exhibit D for such unaccepted Energy Output and (B) the metered quantity of Energy Output delivered to, but not accepted by Purchaser at the Delivery Point and (ii) amounts that would have been otherwise received by Seller in connection with the Seller’s sale of Emissions Credits, Green Tags or Rebates associated with such Energy Output. In the event of a Force Majeure effecting Purchaser’s ability to accept all or any amount of the Energy Output required by the Facilities, then Purchaser shall reimburse Seller for the unaccepted Energy Output in the manner set forth in this Section 2.3, from the proceeds from any insurance policies required to be maintained by Purchaser as set forth in Article XXIII. Except as provided in Section 2.4 and 2.6 below, the damages provided in this Section 2.3 shall be the sole and exclusive remedy of Seller for any failure of Purchaser to accept delivery of Energy Output that it is required to accept hereunder; provided, however, that the foregoing shall not limit Seller’s rights to pursue its remedies for nonpayment hereunder in the event that amounts due under this Section 2.3 are not paid when due.
Section 2.4 Excused Delivery. On and after the Commercial Operation Date, if, when there exists no breach or default by Seller under this Agreement, Seller is prevented from being able to deliver Energy Output to Purchaser or any other person (such that no metering of such Energy Output has occurred) due to Purchaser’s negligence or failure to act in accordance with Prudent Operating Practice or Purchaser’s breach of or failure to perform its obligations under this Agreement, then Purchaser shall pay liquidated damages to Seller for each hour during which delivery cannot occur, which liquidated damages shall be calculated in the manner set forth in Section 2.7.
Section 2.5 Seller’s Failure to Deliver. The Parties acknowledge that the Energy Output delivered hereunder is delivered “as available” to Purchaser and Seller’s failure to deliver Energy Output for any reason shall not give rise to any default, claim or damages by Purchaser hereunder.
Section 2.6 Curtailment. Purchaser shall have the right to request curtailment of Energy Output upon sufficient prior notice to Seller, and Seller shall curtail Energy Output pursuant to such request. Purchaser shall reimburse Seller for all standard, customary and documented costs and expenses in any way connected with the curtailment of Energy Output pursuant to this Section 2.6, including but not limited to, expenses associated with shutting down and/or relocating any or all of the Systems. The Parties agree Purchaser will be allotted the number of kilowatt hours for curtailment per annum for maintenance, repairs, or movement (the “Curtailment Allotment”) as is set forth in Exhibit H. If Purchaser wishes to curtail Energy Output for maintenance, repairs, or movement, Purchaser shall provide Seller with two (2) Business Days prior notice of such intended curtailment, including details of the duration of such curtailment. Upon receipt of such notice, Seller shall monitor the Energy Output during such curtailment period and calculate the quantity of kilowatt hours of Energy Output that have been lost during such period due to Purchaser’s curtailment in the same manner as done for liquidated
8 damages. Within thirty (30) days of the end of such curtailment period, Seller shall provide Purchaser with its calculation of the quantity of kilowatt hours of Energy Output that were lost during such curtailment period together with back up evidence of such calculation which is reasonably satisfactory to Purchaser. Purchaser’s Curtailment Allotment for such year shall be reduced by the number of kilowatt hours set forth on such calculation. Any unused Curtailment Allotment shall roll over and accumulate with the next year’s Curtailment Allotment for a maximum of the latest five (5) years on an ongoing basis. Within forty-five (45) days after each anniversary of the Commercial Operating Date, Seller shall provide Purchaser with a written report providing an accounting of the curtailment total, the curtailment used, and the curtailment remaining. Each year will begin at the anniversary of the Commercial Operation Date. The Parties agree that if the number or duration exceed this allotment during periods when Purchaser invokes such curtailment option (i) Purchaser shall pay to Seller liquidated damages for the Energy Output not sold that would have been due to Seller had such curtailment of Energy Output not occurred, which liquidated damages shall be calculated in the manner set forth in Section 2.7 and (ii) Seller shall have no obligation to remarket the Energy Output that is curtailed as a result of Purchaser invoking the Curtailment Allotment. The remedy provided in this Section 2.6 shall be the sole and exclusive remedy of Seller for any such voluntary curtailment requested by Purchaser. Seller will have no obligation to reimburse Purchaser if the Curtailment Allotment is not used by the Purchaser in any given year.
Section 2.7 Liquidated Damages. Liquidated damages pursuant to Section 2.4 and 2.6 shall be calculated for each hour during that delivery does not occur according to the following formula:
(Price x EEO) + Lost Revenue
where the above items have the following meanings:
Price = applicable rates set forth in Exhibit D for such estimated Energy Output if such Energy Ouput had been delivered
EEO = The estimated energy output that would have been achieved during the hour or hours to which the above formula is being applied, calculated by applying the sunlight data for each such hour available from the supervisory control and data acquisition system at the System to the rated output for the Modules; provided, however, that the rated output for the Modules shall be the manufacturer’s stated nominal output.
Lost Revenue = Amounts that would have been otherwise received by Seller in connection with the Seller’s sale of Emissions Credits, Green Tags or Rebates associated with EEO.
The liquidated damages set forth in this Article II are a reasonable estimate of the damages the other Party will suffer in the event of nonperformance as set forth herein and are not intended as a penalty.
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ARTICLE III BILLING AND PAYMENT
Billing and payment for amounts due and payable hereunder shall be as follows:
Section 3.1 Invoices . Seller shall submit a monthly invoice to Purchaser. Each invoice shall include the kWh, and applicable rates for the applicable pricing periods.
Section 3.2 Payment. Purchaser shall make payment to Seller or to any person designated by Seller in writing by the tenth (10th) calendar day following the date of Seller’s invoice. All invoices shall be submitted for payment with supporting documentation in duplicate to Purchaser at the address specified herein. Purchaser shall pay to Seller or to any person designated by Seller in writing, by check or wire transfer of immediately available funds to an account specified in writing by Seller or by any other means agreed to by the Parties in writing from time to time, the amount due in such invoice. If Purchaser in good faith disputes an invoice, Purchaser shall provide Seller with a written explanation specifying in detail the basis for the dispute, and Purchaser shall pay the undisputed portion of the invoice in accordance with these payments terms. Disputed portions of Seller’s invoice shall be due and payable no later than thirty (30) days after resolution of the dispute. Payments of disputed amounts shall in no way waive Purchasers right to contest charges. Any amount not paid when due under this Agreement shall accrue interest at the lesser of 12% per annum or the highest rate permitted under applicable law. In the event the Parties are unable to resolve any dispute, Section 24.1 (b) shall be applied as the methodology to resolve any dispute. In the event that Seller is the prevailing party, the provisions herein for interest costs on unpaid invoices shall prevail.
Section 3.3 Errors. Within thirty (30) Business Days after receipt of any invoice, either Party may provide written notice to the other Party of any alleged error in such invoice.
Section 3.4 Billing Disputes. Any Dispute with respect to the amount set forth as due in any invoice shall be resolved pursuant to Article XXIV.
ARTICLE IV TITLE AND RISK OF LOSS
Section 4.1 Risk of Loss and Exclusive Control. Title and risk of loss of the Energy Output shall pass from Seller to Purchaser upon delivery of the Energy Output at the Delivery Point. All deliveries of Energy Output hereunder shall be in the form of three-phase, sixty-cycle alternating current or similar current to properly integrate with the Facility’s electrical system. Purchaser shall purchase and accept delivery of metered Energy Output at the Delivery Point. As between the Parties, Seller will be deemed to be in exclusive control and responsible for any property damage or injuries to persons caused thereby of the Energy Output up to but excluding the point where the system is interconnected to Purchaser’s electrical intertie (the “Delivery Point”) and Purchaser will be deemed to be in exclusive control and responsible for any property damage or injuries to persons caused thereby of Energy Output at and from the
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Delivery Point. Risk of loss related to Energy Output will transfer from Seller to Purchaser at the Delivery Point. Purchaser shall be responsible for arranging delivery of Energy Output from the Delivery Point to Purchaser and any installation and operation of equipment on Purchaser’s side of the Delivery Point necessary for acceptance and use of the Energy Output. The Parties acknowledge that adjustments in the terms and conditions of this Agreement may be appropriate to account for rule changes in the respective Utility or Utility control areas, by the respective independent system operators, or their successors, that could not be anticipated at the date of execution of this Agreement or that are beyond the control of the Parties, and the Parties agree to make such commercially reasonable amendments as are reasonably required to comply therewith.
Section 4.2 Title to the System.
(a) Seller shall at all times retain title to and be the legal and beneficial owner of the System and all alterations, additions or improvements made thereto by Seller, and the System shall remain the property of Seller or its successors and assigns. Seller shall be entitled to, and is hereby authorized to, file one or more precautionary financing statements or fixture filings in such jurisdictions as it deems appropriate with respect to the System in order to protect its rights in the system. In no event shall anyone claiming by, through, or under Purchaser (including but not limited to any present or future mortgagee of the Site) have any rights in or to the System at any time. Purchaser acknowledges and agrees that Seller may be required to grant or cause to be granted to a lender a security interest in the System and Purchaser expressly disclaims and waives any rights it may have in the System, at any time and from time to time, pursuant to this Agreement, at law or in equity.
(b) The Parties specifically acknowledge and agree that Seller shall be the owner of the System for federal income tax purposes, and in that connection, shall be entitled to the depreciation deductions associated with the System as well as any tax credits or other tax benefits provided under the Code to which such owner of the System may be entitled.
(c) Nothing in this Agreement shall be construed to convey to Purchaser a license or other right to trademarks, copyrights, technology or other intellectual property of Seller.
(d) Unless transferred as set forth herein, Seller, or Seller’s permitted assigns, shall at all times, retain title to and be the legal and beneficial owner of the System and the System shall remain the property of the Seller of Seller’s permitted assigns.
ARTICLE V CURTAILMENT AND MODIFICATION BY SELLER
Section 5.1 Curtailment. From time to time, Seller may curtail deliveries of Energy Output. Subject to available sunlight, Seller shall resume deliveries of Energy Output as soon after curtailment as is reasonably possible and safe in accordance with the Operating Procedures and Prudent Operating Practices.
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Section 5.2 Modification of the System. Seller may modify, alter, or otherwise change the System without the prior written consent of Purchaser as required by Prudent Operating Practices or Applicable Law, so long as such modifications, alterations, or other changes would not reasonably be expected to result in materially reducing the capacity or materially impacting the operations of the System or the capability of the System to operate.
ARTICLE VI TERM, TERMINATION AND COMMERCIAL OPERATION
Section 6.1 Term and Termination
(a) Term. The Term shall commence on the date hereof and continue until the sooner of (i) the date that is twenty (20) years from the first day of the month following the month in which the Commercial Operation Date occurs (the “Expiration Date”) or (ii) the date of occurrence of an Event of Default pursuant to Article XIV or the occurrence of any event described in Section 6.1(b) or Section 6.1(c) below (the “Termination Date”).
(b) Early Termination by Seller. Seller shall have the right, but not the obligation, to terminate this Agreement prior to the Expiration Date only upon the occurrence of:
(i) an unstayed order of a court or administrative agency having the effect of subjecting the sales of Energy Output to federal or state regulation of prices and/or service;
(ii) elimination or alteration of one or more Green Tags, Rebates or Emission Credits or other change in law that results in a material adverse economic impact on Seller; or
(iii) an annual level or direct beam solar resource availability that is less than or equal to ninety percent (90%) of historical averages as measured by long term weather data (minimum of five (5) years) collected at the Site and/or other reliable calibrated and appropriate weather station representative of the Site; or
(iv) the termination of the Site Easement for any reason prior to the Expiration Date.
In the event that Seller terminates this Agreement pursuant to this Section 6.1(b), this Agreement shall terminate without triggering the default provisions of this Agreement or the Termination Value set forth in Exhibit F, and with no liability of either Party to the other Party except such amounts then due and owing under this Agreement as of the date of such termination.
(c) Termination for Seller’s Failure to Deliver Energy Output. In the event that the System fails to deliver Energy Output for twenty-four (24) consecutive months, and provided Purchaser’s acts, actions or inaction or those of its employees, contractors or agents
12 or a Force Majeure event has not prevented the System from operating during such time, this Agreement may be terminated by Purchaser and the System shall be removed from the Property by Seller as set forth in Section 6.1(e).
(d) Termination Value for Purchaser’s Default. In the event that the Termination Date has occurred for reasons attributable to an Event of Default by Purchaser, then Purchaser (i) shall be required to pay to Seller any amount owed by Purchaser to Seller for Energy Output delivered prior to the Termination Date, and, as liquidated damages, the higher of the Fair Market Value of the System or the Termination Value as set forth within Exhibit F and (ii) Purchaser shall elect for Seller either to (A) remove the System from the Property and restore the Site as provided in Section 6.1(e) below or (B) execute all documents necessary to cause all right, title and interest in and to the System to be transferred to Customer “as-is, where- is, with all faults” on the Termination Date; provided, however, prior to Seller’s receipt of any amounts owed to Seller by Purchaser (including amounts set forth in Section 6.1(d)(i)), Seller shall have no obligation to remove the System pursuant to Section 6.1(d)(ii)(A) or transfer title to the System pursuant to Section 6.1(d)(ii)(B). The Parties agree and acknowledge that given the complexity of the technology used by the System and the volatility of energy markets, actual damages to Seller would be difficult if not impossible to ascertain, and the applicable Fair Market Value or Termination Value is a reasonable approximation of the damages suffered by Seller as a result of early termination of this Agreement.
(e) Removal of Facility on Termination. On the Expiration Date or the Termination Date, Seller shall remove the System from the Site by a mutually convenient date but in no case later than one hundred eighty (180) days after such Expiration Date or Termination Date, subject to Purchaser’s reimbursement of Seller’s reasonable costs of removal if removal occurs as a result of early termination pursuant to Section 6.1(d) or Section 6.2(c) of this Agreement, and at Seller’s expense at the end of the term of the Agreement or if removal occurs as a result of early termination by Seller pursuant to Section 6.1(b) of this Agreement or Section 6.1(c) of this Agreement, or as a result an Event of Default by the Seller. In any event, Purchaser shall provide Seller with reasonable access to perform such activities. In any event, Seller shall leave the site in neat and clean order except for ordinary wear and tear, and any holes left in a building upon which the System has been installed, including on the roof thereof, shall be sealed and made water tight.
(f) Purchase Option upon Expiration. In connection with the Expiration Date and so long as no Event of Default by the Purchaser is continuing at such time, Seller grants to Purchaser the option to purchase the System at the greater of the Fair Market Value or the applicable Termination Value as shown in Exhibit F. Not less than one hundred and eighty (180) days prior to the Expiration Date, Purchaser shall provide written notice to Seller of Purchaser’s exercise of this option. Upon the exercise of the foregoing purchase option plus receipt of the Fair Market Value or Termination Value, as applicable, Parties will execute all documents necessary to cause all right, title and interest in and to the System to be transferred to Customer “as-is, where-is, with all faults” on the Expiration Date.
(g) Purchase Option. Purchaser may elect to purchase each System or the entire System on the tenth anniversary of the Commercial Operation Date of such System,
13 provided that no Purchaser default shall have occurred and be continuing (the “Purchase Option”). If Purchaser elects to purchase a System or the entire System pursuant to the Purchase Option, the purchase price shall be the greater of the Fair Market Value or the Termination Value as shown on Exhibit F.
(h) RESERVED.
(i) Environmental Attributes. For the avoidance of doubt, if Purchaser obtains title to a System pursuant to Sections 6.1(e), (f) or (g), Seller shall retain all rights, titles and interest in any Rebates, Emission Credits and Green Tags, federal, state or local tax credits or exemptions attributable to the installation of the System or the production of Energy Output from the date hereof through the applicable Termination Date (such attributes retained by Seller, the “Retained Attributes”). If Purchaser receives any payments in exchange for or in any way connected to such Retained Attributes, then Purchase shall promptly transfer such payments to an account or place as Seller shall designate to Purchaser in writing. For the avoidance of doubt, Purchaser shall retain all Rebates, Emission Credits, Green Tags, federal, state or local tax credits or exemptions, including all RECs, attributable to the production of the Energy Output after the Termination Date (those attributes, the “Purchaser Attributes”). If Seller receives any payments in exchange for or in any way connected to such Purchaser Attributes, then Seller shall promptly transfer such payments to an account or place as Purchaser shall designate to Seller in writing. Purchaser and Seller shall consent and agree to and execute any assignments or other acknowledgements needed to (i) transfer the rights, title and interest in Rebates, Emission Credits Green Tags, Retained Attributes or Purchaser Attributes in accordance with the terms of this Agreement and (ii) permit Seller to deliver Rebates, Emission Credits and Green Tags to Utility pursuant to a Solar Renewable Energy Credit Purchase Agreement or other documentation by Utility.
(j) If there is an event, including without limitation a default, termination right, Purchase Option or Force Majeure, that triggers the expiration, suspension or termination of this Agreement with respect to a System but such event does not trigger the same result for the other Systems, then this Agreement shall remain in full force and effect with respect to each such other System.
Section 6.2 Construction and Commercial Operation of the System.
(a) Seller shall install or cause to be installed the System, which, upon the Commercial Operation Date, is targeted to have an aggregate approximate nameplate generating capacity rating as shown in Exhibit A.
(b) Promptly following the execution of this Agreement, Seller shall commence pre-installation activities relating to the System, which shall include, without limitation, the following:
(i) Obtain or cause to be obtained: (A) financing for installation and operation of the System and (B) self-generation incentive credits for operation of the System;
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(ii) obtain or cause to be obtained the right to use the Site under the standard Solar Easement on a long-term basis, for the installation, maintenance and operation of the System;
(iii) obtain all government approvals, permits, contracts, and agreements required for installation, operation and maintenance of the System and Site and delivery of Energy Output to Purchaser;
(iv) obtain all necessary authority from the other regulatory entities for the operation of the System and sale and delivery of Energy Output to Purchaser; and
(v) enter into contract(s) for installation of the System, subject to the terms of any proposed financing.
(c) Seller shall (i) use commercially reasonable efforts to cause the installation of the System to be completed and to cause the System to achieve the Commercial Operation Date on or before [ ] (the “Target Date”). Successful completion of Sections 6.2(b)(i) thru (v) shall be conditions precedent to Seller’s obligations to install and operate the System and otherwise perform its obligations under this Agreement. If the activities contemplated in Sections 6.2(b)(i) thru (v) are not completed by the Target Date, Seller shall have the option to terminate the Agreement without triggering the default provisions of this Agreement or any liability under this Agreement. Alternatively, in the event that such conditions precedent are not satisfied by the Target Date, the Parties may mutually agree to amend this Agreement to revise the Target Date and Term of this Agreement.
(d) Seller shall take commercially reasonable measures to prevent activities associated with installation, operating and maintenance of the System from disrupting or interfering with Purchaser’s activities at the Sites.
(e) Seller and Purchaser hereby agree and acknowledge that Purchaser shall have no ownership interest in the System and no responsibility for its operation or maintenance other than using reasonable efforts to protect the System against vandalism and other destruction. Neither Purchaser nor any party related thereto shall have the right or be deemed to operate the System for purposes of Section 7701(e)(4)(A)(i) of the Internal Revenue Code.
(f) All property insurance and property taxes shall be the responsibility of Purchaser.
(g) Notwithstanding any other provision of this Agreement, the effectiveness of this Agreement, including the obligations and responsibilities of the Parties, is contingent upon the arrangement and entering into of the Solar Easement Agreement attached as Exhibit A for the length of this Agreement between Purchaser and Seller.
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(h) Purchaser shall not cause or permit any interference with the System’s insolation and access to sunlight, as such access exists as of the effective date of this Agreement.
(i) Purchaser shall effect the execution of all agreements required for Utility interconnection of the System no later than the Commercial Operation Date including, without limitation, the Interconnection Agreement. Failure of the Purchaser to effect the execution of all agreements required for interconnection by the Commercial Operation Date shall constitute an Event of Default under this Agreement.
ARTICLE VII OPERATING PROCEDURES
Seller and Purchaser will endeavor to develop written operating procedures (“Operating Procedures”) before the Commercial Operation Date, which Operating Procedures shall only be effective as between Seller and Purchaser if made by mutual written agreement of Seller and Purchaser. The Parties agree that the Operating Procedures they will endeavor to establish the protocol under which the Parties will perform their respective obligations under this Agreement, which will include, but will not be limited to, procedures concerning (A) the method of day-to- day communications; (B) operations and maintenance schedule (C) meter reading protocol; and (D) reporting of scheduled maintenance, maintenance outages and forced outages of the System as a means of securing effective cooperation and interchanges of information and of providing consultation on a prompt and orderly basis between Seller and Purchaser to address various administrative, commercial and technical issues which may arise in connection with the System.
ARTICLE VIII GOVERNMENTAL AND OTHER APPROVALS
Section 8.1 Approvals. Except with respect to governmental approvals, licenses and permits that may be required to allow Purchaser to perform its obligations hereunder, Seller shall secure and maintain at no cost to Purchaser those governmental approvals, permits (including environmental permits), licenses, easements, rights-of-way, releases and other approvals necessary for the construction, maintenance and operation of the System. Section 8.2 Assistance. Upon the request of a Party, Purchaser and Seller shall use their commercially reasonable efforts to assist one another in obtaining and retaining credits, permits, licenses, releases and other approvals necessary for the design, construction, engineering operation and maintenance of the System. Each Party shall reimburse the other for out-of-pocket costs reasonably incurred by a Party in assisting the other under this Article VIII and as mutually agreed upon by the Parties. Further, the Parties agree that they will support and cooperate with one another in the defense of any action of any regulatory body or Governmental Authority having jurisdiction over the System that could adversely affect this Agreement; provided however, such support and cooperation shall not include the reimbursement of out-of- pocket expenses incurred by the other Party.
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ARTICLE IX OPERATIONS AND MAINTENANCE
Section 9.1 O&M Work. Seller, at its sole cost and expense, shall provide operation, repair, monitoring and maintenance services to the System during the Term of this Agreement, including the monitoring and maintenance of metering equipment determining the quantity of electricity produced by the System (collectively, the “O&M Work”). Seller shall perform the O&M Work at such times and in such a manner as Seller determines is appropriate and in accordance with the Operating Procedures and Prudent Operating Practices. Purchaser shall not perform any work on the System. Purchaser shall unconditionally indemnify Seller for any work performed by Purchaser; and, Seller shall unconditionally indemnify Purchaser for any work performed by Seller.
Section 9.2 Phone Data Line. Purchaser shall properly maintain, pay for and use commercially reasonable efforts to provide access to the necessary phone, computer, or other communication lines necessary to permit Seller to record the electrical output of the Systems for the entire Term.
Section 9.3 Malfunctions and Emergencies. Purchaser shall notify Seller within twenty-four (24) hours following the discovery by it of (i) any material malfunction in the operation of the System or (ii) an interruption in the supply of Energy Output. Seller and Purchaser shall each designate personnel and establish procedures such that Purchaser may provide notice of such conditions requiring Seller’s repair or alteration. Seller and Purchaser each shall notify the other Party immediately upon the discovery of an emergency condition in the System. Seller shall commence repairs to the System and restore the supply of Energy Output as soon as reasonably practicable after notice or upon its own discovery during normal business hours and 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, Seller shall attempt to dispatch the appropriate personnel promptly 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 identified in the list set forth in Exhibit G and as changed from time to time by written notice to the other Party.
ARTICLE X TAXES
Seller shall be solely responsible for any tax relating to the construction, ownership, operation, and maintenance or leasing of the System or its components or appurtenances. Purchaser shall pay all taxes imposed by any taxing authority arising out of and with respect to the purchase or sale of the Energy Output purchased from Seller, including but not limited to sales taxes due with respect to the sale and purchase of the Energy Output as well as any taxes resulting from an increase in the assessed value of the Property caused by the installation of the System. If any taxes are assessed against the generation, sale, delivery or consumption of Energy
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Output, Purchaser shall either pay or reimburse Seller for all such amounts due, including any taxes assessed thereon, in accordance with the terms of Article III hereof, except any income taxes (or an alternative to income taxes) imposed on Seller based on such sales.
ARTICLE XI OFFSETS, ALLOWANCES, CREDITS
Section 11.1 Green Tags. Seller shall own and retain all present and future rights, titles and interest in any Emission Credits and Green Tags and in any present or future, now known or unknown, federal, state or local tax credits or exemptions attributable to the installation of the System or the production of Energy Output therefrom, including but not limited to sales tax exemptions, rebates or incentives relating to equipment installed as part of the System or property tax exemptions or credits.
Section 11.2 Rebates. All Rebates available in connection with the System installed on the Property are owned by Seller. Purchaser shall take all reasonable measures to assist Seller in obtaining all Rebates currently available or subsequently made available in connection with the System. If Purchaser fails to act in good faith in completing documentation or taking actions reasonably requested by Seller, and such failure results in a loss of a Rebate, Purchaser shall reimburse Seller for the full amount of such lost Rebate.
Section 11.3 Reporting Rights. Seller shall retain the Reporting Rights and the exclusive rights to claim that: (a) the Energy Output was generated by the System; (b) Seller is responsible for the delivery of the Energy Output to the Delivery Point; (c) Seller is responsible for the reductions in emissions of pollution and greenhouse gases resulting from the generation of the Energy Output and the delivery thereof to the Delivery Point; and (d) Seller is entitled to all credits, certificates, registrations, etc., evidencing or representing any of the foregoing.
Section 11.4 Impairment of Green Tags, Rebates and Emission Credits.
(a) For all Emission Credits, Green Tags, Rebates an federal, state or local tax credits or exemptions attributable to the installation or operation of the System that are in effect as of the Commercial Operation Date, Purchaser shall not take any action or suffer any omission at the Site that would have the effect of impairing the value to the Seller of such Green Tags, Emission Credits and Rebates. Purchaser shall be solely responsible for notifying Seller of any action or omission that could impair such value and for consulting with Seller as necessary to prevent impairment of the value of the Green Tags, Emission Credits and Rebates.
(b) For all Emission Credits, Green Tags, Rebates an federal, state or local tax credits or exemptions attributable to the installation or operation of the System that come into effect after the Commercial Operation Date, Purchaser shall use commercially reasonable efforts to not take any action or suffer any omission at the Site that would have the effect of impairing the value to the Seller of such Green Tags, Emission Credits and Rebates.
ARTICLE XII
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REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 12.1 Purchaser represents and warrants that:
(a) It is a municipal corporation in the State of Connecticut; that it has the power and authority to enter into and perform this Agreement; and that the execution, delivery and performance of this Agreement has been duly authorized by all necessary action. Purchaser covenants that during the Term it shall remain a duly organized and validly existing legal entity with authority to conduct business in the State of Connecticut and shall have the power and authority to perform this Agreement; and
(b) No suit, action, arbitration, legal, administrative or other proceeding is pending or, to the best of Purchaser’s knowledge, has been threatened against Purchaser that would affect the validity or enforceability of this Agreement or the ability of Purchaser to fulfill its commitments hereunder, or that would, if adversely determined, have a material adverse effect on Purchaser’s performance of this Agreement; and
(c) The execution, delivery and performance of this Agreement by Purchaser will not result in a breach of, default under or violation of any Applicable Law, or the provisions of any authorization or in a breach of, default under or violation of any provision of its articles of incorporation or bylaws or any promissory note, indenture or any evidence of indebtedness or security therefore, material lease, material contract or other material agreement by which it or its property is bound; and
(d) This Agreement constitutes a legal, valid and binding obligation enforceable against Purchaser in accordance with its terms, except as the enforceability of such terms may be limited by applicable bankruptcy, reorganization, insolvency or similar laws affecting the enforcement of creditor’s rights generally.
ARTICLE XIII REPRESENTATIONS AND WARRANTIES OF SELLER
Section 13.1 Seller represents and warrants that:
(a) It is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware that it has the power and authority to enter into and perform this Agreement; and that the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on its part. Further, Seller covenants that during the Term it shall remain a duly organized and validly existing legal entity with authority to conduct business in the State of Connecticut and shall have the power and authority to perform this Agreement; and
(b) It is in compliance in all material respects with all requirements of federal, state and local safety standards, codes and regulations applicable to the System, including those laws applicable to the protection of the Parties’ employees and members of the public. Said laws include, but are not limited to the Occupational Safety and Health Act of 1970
19 as amended, and those prohibiting discrimination against any employee or applicant for employment because of race, creed, color, sex, national origin, age or disability; and
(c) No suit, action, arbitration, legal, administrative or other proceeding is pending or, to the best of Seller’s knowledge, has been threatened against Seller that would affect the validity or enforceability of this Agreement or the ability of Seller to fulfill its commitments hereunder, or that would, if adversely determined have a material adverse effect on Seller’s Performance of this Agreement; and
(d) The execution, delivery and performance of this Agreement by Seller will not result in a breach of, default under or violation of any Applicable Law, or the provisions of any authorization or a breach of, default under or violation of any provision of its certificate of formation or other organizational documents or any promissory note, indenture or any evidence of indebtedness or security therefore, material lease, material contract or other material agreement by which it or its property is bound;
(e) This Agreement constitutes a legal, valid and binding obligation enforceable against Seller in accordance with its terms, except as the enforcement of such terms may be limited by applicable bankruptcy, reorganization, insolvency or similar laws affecting the enforceability of creditor’s rights generally.
ARTICLE XIV EVENTS OF DEFAULT AND REMEDIES
Section 14.1 The following shall constitute an “Event of Default” hereunder:
(a) A failure by a Party to pay any amount due hereunder where such failure is not cured within fifteen (15) calendar Business days after receipt of written notice by the non-defaulting Party of such failure to pay such amounts due hereunder; or
(b) Except as otherwise provided in Article XX, any other default that has a material adverse impact on the non-defaulting Party in the event such default is not cured within thirty (30) calendar days after receipt of written notice of the default from the non- defaulting Party setting forth in reasonable detail the nature of such default; provided, that in the case of any such default that cannot be reasonably cured within the thirty (30) calendar days, then the defaulting Party shall have additional time, but in any event not longer than one hundred eighty (180) days, to cure the default if it commences in good faith to cure the default within such thirty (30) calendar day cure period and it diligently and continuously pursues such cure; or provided, however, any amount due shall continue to accrue interest during any such cure period as set forth in Section 3.2; or
(c) A Party’s dissolution or liquidation; a Party’s making a general assignment of its assets for the benefit of creditors; a Party’s filing of a voluntary petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or after the filing of a case in bankruptcy
20 or any proceeding under any other insolvency law against a Party, a Party’s failure to obtain a dismissal of such filing within sixty (60) calendar days after the date of such filing; or
(d) Any representation or warranty furnished by a Party in connection with this Agreement was false or misleading in any material respect when made, unless the fact, circumstance or condition that is the subject of such representation or warranty is made true within thirty (30) calendar days after the other Party has given the defaulting Party written notice thereof, provided, however, that if the fact, circumstance or condition that is the subject of such representation or warranty cannot be corrected within thirty (30) calendar days; or if such fact, circumstance or condition being otherwise than as first represented does not materially adversely affect the non-defaulting Party, then the defaulting Party shall have additional time, but in any event not longer than one hundred eighty (180) days, to cure the default if it commences in good faith within such thirty (30) calendar day cure period to correct the fact, circumstance or condition that is the subject of such representation or warranty and it diligently and continuously proceeds with all due diligence to correct the fact, circumstance or condition that is the subject of such representation or warranty; or
(e) A failure by the Purchaser to effect the execution of the Interconnection Agreement by the Commercial Operation Date; or
(f) Purchaser breaches the Solar Easement; or
(g) If (x) at any time a Downgrade Event (as defined below) occurs with respect to the Purchaser and, in such event, Purchaser does not provide Performance Assurance (as defined below) in an amount determined by Seller in a commercially reasonable manner, within thirty (30) days of receipt of notice from Seller, that such Performance Assurance will be required or (y) the Performance Assurance, if any, is amended, modified or terminated without the prior written consent of Seller. A “Downgrade Event” shall be deemed to have occurred if (1) Purchase was, on the date of this Agreement, rated at least Investment Grade (as defined below), and Purchaser ceases to be rated at least Investment Grade, which is defined herein as possessing a Credit Rating (as defined below) of Baa3 or better by Moody’s Investors Service, Inc. (or its successor), or BBB- or better by Standard and Poor’s Ratings Services (a division of McGraw-Hill) (or its successor), (2) Purchaser was on the date of this Agreement not rated at least Investment Grade, Purchaser at any time fails to maintain Performance Assurance of a type and in amount reasonably required by Seller, if any, or (3) Purchaser makes any public announcement the effect of which creates a reasonable insecurity in Purchaser’s ability to perform its obligations herein. “Performance Assurance” shall mean collateral in the form of either cash, letter(s) of credit, or other security reasonably acceptable to Seller. “Credit Rating” shall mean, with respect to an entity on any date of determination, the respective rating then assigned to its unsecured and senior long-term debt or deposit obligations (not supported by third-party credit enhancement) by Standard and Poor’s Ratings Services (a division of McGraw- Hill), Moody’s Investors Service, Inc., or their respective successors.
Section 14.2 Upon the occurrence of an Event of Default, the non-defaulting Party may exercise any one or more of the following remedies:
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(a) Exercise all remedies available under this Agreement or under Applicable Law after the applicable cure period, including, but not limited to the remedies set forth in Article VI hereto; or
(b) After notice and a right to cure as specified in Section 14.1, terminate this Agreement by delivery of a written notice to defaulting Party declaring termination.
Section 14.3 Except as specifically provided herein, each and every right, power and remedy of a Party, whether specifically stated in this Agreement or otherwise existing, may be exercised concurrently or separately from time to time, and so often and in such order as may be deemed expedient by the exercising Party. No delay or omission of a Party in the exercise of any right, power or remedy shall impair or operate as a waiver thereof or of any other right, power or remedy.
ARTICLE XV NO PARTNERSHIP/INDEPENDENT SELLER
Section 15.1 No Partnership. Notwithstanding any provision of this Agreement, the Parties do not intend to create hereby any lease, joint venture, partnership or association taxable as a corporation or other entity for the conduct of any business for profit. Neither Party shall have any right, power or authority to enter any agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of the other Party.
Section 15.2 Changes to Agreement. If it should appear that one or more changes to this Agreement would be required in order to prevent the creation of a partnership for United States federal tax purposes between Seller and Purchaser, the Parties agree to negotiate promptly in good faith with respect to such changes.
Section 15.3 Independent Contractors. The Parties agree that they are independent contractors and shall be at all times solely responsible for themselves, as well as their respective officers, directors, members, partners, employees, agents, and contractors as to workmanship, accidents, injuries, wages, supervision and control. This Agreement may not be altered in any manner so as to change the relationship or responsibilities of the Parties as independent contractors.
ARTICLE XVI METER MAINTENANCE AND RECORDS
Section 16.1 Energy Output delivered by Seller to Purchaser hereunder shall be measured by electric watt-hour meters located at the Delivery Point.
(a) Seller shall own, operate, maintain and read the utility-grade kilowatt-hour (“kWh”) Meter for the measurement of Energy Output provided to Purchaser.
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Upon Purchaser’s written request, Seller shall furnish a copy of all technical specifications and accuracy calibrations for the Meter.
(b) Purchaser shall have the right to install check meters and associated metering equipment and shall have reasonable access to Seller’s metering equipment for purposes of testing. Seller shall test the Meter annually at the request of Purchaser.
(c) Each Party shall have the right to be present when the other Party is performing maintenance on the metering equipment, provided that the Party performing maintenance gives the other Party reasonable notice of the scheduled maintenance time.
(d) All records, reports and data concerning the System shall be and remain the property of Seller, although Purchaser shall have the right to use the same as may be required to perform and administer this Agreement.
(e) Adjustments. If testing of a Meter pursuant to Section 16.1(b) indicates that such Meter is in error by less than two percent (2%), then Purchaser shall reimburse Seller for costs associated with testing the Meter. If testing of a Meter pursuant to Section 16.1(b) indicates that such Meter is in error by two percent (2%) or more, then Seller shall promptly repair or replace such Meter at its sole expense. Seller shall make a corresponding adjustment to the records of the amount of Energy Output 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 such period cannot be so determined, then a 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 and (ii) the date the Meter was placed into service; provided, however, that such period shall in no case exceed two (2) years whereupon the Parties shall make such payments as are appropriate to reflect such correction in Energy Output amounts.
(f) Any Dispute arising out of the reading of the Meter or any metering equipment shall be resolve pursuant to Article XXIV.
ARTICLE XVII RIGHTS AND OBLIGATIONS OF PURCHASER
Section 17.1 Access. Upon reasonable notice given to Seller, Purchaser (or its agent) shall have access to the System at all reasonable times to observe the construction, operation and maintenance of the System and to access documents relating to the System for purposes of this Agreement; provided, however, that Purchaser shall comply with Seller’s written safety guidelines and risk management procedures copies of which shall be provided to Purchaser by Seller.
Section 17.2 Compliance with Applicable Laws. For purposes of Section 18.1, Purchaser shall comply in all material respects with all Applicable Laws, including but not limited to environmental laws, workers’ compensation laws, unemployment insurance laws, and health and safety laws.
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Section 17.3 Security. Purchaser shall provide and take reasonable measures for security and protection of the System, including commercially reasonable monitoring, if any.
Section 17.4 Liens. Purchaser 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 on or with respect to the System or any interest therein. Purchaser 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 Purchaser is responsible. If Purchaser breaches its obligations under this Section 17.4, it shall immediately notify Seller in writing, shall promptly cause such liens to be discharged and released of record without cost to Seller, and shall indemnify Seller against all costs and expenses (including reasonable attorneys’ fees and court costs at trial and on appeal) incurred in discharging and releasing such liens.
ARTICLE XVIII RIGHTS AND OBLIGATIONS OF SELLER
Section 18.1 Subject to the terms and conditions of this Agreement, Seller shall design, construct, operate, maintain and own or lease the System. Purchaser shall maintain the phone line and data line access, all in accordance with Prudent Operating Practices.
Section 18.2 Seller shall comply in all material respects with all Applicable Laws, including but not limited to environmental laws, workers’ compensation laws, unemployment insurance laws, and health and safety laws.
ARTICLE XIX PUBLICITY AND PROPRIETARY INFORMATION
Section 19.1 Proprietary Information. Except as otherwise provided herein including within subsection (e) of Section 19.4, any Proprietary Information of a Party (the “Transferor”) which is disclosed to or otherwise received or obtained by the other Party (the “Transferee”) incident to this Agreement shall be held, in confidence, and the Transferee shall not publish or otherwise disclose any such Proprietary Information to any Person for any reason or purpose whatsoever, or use any such Proprietary Information for its own purposes or for the benefit of any Person, without the prior written approval of the Transferor, which approval may be granted or withheld by the Transferor in its sole discretion. Without limiting the generality of the foregoing, each Party shall observe the same safeguards and precautions with regard to Proprietary Information which such Party observes with respect to its own information of the same or similar kind.
Section 19.2 Disclosure to Affiliates. Each Party agrees that it will make available Proprietary Information received from the other Party to its Affiliates and its and their employees, agents, contractors and advisors only on a need-to-know basis, and that all Persons to whom such Proprietary Information is made available will be made aware of the confidential
24 nature of such Proprietary Information, and will be required to agree to hold such Proprietary Information in confidence under terms substantially identical to the terms hereof.
Section 19.3 Publicity.
(a) The Parties share a common desire to generate favorable publicity regarding the System and their association with them. The Parties shall use commercially reasonable efforts to coordinate the issuance of press releases regarding the System
(b) Purchaser shall have the right to publicize that it is serving as a “solar host” for the System and to display photographs of the System in its advertising and promotional materials, provided that any such materials identify Seller as the owner, operator and developer of the System. Without limiting the foregoing, the System shall be named “Operation Hope Solar Facility” as applicable. On all signage at the Site, and in all publicly distributed materials and other public communications issued by either Party that refer to a System by name, such name shall be followed by a statement to the effect that Seller owns and operates the System.
Section 19.4 Notwithstanding the foregoing:
(a) A Transferee may provide any Proprietary Information to any governmental authority having jurisdiction over or asserting a right to obtain such information, provided that (i) the disclosure of such Proprietary Information is required by Applicable Law, or such governmental authority orders that such Proprietary Information be provided, and (ii) the Transferee promptly advises the Transferor of any request for such information by such governmental authority and cooperates in giving the Transferor an opportunity to present objections, requests for limitation, and/or requests for confidentiality or other restrictions on disclosure or access, to such governmental authority.
(b) Seller may disclose Proprietary Information to any governmental authority in connection with the application for any license or other authorization, provided, however, that Seller shall make use of any applicable policy or regulation of the governmental authority that allows for the filing of Proprietary Information under seal or other confidentiality procedures.
(c) Seller may disclose Proprietary Information to any prospective Lender for purposes of such party’s evaluation in connection with the provision of debt or equity financing (including equity contributions or commitments), refinancing of any such financing, or any guarantee, insurance or credit support for or in connection with such financing or refinancing, in connection with the construction, ownership, operation or maintenance of the System, or any part thereof; provided that the recipient of any such Proprietary Information agrees in writing to maintain such information in confidence under terms substantially identical to those contained in this Agreement. Seller shall vigorously enforce the terms of any such confidentiality agreement.
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(d) Either Party may disclose Proprietary Information to the extent that such disclosure is required pursuant to the rules of any securities exchange to the extent such Party is subject to regulation.
Section 19.5 In the event of a breach or threatened breach of the provisions of Section 19.1 by any Transferee, the Transferor shall be entitled to an injunction restraining such Party from such breach. Nothing contained herein shall be construed as prohibiting the Transferor from pursuing any other remedies available at law or equity for such breach or threatened breach of this Agreement.
Section 19.6 Definition of Proprietary Information:
(a) The term “Proprietary Information” means all information, written or oral, which has been or is disclosed by the Transferor, or which otherwise becomes known to the Transferee or any Person in a confidential relationship with, the Transferee, and which (A) relates to matters such as patents, trade secrets, research and development activities, draft or final contracts or other business arrangements, books and records, budgets, cost estimates, pro forma calculations, engineering work product, environmental compliance, vendor lists, suppliers, manufacturing processes, energy consumption, pricing information, private processes, and other similar information, as they may exist from time to time, or (B) the Transferor expressly designates in writing to be confidential.
(b) Proprietary Information shall exclude information falling into any of the following categories:
(i) Information that, at the time of disclosure hereunder, is in the public domain, other than information that entered the public domain by breach of this Agreement or any other agreement, or in violation of any Applicable Law;
(ii) Information that, after disclosure hereunder, enters the public domain, other than information that entered the public domain by breach of this Agreement or any other agreement, or in violation of any Applicable Law;
(iii) Information, other than that obtained from third parties, that prior to disclosure hereunder, was already in the recipient’s possession, either without limitation on disclosure to others or subsequently becoming free of such limitation; (iv) Information obtained by the recipient from a third party having an independent right to disclose the information; or
(v) Information that is obtained through independent research without use of or access to the Proprietary Information.
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Section 19.7 The obligations of the Parties under this Article XIX shall remain in full force and effect for one (1) year following the expiration or termination of this Agreement.
ARTICLE XX FORCE MAJEURE
Section 20.1 The term “Force Majeure,” as used in this Agreement, means causes or events beyond the reasonable control of, and without the fault or negligence of the Party claiming Force Majeure or its contractors or subcontractors, including, without limitation, acts of God, sudden actions of the elements such as floods, earthquakes, volcanoes, meteorites, hurricanes, cloud cover, wind speeds in excess of safe installation or working limits of the Modules or tornadoes; decrease in solar radiation from any cause; sabotage; vandalism beyond that which could reasonably be prevented by the Party claiming the Force Majeure; terrorism; war; riots; fire; explosion; blockage, insurrection, or inability (despite due diligence), to obtain or maintain required licenses, permits, or approvals for the construction and operation of the System under the terms of this Agreement; any failure or inability to obtain necessary machinery, equipment, materials or spare parts, but only to the extent such failure or inability is caused by an event of Force Majeure, including, but not limited to, any order to Seller to take any action, that prevents Seller from delivering Energy Output under this Agreement. Notwithstanding the foregoing, Force Majeure shall not include strikes, slow downs, or labor disruptions (even if such difficulties could be resolved by conceding to the demands of a labor group); the adoption or change in (or change in the interpretation of) any rule or regulation or judicial decision lawfully imposed by Federal, state, or local government bodies.
Section 20.2 Neither Party shall be considered to be in default in the performance of any obligations in this Agreement (other than obligations to pay money, including, without limitation, for sales and purchases of Energy Output pursuant to Article II) when a failure of performance shall be due to an event of Force Majeure, and any time periods for such performance shall be extended during an event of Force Majeure, provided that (i) the nonperforming Party gives the other Party prompt written notice describing the particulars of the event of the Force Majeure; (ii) the suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure; (iii) the non-performing Party proceeds with reasonable diligence to remedy its inability to perform, mitigates the effects of the Force Majeure event and provides regular progress reports to the other Party describing actions taken to end the Force Majeure; and (iv) when the non-performing Party is able to resume performance of its obligations under this Agreement, the non-performing Party shall provide written notice of its ability to resume performance of its obligations under this Agreement and shall promptly resume such performance.
ARTICLE XXI WARRANTIES AND PERFORMANCE GUARANTY
Section 21.1 Warranty. Seller warrants that (i) the Energy Output provided by Seller under this Agreement at the Delivery Point shall be produced by a photovoltaic system consisting of Modules and suitable for use in a commercial operations for utility interconnection,
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(ii) title to the Energy Output delivered at the Delivery Point shall pass from Seller to Purchaser free of any liens created by Seller, and (iii) the System will be install in accordance with the plans and specifications approved by the Purchaser or Purchaser’s Agent.
Section 21.2 Performance Standard. Seller shall undertake commercially reasonable efforts to operate and maintain the System in accordance with the Operating Procedures and Prudent Operating Practices.
Section 21.3 Limitation of Warranty. EXCEPT AS SET FORTH IN ARTICLE XIII AND SECTION 21.1, SELLER MAKES NO WARRANTY EXPRESS OR IMPLIED UNDER THIS AGREEMENT. ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER WARRANTIES, WHETHER BASED ON STATUTE, CONTRACT, TORT OR OTHERWISE (OTHER THAN AS SET FORTH IN ARTICLE XIII AND SECTION 21.1) ARE HEREBY COMPLETELY AND IRREVOCABLY WAIVED BY PURCHASER.
ARTICLE XXII INDEMNIFICATION Section 22.1 Indemnification by Seller. Seller shall fully indemnify, save harmless and defend Purchaser or any of its officers, directors, employees, contractors and agents from and against any and all costs, claims, and expenses incurred by such parties 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, gross negligence or willful misconduct of Seller or its agents or employees or others under Seller’s control or (b) Seller’s Default.
Section 22.2 Indemnification by Purchaser. Purchaser shall fully indemnify, save harmless and defend Seller or any of its officers, directors, employees, contractors and agents from and against any and all costs, claims, and expenses incurred by such parties 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 extend caused by (a) the negligence, gross negligence or willful misconduct of Purchaser or its agents or employees or other’s under Purchaser’s control or (b) Purchaser’s Default.
Section 22.3 Defense of Action. If requested by a party seeking indemnification (the “Indemnified Party”), the other 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 shave the right to select separate counsel to participate in its defense of such action at the Indemnified Party’s expense. If any claim, action , proceeding or investigation arises as to which the indemnity provided for in this section 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
28 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.
Section 22.4 Percentage Share of Negligence. It is the intent of the Parties hereto that where fault, acts or omissions are determined to be contributory, principles of comparative negligence will be followed and each Party shall bear the proportionate cost of any loss, damage, expense and liability attributable to that Party’s negligence, acts or omissions.
Section 22.5 Limitation of Liability. Neither party shall be liable to the other Party or its indemnified persons of any special, punitive, exemplary, indirect or consequential damages, or losses or damages for lost revenues or lost profits, whether foreseeable or not, arising out of, or in connection with this Agreement, except for losses or damages arising out of (a) a Party’s willful misconduct or gross negligence or fraud or (b) a third party claim against a Party, to the extent permitted by law.
ARTICLE XXIII INSURANCE
Section 23.1 Insurance. [AMOUNTS AND COVERAGES TBD]
Section 23.2 Certificates of Insurance. Each Party shall provide certificates of insurance to the other during the Term certifying that such coverages shall remain in effect for the duration of this Agreement; provided, however, that Purchaser shall deliver certificates of insurance to Seller during the Term with a satisfactory loss payable endorsement naming Seller as a loss payee, or in the case of any real property, an additional insured, such endorsements to contain a waiver of warranties. All certificates of insurance shall state that prior to cancellation, non-renewal or any material change, thirty (30) Business Days written notice shall be given to Purchaser. Failure of Purchaser to enforce the minimum insurance requirements listed above shall not relieve Seller of responsibility for maintaining these coverages.
Section 23.3 Occurrence Policy. All insurance required hereunder shall provide insurance for occurrences from the date hereof throughout the later of the expiration or termination hereof.
Section 23.4 All such insurance coverages shall be provided by an actuarially sound self-insurance program reasonably acceptable to the Purchaser or by policies of insurance issued by insurers licensed to insure risks in the State and rated “A” or better by Standard & Poor’s Corporation or “AX” by AMBest.
ARTICLE XXIV DISPUTES
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Section 24.1 Any dispute, controversy or claim arising out of or in connection with this Agreement (a “Dispute”) shall be resolved in accordance with this Article XXIV. Upon the occurrence of a Dispute:
(a) Either Party may deliver a notice to the other Party requesting the Dispute be referred to that Party’s management. Any such notice shall include the names of the managers to resolve the Dispute. Any such notice shall be delivered within a reasonable period of time after the Dispute arises. Within seven (7) Business Days after a receipt of notice, the other Party shall provide written notice to the requesting Party indicating a schedule for Dispute resolution, which resolution shall commence within fourteen (14) Business Days of the notice of Dispute.
(b) If, after such Dispute resolution in accordance with paragraph (a) above remains unresolved, either Party may require that a non-binding mediation take place. In such mediation, representatives of the Parties with authority to resolve the Dispute shall meet for at least three (3) hours with a mediator whom they choose together. If the Parties are unable to agree on a mediator, then either Party is hereby empowered to request the American Arbitration Association to appoint a mediator. The mediator’s fee and expenses shall be paid one-half by each Party.
(c) Any Dispute not resolved to the mutual satisfaction of the Parties pursuant to paragraphs (a) and (b) above each Party shall retain the right, but not the obligation, to pursue any legal or equitable remedy available to it in a court of competent jurisdiction.
(d) Either Party may seek a restraining order, temporary injunction, or other provisional judicial relief if the Party, in its sole judgment, believes that such action is necessary to avoid irreparable injury or to preserve the status quo. The Parties shall continue in good faith in the procedures hereunder despite any requests for provisional relief.
(e) During the conduct of any Dispute resolution procedures pursuant hereto the Parties shall continue to perform their respective obligations by virtue of the matters in Dispute.
(f) No termination of this Agreement following an Event of Default shall relieve the defaulting Party of its liability and obligations hereunder, and the non-defaulting Party may take whatever action may appear necessary or desirable to enforce performance and observance of any obligations under this Agreement pursuant to Article XIV, and the rights given hereunder.
ARTICLE XXV MISCELLANEOUS
Section 25.1 Audit Review. Both Parties shall keep a record of all invoices, receipts, charts, computer printouts, punch cards or magnetic tapes related to the volume or price of the Purchased Energy. Such records shall be made available for inspection by either Party
30 upon reasonable notice at the principal place of business of the non-requesting Party during regular business hours.
(a) Copies of requested materials shall be made for the requesting Party and reasonable costs of reproduction shall be borne by the requesting Party.
(b) Access to records for the above audit purposes or for technical review purposes shall be kept on record for a minimum of five (5) years.
Section 25.2 Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut. Venue for any proceeding relating to this Agreement shall be in the State of Connecticut Superior Court in the Fairfield Judicial District or in the Federal District Court for the District of Connecticut, located in Bridgeport. Section 25.3 Notice. Any notice, demand, request, consent, approval confirmation, communication or statements which is required or permitted under this Agreement shall be in writing and shall be given or delivered by personal service, telecopy, Federal Express or comparable overnight delivery service, or by deposit in the United States Post Office, postage prepaid, by registered or certified mail, addressed to the Party receiving notice as specified below. Changes in such address and/or contact persons named shall be made by notice similarly given. Notices given by personal service or sent by telecopy shall be deemed given the day so given or sent. Notices mailed or sent by a delivery service or by registered or certified mail as provided herein shall be deemed given on the third Business Day following the date so mailed or on the date of actual receipt, whichever is earlier.
PURCHASER: Town of Fairfield 725 Old Post Road Fairfield, CT 06824
SELLER: Skyview Fairfield LLC 114 South Pearl Street, Port Chester, New York 10573 Attn: Andy Karetsky 203.249.3973 [email protected]
Section 25.4 Complete Agreement; Modification. The terms and provisions contained in this Agreement and referenced documents constitute the entire Agreement between Purchaser and Seller and shall supersede all previous communications, representations, or agreements, either oral or written, between Purchaser and Seller with respect to the sale of Energy Output from the System. No amendment or modification of this Agreement shall be binding on either Party unless such amendment is reduced to writing and signed by authorized representatives of both Parties.
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Section 25.5 Third Party Beneficiaries. Except as otherwise expressly provided herein, this Agreement is for the sole benefit of the Parties hereto, and nothing in this Agreement or any action taken hereunder shall be construed to create any duty, liability or standard of care to any Person not a Party to this Agreement. Except as specifically otherwise provided herein, no Person shall have any rights or interest, direct or indirect in this Agreement.
Section 25.6 Successors and Assigns. Seller and Purchaser each is bound and the officers, successor, legal representatives and assigns of Seller and Purchaser are hereby bound to the other party to this Agreement and to the officers, successors, legal representatives and assigns of such other party, in respect of all covenants, agreements, and obligations of this Agreement. Neither Party shall assign, sublet, or transfer any rights under or interest in this Agreement to anyone or grant a Lien against this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld, conditioned or delayed; provided, however, that Seller may, without the consent of Purchaser, assign its rights and obligations under this Agreement or grant a Lien against this Agreement. The Seller’s consent to any such assignment shall not be deemed unreasonably withheld if the transferee does not have an equal to or great level of creditworthiness or credit rating as the Purchaser has as of the Effective Date, as determined by the Seller in its reasonable discretion. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement nor alter any warranty and maintenance obligations owned by the assignor. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
Section 25.7 Savings Clause. Each term and condition of this Agreement is deemed to have independent effect and the invalidity of any partial or whole paragraph or article shall not invalidate the remaining paragraphs or articles. The obligation to perform all of the terms and conditions of this Agreement shall remain in effect regardless of the performance of any invalid term by the other Party.
Section 25.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for all purposes, be deemed an original and all such counterparts, taken together, shall constitute one and the same instrument.
Section 25.9 Forward Contract. The Parties acknowledge and agree that this Agreement and the transactions consummated under this Agreement constitute a “forward contract” within the meaning of the United States Bankruptcy Code and that Seller is a “forward contract business” within the meaning of the United States Bankruptcy Code.
Section 25.10 RESERVED.
Section 25.11 Removal of Liens. Purchaser will ensure that no liens of whatever type will be filed, lodged or attached to the System (other than those created by Seller or its creditors). If any such liens are filed, lodged or attached to the System, Purchaser will do all acts and things at the Purchaser’s expense to remove such liens and agrees to fully indemnify Seller for any loss and damage that Seller suffers as a result of a lien on or over the System. Seller shall
32 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 rights in the System.
Section 25.12 Estoppel. Either Party hereto, without charge, at any time and from time to time, within five (5) business days after receipt of a written request by the other Party hereto, shall deliver a written instrument, duly executed, certifying to such requesting Party, or any other person, firm or corporation specified by such requesting Party: (i) 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; (ii) 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 (iii) such other information as may be reasonably requested by a Party hereto. 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.
Section 25.13 Non-Disturbance Agreement. Except as set forth in as “Permitted Liens” in the Solar Easement Exhibit A attached hereto, Purchaser covenants that it will obtain a non-disturbance agreement (“NDA”) from any third party who now has or may in the future obtain an interest in the Property, including, without limitation, any lenders to Purchaser, Purchaser’s landlord, which NDA shall (a) acknowledge and consent to Seller’s rights in the Property, (b) acknowledge that the third party has no interest in the System and shall not gain any interest in the System by virtue of the Parties’ performance or breach of this Agreement and (c) subordinates any lien the third party may have in and to the System and other property that is or may from time to time hereafter be located at the Property.
Section 25.14 Cooperation with Financing. Purchaser acknowledges that Seller may be financing the Agreement and Purchaser agrees that it shall reasonably cooperate with Seller and its financing parties in connection with such financing, including (a) the furnishing of such information, and (b) the giving of such certificates; provided, that the foregoing undertaking shall not obligate Purchaser to materially change any rights or benefits, or materially increase any burdens, liabilities or obligations of Purchaser under this Agreement (except for providing notices and additional cure periods to the financing parties with respect to events of defaults with respect to Seller as a financing party may reasonably request).
Section 25.15 Due Authority. The Parties hereby represent and warrant that the individual executing this Agreement on behalf of such Party is duly authorized to execute and deliver this Agreement on behalf of such Party and that this Assignment is binding upon such Party in accordance with its terms.
Section 25.16 Service Contract. The Parties acknowledge and agree that, for accounting or tax purposes, this Agreement is not and shall not be construed as a lease and, pursuant to Section 7701(e)(3) of the Code, this Agreement is and shall be deemed to be a
33 service contract with respect to the sale to the Purchaser of electric energy produced at an alternative energy facility.
Section 25.17 Attorney Fees. In the event that any court or arbitration proceeding is brought under or in connection with this Easement Agreement, the prevailing party in such proceeding (whether at trial or on appeal) shall be entitled to recover from the other party all costs, expenses, and reasonable attorneys’ fees incident to any such proceeding. The term “prevailing party” as used herein shall mean the party in whose favor the final judgment or award is entered in any such judicial or arbitration proceeding.
[SIGNATURE PAGE FOLLOWS]
34
This Agreement is executed the day and year first above written.
SELLER:
Skyview Fairfield LLC
By: ______
Its: ______
PURCHASER: [CT ENTITY]
By: ______
Name:
Its:
35
SOLAR SERVICES AGREEMENT
Exhibit A
Solar Easement Agreement
KNOW YE that the TOWN OF FAIRFIELD, a municipal corporation located in the County of Fairfield in the State of Connecticut (referred to herein as "Grantor" or the “Town”) for One ($1.00) Dollar and other consideration, the receipt and sufficiency of which is hereby acknowledged does hereby grant to Skyview Fairfield LLC, a Connecticut limited liability company, its successors and assigns, (referred to herein as “Grantee”), an easement over and under that certain parcel of real property located at 140 Reef Road, and Located within the Town (the “Subject Property”) with the easement granted hereunder more fully described as set forth in this “Agreement.”
W I T N E S S E T H:
WHEREAS, Grantor is the owner of the Subject Property and has entered into a Solar Services Agreement, as of the date hereof (the “Solar Agreement”), for the purpose of allowing Grantee to construct, operate and maintain a solar photovoltaic generation system (the “Solar System”) and, under certain circumstances following termination or expiration of the Solar Agreement according to its terms, remove the Solar System from the Subject Property.
WHEREAS, the Grantee will install the Solar System on the roof of the building located on the Subject Property, and install aboveground and belowground electrical conductors and appurtenant fixtures on the Subject Property, including on or outside structures located on the Subject Property, and connect the Solar System to the public utility grid, all as set forth on the engineering drawings, renderings, construction permits, site plans, plat maps and other relevant documentation for such Solar System (collectively, the “Site Plans”), which Site Plans have received, or will receive, all necessary planning and zoning approvals and building and other permits required by the Town, including approvals and permits issued by the Department of Public Works, the Building Department, and any other department authorized to issue such approvals and permits (collectively, together with any other legislative body or administrative agency of the Town, the “Town Agencies”).
WHEREAS, Grantor is willing to grant and convey to the Grantee an easement over the Subject Property for the purposes of providing access to the Subject Property for the installation, maintenance, operation and, if applicable, removal of the Solar System.
NOW THEREFORE, the parties hereto, hereby agree as follows:
1. Grantor hereby grants to Grantee and its successors and assigns, during the term of the Solar Agreement, as the same may be modified or extended, and for a period of 180 days thereafter, an easement to install the Solar System on the Subject Property as provided in the Solar Agreement and in a manner consistent with the Site Plans (including such amendments or
Docs\Solar Services Agr variances that may be approved or required from time to time by the Town Agencies), and, during the term of the Solar Agreement, to enter the Subject Property for the purpose of maintenance, operation and, if applicable, removal of the Solar System.
2. This easement shall extend to the interiors and exteriors of any structures located on the subject property if and to the extent that access to such structures is required to allow Grantee or its employees, contractors, agents or assigns to access such structures for the purpose of carrying out Grantee’s obligations or exercising its rights under this easement or the Solar Agreement.
3. In exercising its rights under this easement, Seller shall perform installation, maintenance and removal work in compliance with local codes and during hours approved by a an employee or contractor who may be designated by the Town from time to time (the “Project Manager”), in a manner that minimizes inconvenience to and interference with Grantor and its use of the Subject Property to the extent commercially practicable. During its access to the Subject Property, the Grantee shall comply, and shall cause its employees, contractors and agents to comply, in all material respects with all applicable laws, including but not limited to environmental laws, workers’ compensation laws, unemployment insurance laws, and health and safety laws.
4. Grantor shall ensure, at its own expense, that no structure, vegetation, activity, or land use of Grantor, except utility lines, antennas, wires, and poles shall cast a shadow on the Solar System during the times specified unless such structure, vegetation, activity, or land use exists on the effective date of this easement and is not required to be removed or is excepted by the terms of this instrument. A shadow shall not be cast from 3 hours before noon to 3 hours after noon from September 22 through March 21 and from 4 hours before noon to 4 hours after noon from March 22 to September 21, all times being Eastern Standard Time.
5. In the event that any damage is caused to the easement area due to the negligence of any party, then the party causing such damage shall be wholly responsible to repair the same.
6. During the term of the Solar Agreement, and for a period of 180 days thereafter, the grant of the foregoing easement shall constitute a covenant running against the Subject Property and shall be binding upon the parties hereto, their respective successors and assigns, and all future owners or occupants of said premises and shall run in favor of the parcels described herein and the parties hereto, their respective successors and assigns and all future owners or occupants of said premises.
7. 180 days after the termination or expiration of the Solar Agreement, the easement granted herein shall be deemed abandoned. Upon abandonment, this Agreement shall terminate,
Docs\Solar Services Agr and Grantor and Grantee shall execute and record on the land records such documents as may be necessary to evidence said termination and, if requested by Grantor, Grantee shall immediately restore the easement area as far as practicable to the condition in which it existed prior to the execution of this agreement, except as otherwise provided in the Solar Agreement.
8. Grantor represents that it has not permitted or engaged in the use of, and has no knowledge of, any substance, chemical or waste located on, under or about the Subject Property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulations (collectively “Hazardous Substance”). Neither Grantor nor Grantee will introduce or use any such Substance on, under or about the Subject Property in violation of any applicable law or regulation. No underground storage tanks for petroleum or any other Substance, or underground piping or conduits, are or have previously been located on the Subject Property, and no asbestos containing insulation or products containing PCB or other Substances have been placed anywhere on the Subject Property by Grantor or, to Grantor’s knowledge, by any prior owner or user of the Subject Property (except for such asbestos containing insulation located in or on structures on the Subject Property that will not be disturbed by the construction, installation, operation or removal of the Solar System in accordance with the Site Plans. Grantor and Grantee shall each defend, indemnify, protect and hold the other party harmless from and against all claims, costs, fines, judgments and liabilities, including reasonable attorney’s fees and costs, arising out of or in connection with the presence, storage, use or disposal of any Hazardous Substance on, under or about the Subject Property caused by the acts, omissions or negligence of the indemnifying party and their respective agents, contractors and employees. The foregoing indemnity shall survive any termination of this Agreement.
9. This Agreement (including the Site Plans, which are incorporated herein by reference) and the Solar Agreement (including exhibits and appendices thereto) constitute the entire agreement and understanding of Grantor and Grantee with respect to the subject matter of this Agreement, and supersedes all offers, negotiations and any other written or verbal agreements; (b) any amendments to this Agreement must be in writing and executed by both parties; (c) this Agreement is governed by the laws of the State of Connecticut; and (d) if any term of this Agreement is found to be void or invalid, such provision shall be fully severable herefrom and such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect, and this Agreement shall be reformed and construed as if such invalid provisions had never been contained herein, and if possible, such provisions shall be reformed to the maximum extent permitted under applicable law to render the same valid, operative and enforceable to reflect the intent of the Parties as expressed herein.
10. IN WITNESS WHEREOF, the parties hereto, by their hands and seal, have caused these presents to be executed on this ______day of September, 2013.
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11.
GRANTOR GRANTEE TOWN OF FAIRFIELD Skyview Fairfield LLC
By: ______By: ______[______] Managing Member Duly authorized Duly authorized
STATE OF CONNECTICUT STATE OF CONNECTICUT ss: ______, 2013 ss: ______, 2013 COUNTY OF FAIRFIELD COUNTY OF FAIRFIELD
Before me, the undersigned officer, personally Before me, the undersigned officer, personally appeared [______], known to me (or appeared [______], known to me (or satisfactorily proven), signer and sealer of the satisfactorily proven), signer and sealer of the foregoing instrument, who acknowledged the foregoing instrument, who acknowledged the signing of same to be his free act and deed in signing of same to be his free act and deed in such capacity as [______]. such capacity as [______]. ______Commissioner of Superior Court/ Notary Commissioner of Superior Court/ Notary Public Public
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SOLAR SERVICES AGREEMENT
Exhibit B
System Specifications
Location: 140 Reef Road Fairfield, Connecticut
System Size (Nameplate Capacity):
[29 kw DC]
Installation Type: Rooftop Solar
Module Type: JA Solar or similar
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SOLAR SERVICES AGREEMENT
Exhibit C
Module Description
______
(as described in the attached Exhibit C-1)
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SOLAR SERVICES AGREEMENT
Exhibit D
Energy Rates
Pursuant to Section 2.2 the kWh Rates paid during the term of this Agreement are as follows:
Year Rate 1$ 0.1390 2$ 0.1397 3$ 0.1404 4$ 0.1411 5$ 0.1418 6$ 0.1425 7$ 0.1432 8$ 0.1439 9$ 0.1447 10 $ 0.1454 11 $ 0.1461 12 $ 0.1468 13 $ 0.1476 14 $ 0.1483 15 $ 0.1491 16 $ 0.1498 17 $ 0.1505 18 $ 0.1513 19 $ 0.1521 20 $ 0.1528
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SOLAR SERVICES AGREEMENT
Exhibit E
(intentionally omitted)
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SOLAR SERVICES AGREEMENT
Exhibit F
Termination Value Schedule
The Termination Value for the Systems is set forth below. The Termination Value for each System shall equal the product of (i) the capacity in Watts DC of such System and (ii) the Value per Watt due in a year or, at any point within such year, set forth in the table below.
Termination Year Value Value / Watt 1 N/A 2 N/A 3 N/A 4 N/A 5 N/A 6 93,269.79$ 3.2162$ 7 88,590.43$ 3.0548$ 8 83,700.85$ 2.8862$ 9 78,590.43$ 2.7100$ 10 73,248.00$ 2.5258$ 11 67,661.86$ 2.3332$ 12 61,819.70$ 2.1317$ 13 55,708.59$ 1.9210$ 14 49,314.99$ 1.7005$ 15 42,624.65$ 1.4698$ 16 35,622.62$ 1.2284$ 17 32,789.98$ 1.1307$ 18 29,815.83$ 1.0281$ 19 26,693.09$ 0.9205$ 20 23,414.33$ 0.8074$
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SOLAR SERVICES AGREEMENT
Exhibit G
Emergency Contacts
For Seller: Andy Karetsky Skyview Fairfield LLC 114 South Pearl Street, Port Chester, New York 10573 203.249.3973 [email protected]
For Purchaser: [ ]
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SOLAR SERVICES AGREEMENT
Exhibit H
Curtailment Allotment
Pursuant to Section 2.6 the number of kWh that Purchaser may curtail per year:
Year KwH 1 1,328 2 1,322 3 1,315 4 1,308 5 1,302 6 1,295 7 1,289 8 1,282 9 1,276 10 1,270 11 1,263 12 1,257 13 1,251 14 1,244 15 1,238 16 1,232 17 1,226 18 1,220 19 1,214 20 1,208
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