HomeMy WebLinkAboutSTPUD_ Final Power Purchase Agreement-signedPOWER PURCHASE AGREBMENT
By and Between
Blue Dragon Holdings I, LLC
(o'Seller")
and
South Tahoe Public Utility District
(ooPurchaser")
Datecl as of November 1,2022
24764575.3
W
PO\ryER PURCHASB AGREEMENT
This Power Purchase Agreement ("Agreement") is rnade this First day of Novenber,2022
(the "Effective Date"), by and between Blue Dragon Holdings I, LLC , a California lirnited liability
company (the "Seller"), and the South Tahoe Public Utility District, a California public Lrtility
district (the "Purchaser") at South Lake Tahoe, California. Seller and Purchaser are sometimes
referred to herein irrdividually as a "Party" and collectively as the "Parties."
WITNBSSETH:
WHEREAS' Seller desires to construct, own and operate a solar energy system with a total
aggregate narleplate capacity rated at approxirnately I ,339.2 kW DC (as further defined in Article
I of tliis Agreement, the "system") upon certain real property owned lry Purchaser and specifìed
in Exhibit A (the "Site");
WHERBAS, Seller is entering into a license agreelrent witli Purchaser f-or the Site (the
"License Agreement"), dated as of the date hereof, which is incorporated by this reference; and
WHEREAS, Seller desires to sell and deliver to Purchaser, and Purchaser desires to
purchase ancl receive from Seller, electricit¡, that rnay be generatecl b1, 1¡" System for the term of
this Agreement, subject to tlie terms and conditiolis provided herein.
NOW THEREFORE, in consideration of the rnutual obligations ancl undertakirrgs herein
contained, and intending to be legally bound hereby, the Parties hereto agree as follows:
DEFINITIoNS ; "å#3ä,lru*ro"rArloN
Unless otherwise required by the context in which any tern'ì appears: (i) capitalized terms
usecl in this Agreement shall have the meanings specified in this Article I; (ii) the singLrlar shall
include the plural and vice versa; (iii) references to "articles", 'oSections", "schedules", "annexes",
"appendices" or o'exhibits", if any, shall be to Articles, Sections, Schedules, Annexes, Appendices
or Exhibits hereof; (iv) allreferences to a parlicular entity shall include a reference to such entity's
successors and permitted assigns; (v) the words "herein," "hereol'' and "hereunder" shall refer to
this Agreernent as a whole and not to any particular Article or subparagraph hereof; (vi) all
accounting terms not specifically defìned herein shall be construed in accordance with generally
accepted accounting principles in the United States of America, consistently applied; (vii) the
words "include," 'oincludes" and "including" mean include, includes and including "without
limitation;" (viii) references to this Agreernent shall include a reference to all appendices, annexes,
schedules and exhibits hereto, as the same may be amended, nrodified, supplementecl or replaced
from time to tirne; and (ix) the rnasculine shall include the feminine and neuter and vice versa.
The Parties liave collectively prepared this Agreement, and none of the provisions hereof shall be
construed against one Party on the grouncl that such Parly is the author of this Agreement or any
part hereof.
Certain tenns 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 inclirectly controls, is controlled by or is under common control with, such person or entity. For
pllrposes of this definition, "control" (including, with its correlative meanings, the terms
"controlled by" and "under comlron control with"), as used with respect to any such person or
entity, ffreans the possession, directly or indirectly, of the power to direct or callse the direction of
the rnanagement and policies of such person or entity, whether through the ownership of voting
securities or by contract or otherwise.
"Applicable Laws" shall lrean, with respectto ar,y Person, all laws, statutes, codes, acts,
treaties, ordinances, orders, judgrnents, writs, decrees, injr-rnctions, rllles, regulations,
governrrìental approvals, licenses and permits, directives and requirements of all regulatory and
other governrnental authorities.
"Bankruptc), Code" shall mean the United States Bankruptcy Code, 1l U.S.C. $ l0l, e/
seq,, as amended.
"Business Da)," shall nrean eaclr Monday througli and inclurding Friday dLrring the 'Ierrn
other than nationally recognized holidays or a day when the þ-ederal Reserve Banks in New York
are closed to the public.
"Claiur Notice" shall have the meaning set forth in Section 19.4.
"Code" shall nean the Intemal Revenue Code of 1986, as anrended.
"Comrnercial Operation Date" shall mean the date that Seller provides notice to Purchaser
that (i) the electric generating equipment and control systems of tlie System have been cornpletely
installed and commissioned, including, but not limited to, the process of starting up, testing and
normalization of all operating systems, (ii) the System has received permission to operate from the
applicable Utility, and (iii) the System has demonstrated that it has generated and delivered Energy
Output to the Delivery Point.
"Curtailment Allotrnent" shall have the meaning assigned to such term in Section 2.5
"Data Acquisition S)¡stem" or DAS Íìeans the AlsoEnergy PowerTrack system or another
rnutually agreed upon system tliat displays historical meteorological and production data over an
Internet connection and consists of hardware located on-Site and cloud-based software dashboard
provided by AlsoEnergy. The DAS measures and logs, at a minimum, the following parameters
on a lS-minute average basis at the Site: actual AC electricity production of the System (in kwh)
and, wind speed, ambient air temperature, and solar irradiance (in Wlm2)
"Daylight Hours" shall mean the period of time between one-half hour before the official
sunrise through one-half hour after the official sunset at the Site as determined by the National
Oceanic and Atrnospheric Administration.
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"Deliver), Point" shall mean the meter point at whicli Energy Outpr"rt from the System is
delivered to the adjacent substation, as shown on Exhibit A.
"Dispute" shall have tlie meaning assigned to such term in Section 21 . 1 .
"Effective Date" shall have the mearring set forth in tl,e preamble hereto.
"Energ),Output" shall mean the actual kilowatt hours (kWh) of energy generated by the
Systerr and delivered or rnacle available for delivery to the Delivery Point in any given period of
time. For the avoidance of doubt, Energy Outpr"rt cloes not include RECs or Other Credits.
"Energ), Payment" shall have the rneaning assigrred to such term in Section 6.1(c).
"Energ), Rate" shall rnean the rate for Errergy OLrtput set lorth in Exhibit B hereto.
"Event of Default" shall have the meaning assigned to such term in Section l2.l .
"Expected Annual Energ), Outplrt" slrall mealr the expectecl annual kilor,vatt hours (kWli)
of Energy Output, as set lortli on Exhibit D hereto.
"Expiration Date" shall have the rneanin g assigned to such term irr Section 6. I
''Fair Market Value" n-ìearls the price, as detennined by tlie rnutual agreernent of the Palties,
that rvould be paid ilr an arr.l.l's lerrgth, fì'ee rnarl<et transaction, in cash. between atr inl'ormed,
n,illing seller and an infonned, willirrg buyer (rvho is neither a lessee in possession nor a used
equipnrent or sorap clealer), neither of whonr is under cornpulsiorr to cornplete the tt'ansaction,
taking into acoount, among otherthings, the age and performance of the Systen-r and advances in
solar techrrology. Costs of removal frorn a cLlrrel-ìt location shall not be a deduction fì'om the
valuation. Such Fair Market Value sliall not be less than the sum of (l) reasonable compensation
on a net aftertax lrasis assurnirrg Seller's applicable f-ederal income tax rate lor the loss or recapture
of (a) Lrnlealizecl MACRS accelerated depreciation as allonable by law; (b) other documented
fìnarrcing and associated costs related to the loss or recapture, but not inclLrdecl in (lXa); (2) the
net present valr"re (using a cliscount rate of nine percent(9%) of the projectecl payrnents over the
Term starting at the time of sr"rch Fair Market Value determination, had the Term remained
effective for the fLrll lnitial Term;and (3) any and all otlier amounts previously accrued underthis
Agreement and then owed by Purchaser to Seller. If unable to agree, the Parties shall select a
nationally recognized independent appraiser with experience and expertise in the solar
photovoltaic indr"rstry to value the Systern; such valuation to be binding absent fraud or manifest
error. The costs of the appraisal shall be borne by the Seller. If the Parties are unable to agree on
tlie selection of an appraiser, such appraisershall be selected by two proposed appraiserfirms, one
selected by each Party. Any such appraiser shall determine the Fair Market Value based on the
definition in this section.
"Financing Palt(.ies)" shall mean any and all Persons or successors or assignees thereof
lending money or extending credit to Seller or an Afliliate of Seller, or investing equity (including
tax equity) in Seller or an Affiliate of Seller: (i) for the construrction, term or permanent financing
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of the Systern; (ii) for working capital or other ordinary business requirement of the Systern
(including but not lirnited to the maintenance, repair, replacement or improvement of the Systern);
(iii) for any development financing, bridge financing, credit enhancement, credit support or interest
rate protection in connection with the Systern; or, (iv) for the Seller's operation of the System.
"Force Maieure" shall have the rneaning assigned to such term in Article XVII
"Governmental Authorit)r" n'ìeans any national, state or local government (rvhether
domestic or foreign), any political subdivision thereof or any other governmental, quasi-
governmental, judicial, public or statutory instrumentality, autliority, body, agency, bureau or
entity (inch-rding the Federal Energy Regulatory Commission or the California Public LJtilities
Commission), or any arbitrator with authority to bind a Party at law.
"Guaranteed Level" rreans 95o/o of the Expected Annual Energy OutpLrt for tlie Systen,
for a Guarantee Year'.
"Guarantee Payment" shall have the rneaning assigned to such term in Section 2,13(b)
"Guarantee Year" n'ìeans each successive twelve (12)-rnonth periocl cluring the Term
starting on the Commencelnent Date f'or the System.
"f'lazardous Substance" lneans any clremical, waste or other substance (a) which rlow or
hereafler becomes defìned as clr inclucled in the defìnition of "hazardous substances," "hazarclous
wastes," "hazardons Inaterials," "extretlely hazardolls wastes," "restricted hazat'dolrs wastes,"
'otoxic substances," "toxic polllrtants," "pollution," "polltrtants," "regulated sttbstances," or words
of sirrilar irnport under any laws pertaining to the environrnent, health, safety or welfare, (b) rvhich
is declared to be hazarclous, toxic, or polluting by any Governmental Authority, (c) exposure to
which is now or hereafter prohibited, limited or regulatecl by any Governmental Authority, (d) the
storage, use, hanclling, clisposal or release of wliich is restricteclor regr"rlatec{ by any Governrnental
Authority, or (e) fbr which remediatiorr or cleanup is required by any Governmental Ar.rthority.
"lndelnnified Part.y" shall have tlie meaning assigned to such term in Section 19.4.
"lndemnif-ving Part)r" shall have the meaning assigned to such term in Section 19.4.
"lnsolation" shall have the meaning assigned to such term in Section 2.7.
"k\¡v¡" shall mean a kilowatt DC of capacity.
'(k\ /¡h" shall mean a kilowatt hour of AC Energy Output.
"License Agreement" shall have tl-re meaning assigned to such term in the recitals hereto
"Lien" shall mean any lien, rnortgage, pledge, security interest, charge or encumbrance of
any kind (including any conditional sale or other title retention agreement, any lease in the nature
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thereof, mechanic's liens and other liens arising under law, and any agreement to give any security
interest).
"Measured Meteorological Year" nleans a set of measured rneteorological data with data
values for every hour in a year for a given geographical location and year.
"Meter" shall mean an instrument or instruments meeting applicable Utility electric
industry standards used to lrìeasure and record the volume in kWli and other reqr"rired delivery
characteristics of the Energy Output delivered hereunder.
"Non-Delivery Period" shall have the rneaning assigned to sr"rch term in Section 6.1(c).
"Output Guarantee" shall have the rneaning assigned to such term in Section 2.13
"Other Credits" shall rnean all riglrts, credits (including Tax Credits), benefits, reductions,
any other reductions or other transferable indicia (other tlian RECs, which are expressly exclLrdecl
fron:r this clefìnition, anel are owed by Purehaser'): (i) elenoting earbon offset oreelits or inclieatirrg
generation of a particular qLrantity of errergy fi'om a renewable energy source by a renewable
energy facility, offsets and allowances and entitlements of any kind, known or unknown at the
tirne of this Agreement, that are or become available to Seller from the environrrrental attribLrtes of
the Systern or the generation of the Energy Outplrt, or otherwise from the developrrent or
installation of the Systern or the production, sale, purclrase, consllrrìption or use of tlie Energy
Output, irrcluding, but not limitecl to carbon credits, allowances and ernission reduction credits and
offsets and (ii) related to the capacity of the System, whether arisirrg under fèderal, state or local
law, international treaty, trade association r-nernbership or the like, and the right to apply for any
such credits.
('Person" shall mean an individual, paltnership, corporation, company, business trusl,.joint
stock Purchaser, trust, unincorporated association, joint venture, Governmental Authority, limited
liability Purchaser or any otlrer entity of whatever nature.
"Production Modeling S),stem" shall mean the software program, Lrtilized by Seller to
predict the amor¡nt of energy that a solar power system will produce in an average year, that
currently has the following characteristics: (l) one of the following commercially available
software a) PVSyst, b) Helioscope or c) NREL System Advisor Model (NREL SAM), (2) models
all photovoltaic characteristics, (3) takes all ancillary array losses into account, and (4) uses either
measured data or Typical Meteorological Year files from NREL, Solcast or SolarAnywhere. Seller
will notify Purchaser of the choice of commercially available software from the above list prior to
the commercial operation of the system. Also, for any reason if such commercially available
software were to become unusable for whatsoever reason, Seller and Purchaser will mutually agree
on a replacement software to be used for the prodr"rction rnodeling.
"Proprietary Information" shall have the rneaning assigned to such term in Section 16.3
"Prudent Operating Practices" shall mean the practices, methods and standards of
professional care, skill and cliligence engaged in or approved by a significant portion of the electric
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generation industry for facilities of similar size, type, and design, that in tlie exercise of reasonable
judgment, in light of the facts known at the tirne would have been expected to accomplish results
consistent with law, regulation, reliability, safety, environmental protection, applicable codes, and
standards of economy and expedition. For the avoidance of doubt, Prudent Operating Practice is
not intended to be lirnited to the optirnum practice, method and standards to the exclusion of all
others, br-rt rather is intended to include acceptable practices, metliods ancl standards generally
accepted in the industry.
'(Rebate" shall mean any and all incentives under a third-party provider or the State of
California or other incentive programs offered by the State of California, in each case arising frotn
tlte ownership or operation of tlie System, and the right to clairn income tax creclits under Section
45 or 48 of the Code or any state tax law or income tax cleductions under the Intemal Revenue
Code or any state tax law. "Rebate" shall not include "Utility Rebate," as clefined helein.
"RECs" shall rnean those renewable energy certificates associated with the Energy Output
gerrerated by the Systern and purchased by Purchaser under this Agreernent. RECs ruay be
registered by Purchaser in the Western Renewable Energy Generation Information System or its
successor. One REC represents the renewable attributes associated with one thousancl (1,000)
kWh of Energy Output generatecl by the Systern.
"Reporting Rights" nleans tlie right of Seller to report to any fèderal, state or local agency,
arrtlrority or other party, including under Section 1605(b) of the Energy Policy Act of 1992 ancl
provisions of the Energy Policy Act of 2005, or under any preserrt or future clomestic, international
or foreign ernissions tracling program, that Seller owns tlre Rebates and Other Credits associated
with the Energy OutpLrt.
"Revised Target COD" shall have the rneaning assigned to such terrn in Section 6.2(d)
"SEMMY" or Sin-ulated En ergy in a Measured Meteorological Year, rìleans, with respect
to any Guarantee Year, Year I AC Energy outpLrt of a Systern, simulatecl by ProdLrction Modeling
System using measured average hourly irradiance, wind speed, and air ternperature as recorded by
the Data Acquisition System, holding all other inputs equal to those used to calculate SETMY.
"SETMY" or Sirnulated Energy for a Typical Meteorological Year, means the Year I AC
Energy Outpr,rt of a system, sirnulatecl by ProdLrction Modeling System using average hoLrrly
irradiance, wind speed, and air temperature data contained within the Weather File held in escrow.
"Site" shall have the meaning set forth in the recitals hereto
'c$Slgm" means all equipment, facilities and materials, including photovoltaic arrays,
DC/AC inverters, wiring, Meters, tools, and any other property now or hereafter installed, owned,
operated, or controlled by Seller at the Site for the purpose of, or incidental or useful to,
rnaintaining the use of tlie Systern and providing Energy Output to Purchaser at the Delivery Point.
"Target COD" shall have the meaning assigned to such term in Section 6.2(d)
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"Tax Credits" means any and all (i) investment tax credits, (ii) production tax credits and
(iii) similar tax credits or grants under federal, state or local law relating to the construction,
ownership or prodr"rction of energy frorn the System.
r(Term" shall have the meaning set forth in Article VI.
"Termination Date" shall have the meaning assigr,ed to such term in Section 6.1
"Termination Value" shall mean the values set forth or described in Exhibit C to this
Agreement which value includes all costs for removal of the Systern as may be reqr"rirecl by this
Agreernent.
"Transferee" shall have the meaning assignecl to such term in Section 16.2.
"Transferor" shallhave the meaning assigned to such term in Section 16.2.
"True-up Period" means, for the System, each successive three (3)-year period during one
or more Terms starting on the Commencement Date for the System, except for the 28th
year, in which case the True-up Period lreans one year.
"Tyþical Meteorological Year" or TMY rreans a collation of selectecl weatlrer data fbr a
specific location, listing liourly values of solal radiation and meteorological elements f'or a
oÍìe-year period. The values are generated from a data bank longer than a year in cluration,
typically at least l2 years. It is specially selected so that it presents the range of weather
phenomena fbr the location in question, while still giving annual averages that are
consistent with the long-term averages for the location in question.
"Utility" shall mean the electric distribution corl'ìpany responsible for electric energy
transmission and distribution service at the Site. The Parties acknowledge and agree that, as of the
Effective Date, the Utility is Liberty Utilities.
"Utility Outage" shall mean any event during which the Utility shuts off power fbr tlie
prevention of fires where strong winds, heat events, and related conditions are present pursuant to
California Public Utilities Commission guidelines and Applicable Laws ancl any other event during
which the Utility shuts off power to the Purchaser or the quality of power available fiom the Utility
to the Purchaser degrades to a quality that poses the potential for damage to the Purchaser's
facilities.
"Utility Rate" shall mean the representative per-unit energy charge billed by the Utility, as
calculated through the process detailed in Exhibit E.
"Utility Rebate" shall mean any demand-side management, renewable energy production,
or energy efficiency programs offered by or through the Utility related to the System
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"Weather Adjustment" means the rnethocl for reconciling Expected Annual Energy Output,
calculated using a Typical Meteorological Year, with the actual meteorological conditions
measured on-Site for that year, as described in Section 2.13.
"Weather File" means the Typical Meteorological Year data set in Exhibit D, whicli
contains average l-rourly values of measured solar radiation, air temperature, and wind speed frorn
NREL, Solcast, or SolarAnywhere.
"WREGIS" sliall mean the Western Renewable Energy Generation Information Systern
ARTICLE II
SALB AND PURCHASE OF N,NERGY; EXCLUSIVB CONTROL
Section 2.1 Summary Description.
Seller will cause tl-re Systern to be constructecl at the Site and will or,vn, operate, and
maintain the System in accordance with all Applicable Laws and tl,e terrns of this Agreement,
inclLrciing Exhibit F. Seller shall be perrnitted to use contractors and subcontractors to perfonn its
obligations under this Agreerlent; provided, that Sellel shall cor-rtinue to be responsible for the
quality of the work performed by its contractors and subcontractors.
Section 2.2 Delivery; Energy Purchase Price.
(a) In accordance with the ternrs and conditions liereof, cornlrencing on the
Cornmelcial Operation Date and continr"ring thror"rghoLrt the Term, Seller shall sell and deliver to
Purchaser at the Delivery Point as and when available, and Purchaser shall purchase ancl accept from
Seller at the Delivery Point, tlie Energy OLrtput generated by the System. Notwithstanding the
foregoing, if the System produces more than 120%o of its Expected Annual Energy Outpr"rt in any
twelve-mor,th period, Purchaser shall have the right, but not the obligatiol'ì, to purchase such excess
Energy Ontput; provided that, if Purchaser chooses not to purchase such excess Energy Output,
Seller shall have the right to freely sell the same to the Utility or use it fbr its own plrpose, pursuant
to allApplicable Laws, and all proceeds from such sales will accrlre solely to Seller. Purchaser shall
pay Seller a purchase price eqLral to the Enelgy Or"rtput for the applicable period of time multiplied
by the applicable Energy Rate as set f'orth in Exhibit B, for energy delivered in any given year r.rp to
the Expected Annual Energy Outprlt as set forth in Exhibit D. For Energy Output deliverecl in any
given year over and above the Expected Annual Energy Output as set for in Exhibit D, Purchaser
shall pay Seller a purchase price eqr"ral to the Energy Or"rtput for the applicable period of tirne
multiplied by one-half the applicable Energy Rate as set forth in Exhibit B. Such amollnt shall be
paid in accordance with Article III hereof. Purchaser acknowledges and understands that solar power
is an intermittent resource and that the outpnt of the System, which is dependent on the sun and other
factors, will constantly vary.
(b) Seller cloes not guarantee that, and the Er-rergy Rate is not depenclent on
whetherthe RECs are capable of being utilized by the Purchaser for purposes of rneeting the State
of California renewable portfolio standard.
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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 Event of 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 (oLrtside of the l20o/o limitation on Purchaser responsibilities as set forth in Section 2.2), such
event shall constitute a Purchaser curtailment and be treated in accordance with Sectiorr 2.5 below.
Section 2.4 Seller's Failure to Deliver. The Parties acknowledge that the Energy
Output delivered hereunder is clelivered "as available" to Purchaser ancl Seller's failure to deliver
Energy Output for any reason shall rrot give rise to any default, claim or clarnages by Purchaser
hereunder, except as cletailed in Section 2.13.
Section 2.5 Curtailment.
(a) Purchaser shall llave the right to request curtailment of Energy Output upon
reasonable prior written notice to Seller, and Seller shall curtail Energy Or"rtpr.rt pursuant to such
request. Purchaser shall be allotted 48 Daylight Hours of curtailment per annum for any leason (the
"Curtailment Allotment"), and where Purchaser's curtailment is caused or prolonged by Seller's act
or omissiol-l or events of Force Majeure that prevent Purchaser's acceptance of delivery. Each year
will begin at the anniversary of the occurrence of the Commercial Operation Date. The Parties agree
that if tl-re duration exceed the Curtaihnent Allotrnent dr,rring periods when Purchaser invokes sucl-r
curtailment option (i) Purcliaser shall pay to Seller liquidated damages for the Energ¡, Or-rtput not
sold that would have Lreen due to Seller had such curtailment of Energy Output not occurred, whiclr
liquidatecl clarnages shall be oalculated in the mannel set f.orth below; and (ii) Seller shall have no
obligatiorr to remarket the Errergy Output that is curtailed as a result of Purchaser invoking tlre
CLrrtailment Allotnrent. The remedy provided in this Section shall be the sole and exclusive remedy
of Seller for an¡, such voluntary curtaihnent requested by Purchaser. Seller will have no obligation
to reimburse Purchaser if the CLu'tailment Allotrnent is not used and the Parties agree there will be
no oarry forward fi'om one year to the next.
(b) Liquidatecl damages pursuant to this Section 2.5 shall be calculated for each
hor"rr during which delivery does not occur beyond the Curtailment Allotment accordirrg to the
l'ollowing formula:
PricexEEO+Rebate
where the above items have the following meanings
Price :The applicable Energy Rate plus the then current rate of
the Other Credits (if applicable) fbr the hour or hours
when delivery is not occurring as set forth in this Section
2.5.
EEO:T'he estirnated Energy Output that would have been
achieved during the hour or hours to which the above
f'ormula is being applied, calcr"rlated by applying the
sunlight data for each such hour available from the
supervisory control ancl data acqr"risition system at the
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Systern to the rated output for the photovoltaic rnodr,rles;
provided, however, that the rated output fbr the
photovoltaic modules shall be the rnanufacturer's stated
nominal output, and any such calculation shall account
for nonnal system production degradation as set forth in
Exhibit D.
Rebate --The amounts or cLlrrent rate, if any, of Rebates for which
the Seller was not eligible as a result of clelivery not
occurring as set forth in this Section 2.5.
The liquidated clar,rages set forth in this Section 2.5 are a reasonable estimate of tlie darnages the
Seller will sr.rffer irr tl-re event of nonperformance as set forlh herein and are not intended as a
penalty.
Section 2.6 Non-Bxclusive Benefit. Subj ect to tl,e terms of this Agreement
(iriclrrding Sections 2.2,2.3 ancl2.5), all Energy Output generated by the System shall be delivered to
Purchaser at the Delivery Point.
Section 2.7 lnsolation. Purchaser understands that Llnobstructed access to sLuilight
("lnsolation") is essential to Seller's perf-ormance of its obligations and a material tenn of this
Agreernent. Purchasel sllall not in any way cause and, where possible, shall not in any wa1, permit any
interfèrence with the System's lnsolation. Seller shall liave the responsibility and the right to rerllove
or trinr any vegetation (inclLrding trees) within the buffèr area arouncl the alray and remove snow and
pollen that may affect lnsolation of the System, subject to Seller's compliance with all Applicable
Laws. Purchaser shall cooperate with Seller to address any activity or condition that could diminish
the lnsolation of the Systern. If PLrrchaser becomes aware of any activity or condition that could
diniinish the Insolation of the Systern, Purchaser shall notify Seller imrnediately and sliall cooperate
with Seller in preserving the System's existing Insolation levels. [n the event of any new obstt'uction
to Insolation that Seller cloes not have the right to prornptly remedy, the Output Guarantee shall be
reduced to account for the reduced production of the System. The Parties agree that reducing lnsolation
would irreparably injr"rre Seller, that sucl-r injury rnay not be adeqr-rately cornpensated by an award of
money clamages, ancl that Seller is entitled to seek specific enforcement of this Section 2.7 againsf
Purchaser.
Section 2.8 Ownership of the System. Throughout the Term, Seller shall be the
legal and beneficial owner of the Systern at all times, and all Otlier Credits and Rebates, and the System
shall remain the personal property of Seller and shall not attach to or be deemed a parl of, or fìxture to,
the Site; provided, however, that Purchaser shall be the exclusive owner of all RECs and Utility
Rebates. Seller and Purchaser agree that the Seller is the tax owner of the System and all tax filings
and reports will be fìled in a manner consistent with this Agreement. The Systern shall at all times
retain the legal status of personal properly as defined under Article 9 of tlie Uniform Commercial Code.
Purchaser covenants that it will use commercially reasonable efforts to place all parties having an
interest in or a mortgage, pledge, lien, charge, security interest, encumbrance or other claim of any
nature on the Site on notice of the ownership of the Systern and the legal status or classification of the
System as personal property. If there is any mortgage or fixture filing against the Site which could
reasonably be construed as prospectively attaching to the Systern as a fixture of the Site, Purchaser
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shall provide a disclaimer or release from such lienholder. If Purchaser is the fee owner of the Site,
Purchaser consents to the filing of a disclaimer of the System as a fixture of the Site in the office where
real estate records are customarily filed in the jurisdiction where the Site is located. If Purchaser is not
the fee owner, Purchaser will obtain such consent frorn such owner. For the avoidance of doubt, in
either circumstance, Seller shall file such disclaimer. Upon request, Purchaser agrees to deliver to
Seller a non-disturbance agreement in a form reasonably acceptable to Seller from the owner of the Site
(if the Site is leased by PLrrclraser), any rnortgagee with a lien on the Site, and other Persons holding a
similar interest in the Site.
Section 2.9 Operation and Maintenance of System. Seller shall be
responsible for all operations, maintenance, and repair of the System. However if any repair to the
System is made necessary by the rregligent acts or willful rnisconduct of tlie Purchaser, Purchaser shall
be responsible for the associated costs. Seller shall reasonably accornmodate and cooperate witli
Purchasel to ensure tlie Purchaser"s activities, facility Llses, and sclieduling requirerîents are not
unreasonably irnpeded. Seller is responsible for repairs and/or replacement of Systern components that
are clarnaged from vandalism, theft or criminal activity. Seller's maintenance and repair responsibilities
sliall be conductecl in accordance with Prudent Operating Practices and all Applicable Laws, and shall
inclucle the following to be conducted at least once in eaclr tu,elve (12) month periocl. Purchaser may
lequest, not rnore than annually, a summary of the maintenance ancl repairs perforr-necl by Seller.
(a) System visual inspectiorr, reporting of all issues, whether identifìecl by
Purchaser or otherrvise. and resolution of all issues identifìed. including. at a minimurn, related to:
(i) photovoltaic rnodules, irrclr-rdirrg an¡, stolen, broken or darnaged
moclules and to recorcl any darnage and its location;
(ii) System wiring, includirrg loose connections, wire condition issues,
and any wires in contact with the structure or lranging loose fì'om rackirrg;
(iii) the mechanical attachment of photovoltaic modules to the racking;
(iv) wiring connections, inclr-rding any signs o1'poor contact at
term inals (bLrrning, discoloration, thermal temperature elevatiorr); ancl
(v) inverter inspection ancl regular servicing as requirecl under the
i nvefter man ufacturer' s warranty specifi cations.
(b) Seller shall be responsible for perforn,ing preverrtive rnaintenance in
accordance with Section 6.1 of Exhibit F, hereto.
Section 2.10 Maintenance of Site; Alterations to Site. The Parties' respective
maintenance obligations of the Site are described in the License Agreement. Seller is fLrlly responsible
for the maintenance and repair of the Site electrical system, up to and including the interconnection at
the Delivery Point. Purchaser is responsible for all of Purchaser's equipment downstream of tlie
Delivery Point that utilizes the System's outpr-rts except for damage caused by Seller. Purchaser shall
properly maintain in firll working orcler all of Purchaser's electric supply or generation eqr"riprnent that
Purchaser may shLrt clown while utilizing the System. Purchaser shall be responsible for all damage to
the Systern caused by PLrrchaser or its contractors. Any recluced or lost prodr"rction car-rsecl by
Purchaser's activities described in this Section 2.10 shall reduce the OLrtput Guarantee to account for
the reduced production of the System.
Section 2.11 System Relocation. If Purchaser ceases to own the Site or otherwise
desires Seller to relocate the System for any reason prior to the expiration of the Term, Purchaser shall
have the option to provide Seller with a rnutually agreeable substitute Site located within the salne
Utility service area as the Site or in a location with similar utility rates ancl lnsolation. Purchaser shall
provide written notice at least one hnndred eighty ( I 80) days prior to the date that it wants to make this
substitution in order to allow Seller to conduct diligence on the proposed substitution Site. In
connection r,vith such sr-rbstitution, after determination by both Parties that such substitution Site is
nTutr-rally agreeable, the Parties shall execute an amencled agreernent that shall have all of the satne
terms as this Agreernent. The l,icense Agreernent shall also be amended to grant rights in the real
property to which the Systen-r shall be relocated. Such amended agreernent shall be deemed to be a
continuation of this Agreement without terminatior-1. Purchaser shall also provide arìy new consents,
estoppels, or acknowledgrnents reasonably reqLrirecl by Financing Parties in connection with the
substitution Site.
Section 2.12 Purchaser's Oblisations in Event of Relocation Under Section 2.11.
If Purchaser requires Sellerto relocate the Systern uncler Section 2.11, in addition to any dantages fot'
lost production owecl by Purchaser to Seller in accordance with Section 2.5, Purchaser shall pay to
Seller all reasonable costs incurred by SelleL due to such t'emoval and relocation of the System,
including. but not limiteclto, storage ancl reinstallation costs. Any redLrced or lost production in relatiorr
to sr-lclt reloc¿rtion shall reduce the OLrtput Guarantee in orcler to accouÍìt l'or the reciLtced prodr"rction of
the System (for the period in which the System is not operational due to relocation alrd to accouttt f-or
any reduced Insolation ot' Systetn capacity as relocated).
Section 2.13 OutÞut Guarantee.
Seller guarantees to Purchaser that the Energy OLrtput of the Systetr during any Guarantee Year,
sLrbject to the limitations, terms and conditions stated in this Agreement, shall be not less than the
product of the Guaranteed Level and tlie Expected AnnLral Energy OutpLrt for the Systern, as
acl.justecl for measured meteorological corrditions according to Section 2.13. Notwithstanding any
otlrer plovisions of this Agreement, colrponellt fàilures not caused by an act of Force Majeure or
by the Purchaser, including but not lirnited to, failure of one or Ínore invefters, shall not excLlse
any Systern's performance obligations under tlris Agreement.
l. Guaranteed Output Calculations
At the encl of each True-up Period, Seller shall calculate the Annual Differential for the
System for each Guarantee Year during the Tenn(s) according to the fbllowing:
(a) Annual Dilfërenrial : ((Expected Annual Energlt OtrtpttÍ x Guaranteed Level x
Weather Adjuslment)) - Actual Energy Output
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(b) Where "Weather Adjustment" rÌ-ìeans the following ratio:
Simulated Enersy in a Measured Meteorolosical Year (SEMMY)
SimulaÍed Energ,,.for a Typical Meteorological Yecn' (SETMY)
2. Guarantee Pa),ment.
For tlie System, at the end of each Trure-up Period:
(i) if the surn of tlie Annual Differential for the System during each True Up Period is
greaterthan zero (0), then Seller shall pay to Purchaser an arnount equalto the sum of the
following calculation for each Guarantee Year in each True-up Periocl: the Annual
Differential (positive ol negative) rnultiplied by the difference obtained by sr.rbtracting the
Energy Rate applicable to such period fi'om the weighted-average energy rate for electricity
during Daylight Hours f'or electricity supplied by the Utility per kWh ("Utility Rate") fbr
the corresponding Guarantee Year (a "Guarantee Payrlent"); and
(ii) if the sum of the Annual Differentials fbr the System dLrring eaclr frue Up period is
less than or equal to zero (0), then no Guarantee Payrnent is or,ved fbr that Trr"re-up Period
by Seller or Purchaser; ancl
(iii) Within thirty (30) days after the end of each True-up Periocl and Seller"s receipt of the
Utility Rate fbr such1'rue-up Period fì'oni the Purchaser', Seller shall provide Purchaser
with a repofi detailirrg the Annual Differential calculations set forth in Section 2. l3 for the
System for each Guarantee Year within each True-up Period, and promptly notify
Purchaser if the sum of the Annual Differential during the True Up Peliod is positive. Only
in that case shall the calculation for Utility Rate and Guarantee Payrnents be cornpleted. In
such case, this report shall contain sufficient inforrnation fbr the Purchaser to be able to
determine the accuracy of Sellers's conclusion as to the amount, if any, of any Guarantee
Payments. All Guarantee Payments shall be credited to the PLrrchaser by the Seller against
the next due invoice(s) for Energy Output payable by Pr,rrchaser.
(iv) If over the True Up Period the Seller has provided Energy Or"rtput above tlie Estimated
Annual Energy Output at half price under the terms of Section 2.2,and the total cost of this
half price Energy Output over the Trr-re Up Period is less than the amount of the Cuarantee
Payment, then no Guarantee Payrnent will be due frorn the Seller to the Purchaser.
3. Energy Output Measurement.
The process for rneasnring Energy Output for the Systern for each Guarantee Year shall
be:
(a) OutpLrt Data Collection. During the Term, Seller will collect Energy Outpr"rt data for
the System r-rsing the Data Acquisition System. For each Guarantee Year, Seller will surn
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the daily kWh output provided by the DAS for the Systern to calculate the Energy Or-rtput
for the Systern f'or such Guarantee Year.
(b) Equiprnent Calibration and Replacement. Seller will have the meteot'ological
equiprnent, inclucling sensors, calibrated or replaced per tl-re uranufacturer's guidelines, but
no less than once each year, as part of Seller's operation and maintenance obligations ttnder
this Agreernent. To the extent reasonably possible, the rneteorological equipment,
including sensors, shall inclr-lde automated self-clear-ring fr-rnctions to ensure accurate
meteorological measurements.
(c) Contingency for Equipment Failr-rre. In tl,e event of hardware,communication,
or other failure affecting the DAS, Seller will rnake commercially-reasonable efforts to
resolve the failure in a timely lranner. In the event that data is lost, Energy Outpr"rt for the
Systern shall be acl.justed to compensate for such lost clata:
(i) ln lieu of lost meteorological data, Seller will r-rtilize synthetic real
time weather data obtained fì'om solcast, Clean Power Finance or otlrer data vendors.
(ii) In lieu of lost electricity data, Seller will Lrtilize the curnulative data
fì'orr the S),stem's Meter readir-rgs to calculate the electricity generated cluring the missing
interval. In the event tliat data frolr the System's Meter is inaccurate or missing, Seller
u,ill simulate electricity procluction dr-rring the rnissing interval utilizing measured
rneteorological data and ProdLrction Modeling System. The sirnulatecl electricitl,
procluction clnrir-rg tlre rnissing interval will be addecl to the Energy Outpr"rt of the Systern
fìrr the sLrb.iect Guarantee Year.
The above Section states Seller's sole liability, ancl Purchasers' exclusive remedy, fot'
arry equipn'rent failure or lost data relating to the DAS, urrless causecl by the Seller's sole
negligence or willfi-rl misconduct.
Section 2.14 Removal of the System. Except as otherwise provicled herein, Seller shall,
within one lrundred eighty (180) clays lollowing the expiration of the Terrn, or earlier termination in
accorclance with the terms hereof, and at Seller's sole cost and expense, rerrìove the System from the
Site and restore the Site to its original condition, normal wear and tear excludecl.
Section 2.15 Appropriations. The Parties acknowledge that Purchaser, as a public
agency, rnay be subject to a "budget non-appropriation event." Purchaser agrees that it shall use its
best efforts to seek appropriation for Lrtility services during the 'ferm. For avoidance of doubt, this
Agreement shall be treated as a utility services contract for purposes of appropriation of funds, and any
specific non-appropriation of funds for this Agreement or otherwise for solar or renewable energy
purchases shall not relieve Purchaser of its obligations under this Agreement.
ARTICLE III
BILLING AND PAYMBNT
Billing and payment for amounts due and payable hereunder shall be as follows:
t4 v
Section 3.1 Invoices. Seller shall make reasonable efforts to promptly subrnit a
monthly invoice forthe preceding calendarmonth afterthe end of the priormonth to Purchaser based
on actual Errergy Output. Each invoice shall inchrde the kWh, and applicable rates for the applicable
pricing periods.
Section 3.2 Payment. Purchaser shall make payrnent to Seller or to any person
designatecl by Seller in writing by the thirtieth (30t1') calendar day following Purchaser's receipt of the
invoice. All invoices shall be submitted for payrnent with supporting documentation in duplicate to
Purchaser at the address specified ITerein; provided, that invoices rnay be submitted via electronic niail
to the Purchaser email address at ap@stpud.us. Purchaser shall pay to Seller or to any person
designated by Seller in writing, by ACH or wire transfer of immediately available funds to an account
specifiecl in writing by Seller or by any other means agreed to by the Parties in writing from time to
time,theamountdueinsuchinvoice. IfPurchaseringoodfaithdisputesaninvoice,Purchasershall
provide Seller with a written explanation specifying in detail the basis for the Dispute within fifteen
(15) calendar days of receipt of such monthly invoice. Seller shall, in good faitli, responcl to sucl'l
dispr-rte witliin fifteen (15) calendar days of receipt of such dispr-rte by either confirrning tl.re
;-..^i^^.-...^.",1 :,"." ^ ^^..^^+a.l i-.,^:^^ D,.,.^h-"^,. "l..ll k^ -^+i¡l^l +n ¡lion,,+o.-;,.,,^i^^ ^'.'{ "1.^llllltvlvv wr Jwt¡urrrÞ g v\rtlvwLvL¡ lll!uluw. I ttlvll(tJvl .rllúll u! wrr!rLrvu ùv 9rJPq!v rall llltulwv utl\l Jtlqlt
have the riglit to rvithhold payment of an1, sr-rch disputed irrvoice(s) only to the extent sr"rch clispute is
relateclto Seller invoicing for more energy than it delivered to the Purchaser in a month or Seller fàiling
to respond to the dispLrte laised by PLrrchaser u,ithin fifteen ( l5) calendar days of leceipt of such dispute.
Payrnents of clisputed arnounts shall in no way waive Purchaser's right to contest cltarges. Arty
arnount not paid rvlren due under this Agreenlent shall accrLle interest at the lesser of two and one-hall'
peroent (2.5%) over the prirne rate. as publishecl in the Wall Street .fournal per annLrm or the higliest
rate perniitted under Applicable Law. ln the event tlle Parties are unable to resolve any DispLrte, Sectiou
2l.l (b) shall be applied as the rnethodology to resolve any Dispute and shall be binding Lrpon the
parties notwithstanding anything to the contrary in tliis Agreement; and, the prevailing party shall be
entitlecl to any reasonable costs that result therefrom.
ARTICLB IV
TITLE AND RISK OF LOSS
Section 4.1 Risk of Loss and Bxclusive Control. Title to and risk of loss of'tlle
Energy Output shall pass from Seller to Purchaser upon delivery of the Energy Or,rtpurt at the Delivery
Point. Aii cieiiveries oi Energy Output irereuncier shaii 'oe in the iorm oi tirree-phase, sixty-cycie
alternating current. Purchaser shall purchase and accept delivery of metered Energy Output at the
Delivery Point. As between the Parlies, 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 Lrp to and including
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 after the Delivery Point. Risk
of loss related to Energy OutpLrt will transfer from Seller to Purchaser at the Delivery Point. Purchaser
shall be responsible for arranging delivery of Energy Outpr"rt from the Delivery Point to Purchaser and
f'or the installation and operation of all necessary eqr"riprnent on Purchaser's side of the Delivery Point
necessary for acceptance and use ofthe Energy Output.
Section 4.2 Chanses in Interconnection Conditions. The Parties acknowledge
that ad.iustrnents in the terms and conditions of this Agreement rnay be appropriate to account for rule
t5
charrges in the respective Utility or Utility control areas, by the respective independent system
operators, or their sllccessors, that could not be anticipated at the clate of execution of this Agreement
or that are beyond the control of tlie Parties, and the Parties agree to make such commercially reasonable
amendments as are reasonably required to cornply therewitli.
ARTICLE V
CURTAILMBNT AND MODIFICATION BY SELLBR
Section 5.1 Curtailment. Seller shall have the right to curtail deliveries (inclLrsive
of discontinuing or reducirrg Energy Output) upon sLrfficient prior written notice to Purchaser if Seller
reasonably believes that curtailment is necessary to construct, install, repair, replace, rernove, maintain
or inspect any of its equipment or lacilities. Seller shall be allottecl 48 Daylight Hours of cLrrtailment
per annlull ("Seller's Curtailment Allotr-nerrt"), other than for events of Folce Majeure. TIie Expected
Annual Energy Output of the Systems shall be reduced for purposes of the Outpr-rt Guarantee only for
Seller's Curtaillnent Allotrnent, and not for any curtailments in excess of Seller's Curtailment
Allotment; provided that, irr the event, and to the extent, that Seller's curtailment is caused or prolonged
by Purchaser's negligent act ol' o¡lission or an event of Force Ma-ieure, the Expected Annual Energy
Output of tlie Systerns shall be recluced for purposes of the Or-rtpr-rt Guarantee to account for the full
arnount of such cufiailrnent. To tl,e extent practical, all rnaintenance and repairs shall be performed
during the Utility's ofl'peak hours and in a r.nanuel that would not require a complete interruption in
Energl, Output of the Systern. Seller shall notify Purchaser in aclvance of'an1, curtailtnents of n,hich
Seller has aclvance knowledge, and u,ill endeavor to mitigate the time periocls and causes of such
curtailrnents to the extent that such cause is witliin Seller's reasonalrle control. Sub.ject to available
sLrnlight, Seller shall lesume cleliveries of Energy Outpr"rt as soorl as is reasonably possible and sale in
accorclance rvith Prudent Operating Practices.
Section 5.2 Modification of the System. Seller ma y rnodify, alter', exparrd or
othenvise change tlie System withoLrt the prior u,ritten consent of Purchaser as required by Prudent
Operating Practices or Applicable [,aw, and so long as sucli modifications, alterations, expansions or
other changes rvould not reasonably be expected to result in a rnaterial change in the capacity of the
System or a material aclverse impact on the operations of tlie System or the Systern's capability to
operate, or a rnaterial change in the qr-rality of the System components.
ARTICLE VI
TBRM, TERMINATION, COMMBRCIAL OPERATION AND INTERCONNECTION
Section 6.1 Term and Termination.
(a) T'erm. The Term shall cornmence on the Effective Date and continue until
the sooner of (i) the date that is twenty-eight (28) years from the Commercial Operation Date (the
"Expiration Date") or (ii) the clate this Agreement is terminated in accordance with the tenns hereof
(the "T'ermination Date").
(b) Earl-y Termination b)¡ Seller. Seller shall have the right, but not the
obligation, to tenninate this Agreernent prior to the Expiration Date orrly upon the occurrence of:
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(i) the deterrnination by Seller in its sole and absolute discretion within
one hundrecl eighty (180) days from the Effective Date that it is unable or that it would be
commercially unreasonable to install the System on the Site;
(ii) an unstayed order of a court or admiristrative agency having the
effect of sLrbjecting the sales of Energy Output to federal or state regr.rlation of prices ancl/or
service;
(iii) elirnination or alteration of one or ll1ore Rebates or Other Cledits or
other change in law that results in a material adverse economic irnpact on. or impairment
of, Seller's ability to meet its orrgoing financial obligations with regards to the Systern; or
(iv) the terrnination of the License Agreement by its terms and
conditions f.or any reason prior to the Expiration Date.
In the event that Seller terminates this Agreement purslrant to Sections 6.1(bXi)-(iv), this
Agreement shall terminate witliout triggering the default provisions of this Agreerlent or the
Termination Value set forth in Exhibit C, and with no liability of either Party to the other Party
except such amourrts then due and owing under this Agreernent as of the clate of such termination.
(c)'Iermination for Seller's Failure to Deliver Energy Output. ln the event that
the Systern fàils to deliver arry Energy Output for one hundred lifty (150) consecLrtive days (the
"Non-Delivery Period") aftel the occurrence of the Commercial Operation Date, and provided
Purchaser's acts. actions or inaction or those of its employees, contractors or agents or a Force
Ma-ieure event have not preventecl the Systerrr from operating durirrg such time, this Agreement
rna)/ be terrninated by Purchaser; provided, that Seller's failure to deliver any Energy Output
following the Non-Delivery Period shall not give rise to a Purchaser terr-nination right so lorrg as
Seller, at its optiorr, pays to Purchaser on a r.nonthly basis in arrears the positive clifference, if any,
betneen: (i) the Errergy Rate Purchasel would have paid for Energy Or-rtput following the Non-
Delivery Period plus the monetary vah-le of the lost RECs, if any and (ii) the rate of the qr"rantities
of Energy Output that Purchaser obtains to replace the estimated energy output that wor"rld have
been achieved ("Energy Payrnent") for a peliod of up to an additional one hundred fìfty (150) days
after which, should the System continue to fail to deliver any Energy Or-rtput despite being paid
the Energy Payment, Purchaser may tenninate this Agreement. ln the event that Purchaser
tenninates this Agreernent pursuant to this Section 6.1(c), this Agreernent shall terminate r.vithout
triggering the default provisions of this Agreernent, including payment of the Termination Value,
and with no liability of either Party to the other Party except such amounts then due and owing
under this Agreernent as of the date of such terrnination.
(d)Purchaser Early Tennination for Convenience. This A greernent rnay be
terminated by Pr"rrchaser for any reason that the Purchaser determines such tennination is in its
best interest. Termination shall be effected by delivery to Seller of a notice of termination at least
one hundred and eighty ( I 80) days prior to the termination effective date. In the event of any such
tennination, Purchaser shall pay the applicable Termination Value for such year, due on the
effective date of such termination.
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(e) Tenlination Value for Purchaser's Defaurlt. In the event that the T'ermination
Date has occurred for reasons attributable to an Event of Default by Pr,rrchaser, Purchaser 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 applicable Tennination Value. The
Parties agree and acknowleclge that given the cornplexity of the technology used by tl,e Systern
and the volatility of energy markets, actual damages to Seller would be clifficult if not irnpossible
to ascertain, and the amount calculated pursuant to the preceding sentence is a t'easonable
approxirnation of the damages suffered by Seller as a result of early tennination of this Agreernent.
(Ð Extension of Term. Twenty-four rnonths prior to the end of the Term, the
Parties will meet to discLrss the extension of this Agreement on terms and conditions reflectirrg the
then current rnarket fol solar generated electricity and rvith such other amendments and additiorral
terms and conditions as the Parties r-nay mutually agree r"rporr. Neither Party sliall be obligated to
agree to an extension of tliis Agreement.
Section 6.2 Construction and Commercial Operation of the System.
(a) Sellel shall ir-rstall or cause to be installed the S1,steur, which, upon the
Cornrnercial Operation Date, is targeted to have an aggregate approxin,ate nameplate generating
capacitl, rating as shown in Exhibit A.
(b) Promptly f-ollowing the Effective Date, Seller shall comrrence pre-
installation activities relatirrg to the System, which shall inclLrde the following:
(i) obtain fìrrancing for the System on terms acceptable to tlie Seller in
its sole discretion;
(ii) obtain or callse to be obtained all government approvals, permits,
contracts, and agreelnents required for installation, operation and maintenance of the
System and Site ancl delivery of Energy OutpLrt to Purchaser, includirrg any requirements
lol cornplying with the Califomia Environmental Quality Act;
(iii) determine, in its cornmercially reasonable judgtnent, tliat the Systenr
is able to be constructed on the Site;
(iv) confirm that Seller will obtain all Tax Credits;
(v) obtain all necessary authority from any applicable regulatory entities
for the operation of tlie Systern and sale and delivery of Energy OutpLrt to Purchaser, to the
extent obtainable prior to completion of construction; and,
(vi) Assist Purchaser with preparing and sLrbrnitting the net energy
metering application to the Utility and obtaining all approval for the interconnection.
(c) Successful cornpletion of Sections 6.z(b)(i) through (vi) shall be conditions
precedent to Seller's obligations to install and operate the System and otherwise perforn, its
obligations under this Agreernent. Seller shall provide written notice to Pr¡rchaser upon the
cornpletion of each item under Sections 6.2(bxi) through (vi). Failure to provide such notice shall
l8 M
be deemed a failure by Seller to have completed the item. lf the activities conternplated in Sections
6.2(bxi) through (vi) are not completed, or waived by Seller in its sole discretion, by the first
anniversary of the Effcctive Date, then Seller or Purchaser shall have the option to terminate the
Agreement withoLrt triggering the default provisions of this Agreernent or any liability under this
Agreement.
(d) Seller shall use comr-nercially reasonable efforts to cause, but does not
guaranty, the installation of the System to be cornpleted and the System to achieve the Comurercial
Operatiorr Date on or before eighteen (18) months from tlie Effective Date (the "Target COD"). lrr
the event that the System has not achieved the Comrnercial Operation Date on or before the Target
COD, tlie Parties agree to negotiate in good faith to amend this Agreernent to revise the Target COD
(the "Revised Target COD"), provided, however that tlie Revised 'l'arget COD shall not be later than
twenty one (21) rrionths frorn the Effective Date. The Target COD and Revised Target COD shall
be snbject to extension in accordance with the provisions of Section 17 .2 or in the event tliat
Purchaser's failure to comply with its obligatiorrs hereunder delays Seller's ability to achieve the
Commercial Operation Date on or before the Target COD or the Revised Target COD, as applicable.
lf Seller has not rrraterially begun construction of the System after expiration of tl,e Target COD and
+1.^ Þ^.,i.^Ä 'I.^.^^+ /lt-ln .-i+1.^. D^.+., ,-^., +^-,-i-o+^ +Lio A.-.an,¡an+..,i+l¡n,,+ +.i^--.i'"- tl.- ,-{^fo',1+lrrv r\wvrJwLr r arrbvr vvu) wrrrrwr r qrlJ rrrcrJ Lwrrrrrrr(rLw rrrrJ l rbrvwrrrvrr! vYrrrrvLrr
provisions of this Agreement, ancl with no liability to the other Party.
(e) Seller and Purchaser hereby agree ancl acknowledge that PLrrchaser shall
have no ownelship interest in the Systern and no responsibility f-or its operatiorr or maintenance.
Neither Purchaser r-ìol' au)/ party relatecl thereto sliall have the riglit or be deernecl to opelate the
Systern for purposes ol'Section 7701(e)Ø)(A)(i) of the Code.
(Ð Seller shall cause the contractor or contractors perltu'ming tlie constructiou
of the System to provide payrnent and perf'ornlance bonds and insurarrce prior to cornrnencing
construrction. The bond shall remain in effect untilthe later of (i) completion of construction of the
Systern or (ii) resolution of all claims macle on tlie bond.
(g) Seller shall cornpl),with all requirements set forth in Exhibit F
(h) Purchaser sliall have the right to inspect the Systern at any time on or lrefore
the Commercial Operation Date, Lrpon reasonable notice to Seller and subject to all safety
requirements that Seller or its contractors may lrave, and witness the Systern commissioning testing
performed by Seller.
(i) Seller shall be pennitted to use contractors and subcontractors to perforrn
its obligations under this Agreement, provided however, that such contractors and subcontractors
shall be dLrly licensed, maintain the insurance required by this Agreement, and shall provide ar,y
work in accordance with applicable industry standards. Notwithstanding the foregoing, Seller shall
continue to be lesponsible for the quality of the work perforrned by its contractors and
subcontractors.
(j) Seller shall comply with the prevailing wage provisions of the California
L,abor Code and the prevailing wage rate determinations of the Department of Indr"rstrial Relations.
These rates may be obtained online at http://www.dir.ca.gov/dlsr. A copy o1'these rates shall be
l9
postedatthejobsitebySeller. Sellerandallcontractorsandsubcontractor(s)underit,shallcomply
with all applicable Labor Code provisions, whicli include, but are not limited to the payment of not
less than the reqr"rired prevailing rates to all workers ernployed by tliern in the execution of this
Agreement and the employrnent of apprentices. Seller hereby agrees to indernnify and hold harmless
Purchaser, its officials, officerS, agents, employees and authorized volunteers from and against any
and all claims, clemands, losses or liabilities of any kind or nature whicli Purchaser, its officials,
officers, agents, ernployees and ar-rthorized volunteers may sustain or incur for noncompliance by
Seller or its contractors with any applicable l,abor Code provisions arising out of or in connection
with this Agreement.
(k) Seller, its contractor(s) and subcontractor(s) shall keep or cause to be kept
an accurate reoord f-or work under this Agreerrrent showing the nalres, addresses, social security
nuurbers, work classification, straight time and overtime hours workecl ancl occupations of all
laborers, workers and mechanics ernployed by them irr connection with the perlbrmance of this
Agreement ol'any subcontract thereunder, and showing also the actual per diern wage paid to each
of such workers, whicli records shall be open at all reasonable hours and upon reasonable plior notice
to inspection by Pr-rrchaser, its officers and agents and to the representatives of the Division of Labor
Law Enforcerrent of the State Department of Industrial Relations.
(l) 'l'his Agreement is sLrbject to compliance monitoring and enforcetnent by
tlie Depaltrrent ollndustrial Relations in accorclance ivith tlie provisions of Sections 1725.5,1771.1.
1771.3, 1711.4, 1771.5. and 1771.7 of the Labor Code. This reqLrirement applies regardless of
nhetlrerStatefirnclswillbeLrsecl underthisAgreen,ent. Pursuanttol,aborCodesectionlTTl.l,f'or
any proposal sul'rnlittecl, or any contract fbr public work entered into, a contractor or subcontractor
sliall not be qualifìed to bicl on, be listed in a proposal (sub.ject to the requirements of Section 4104
of the Public Contract Code), or engage irr the perfolmance of arr1, contract for public work, as
defined by Division 2, Part 7, Chapter I ($$ 1720 et seq.) of the Labor Code, unless currently
registerecl and clualified to perforrn public work pursuant to Section 1725.5 of the Labor Code. At
least 7 days prior to the later of cor-ì-ìl-rlencelnent of construction work or 30 days after execution of
the Agreement, Seller will provide Purchaser with the name and registration inforrnation, includirrg
all information required for the PWC-100 form, for all contractors of any tier. Suclt infonnation
tnust be supplemented if aclditional contractors perfon¡ work under this Agreernerrt. Seller shall
post all requirecljob site notices pursuant to tl-re Labor Code and related regulations. Seller shall
ensure that, to the extent requirecl by law, that Seller and its contractors ancl subcontractors maintain
current and ongoing registration status with the Department of Industrial Relations.
(m) Seller, its contractor(s) and subcontractor(s) shall submit records, including
those specified in Labor Code section 1776, to the Labor Commissioner as reqr.rired by Sections
1771.4(a)(3), 1771.4(c)(2), and 1776 of the Labor Code. Purchaser may withhold $100 for each
calendar day after ten days from Seller's receipt ofa request to produce payroll records (as described
in Labor Code $ 1776(a)) that Seller fails to produce such records.
Section 6.3 Interconnection. Purchaser agrees and acknowleclges that this
Agreernent represents the agreelnent between the Parlies with respect to the interconnection of tlie
System to the Utility's electricity distribution system, and for energy to flow from the System to the
Delivery Point, under the applicable provisions of the Utility's tariff. Seller shall manage and submit,
at no cost to Purchaser (including with relation to equiprnent, system upgrades, studies or otherwise)
20 W
all agreements and f'rlings required for such interconnection of the System, and Purchaser shall
cooperate with all such agreements and filings, including the execution thereof and the provision of all
required information. Seller, at its sole cost and expense, shall install and maintain the Systcm
interconnection and Systern in accordance with the Utility's requirements.
Section 6.4 SEED Fund Fee.Seller shall, within sixty (60) days after
conìrrìencernent of construction of the Systern at the Site, pay the sutn of $90,557.80 directly to the
Sustainable Energy and Econornic Development Funcl at SEED Fund, Administered by SEI, 899
Nortl,gate Drive, Suite 410, San Rafael, CA 94903. Seller shall have no other liability to the
Sustairrable Energy and Econornic Development Fund in any way irr relation to this Agreement or the
request for proposals relatecl to the System.
Section 6.5 As-Built Exhibit Updates. Upon the Commercial Operation Date,
Seller shall provide updated versions of Exhibits A ancl D, updated to reflect as-built System details
and Expected Annual Energy Output, which shall replace such exhibits without the need fbr a formal
amendment to this Agreement; provided that, if Purchaser objects to the accuracy of any such r,rpdates
in good faith, the Seller sl-rall cooperate with Purchaser to provide further documentation reasonably
necessar)/ to evidence such Lrpdates.
ARTICLE VII
GOVERNMENTAL AND OTHER APPROVALS
Section 7.1 Apnrovals. Purchaser shall assist Seller and cooperate u,ith Seller, as
reasonably necessary ancl appropriate, to secure and lnaintain at no cost to Purchaser those
governmental approvals, permits (including environmerrtal perrnits), licenses, easgments, rights-of-
rvay, releases and other approvals necessary for the constructiorr, maintenance ancl operation of the
System.
Section 7.2 Assistance. Upon request by either Pafty, Purchaser and Seller shall
use tlieir commercially reasonable elforts to assist one another in obtaining and retaining credits,
perrnits, licenses, releases and other approvals necessary for the design, perrnitting, construction,
engirreering, operation and mainter-ìance, and removalof the Systern. Seller is responsible forthe costs
of construction and removal of the Systern unless ownelsliip of System has been tt'ansferrecl to
Purchaser per this Agreement. 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
juriscliction over the Systern that could adversely affect this Agreement.
ARTICLE VIII
TAXES
Section 8.1 Taxes. Seller shall pay any income taxes imposed on Seller due to
the sale of energy under this Agreement. If paid by Seller, Purchaser shall reimburse Seller f'or any
and all taxes assessed on tlie Purchaser by governmental ar-rthorities for delivery or collsLlrrption of
Energy OutpLrt after the Delivery Point. Prior to Seller paying any such taxes, Seller shall consult with
Purchaserto determine responsibility forpayment. To Seller's knowledge no such taxes are applicable
on Purchaser at the tirne of execution of this agreernent. Purchaser shall pay all real property taxes and
assessments applicable to the Site. This Agreernent may result in the creation of a possessory interest
?.1
(Rev. & Tax. Code $ 107.6). [f such a possessory interest is vested in Seller, Seller may be subjected
to the payment of personal property taxes levied on such interest in the Systern. Seller shall be
responsible for the payment of, and shall pay before becoming delinquent, all taxes, assessments, fees,
or other charges assessed or levied upon Seller and the Systern. Seller furtl-rer agrees to prevent such
taxes, assessments, fees, or other charges from giving rise to any lien against the Site or any
irlprovement located on or within the Site. Nothing herein contained shall be deemed to prevent or
prohibit Seller from contesting the validity or amount of any such tax, assessment, or fee in the manner
authorizecl by law. Seller shall be lesponsible for payrnent of any personal property taxes, possessory
interest taxes, pennit fees, business license fees and any and all fees and charges of any nature levied
against the Systern and operations of Seller at any time. If bills f'or taxes on the Systern are received
by the Purchaser, Purchaser shall rernit such bills to Seller.
ARTICLE IX
OFFSETS, ALLOWANCES, CREDITS
Section 9.1 RECs and Utilitv Rebates. RECs and Utility Rebates arrcl
associatecl reporting rights available in connection with the System are retained and ownecl by
Purchaser. Seller shall identify the proper Purchaser account (as identified by Purchaser) to WREGIS
in order to ensure all RECs are allocated to Purcl,aser. During the Term, Seller shall use commercially
reasonable effbrts to ensure that all System production infbrmation is provided to WREGIS as
necessary to allow {br the transfer of the RECs to Purchaser's WREGIS account. Purchaser sliall be
responsible fbl rranaging its WREGIS account as rlecessary to allow for the transf'er of the RECs to
Purchaser's WREGIS account. The Parties slrall cooperate, acting reasonably ancl in goocl fàith, in
corrnection with provicling inforrnation reqLrirecl by WREGIS and ensuring the RECs are transferred to
Purchaser. Where applicable, Seller shall use comrnercially reasonable efforts to subnrit, or provide
assistance to Purchaser in submitting, applications for available Utility Rebates as requested by
Purchaser, inclr"rding actions rlecessary (and within Seller's reasonable control) to ensure compliance
with the Utility net metering program and all interconnection agreernerts applicable to the
Systern. Seller shall attend all site verifìcation visits conducted by the Utitity or Governrnental
Authority and shall Lrse coffìrrercially reasonable efforts to assist the Purchaser in satisfying the
requirements of any REC and Utility Rebate program. Seller shall be responsible for providing updated
documentation to Purchasel as required for Pr,rrchaser's delivery to incentive program administrators,
as required by mles of the relevant incentive programs to which Purchaser is a party and of which Seller
has received a copy. Seller sliall not be obligated to incur any third-party costs or expenses in
connection with sLrch actions unless reimbursed by Purchaser.
Section 9.2 Other Credits. Seller shall own and retain all present and future
riglits, titles and interest in any Other Credits or exemptions attributable to the installation of the
System or the production of Energy Output therefrom, including br-rt not limited to sales tax
exemptions, rebates or incentives relating to equipment installed as part of the System, capacity
payments or property tax exemptions or credits. Purchaser shall cooperate with Seller in obtaining,
securing and transferring all Other Credits, inch-rding by using the electric energy generated by the
System in a manner necessary to qualify for such available Other Credits. Purchaser shall not be
obligated to incur any out-of:pocket costs or expenses in connection with such actions unless
reimbursed by Seller. If any Other Credits are paid directly to Purchaser, Purchaser shall
immediately pay such amounts over to Seller.
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Section 9.3 Rebates. So long as Seller owns the System, all Rebates available
in connection with the System installed on the Site are owned by Seller. Purchaser shall take all
reasonatrle rlleasures, at no out of pocket cost to Purchaser, to assist Seller in obtaining all Rebates
currently available or subsequently rnade available in connection with the Systern. 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 within thirty (30) days of receipt of an invoice therefor.
Section 9.4 Reportine Riehts. Without limiting Purchaser's rights under
Section 9.1, Sellel shall retain the Reporting Rights and the exclusive rights to claim that: (a) the Energy
Output was generated by the Systern; (b) Seller is responsible for the delivery of the Energy Output to
the Delivery Point; (c) Seller is responsible for the reductions in ernissions 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 entitleclto all credits, ceftificates, registrations, etc., evidencing or representing any of
the foregoing.
Section 9.5 Impairment of Other Credits. Rebates. Utilitv Rebates and RECs.
Purchaser shall not take an5, acticn or suffer an¡, omissicn that .,',,s¡¡ld ha.,'e the efÍèct of impairirrg the
value to the Seller of the OtlTer Credits or Rebates. Seller shall not take any action or suffer any
ornission that would have the efï-ect of impairing the value to the Purchaser of the RECs or Utility
Rebates. Purchaser shall use conrmercially reasonable efforts to notify Seller of any action or omission
that coulcl impair the value of the Other Credits or Rebates ancl to consult with Seller as requestecl to
prevent impairrnent o1'the value of the Other Credits or Rebates. Seller shall use cornmercially
reasonable efforts to notify Purchaser of any action or omission that could irnpair the value of the RECs
or Utility Rebates and to consult with Purchaser as required to prevent irnpairnrent of the value of the
RECs or Utility Rebates.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 10.1 Purchaser Representations and Warranties. The Purchaser
represents and warrants to Seller that:
(a) lt is duly organized, validly existing and in good standing under the laws of
its jurisdiction of formation; 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. Purchaser covenants that during the Term it shall
remain a dLrly organized and validly existing legal entity with authority to conduct business in its
jurisdiction of formation, and shall have the power and authority to perform this Agreernent; 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 Purchaserthat would
affect the validity or enforceability of this Agreernent 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
23
(c) 'Ihe execution, delivery and perforrnance 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 ot' any eviclence of indebtedness or
security therefor, material lease, material contract or other rnaterial agreeinent by which it or its
property is bound; and
(d) To the best l<nowledge of the Purchaser, as of the date lrereof, no
governlneutal approval or consent is requiled in connection with the due authorization, execution
and clelivery of this Agreement or the perforrnance of the Purchaser of its obligations hereunder
which the Purchaser has reason to believe that it will be unable to obtain in clue course on or before
the date required for PLrrchaser to perform sttch obligations; and
(e) T'his Agreement constitutes a legal, valid aud binding obligation
enforceable against Purchaser in accorclance with its terms, except as the enforceability of such terms
rnay be limited by applicable bankruptcy, reorgarìizaLion, insolvency or sitnilar laws affecting the
enforcement of creditors' rights generally; and
(Ð Purchaser has not entered, and will not after the Effective Date enter, into
any contracts or agreernents r.r,ith any other person regardirrg the provision of services at the Site
conternplated to be provided by Seller under this Agreement which would irlpair or limit Seller's
ability to perfbrm in accorclance rvith the terms hereof;
(g) Purcltaser is in corrpliance in all n-raterial respects with all laws that lelate
to this Agreement in all Inaterial respects; and
(h) Purchaser has fèe sirnple title to the Site. Purchaser has the fill right, power
and authority to enter into the License Agreement. The License Agreernent does not violate any
law, orclinance, rule or other governmental restrictiori applicable to Purchaser or the Site and is not
inconsistent with and rvill not result in a breach or default under any agreement by which Pttrchaser
is bound or that affects the Site; and
(i) All information provided by PLrrcllaser to Seller, as it pertains to the Site's
physical configuration, Purchaser's planned use of the Site, and Purchaser's estimatecl electricity
requirements, is accurate in all material respects; and
0) No electricity generated by the System will be used to heat a swimrning
pool.
(k) Except for the payment reqr-rired by Section 6.4, Seller shall not be
responsible for any other payments or obligations with respect to the Sustainable Energy and
Economic Development Fund.
ARTICLE XI
REPRESBNTATIONS AND WARRANTIES OF SBLLER
Section I I .1
warrants to Purchaser that:
Seller Representations and Warranties. The Seller represents and
24
Lf{
(a) It is a lirnited liability company, dr,rly organized, validly existing, and in
good standing under the laws of the State of California; that it has the power and authority to enter
iiito and ¡íerfonü tliis Agreemeirt; aild tliat the execution, delivery and perfomrairce of tl^tis
Agreement has been dr"rly ar"rthorized by all necessary corporate action on its part. Further, Seller
covenants that during thd'Term it shall rdmain a duly organized and validly existing legal entity
with authority to conduct b'usiness in the State of California and shall have the power and
autliority to,perform this Agreement; and
' (b) To the best of Seller's knowledge, it is in compliance in all material respects
with allrequirements of federal, state and local safety standarcls, codes and regulations applicable to
the System; inch"rding those laws applicable to the protection of the Parties' employees ancl members
of the public and to the best knowledge of the Seller, as of the date hereof, no governmental approval
or consent is required in connection with the due authorization, execution and delivery of this
Agreernent or the perfbrmance of the Seller of its obligations hereunder which the Seller has reason
to believe that it will be unable to obtain in due course on or befo.re the date required for Seller to
perfornt such obligations. Said laws include, but are not lirnited to, the Occupational Safety and
Health Act of 1970 as'arnended, and those prohibitirrg discrimination against any employee or
^.^,^l:^^:a f^,. ^.-^.^t^-,.-^^,-¿ l^^^^"',..1 ^ ^f ..^^^ ^..^^-J ^^t^.. ^^-- .-^+:^.-^l ^..:^:.^ l:^^t^:t:¿.,. ^.^l<rPPll\,ðltl" rUr ç;lllPlullllullL UUU4LIòU \J-t l<lUçt \;lçut.l, uul\Jlr òç.\t ll4ùl\Jltótl UrlBlll, caéç Ul \Jr¡dUrrrLyr 4lrLl
(c) No suit, action, arbitration, legal, adrninistrative or other proceecling is
pending or', to the best of Seller's l<nowledge, has been threatened against Seller that would affect
the valiclity or enf'orceability-of this Agreernent or the ability of Seller to fLrlfill its comrnitrnents
hereunder, or that woilld, if adversell, deterrninecl. have a rnaterial adverse effect on Seller's
perf'ormance of this Agreernent; and
' (d) The execution, delivery and perfonrance of this Agreernent by Seller will
not lesult in a breach of , defaLrlt under or violation of any Applicable ¡¿14,, orthe provisions of any
autliolization or a breach of, default under or violation of any provisiorr of its certif icate of fonnation
or other organizational documents or any promissory note, indentllre or any evidence of indebtedness
or security therefor, rnaterial lease, material contract or other rnaterial agreemerrt by which it or its
propert¡r is bound; a¡d
(e) This Agreernent constitr.rtes a legal, valid and binding obligation
erJforceable against Seller in accordance with its terms, except as the enforcement of such terrns rnay
be limited by.applicable bankruþtcy, reorganization, insolvenqy or similar laws affecting the
enforceability of creditors' rights generally.
' "
BVBNrs". $"H;lt"îil.EMEDTES
Section 12.1 Default.. The following shall constitute an "Event of Default"
hereunder:
(a) A failure by a Party to pay any amolult due hereunder, other than an amount
that is sLrbject toã good faith dispute, where such failure is not cured within thirty (30) calendar days
after receipt of written notice by the non-defàulting Party of such failure to pay such arnounts due
25
hereunder; provideçf , however, any amount due shall continue to accrue interest during any such cure
period as set forth in Section 3.2; or
(b) Except as otherwise provided in Article XVII, or Section 6.1(c), any other
material default in the event such defar:lt is not cured within thirty (30) calendar days after receipt
of written¡otice of the default from the non-defaulting Party setting forth in reasonable detail the
nature oÊsuah default; provided, that in the case ofany such default that cannot be reasonably cured
within the thirty (30) calendar days, then the defaulting Parly shall have additional tirne, but in any
event not longer than ninety (90) days, to cure the defaLrlt if it cornrnences in good faith to cure the
default within sr:ch thirty. (30) calendar day cure period and it diligently and continuously pursues
such cure; or;
(c) A Pafty's dissolution or liquidation; a Party's rnaking a general assignment
of its assets for the benefit of creditors (except as otherwise permitted by this Agreement); a Party's
filing of a voluntary petition in bankruptcy or insolvency or for reorganization or arrangement under
the bankruptcy{auls of the United States or uncler any insolvency act of any state, or after the filing
of a case in bankruptcy 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) calenclar days after the clate of sr"rch fìling;
OT
(cl) Any representation or warranty furnishecl by a Party in connection with this
Agreernent was false or rnisleadil,g in any material respect when made, unless the fact, circumstance
or condition that is the subject of such representation or \ /arranty is made true within thirty (30)
calendar'days after the otheì Party has given the defàLrlting Party written notice.thereof; providecl,
however,-:that if"the fàct, circurnstance or condition that is the sr-rb-iect of such representation ot'
warranty cannot be corrected withirr thirty (30) calendar days; or if such fact, circumstance or
condition being otherwise than as first represented does not rnaterially advelsely affect the non-
defaulting Parfy, then the defaulting Party shall have additional time, but in any event not longer
than ninety (90) 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 dLre diligence to
correct the fact, circumstance or condition that is the subject of such representation or warranty; or
(e) A failure to maintain insurance pursuant to Article XX, which is not
corrected within thirty (30) days; or
(Ð Purchaser loses its rights to occupy and enioy the Site;
.(g) Purchaser prevents Seller frorn installing the System or otherwise failing to
perform in a way that prevents the delivery of electric energy from the System; or,
(h) Any default of the License Agreement by a Party
Section 12.2 Remedies. Upon the occurrence of an Event of Default, or if otherwise
pennitted under this Agreement, the non-defaulting Party may exercise any one or more of the
following remedies:
26
W
(a) Exercise any and all rernedies available under this Agreement (including
Section 6.1(d)) or uncler Applicable Laws after the applicable cure period; or
(b) Terminate this Agreement by delivery of a written notice to defaulting Party
declaring termination. 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 rnay take
whatever action may appear necessary or desirable to enforce performance and observance of any
obligations under this Agreernent pursuant to this Article XII, and the rights given hereunder and
under Applicable Laws.
Section 12.3 Exercise of Remedies. 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 frorn 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.
ARTICLB XIII
NO PARTNERSHIP/INDBPENDENT SELLER
Section 13.1 No Partnership. Notwithstanding any provision of this Agreement, the
Parties do not intencl to create hereby any lease, -ioint venture, partnelship or association taxable as a
colporation 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 Lrndeltakirg fbr, or act on behalf of, or to act 3S.g-i be an
agent or representative of the other Party. ' ;
Section 13.2 Changes to Agreement. If it should appear that one or rrore changes
to this Agreement would be required in order to prevent the creation of a partnership for United States
fèderal tax purposes between Seller ancl Purchaser, the Parties agree to negotiate promptly in good faith
with respect to such changes.
Section 13.3 Independent Contractors. The Pafties agree that they are independent
contractors and shall be at all tirnes solely responsible for themselves, as well as their respective
officers, directors, mernbers, paftners, employees, agents, and contractors as to workmanship,
accidents, injuries, wages, supervision and control. This Agreement may not be altered in any rìannel'
so as to changethe relationship or responsibilities of the Parties as independent contractors.
ARTICLB XIV
METBR MAINTBNANCE AND RECORDS
Section 14.1 Reportins Requirements. Seller shall comply with the reporting
requirements set forth in Exhibit F at no cost to Purchaser for the five (5) year Term following the
Commercial Operation Date.
Section 14.2 Meterins. Energy Output delivered by Seller to Purchaser hereunder
shall be measured by electric watt-hour meters located at the Delivery Point as follows:
27
(a) Seller shall own, operate, maintain and read the Meter for the measurement
of Energy Output provided to Purchaser. 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, upon prior written notice to Seller, have reasonable access to Seller's
metering equipment for purposes of testing. Purchaser or its energy supplier may test the Meter
annually, with the costs of snch annual testil-rg to be borne by Pr-rrchaser, including any costs incurred
by Seller associated witl-r sucli annual testing.
(c) Purchaser shall have the right to be present when Seller is perfonning
maintenance on the rnetering equipmerit and Seller shall provide Purchaser with reasonable prior
notice of the scheduled maintenance tirne.
(cl) All records, reports and data concerning the Meter shall be and remain the
property of Seller, althoLrgh Purchaser shall have the right to use the sarne to the extent necessary to
perform and administer this Agreement and in connection with its use of RECs and Utility Rebates.
Purchaser shall also lrave the right to share data collected by the data acquisition systern (DAS), with
the public f'or informational purposes. Seller must pay to test the Meter every three (3) years
regardless of any error. Shoulcl Purchaser request testing more frequently than every three (3) years
and srrcli testing indicates that sr-rch Metel is in error by less than two percent (2o/o),then Purchaser
shall reimburse Seller f-or costs associated with testing the Meter. On the other hand, if such testing
indicates that such Meter is in error by two percent (ZYo) or n'ìore, then Seller shall prornptly repair
or replace such Meter at its sole expense. Seller shall make a correspolrding acljustment to the
records of the arnount of Energy Output based on such test results for (a) tlie actual period of time
wheu such error caused inaccurate meter recordings, if such perioclcan be detennined to the mutual
satisfaction of the Parties, or (b) if sr"rch period cannot be so detennined, then a period equal to one-
half (l 12) of the period frorn the later of (i) the date of the last previous test confìrming accurate
metering and (ii) the date the Meter was placed into service; provided, however, that sucli period
sliall in no case exceed two (2) years wherelrpon the Parties shall rnake suclt payments as are
appropriate to reflect such correction in Energy OLrtput amounts.
ARTICLB XV
OTHER RIGHTS AND OBLIGATIONS OF THE PARTIBS
(a)
License Agreement.
License Asreement. Both Parties shall comply with the terms of the
(b) Compliance with Applicable Laws. Both Parties shall cornply 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.
28 M
ARTICLE XVI
PUBLICITY AND PROPRIETARY INFORMATION
Section 16.1 Publicitv.
(a) The Parties share a colrlron desire to generate favorable publicity regarding
tlie Systern and their association with it. The Parties agree that they will, from time to time, issue
press releases regarding the System and that they shall cooperate with each other in connection with
the issuance of such releases including cornpleting the review of press releases proposed to be issued
by the other Party by no later than ten (10) calendar days after submission by such other Party. Each
Party agrees that it shall not issue any press release containing the identity of the other Party or the
specific terms of this Agreement (except for filings as may be required by applicable law) without
the prior consent of the other, and eacll Party agrees not to r-rnduly withhold or delay any such
consent.
(b) Purchaser or Seller may, with the prior written approval of the other Party
(which shall not be unreasonably withheld), reference the System and display photographs of the
Systern in its prornotional rnaterials.
(c) Seller shall provide a web-enabled computer/rnonitor ("Monitor") irr a
location reasonably determined by Pr.rrchaser, which Purchaser may Lrse to display infonnation
regardirrg solar power generation of the System, in addition other infonnation that PLrrchaser lnay
choose to display that is unclerstandable to visitors, such as level of independence and cost savings
providecl by the System, in addition to various environrnental offsets, sr-lch as the numbel'of hotnes
powered, or carbon, coal, and tree equivalents. Seller shall be lesporrsible for obtaining and
rnounting the Monitor in the location selected by Purcliaser. Purchaser shall be resporrsible f-ol
obtaining and displaying inf-orrnation of its choosing on the Monitor, as well as any required Lrpkeep
or rnaintenance of such monitor. Purchaser rnay utilize infonnation frorn the DAS (provided as part
of the System in accoldance with Exhibit F) onlirre portal, which will be made available by Seller,
ir-r connection with such display.
Section 16.2 Proprietary Information. Except as otherwise provided herein, any
Proprietary Information of a Party (the "Transferor") which is disclosecl 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 Llse 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 fbregoing, 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 16.3 Definition of Proprietary Information.
(a) The term "Proprietary Information" means (i) the terms set fofth in this
Agreernent, and (ii) all irrforrnation, 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
29
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 fonna calculations, engineering work product, environmental
compliance, vendor lists, suppliers, manufacturing processes, energy consumption, pricing
infortnation, private processes, and other similar inforrnation, as they may exist from time to time,
or (B) the Transferor expressly designates in writing to be confrdential.
(b) Proprietary lnforrnation shall exclude information falling into any of the
lollowing categolies:
(i) lnforrnation fhal, at the time of disclosr.rre hereunder', is in the pLrblic
domain, other than information that entered the public clornain by breach of this Agreement
ol'any otlier agreernent, or in violation of any Applicable Law;
(ii) Infonnation that, after disclosure hereunder, enters the public
domain, other than information that entered the public domain by breach of tliis Agreement
or any other agreement, or in violation of any Applicable Law;
(iii) Inforrnation, othel tharr that obtairied from third parties, tl.rat prior to
disclosure hereunder, was already in the recipient's possession, either without lirnitation
on disclosure to others or subsequentllz þsr.t'r'ìing free of such limitation;
(iv) lnf'onnation obtained by the recipient from a third party having an
independent right to disclose the information; or
(v) lnformation that is obtained through independent research without
use of or access to the Proprietary Information.
Section 16.4 Disclosure. Notwithstanding the foregoing
(a) A Transferee may provicle any Proprietary Information to any
Governmental Authority having jurisdiction over or asserting a right to obtain such information;
providecl, that (i) the disclosure of such Proprietary Infonnation is required by Applicable Laws, or
such Governmental Authority issues a valid order that such Proprietary lnformation 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 fol confidentiality or other restrictions on
disclosure or access, to such Governmental Authority.
(b) Seller rnay disclose Proprietaly Information to any GovernmentalAuthority
in connection with the application f-or any license or other authorization or Other Credit or Rebate;
provided, however, that Seller shall make use of any applicable policy or regulation of the
Governmental Authority that allows for the filing of Proprietary Infonnation under seal or other
confi dential ity procedr-rres.
(c) Seller rnay disclose Proprietary Information to any prospective Financing
Party for purposes of such party's evaluation in connection with the provision of debt or equity
financing (including equity contributions or corrrnitrnents), refinancing of any such financing, or
30
W
any guarantee, insurance or credit support for or in connection with such financing or refìnancing,
in connection with the construction, ownership, operation or maintenance of the System, or any part
thereof; provided, that the recipient of any sr-rch Proprietary Infonnation agrees in writing to maintain
such information in confidence under terms substantially identical to tliose contained in this
Agreement. Seller shall vigorously enforce the terms of any such confidentiality agreement.
(cl) Either Party rnay disclose Proprietary Information to the extent that such
clisclosure is required pursuant to the rilles of any securities excliange to the extent such Party is
sub.f ect to regulation.
(e) Nothing contained in this Agreement shall be deemed to restrict or prohibit
Purchaser frorn cornplying with a validly issued subpoena or with Applicable Laws, including the
California Public Records Act, Government Code sections 6250, et seq., and Purchaser may disclose
Proprietary Information to the extent it is reqr,rired to do so pursuant to tliese authorities. Prior to
clisclosure, Purchaser shall undertake reasonable efTorts to notify Seller of any records request that
Purchaser reasonably believes to encompass records related to Proprietary Infonnation in order to
allow Seller to identify, prior to the response deadline irnposed on Purchaser pursuant to Applicable
I-aws, any such infornration that rnay he protectecl fronr clisclosure urrcler Applicable l,aws" The
decisiorr on whether certain records are required to be disclosed pursuant to the California PLrblic
Recorcls Act rests with the Purchaser.
Section 16.5 Breach. In the event of a breach orthreatened breacli of the provisions
of Article XVI by any Transferee, the Transferor shall lre entitled to an iniLrnction restrainirrg sLrch Party
fi'om such breach. Nothing contairrecl hereirr shall be constmed as prohibiting the '[ì'ansferor fì'onr
pursuing any other remedies available at law or equity fbr such breach or thleatened breach of tliis
Agreement.
Section 16.6 Disclosure to AffÏliates. Each Party agrees that it will lliake available
Proprietary lnformation received fi'om the other Party to its Affiliates ancl its and their ernployees,
agerrts, contractors and aclvisors only on a need-to-know basis, and that alI Persons to whonr sucl-l
Proprietary Infbrnration is made available will be made aware of the confidential nature of such
Proprietary Infonriation, and will be required to agree to hold such Proprietary Information in
confidence under tenns sLrbstantially identical to tlie tenns hereof.
Section 16.7 Tax Structure or Treatment. Notwithstanding anything to the
contrary set forth herein or in any other agreement to which the Parties are parties or by which they are
bound, the obligations of confìdentiality contained herein and therein, as they relate to tlie transaction,
sliallnot apply to the U.S. federaltax structure or U.S. federaltax treatment of the transaction, and each
Party (and any ernployee, representative, or agent of any Party hereto) rnay disclose to any and all
persons, witl,out limitation of any kind, the U.S. federaltax structure and U.S. federal tax treatment of
the transaction. The preceding sentence is intended to cause the transaction not to be treated as having
been offered under conditions of, confidentiality for purposes of Section 1.6011-4(bX3) (or any
slrccessor provision) of the Treasury Regulations prornulgated under Section 60ll of the Code and
shall be construed in a manner consistent with such purpose. In addition, each Party acknowledges that
it has no proprietary or exclusive rights to the tax structure of the transaction or any tax matter or tax
idea related to the transaction.
3l
Section 16.8 Term. The obligations of the Parties under this Article XVI shall
remain in full force and effect during the Term ard for two (2) years following the expiration or
termination of this Agreement.
ARTICLE XVII
FORCB MAJEURE
Section 17.1 Force Maieure. The term "Force Majeure," as used in this Agreement,
lneans causes or events beyond the reasonable control of, and without the fault or negligence of the
Party claiming Force Majer"rre ol its contractors or subcontractors. Subject to the foregoing definition,
examples of causes or events that rnay constitute Force Majeure include acts of God, pandemics,
epidemics, quarantines;, sudden actions of the elements such as fìres, floocls, earthquakes, volcanoes,
meteorites, hurricanes, solar flare or eruption, wind speeds in excess of safe irrstallation or working
limits of the photovoltaic rnodules or tornadoes; sabotage; vandalism beyond that wliich could
reasonably be prevented by the Party claiming the Force Majeure; terrorism; acts of a public enemy;
war; riots or other civil disturbance; fire; explosiorT; Utility Outages; any failure or inability to obtain
necessary rnachinery, equiprnent, nlaterials or spare parts, but only to the extent such failure or inability
is caused by an event of Force Majeure, including any orcler to Seller to take any action, that prevents
Seller from delivering Errergy Output under this Agreement. Notwithstanding tlie fbregoing, during
the development or construction of the System, but not from or after the Commercial Operation Date,
Force Majeure shall include strikes or labordisruptions (even if such difficulties cor-rld be resolved by
conceding to the demands of a labor group); the adoption or amendment of any rule or regulation or
judicial decision lawfully imposed by federal, state, or local government bodies.
Section 17.2 No Default. Neither P arty shall be considered to be in default in tlie
performance of any obligatiorrs in this Agreement (other than obligations to pay money, including for
sales and purchases of Energy Or"rtpr"rt pursuant to Article ll) when a failure of perlonnarrce shall be dr"re
to an event of Force Majeure, and any tirne periods for such performance shall be extended during an
event of Force Majeure; providecl, that (i) the non-perfonning 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 event; (iii) the
non-perfonning Party proceeds with reasonable diligence to remedy its inability to perform, rnitigates
the effècts of the Force Majeure event and provides regular progress reports to the otl-rer Party
describing actions taken to end the Force Majeure event; ancl (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 Agreernent and
shall promptly resume such performance.
Section 17.3 Termination. If an event of Force Majer.rre continues for a period of
one hundred eighty (180) days or rtore and prevents a material part of the perforrnance by a Party
hereunder, then at any time thereafter during the continuation of the Force Majeure event, either Party
shall have the right to terminate this Agreement by providing written notice of termination to the other
Party. Termination shall be effective upon the giving of tlie notice; provided that, if one Party has
begun and continues to undertake commercially reasonable lneasures to overcome such event of Force
Majeure, the other Party shall not have the right to tenninate until sucli event of Force Majeure prevents
material performance for a total of three hundred sixty-five (365) days. Termination under this Section
32 M
17.3 shall be without fault or further liability to either Pafty, except each Party shall pay all amounts
accrued but unpaid to the other Party under this Agreement.
ARTICLE XVIII
WARRANTIES AND PBRFORMANCE STANDARD
Section 18.1 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 photovoltaic rnodules and suitable for use in a commercial operation for utility interconnection, and
(ii) title to the Energy Or"rtput delivered at the Delivery Point shall pass from Seller to PLrrchaser free of
any Liens created by Seller.
Section 18.2 Performance Standard. Seller shall undertake commercially
reasonable efforts to operate and maintain the System in accordance with Prudent Operating
Practices and the provisions of this Agreement.
Section 18.3 Limitation of Warranty. EXCEPT AS OTHERWISE
SPECIFICALLY SET F'ORTIJ IN THE AGREEMENT, SELLER MAKES NO WARRANTY
EXPRESS OR IMPLIED UNDER THIS AGREEMENT. ANY AND ALL WARRANTIES OF
MERCHAN'|ABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER
WARRANTIES, WHETHER BASED ON STATUTE, CONTRACT, TORT OR OTHERWISE
(OTHER THAN AS SPECIF'ICALLY SET FORTH IN T'I_IE AGREEMENT) ARE HEREBY
COMPLETELY AND ìRREVOCABLY WAIVED BY PURCHASER.
ARTICLB XIX
INDEMNIFICATION
Section 19.1 Indemnification by Seller. Seller shall full y indernnify, save harmless ancl
defend Purchaser or any of its trustees, officers, directors, employees, contractors and agents frorn and
against any and all claims, dernands, losses, damages, defense costs, other legaI costs, or liability of
any kind or nature which Purchaser may sustain or incur or which may be irnposed upon it at any time
for injury to or deatli of persons, or damage to property arising out of Seller's activities hereunder,
excepting any liability arising out of the willful misconduct or sole negligence of Purchaser or any of
its agents, contractors or invitees, including (a) any and all federal, state, and local taxes, charges, fees,
or contributions required to be paid with respect to Seller and Seller's officers, employees and agents
engaged in the performance of this Agreement (including, with limitation, unernployment insurance,
Social Security, and payroll tax withholding), and (b) all Liabilities arising out of or relating to the
existence at, on, above, below or near the Site of any Hazardous Substance, to the extent deposited,
spilled or otherwise caused by Seller or any of its agents. ln addition, the Seller shall indernnify, hold
hannless and defend Purchaser, its officers, agents, and employees, frorn liability of any nature or kind,
including costs and expenses, for infringement or use of any copyrighted or un-copyrighted
cornposition, secret process, patented, or unpatented invention, article, or appliance firrnished or used
in connection with the System, except to the extent such use was required by Pr"rrchaser.
Section 19.2 Indemnification by Purchaser. Purchaser shall indernnify, save harmless
and defend Seller or any of its officers, directors, ernployees, contractors and agents from and against
any and all costs, claims, and expenses incurrecl by such parties in connection with or arising frorn (a)
-)-)
any claim by a third party for physical damage to or physical destruction of property, or death of or
bodily injury to any person arising out of the sole negligence or willful misconduct of Purchaser or its
agents or employees, or (b) all liabilities arising out of or relating to the existence at, on, above, or
below the Site of any Hazardous Substance, except to the extent deposited, spilled or otherwise caused
by Seller or any of its agents.
Section 19.3 Cumulative. The fbregoing Sections 19.1 and 19.2 shall be in addition to
and not in lieu of any other indemnity obligations provicled by law and shall not be limited by the
insurance provisions contained in this Agreement. The indernnity provided in Section 19.1 also shall
apply to the successors and permitted assigns of the Seller.
Section 19.4 Notice of Claims. Any Parly seeking indernnification hereundeL (the
"lndemnified Party") sliall deliver to the other Party (the "lndetnnifying Pafty") a written notice
clescribirrg the facts underlying its indemnifìcation claim and the amount of such claim (each such
notice a "Claim Notice"). Such Clairn Notice shall be delivered prornptly to the lndemnifying Party
that an action at lar,v or a suit in equity has commenced; provided, however, that failure to deliver the
Clain-r Notice shall not relieve the Indemnifying Party of its obligations under this Article XIX, except
to the extent that sucli Indernnifying Party has been prejr.rdicecl by such failure.
Section 19.5 Defense of Action. If requested by the lndemnifiecl Party, the Indernnifying
Party shall assume on behalf of tlie Indemnified Party, ancl conduct rvitli clue diligerrce aud in goocl
faith. the defènse of such lndernnifìecl Party with counsel reasonably satisfactorS, to the Indemnified
Party; proi,ided, however, that if the lndenrnifying Party is a defendant in any such action and the
lnclemnifiecl Party reasonably believes that there may be legal defenses available to it that are
inconsistent with those available to the Indemnifying Party, the Inclemnifiecl Party shall have tlie right
to select sepalate counseI to participate in its defense of such action at the Indernnifying Party's
expense. If any claim, action, proceeding or investigation arises as to which the indemnity providecl
f.or in this Artiole XIX applies, ancl the Indemnifying Party fails to assume the def'ense of such claim,
action, proceeding or investigation after having been requested to do so by the Indemnifìed Party, then
the Inclellrnified Party may, at the Indemnifying Party's exper'ìse, contest or, rn,ith the priot' written
consent of the Indennifying Party, which consent shall not be unreasoriably withheld, settle such claim,
action, proceeding or investigation. All costs and expenses incurred by the Indernnifìed Party in
oonnection witli any suclr contest or settlement sl-rall be paid upon deurand by the Indernnifying Party.
ARTICLE XX
INSURANCE
Section 20.1 Insurance. Seller shall provide and maintain, withor-rt interruption,
during the Term hereof insurance coverage of the types and in the amounts set forth in the
subparagraphs below, provided that Purchaser may meet these requirements through self-insurance.
(a) Commercial general liability insurance for bodily injLrry (including death),
personal injury, property damage, owned and non-owned eqr"riprnent, blanket contractttal liability,
completed operations, explosion, collapse, underground excavation and removal of lateral support
covering Seller's performance uncler this Agreement, which coverage shall be at least as broad as
lnsurance Services Office (lSO) Occurrence form CG 0001, and with a limit in an amount of not
less tl,an two rnillion Dollars ($2,000,000). If insurance with a general aggregate limit or products-
34 ql
completed operations aggregate limit is used, either the general aggregate limit shall apply separately
to the Project or location (with the ISO CG 2503, or ISO CG 2504, or insurers equivalent
endorsement provided to the Purchaser) or the general aggregate lirnit ancl products-completed
operations aggregate limit shall be twice the required occurrence limit.
(b) Excess Liability Insurance with limits of not less than $5,000,000 per
occurrence and in the general annual aggregate in excess of the lirnited provided in the CGL policies
set forth above. The coverage terms o1' the Excess insurance must be at least as broad as the
unclerlying insurance policies.
(c) Ernployer's liability insurance with coverage of at least $1,000,000 each
accident, One Million Dollars ($1,000,000) disease policy limit, ancl One Milliorr Dollars
($1,000,000) disease each employee.
(cl) Workers' compensation insurance as required by law
(e) Autornobile liability insurance fbr bodily iniury (including cleath) and
property darnage which coverage shall be at least as broad as ISO Business Auto Coverage (Forrn
CA000l),coveringSyrlbol I(anyauto),andwithalimitinanamountofnotlessthanOneMillion
Dollars ($1,000,000) each accident.
(f) As to all insurance coverage reqLrirecl helein
(i) Sellel shall disclose to Purchaser ancl obtain Purohaser's prior'
written approval for any dedr.rctible or self-insLrred retentiorr exceeding $25,000.00;
(ii) lf any insurance policy of Seller includes language conditioning the
insurer's legal obligation to defencl ol inden-rnify the Purchaseron the performance of any
act(s) by the nanred insured, then said insurance policy, by endorsernent, sliall also name
the Purchaser as a narrred insured. Notwithstarrding the foregoing, both the Seller and its
insurers agree that by naming Purchaser as a named insured, the Purchaser rnay at its sole
discretion, but is not obligated to, perform any act required by the named insurecl under
said insurance policies;
(g) Tlre insurance policies shall contain or be endorsed to contain the following
specific provisions:
(i) The commercial generaland autornobile liability policies and excess
Lrrnbrella liability policy, if any, shall contain, or be endorsed to contain the fbllowing
provisions: ( l) the Purchaser, its elected officials, directors, officers, consultants,
subconsultants, agents, employees and volunteers shall be named as additional insureds;
(2) Seller's insurance shall be prirnary insurance as respects the additional insureds and
any insurance, self-insurance or other coverage rnaintained by the additional insureds shall
not contribute to it; (3) any failure to comply with the reporting or other provisions of the
policies including breaches and warranties shall not affect coverage providecl to the
additional insurecls; (4) the policies shall waive transfer rights of lecovery (subrogation)
against the additional insureds; (5) the insurance, sr"rbject to all its other tenns and
conditions, shall apply to tlie liabitity assumed by the Seller under the Agreement; and (6)
35
the Seller's insurance shall apply separately to each insured against whom claim is made
or suit is brought, except with respect to the limits of the insurers liability.
(ii) Each insurance policy shall state, or be endorsed to state, that
coverage shall not be canceled, terminated, suspended, voided or reduced in coverage by
the insurance carrier or the Seller or allowed to expire, except after thirty (30) days (ten
(10) days for non-payment of premium) prior written notice has been given to the
Purchaser'.
(iii) Any excess/umbrella liability policy shall contain, or be endorsed to
contain, the following provisions: (1) following fonn coverage at least as broad as the
prirnary policy; (2) a schedule of underlying insurance which matches the actual policy
numbers and coverage lirnits in tlie actual underlying policies; and (3) a total r"rnderlying
coverage lirnit plus excess/umbrella limit equal to or greater than the required coverage
limit for each type of coverage.
(h) The above insurance coverage shall not limit the indemnifìcation
obligatiorrs of Seller as provided below and the failure to maintain the reqr-rirecl coverages shall
constitute a rnaterial breach of this Agreement.
(i) All insurance requirecl by this Agreement shall be placed with insurers
authorizecl by the State of California to transact insurance business of the types required herein.
Each insurer shall have a clrrrent Best Insurance Guicle rating of not less than A-:VII unless prior
approval is secured fronr the Purchaser as to the use ofsuch insurer.
(,) Seller shall require all of its contractors and subcontractors to purchase and
maintain the types of insurance as are required herein and in limits and amounts reasonably
sufficient, given the type of work being performed by such major contractors and subcontractors, to
protect the Seller and "additional insureds" frorr claims arising out of the work of the contractor or
subcontractor or by anyone directly or indirectly employed by them or by anyone for whose acts the
subcontractor may be liable. The Seller shall receive ancl maintain satisfactory evidence from such
contractors and subcontractors that verifìes that they are in compliance with this requirement. The
Seller shall continuously maintain such evidence and provide it for review by the Purchaser upon
reasonable request.
Section 20.2 Certificates of Insurance. On or prior to the Effective Date, Seller shall
provide Purchaser with certificates of insurance and endorsements evidencing the coverage required
underthis Section 20.1. lf any of the required coverages expire during the Term of this Agreement,
the Seller shall deliver to Purchaser such certificates of insurance and certified copies of any renewed
or replacement policies at least ten (10) days prior to the expiration date.
Section 20.3 Occurrence Policv. All insurance required hereunder shall provide
insurance for occurrences from the date hereof throughor-rt the later of the expiration or termination
hereof.
36 v
ARTICLE XXI
DISPUTES
Section 21.1 Disputes. Any dispLrte, controversy or claim arising out of or in
connection with this Agreement (a "Dispute") shall be resolved in accordance with this Article XXI.
The Parties agree to make a good faith attempt to resolve any and all Disputes. Upon the occurrence
of a Dispute:
(a) Either Party rnay deliver a notice to the other Party requesting the Dispr.rte
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 receipt of a notice, the other Party shall provide
written notice to tlie requesting Party indicatirrg a schedule for informal Dispute resolution, whicll
informal resolution sliall commence within foufteen (14) Business Days of the notice of Dispute.
The Parties shall use good fàith, reasonable, diligent efforts to resolve the Dispute within ninety (90)
Business Days after leceipt of the rrotice of Dispute.
(b) If. after such informal resolution in accordance with oarasraph (a) above a
Dispute rernains unresolved, the Parties lnay, upoll lnutual agreement, submit to mediation befot'e a
rnutually agreed upon mediator. The mediator's f'ee and expenses shall be paid one-half by each
Party.
(c) With respect to any Dispute rrot resolved to the mutual satisfàction of the
Parties pursuant to paragraphs (a) and (b) above, each Party shall retain the light. but not the
obligation, to pursue arry legal or eqr.ritable rernecly available to it in a court of cornpetent.iurisdiction.
Seller shall cornply with all claims presentatiorr requirernerrts as provided in Chapter | (cornrnencing
with section 900) and Chapter 2 (commencing with section 91 0) of Part 3 of Division 3.6 of Title I
of Government Code as a conclition precedent to Seller's right to bring a civil action against
Purchaser. For purposes of those provisions, the running of the time within which a claim must be
presented to Purchaser shall be tolled fi"om the tirne Seller subnrits its written notice of Dispute r"urtil
the time the Dispr"rte is denied, including any time utilized by any applicable meet and confer process.
(d) Either Party rnay seek a restraining order, ternporary injunction, or other
provisionaljudicial relief if the Party, in its sole judgrnent, believes that such action is necessary to
avoid irreparable injury or to preserve the status quo. The Parties shall continue to undertake the
procedures hereunder, in good faith, despite any reqlrests for provisional relief.
(e) During the conduct of any Dispute resolution procedures pursuant hereto
the Parties shall continue to perform their respective obligations irrespective of the matters in
Dispute.
ARTICLE XXII
LTMITATIONS OF LIABILITY
Section 22.1 Waiver of Consequential Damages. Except to the extent of its
inclernnity obligations for third parly claims set forth herein for such liquidated darnages that are
expressly set forth herein, neither Party shall be liable hereunder for any special, inciderrtal, indirect,
punitive or consequential damages arising out of, or in connection with, tliis Agreement or such Party's
JI
performance of its obligations hereuncler, including, but not limited to, loss of profits or revenue, lost
business opportunities, cost of capital or cost of replacement services. Notwithstanding anything
herein, any liquidated damages (including the Termination Value) or other amount due and owing under
this Agreement upon the termination of this Agreement shall not be deemed consequential damages.
Section 22.2 Limitation of Liabitifv. Seller's liability to Purchaser hereuncler shall
not exceed $250,000, except for: (1) claims related to fraud or gross negligence; (2) indernnity
obligations for third party clairns set forth herein; and (3) for any liability covered by Seller's insurance
coverages reqr"rired by this Agreement.
ARTICLB XXII
PURCHASBR'S OPTION TO PURCHASE THE SYSTBM
Section 23.1 Option to Purchase During Term. Provided that no Purchaser Event of
Defàult will have occurred and be continuing, on the seventh (7tl'), tenth (lOtl'), fifteenth (l5tl') and
twentieth (20t1') anniversaries of the Commercial Operation Date, Purchaser shall have the option to
purchase the Systern from seller at a price equal to Fair Market Value of the System. Purchaser shall
rrotif5i Seller in writing of its intent to exercise its pulchase option ¡lnder this Section 23.1 no later than
ninet¡, (90) days prior to the seventh (7tl'), tenth ( I Otl'), fifteentli ( 1 5tl') and twentieth (20t1') anniversaries
(as applicable) of the Conrnercial Opelation Date.
Section 23.2 Option to Purchase at End of Term. Provided that PLrrchaser has fìrlfillecl
all obligations to Seller undel this Agreernent, at the expiration ol the Term of this Agreetnent,
Purchaser shall have the option to purchase the System fì'olr Seller"at a price equal to the Fair Market
Value of the System. Purchaser shall notify Seller in writing of its intent to exercise its purchase option
under this Section 23.2 no later than ninety (90) days prior to the end of the Ten.n.
Section 23.3 Procedure. If Pr.rrchaser desires to exercise tl-re option set forth in Section
23.1 ot' Section 23.2,ihe Parties will promptly agree to a date forthe closing of the purchase, not less
than sixty (60) days or Íì'ìore than one hr-lndred and twenty ( 1 20) days after such confirmation, at whicli
closing, Seller and Purchaser, as the case may be, shall execute and/or deliver the following documents:
(a) all docurnents necessary to cause title to the Systerr-r to pass to Purchaser, free and clear of any liens
imrnecliately subsequent to tlie purchase; (b) assignrnent and assumption agreements, with all rìecessary
consents thereto, causing tlie assignrnent of Seller's rights to Purchaser and assumption by Purchaser
of the obligations of Seller under all material contracts with respect to the System, inclLrding the License
Agreement; (c) assignment of all warranties for the System to Purchaser, to the extent that such
warranties are assignable; and (d) evidence of the satisfaction of any loans or other obligations of Seller
to any lencler that provided financing in connection with the System. The System shall be sold to
Purchaser "as-is, wl'ìere-is," without further warranty by Seller, provided, however, that Seller shall
disclose prior to purchase and assign, transfer and deliver to Purchaser all manufacturer or other
warranties on the Systern that apply to Purchaser as the new owner of the System.
ARTICLB XXIV
MISCELLANEOUS
Section 24.1 Audit Review. Except as otherwise provided in Article XIV and
Exhibit F, copies of any records in the possession of either Party related solely to the volume or price
38
W
of the Energy Output, including invoices, receipts, charts, computer printouts, magnetic tapes or other
media, shall be made available not more than one (1) tirne per calendar year during the Term of this
Agreement by either Party to the other Party, at no cost to the requesting party, within thifty (30) days
of receipt by the Party supplying such records in response to a written request from the other party
specifying in reasonable detail the records to be provided.
Section 24.2 Purchaser Financial Information. Purchaser sliall provide (or cause its
auditors to provide) Seller with copies of its ar-rdited financial information within one hundred twenty
(120) days following the end of each fiscal year during the Term hereof. Cornpliance with this
requirement shall be achieved where Purchaser posts a copy of its annual audit report on Purchaser's
public-facing webpage within one hundrecl twenty (120) days following the end of each fiscal year.
Section 24.3 Notice. Any notice, demand, request, consent, approval confìrmation,
communication or statements which is required or permitted under this Agreement shall be in writing
and shall be given or deliverecl by electronic mail, personal service, Federal Express or comparable
overnight delivery service, or by deposit in the United States Post Office, postage prepaid, by registered
or certified mail, return receipt requestecl and addressed to the Party receiving notice as specified below.
Cha.npe-qinsrrcha-ddressa-nd/orconta-ctnersonsnamedshallbernadehvnot ice-sirnilal'lvsiven. Notices-..-...Þ'"r-^*.-..".JÒ.'-...
given by electronic mail or personal service shall be deemed given and received the day so given or
sent. Notices rnailed or sent by a clelively service or by registered or certified rnail as provided herein
shall be deerned given on the fifth Business Day following the date so mailed or on the date of actual
receipt, whichever is earlier. Each party shall deem a document ernailed or electronically sent in PDF
forrn to it as an original document.
PURCHASBR South Tahoe Public Utility District
1275 Meadow Crest Drive
South Lake Tahoe, CA 961 50
Attention: General Manager
Telephone: (530) 544-647 4
With a required copy that shall not constitute notice to
Brownstein Hyatt Farber Schreck, LLP
1021 Anacapa Street, Second Floor
Santa Barbara, CA 93 I 0l
Attention: Gary M. Kvistad
Telephone: (805) 963-7000
Emai I : gkvistacl@bhfs.com
SELLER Bh"re Dragon Holdings I, LLC
c/o Masa Holdings LLC
I75 Nortech Parkway, Suite 200
San Jose, CA 95134
Attention: CFO
Emai I : holdingsmasa@gmai l.corn
39
Section 24.4 ComÞlete Asreement¡ 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 Outpr"rt frorn 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.
Section 24.5 Third Party Beneficiaries. Except as otherwise expressly provided
herein (e.g., with respect to Financing Party's rights hereunder), this Agreemerrt is for the sole benefit
of the Parties hereto and their permitted successors and assigns, and nothing in this Agreement or any
action taken hereunder shall be construed to create any duty, liability or standard of care to any Pet'son
not a Party to tliis Agreement. Except as specifically otherwise provicled herein, no Person shall have
any rights or interest, clirect or indirect, in this Agreement.
Section 24.6 Assienment and Financing.
(a) Except as set forth in this Section 24.6, neilher Party shall have the right to sell, transfer
or assign this Agreement ol its rights, duties or obligations hereunder, without the prior written
consent of the othel Party, rvhich consent may not be unreasonably withheld, conditioned or
delayed.
(b) Seller rnay, without the prior written consent of Purchaser, Iìnance the acquisition and
installation of the Systenr thlough a loan, lease, partrrership ol other arrangell-ìent with one or
more Financing Parties as security. In connection r¡¡ith such financing, Seller nray, without tlte
prior written consent of Purchaser, assign a security interest or hypothecate as security, in the
Systern and/or this Agreernent, to one or more Financing Parties or an affiliate or subsidiary of
Seller. Seller shall provide prompt notice to Purchaser of any such assignment. Seller shall
remain jointly liable along with such assignee for the obligations of Seller hereuncler. In
connection with the foregoing, Purchaser will exercise best efforts to review, execute and deliver
within ten (10) business days of receipt of any all lien waivers, consents, acknowledgerrents,
subordination agreements and other instruments and docutnentation reasonably required by
Sellerora Financing Party to be executed by Purchaser in connection with any of the above
permitted assignment of financing arrangements; provided that any such instrumeÍìts or
documentation must be in a commercially reasonable fonn and acceptable to Purchaser.
(c) Otherthan as provided in Section 24.6(b), Seller shall not otherwise sell, transfer, or
assign its rights and obligations under this Agreement, or any interest in the Agreerîent, without
the prior written consent of Purchaser. Purchaser shall approve or deny any request under this
Section 24.6(c) of Seller's written request within thirty (30) days of receipt thereof, unless the
Parties rnutually agree in writing to a longer period. Purchaser's consent under this Section
24.6(c) shall not be unreasonably withheld, provided that Seller provides Purchaser with
reasonable proofto Purchaser's reasonable satisfaction that the proposed assignee: (i) has
experience in operating and maintaining solar photovoltaic systems greater than or equal to that
of Seller; (ii) has the financial capability and credit rating equal to or greater than that of Seller as
of the Effective Date; (iii) has the ability to maintain the System and provide the services
required pursuant to this Agreement in the manner required by this Agreement and provides all
applicable warranties that it shall do so; and (iv) agrees to be bound by the requirements of this
40 v
Agreement. Seller shall be released of its obligation relating to the assigned interests under this
section.
(d) Seller shall not sell, lease, or otherwise transfer the Systern to any third party unless it
also assigns all of its rights and obligations under this Agreernent to such third party and such
assignment is pennitted by this Section 24.6. Assignments or transfers not in compliance with
this section will be void. In the case where Seller is not required to get prior r,vritten consent of
Purchaser to make an assignmerrt, Seller shall provide prior written notice of any sucli
assignment to Purchaser. This Agreement shall be bindirrg upon, inure to the benefit of and be
enforceable by the Parties and tlieir respective sllccessors and perrnitted assigns. Irr the event of
a perrnitted assignment, such assignee shall be considerecl "Seller" or "Purchaser" (as applicable)
for all purposes hereunder.
(e) Purchaser shall notify Seller in writirrg of any sale, assignment or transfer of any of
Purchaser's interest in the Property, or any part thereof. Until such notice is received, Seller
sliall have no duty to any sllccessor owner, and Seller shall not be in clefault Lrnder this
Agreement if it continues to make all payments to the original Purchaser before notice of sale,
assipnrnell! ol'1r'ansl-el is received. Purchasel ae!'ees il \^.,ill not assisn the rishts to navment-q cltre""''b""'-"' "'Þ'--" "" r.'J "''"'" ''- '
to Purchaser under this Agreernent except to a successor owller of the Property, and in no case
shall Purchasel'sever or attempt to sever the Property's solar eÍìergy rights or interests fì'orn the
Property's f-ee title or otherwise convey, assigrr ol transfer ol attempt to convey, assign or
transfèr this Agreernent. except to a successor owner of the Property.
(f) Notwithstarrding any contrary term of this Agreernent, a Financing Party shall have the
following rights:
(i). Provided that prior written notice has been given of such assignrrent, a Finarrcing Party,
shall be entitled (a) to notice of any breacli or clefaLrlt under this Agreernent to which Seller is
entitled pursuant to Section 9, and (Lr) but not requirecl to exercise, in the place and stead of
Seller, any and all rights and remedies of Seller in accordance with the tenns of this Agreement
(ii). A Financing Parly shall have tlie right (exercisable in its sole and absolute discretion), but
not the obligation, to perfbrm acts, duty or obligation required of Seller hereunder or cause to be
cured any default of Seller hereunder in the tirne and rnanner provided by the terms of this
Agreement.
(iii). The Financing Party shall, concurrently with delivery thereof to Seller, deliver to
Purchaser a copy of each notice of default given to Seller under the corresponding financing
agreement and befbre enforcing any remedies and fbreclosure rights under its security interest
against the Systern or this Agreement for a Seller default under its contractual obligations witlr
the Financing Party.
(iv). Upon any rejection or other termination of this Agreement pursuant to any process
Lrndeftaken with respect to Seller under the United States Bankruptcy Code, at the request of a
Financing Party rnade within sixty (60) calendar days of such termination or rejection, Purchaser
shall enter into a new agreement with such Financing Party having substantially the same terms
ancl conditions as this Agreement; provided that the Financing Party enters into a contract with a
4t
qualified third-party tl.rat meets the standards required by Section 24.6(c) in this Agreernent,
including without limitation, to operate and maintain the System . The foregoing shall be subject
however, to any and all rights, provisions, requirements, and protections afforded to Purchaser
under the U.S. Bankruptcy Code including but not lirnited to, the right to demand that the
Financing Party or successor-in-interest of the rights of Seller underthis Agreement, cure any
and all defaults and provide assurance of future performance under this Agreement.
(v). In accoldance with the terms of this Agreement, a Financing Party or its representatives
or invitees or any receiver or other sirnilar official appointed by the Financing Party may enter
upon the premises of the Systern Llpon complying with the prior notice requirements, the safety
ar-rd security conditions and access rules applicable to Seller in this Agreement and upon
eviclence of proper pr"rblic liability and property insurance with Purchaser appearing as
additionally insured, to inspect or rerrìove any or all of the Systern to be performed by qLralified
ar,d authorized contractors with corresponding government approvals; provided, however, the
Financing Party shall prornptly repair any darnage oaused by such removal and restore the
Systern to their origirral condition, reasonable wear ancl tear excepted.
(g) It is the principal obligation of Seller to deliver to its Financing Party any notices of
default received from Purchaser in accordance with this Agreement. Provided that Seller has
provided Purchaser witlr accurate and up-to-date notice inforrnation for the Fir-rancing Party in
writing, Purchaser will cleliver to the Financing Party, (concurrently with delivery thereof to
Seller), a copy of each notice of default given by Purchasel r-rnderthis Agreement. Provided that
tlie failure by Purchaselto plovide such notice shall rrot constitute a breach of this Agreement.
(h) The Financing Party, upon receiving copy of a notice of default delivered to Seller, shall
have right, but not the obligation, to cure the default within the same period granted to Seller
under this Agreernent.
(i) If another person or entity acquires legal or equitable title to or control of Seller's assets
and cures, to the Purchasel''s satisfaction, priorto the date of termination or as otherwise
specified in this Section, all cured defaults underthis Agreernent existing as of the clate of such
change in title or control in the manner required by this Agreement, then Seller shall not be in
defar.rlt under this Agreement, and tl-ris Agreernent shall continue in full force and efTect.
û) Purchaser acknowledges and agrees that Seller may change the Financing Party af any
time, provided such change complies with the tenns of this Agreement, and Purchaser will abide
by such new contact information and payment directions provided it previously receives written
notification therefore from Seller with accurate and up-to-date information on the new Financing
Party and upon such new Financing Party respecting all of the terms of this Agreernent and the
proposed assignment and collateral assignment agreements entered by the original Financing
Party.
Section 24.7 Savinss Clause. Should any provision of this Agreement for any reason
be declared invalid or unenforceable by final and non-appealable order ofany court or regulatory body
having juriscliction, such decision sliall not affect the validity of the remaining portions, and the
remaining portions shallremain in fullforce and effect as if this Agreement had been executed without
the invalid portion. Any provision of this Agreement that expressly or by implication colnes into or
42 qJ
remains in full force following the termination or expiration of this Agreement shall sr¡rvive the
termination or expiration of this Agreement.
Section 24.8 Counterparts. This Agreement rnay be executed in counterpafts, each
of which shall, for all purposes, be deemed an origir,al and all such counterparts, taken together, shall
constitute one and the same instrument.
Section 24.9 I'orward Contract. The Parties acknow ledge and agree that this
Agreement and the transactions consummated under this Agreement constitute a "forward contract"
within the rneaning of the Bankruptcy Code and that each Party is a "forward contract merchant" within
tlie meaning of the Bankruptcy Code.
Section 24.10 Governing Law. The interpretation and perf'on-nance of this Agreement
and each of its provisions sliall be governed and construed in accordance with the laws of the State
where the Systern is located, without regard to its principles on conflict of laws. The venue for any
dispute arising out of or relating to this Agreement shall be in the Calif-ornia County in whicli the
System is located.
Section 24.11 Removal of Liens. Purchaser will use its best efï'orts to ensure that no
Liens of rvhatever type will be filed, lodged or attached to the System (other than those created by
Seller ol its creditors with respect to fìnancing the System). Seller sliall use its best efïorts to ensure
th¿rt no Liens of whatevel type will be filecl, lodged or attached to the Site in corrnectior-r with Seller's
activities lrereunder. If any Liens that are not allowecl by this section are f'rled, loclged or attached to
the Site, Seller will do all acts zurd things at such, Party's expense to rernove suoh [,iens, inclLrding
bonclirrg over such liens while any dispr"rte is in progress. lf any Liens that are not allowed by this
section are filed, lodged or attached to the System, Purchaser u,ill do all acts and things at such Party's
expense to ren'ìove such Liens, including bondirrg over such liens while arry dispute is in pt'ogress.
Seller shall be entitled to, and is hereby authorized to, file one or more precautiorrarl, Uniforrn
Commercial Code financirrg statements or fixture filings, as applicable, in such jr-rrisdictions as it deems
appropriate with respect to the Systern in order to protect its rights in the Systerrr.
Section 24.12 Bstonnel. E,ither Pafiy hereto, without charge, af any tirne and frorn
time to tirne, within five (5) Business Days after receipt of a r.r,ritten request by the other Party hereto,
shall deliver a written instrument, duly execr"rtecl, certifying to such requesting Party, or any other
person, firm or corporation specified by sr-rch requesting Party: (i) that this Agreement is unmodified
and in full force and effect, or if there has been any rnodification, that the same is in full force and effect
as so modified, and identifying any such rnodification; (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 tenns, 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 perfomed all of the
terms, covenants and conditions on its part to be observed and performed, and if not, specifying the
sarne; and (iii) such other information as may be reasonably reqr"rested by a Party hereto. Any written
instrument given hereunder rnay 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 24.13 Cooperation with Financins. Purchaser acknowl edges that Seller rnay
be fìnancing the System ancl Purchaser agrees that it shall reasonably cooperate with Seller and its
43
financing parties in connection witli such financing, including but not limited to (a) the furnishing of
fìnancial statements and other relevant information to the Seller, (b) the giving of certificates, (c) the
consent to the collateral assignment or license of this Agreement, the License Agreement, and/or the
System, for the benefìt of any Financing Pafty, and (d) the consent to any Liens upon any of Seller's
interest in the Site or any easement or leasehold interest in the Site owned by the Seller, all as reasonably
required by any F'inancingParty in orclerto effectthe successfulfìnancing of the Systern.
Section 24.14 Service Contract. The Parties acknowledge and agree that, for
accounting or tax purposes, this Agreernent is not and sliall not be construed as a lease and, pursuant to
Section 7701(e)(3) of the Code, this Agreernent is and shall be deerned to be a service contract witl.t
respect to the sale to the Purchaser of electric energy procluced at an alternative energy f'acility.
Section 24.15 Attornevs' Fees. In the event that any court or arbitratior-r proceeding
is brought under or in connection with this 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 incider,t to any such proceeding. The ternt "prevailing party" as used herein shall Inean
the party in whose favor the final juclgrnent or award is entered in any such jLrdicial or arbitration
proceeding.
Section 24.16 Non-âtver.The failure, delay or fbrbearance by either Partl' ¡s exet'cise
any of its rights or remedies uncler this Agreernent or to provicle written notice of any default to a
defaulting Part¡,. will not constitute a waiver of such rights or remedies. No Party will be deetned to
have waived ariy right or remecly unless it has made such rvaiver specifìcally irr rvriting, The waiver
by either Party of any defar.rlt or breach of any term, condition or provision herein contained shall not
be deemecl to be a waiver of any subsequent breach of the sarl'ìe tern'ì, condition or provision, or any
other terrn, condition or provisiori contained herein.
Section 24.17 No Set-Off. Except as otherwise set forth herein, each Party hereby waives
all rights to set-offs of amounts due hereunder. The Parties agree that all amounts due hereunder are
inclependent obligatiorrs anc{ shall be made without set-off for other arnounts due or owecl hereltncler.
Section 24.18 Survival. In acldition to any provisions of this Agreement specifred to
srrrvive in accordance r,vith the terms thereof, the provisions of this Section 24.18 and Sections 2.4,2.5,
2.14,3.2,6.1, 8.1, i0.1, ll.l, l2.l through 12.3, Article 19,20.1 through 20.3,21.1,22,24.10 ancl
24. 1 5 shall survive thc; termination of this Agreement.
ISTGNATURE PAGE FOLLOWSI
44 V
IN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this
Agreement as of the date first written above.
SELLER:
Blue Dragon Holdings I, LLC
By:
Name:
Its:
Sandipan
Manager tllr I zozt
PURCHASER:
South Tahoe Public Utility District
By:
Name Kelly , President
Melonie Guttry, C the B
[Signature Page to Power Purchase AgreementJ
42
Attest:
24764575.3
EXHIBIT A
Svsrnvr Spacrprc¡rroxs
Site Location: 1275 Meadow Crest Drive, South Lake Tahoe, CA 96150
System Size (-Namer:late Capacitv): I ,339.2 kW DC
lnstallation T)¡pe: Fixed Ground Mount
Site La)¡out and System Drawings: The System will include approximately 2,480 Tier I bifacial
modules mounted roughly four (4) feet above ground surface. The aray site will be situated at
least 400 ft east of the eastern boundary of the rnain existing Wastewater Treatment Plant
facilities and enclosed by a fence and occupy approximately 3.3 acres. Outside the fence, a 100-
ft no tree buffer will be rnaintained on the south, west and east sides. The site will be accessed by
a new stablizedaccess road from the nodhwest, installed as part of the Systern. The System will
be designed to allow for the potential addition of battery storage at or near the point of
interconnection in the future. Battery storage is not currently included in this Agreement. The
indicative Site Layout is depicted below.
1339.2 kW Gruu<1Mout Photovoltaic System
1275 Meadou, Crest Dr-South Late Tahoe, CA 96150 AAPN#02547t-022 @
4
f
I
¡t ¡t
z
Irl
l--
t-.
vl
E-0
24764575.3
A-1
qú
EXHIBIT B
ENnRcv Rnrns
Pursuant to Section 2.2the rates paid during the Term of this Agreement are as follows:
Energy Rate shallmean:
A starting Energy Rate of $0.1265lkwh adjusted (with an annual escalation rate of 2.9%) on the
first anniversary of the Commercial Operation Date, and each anniversary of such date thereafter
over the Term, as set forth in the table below.
Year Energy Rate in $/kwh
I $0. I 26s
2 $0. l 302
3 $0. r 339
4 $0.1 378
5 $0.1418
6 $0. I 4s9
7 $0. I s02
8 $0. I s4s
9 $0. I 590
t0 $0. l 636
ll $0. I 684
t2 s0.t732
l3 $0. r 783
t4 $0. I 834
t5 $0.1 888
16 s0.1942
17 $0. l 999
l8 $0.20s7
19 $0.21l6
20 $0,2178
2l s0.2241
22 $0.2306
23 s0.2373
24 $0.2441
25 s0.2s12
26 $0.258s
27 $0.2660
28 s0.2737
24764575.3
B-l
EXHIBIT C
TnnnrrNauoN Valuo Scnpnuln
The Termination Value due in any yeaî, at any point within such year, is set forth in the table
below (the "Termination Value") and includes the cost of removal of the System. Except for the
first year, which begins on the Effective Date and ends one year after the Commercial Operation
Date, each year represents one year from the prior year.
Year
Termination
Value (in $/Wdc)
Effective Date through year
1
4.322025
2 3.751259
3 3.377426
4 2.989943
5 2.550532
6 2.371724
7 2.338649
8 2.301543
9 2.297285
l0 2.288036
l1 2.273245
l2 2.252313
l3 2.224581
14 2.189330
15 2.14s77s
16 2.093055
t7 2.030231
l8 1.956279
t9 1.870075
20 1.770397
21 1.655906
22 1.525143
23 1.3765t2
24 1.208273
25 1 .01 8525
26 0:805193
27 0.s66013
28 0.298515
24764575.3
c-l
¿rv
EXHIBIT D
Expncren ANNunl ENnncv Ourpur
The Expected Annual Energy Output for each twelve (12) month period beginning on the
Commercial Operation Date of the Systern and continuing thereafter during the Tenn, is reduced
anntrally from the year before by one-half of one percent (0.syo), as set forth below:
Year
Bxpected Annual
Enersy Output fkwh)
I r"925"050
2 | "915.425
3 1"905"848
4 l "896.318
5 1.886.837
6 1.877 .403
7 I .868.01 6
8 1.858.676
9 1.849,382
l0 | .840. r 35
l1 1.830.935
12 | .82 t ,780
l3 1.812.671
t4 r.803.608
l5 | ^794.590
t6 1.78s.617
17 t.776.689
18 1.7 67 .805
t9 1,7s8.966
20 | .7 50,17 I
21 1.741.420
22 1.732.713
23 1.724.0s0
24 1.7|s.429
25 1.706.852
26 1,698.318
27 1.689,826
28 1.681,377
E-1
24764575.3
I
Exhibit B
Guarantee Payment Calculation (Sample Calculation Provided)
Sum of Annual Differential I kwh>U
Utility Rate Period:OnWin MidWin OffWin SumOn SumOff
f2l Uriliry Rate ($/kWh)$0.1 3372 80.12982 80.r0911 80.14411 80.1 I ss7
PPA Rate $0.1 26s0
[3] Period Guarantee Pmt $s 1.64 $ r 93.95 -$31.76 s41t.92 -$ 102.s3
f4l Total Guarantee Pmt ss23.22
Utilitv Rate Period:OnWin MidWin OffWin SumOn SumOff
[5] Average Daylight
Hours 1.21 9.84 0.31 9.95 3.92
ï61 % of Season 1t%87%3%72%28%
l7l Yo of Year 40/t/o 58o/o ao/.L /O 230 90
Start Time
5:01:00
PM
7:01 :00
AM
r0:01:00
PM
10:01:00
AM
10:01:00
PM
End Time
10:00:00
PM
s:00:00
PM
7:00:00
AM
10:00:00
PM
t0:00:00
AM
Start Day l-Oct l-Oct I-Oct l-Jun l-Jun
End Day 3I-May 3l-Mav 3l-Mav 30-Sep 30-Sep
Generaf Note: ln a typical True Up Period, only the entries in [ItalicsJ will be adjusted. lf either
the Start/End Day or Start/End Time of the Utility Rate Periods change during rniddle of a 3-Year
True Up Period, then this calculation will be performed for each unique tariff cycle, with the Sum
of Annual Differential [1] split proportionally between cycles, and the Average Daylight Hours
adjusted accordingly as described in [4] below.
!l Calculated in accordance with Section2.13 for 3-Year True Up Period.
[2] Weighted average consumption tariff ($/kWh) for Utility Rate Period spanning the 3-Year
True Up Period, as published on the Liberty Rate Brochure as "Total kWh (Usage) Charge" or
CPUC-approved tariff.
[3] Period Guarantee Pmt: (Utility Rate - PPA Rate) x (Sum of Annual Differential) *(o/o of
Year)
[4] Total Guarantee Pmt: Sum of Period Guarantee Pmt for allperiods
[5] Derived from Sunrise/Sunset times for 2022 published by NOAA
(https://gml.noaa.gov/grad/solcalc/table.php?lat:38.922825&lon:- I 19.9681 2&year:2022). This
value must be modified if the Start/trnd Day or Time of the Utility Rate Period changes during the
3-Year True Up period. Thenthe Average Daylight Hours will need to be updated, using the
Sunrise/Sunset times published by NOAA for the year the change occurs.
16l % of Season : Average Daylight Hours / Sum of Average Daylight Hours for all
periods
l7l % of Year : (Yo of Season) I Days in Season / 365
24764575.3
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EXHIBIT F .
Sysrou TecHrurcal RpeurRnmENTS AND SppcIprc¡.uoxs
The following terms and conditions apply to Seller's construction and operation of the System,
as applicable. To the extent of any conflict between the terms of this Exhibit F and the terms of
the Agreement, the terms of the Agreement shall control.
1. Site Access
Seller shall conform to all Purchaser rules and requirements for accessing the Site, provided sucl,
rules and requirements have been communicated to Seller in writing. The Purchaser or the
applicable Governmental Authority may reasonably regulate road usage, road closures, number
of vehicles, access points, etc. Site visits shall be approved, and reasonable proper check-in
requirements must be followed; provided that Seller has been given adequate prior written notice
to cornply with such.requirements and that such requirements do not rnaterially inhibit Seller's
activities under the Agreerner,t. Seller shall provide signage and/or electronic notification of
possible operatioiial iirrpacts'upou Pui:chasei i'equest. Unless othei'wise deteiniined by
Purchaser, Seller shall be responsible for providing bathroorn and storage facilities f'or all
workers on-Site, and shall be responsible for procuring, installing, securing, and removing
temporary security fencing and scaffolding used by Seller.
2. Proiect Manasement - Construction of the Svstem
2.1 Proiect Manager
Seller shall assign a Project Manager upon execution of the Agreement and receipt of a Notice to
Proceed. The Project Manager shall ensure that all contract, schednle, and reporting
requirements of the Project are met and shall be the primary point of contact for the Purchaser.
2.2 Project Schedule
A Project Schedule is to be prepared and submitted to the Purchaser within thirty (30) days after
the Effective Date. The Purchaser will review and approve the Project Schedule, such approval
not to be unreasonably withheld. Purchaser shall provide any objections to the Project Schedule
within fifteen (15) days of receipt thereof. Purchaser shall be deemed to have accepted the
Pro.iect Schedule if no written objections and reasonable bases therefor are not provided within
such fifteen (15) day period. Updates shall be submitted every other week, though the Purchaser
may allow less frequent updates at their discretion. The submittal shall be a Critical Path
Method (CPM) schedule describing all Project activities including design, equipment
procurement, construction, and commissioning. In particular, Seller shall include Purchaser
review of submittals on the Critical Path. The schedule shall also reflect the requirement that
construction activities must be coordinated to minimize impacts on normal operations at the Site,
including ongoing construction activities.
Sufficient information shall be shown on the Project Schedule to enable proper control and
monitoring of the construction. The Project Schedule shall show the intended time for starling
F-l
and completing each activity; the duration of each activity; submittal and approval times;design;
delivery of materials, equipment and software; all testing; and other significant items related to
the progress of the construction. The Project Schedule shall include a CPM network diagram of
sufficient detail to show how Mandatory Milestones, defined below, are intended to be met. If a
schedule submitted by Seller includes changes affecting the achievement of Mandatory
Milestones, Seller should clearly identify and justify those changes.
Seller is encouraged to phase construction in a way that supports efficient and effective delivery
of design and build services. The following Mandatory Milestones shall be reflected in the
schedule and where applicable, represents the dates upon which each milestone is to be achieved
under this Agreement. Seller shall use commercially reasonable efforts to achieve System
construction in accordance with the Project Schedule. The Project Schedule initially provided by
Seller shall incorporate the following anticipated milestones:
A. Mandatory Milestones
Mmr[nrto'ry
50% schematic design submittal 30 days after Effective Date
90% schematic design submittal 90 days after Effective Date
100% schematic design 120 days after Effective Date
Approved construction documents 150 days after Effective Date
Notice to Proceed 210 days after Effective Date
Mobilization 100 days after Effective Date
Substantial completion 480 days after Effective Date
Final completion i40 days after Effective Date
2.3 Submittals
Seller shall use commercially reasonable efforts to provide the following submittals as part of the
performance of the construction
A. Agreement Submittals
t. System Design
System design documentationù.At each design milestone set forth
lbove in the "Mandatory Milestone"
table
b. Testing plan Prior to substantial completion of
;onstruction
Power production modeling Preliminary model at 50%o schematic
Jesign submittal
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Update model at90%o schematic
design submittal
Final model at 100Yo schematic design
subrnittal
tf. Procurements and Construction
e Safety plan 30 days before cornrîencelnent of
construction
b. As-built documentation After cornpletion of Proving Period
tü. Teoúing
a.Acceptance test results After acceptance test
b. Proving Period Report After completion of the Proving Period
tV. Tra,iniug
ì.Training Materials Before training described in section
5.4 below
,. Monitoring Manual*Befole training described in sectior,
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Operations & Maintenance Manual Before training described in section
5.4 below
*Ma), 6" provicled through online access to monitoring software with training information
' inclucled in the software.
2.4 Solar ancl Storag'e lncentives
Where applicable, Seller shall use commercially reasonable efforts to provide assistance to
Purchaser in subrnitting. applications foravailable RgCs ancl Utility Rebates as.detailecl in
Section 9.1 olthe Agreement.. . '
t.,
.2.5 Interconnpçtion
' 'at
Seller shall be resporrsible for-preparing, submitting,,and procuring the interconnection
application through the Utility. Seller shdll accept responsibility for payrnent for Utility
interconnection studies andlor.project management that are anticþated and required. All
anticipated utility work (e.g. transformer installation, additional wiring/conduits, meter addition)
shall be the responsibility of theSelfer. At project completion, Seller shall dernonstrate that it
'has permission to operate with the Utility...
Seller and Purchaser must cornply with all interconne'ction requirements. The System installed
as part of this project will take advantage of Net Energy Metering (NEM). Seller shall be
responsible for ensuring the System design and interconnection qualifìes for NEM, as applicable,
and Purchaser shall be responsible for maintaining its NEM arrangement with the applicable
ut ility.
3. System Des isn
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3.I Design Review Process/Phases
Purchaser will review and approve design documentation based on the requirements in
Section 3.2 of this Exhibit F. Purchaser's review and approval shall not be unreasonably
.-'delayed, withheld, or conditioned. Purchaser may request additional documents as reasonably
needed in connection with such review. Prior to the first design submission, the Seller and
Purchaser shall agreé upon precise organization and format of the design submittals. Purchaser
will promptly review all subn-rittals, provide written comments, and conduct design review
rneetings for each stage of the process. Seller shallprovide additional detail, as required, at each
successive stage of the design review. Seller shall not order eqr,ripment and materials until
schematic design submittals have been approved by Purchaser, which approval shall not be
unreasonably withheld. Seller shall not begin construction until construction documents have
been approved by Purchaser, which approval shall not be unreasonably withheld, and all required
permits have been obtained. Purchaser will formally approve, in writing, each phase of the
design. Seller shall not enter a subsequent design phase without the approval of Purchaser. All
of Purchaser's review and approvalactivities shallbe conclncted at Purchaser's cost. To the full
extent that Purchaser's revie'w or approval of any clocuments or activities callses any delay to
Seller's activities, Seller will be entitled to equitable relief for such delays.
Seller is resporrsible for providing designs approvecl by tlie appropriate professional engineers
.registered in the State of California as required by Applicable Law. Costs for engineering
.reviews and approvals reqr.rired by Applicable Law shall be borne by the Seller. System designs
must no't conflict with any current Purchaser operations. To the extent that any ob.iections or
design r'equests by Purchaser require additional costs, unless such objections and requests relate
to a failure of the design to cornply with the requirements of this Agreerrent, the Seller shall not
be obligated to take such requests into account unless the Parties agree to an increase ofthe
Energy Rate to offset such additionalcosts.
3.2 Design Submittals
3.2.1 Plan Set ,
Seller'shall prepare a comprehensive submittal package foi each phase of the construction that
will be reviewed 4nd approved by the Purchaser. Each such submittal is provided by Seller for
informational purposes in relation to the Systern. Purchaser shall not use any such information
for any purposes other than review in relation to the development of the System. At a minimum,
each submittal package shall include the elements required to convey in sufficient detail the
followirlg for each phase of the design, as applicable:
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Site Layout Drawings, with existing equiprnent
Site Civil prawings, if any, including site fencing, grading, drainage, erosion and
sediment control and re-vegetation plans as required by permits for any disturbances
Underground Utilities
Construction Specifications (trenching, mounting, etc.)
Equipment Layout Drawings
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Electrical Single-Line and Three-Line Diagrams
Module Stringing Diagrarns
Electric Wire and Conduit Schedr-rle
Electrical Warning Labels & Placards Plans
Structural/Mechanical Drawings
Geotechnical and/or Surveyor Drawings and Studies
Manufacturer's Cut Sheets with Equipment Specifications
Data Acquisition Systern (DAS) Specifications, Cut Sheets, and Data Specif,rcations
Civil/Structural calculations required by code for Perrnit approvals
Electrical calculations/studies required by code for Permit approvals and to rneet any
Utility interconnection requirements.
Seller shall include reasonable time for Purchaser review and approval of submittals. Maximurn
Purchaser review time shall be ten (10) business days from the date of receipt of each submittal
package during each phase of the design review.
3.2.2 ProductionModeling
Production modeling of the PV systems shall be perfolrned using HelioScope, System Advisor
Model (SAM), PVSYST, or equivalent modeling software using TMY3 forrnat weather data for
the locatiorr closest to the Site. The simulations shall accurately simulate energy production for
proposed System layouts, sizes, and orientation. It is critical that PV production models are
accurate with all rnethodology and assumptions described. The Purchaser may indeperrdently
verify production n'ìodels are accurate to the designed systems and Lrtilize simulation results for
economic evaluations. Seller shall be responsible for updating the prodr-rction models each time
suffìcient changes are made to the proposed system designs that will irnpact procluction.
Seller shall avoid excessive shading on modules to the extent possible. Where shading losses are
encountered, Seller shall perforrn a shading analysis.iustifying the basis for their design and
explaining why shading does not create an adverse performance and/or economic impact.
3.3 Pennits and Approvals
Construction documents must be reviewed and approved by all applicable Governmental
Authorities and the Utility. Seller shall be responsible for obtaining all approvals and shall
account for pennitting and inspection requirements in their system designs, project pricing, and
schedule. Seller shall attend all site verification visits conductecl by the applicable Utility or
Governmental Authority, including any special inspections required by the applicable Utility or
Governmental ALrthority for trenching, rebar, concrete, welding work.
3.4 TechnicalRequirements
3.4.1 GeneralConsiderations
All documentation and components firnished by Seller shall be developed, designed, andlor
fabricated r"rsing Prudent Operating Practices. The installations shall comply with the latest
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approved versions of the International Building Code (lBC), National Electrical Code Q',lEC),
Utility Interconnection Requirernents, California Building Standards Commission Codes, and all
other Governmental Authority requirements.
3.4.2 Electrical Design Standards
The design, products, and installation shall comply with the following electrical industry
standards, wherever applicable :
. National Electric Code QrIEC). Illumination Engineering Society of North America (IESNA) Lighting Standards
o Institute of Electrical and Electronics Engineers (IEEE) Standards
. National Electrical Manufacturers Association (NEMA)
. Underwriters Laboratories, Inc. (UL)
. National Fire Protection Association (NFPA)
. California Public Utility Commission (CPUC) and Utility reitruirements
. American National Standards Institute (ANSI)
. OccupationalHealth and Safety Administration (OSHA)
o International Code Council 0CC) Coäes
. California Building Standards Commission (BSC) Codes
. Other Governmental Authority standards
3.4.3 Modules
ln addition to the above, the PV modules proposed by Seller shall comply with the following:
. System modules shallbe UL1703 listed and CEC listed.
. Modules shall be new, r-rndamaged, fully warranted without defect.
. If PV modules using hazardous materials, including Per- and polyfluoroalkyl
substances (PFAS), are to be provided, then the environmental impact of the
hazardous material usage must be disclosed, including any special maintenance
requirements and proper disposal/recycling of the modules at the end of their useful
life.. Modules shall be bi-facial
3.4.4 Inverters
In addition to the above, inverters proposed by Seller must comply with the following
o Inverters shall be suitable for grid interconnection and shall be compliant with all
Utility interconnection requirements, including those requiring rapid shut-off
capabilities.. IEEE 929-2000 - "Recommended Practice for Utility Interface of Photovoltaic
Systems".o Invefters shall be listed to UL 1741 standards and tested for IEEE 1547 compliance
o Invefters shall be CEC-listed with an efficiency of 95.5o/o or higher.
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Inverters must automatically reset and resurre normal operation after a power
limiting operation.
Inverters shall be sized to provide maximum power point tracking for voltage and
current range expected frorn PV array for temperatures and solar insolation
conditions expected for Project conditions.
lnverters should be equipped with D.C. Ground fault protection to reduce fire
hazards in grounded array configurations.
Enclosures shall be rated NEMA 4 when the inverter is located outdoors. For
outdoor installations in corrosive environments, NEMA 4X enclosures must be used.
lnverter selection shall take into account anticipated noise levels produced and
minimize interference with Purchaser activities.
3.4.5 E,lectrical Balance of Systern Components
String conibiner boxes shall be load-break, disconnecting types, such that opening
the cornbiner boxes shall break the circuit between combiner box feeders and
invefters.
^ll
:-:-.^ ----¿---:-l- ---J,--at-^-1,,,,r,1t- -L, l-,1 L L I ll ¿,,-a:--^¡\il WillilB lilAtCilAlS AnU ilreut(Jq5 Iilust a(lilgtË tu ilruustly-stailqatu ucst prauuuss,
and all inter- module connections rnust require the use of a specialized tool for
disconnecting.
3.4.6 MountingSysterns
The mounting systems shall be designecl and installed such that the PV rnodules are f,rxed with
reliable components proven in similar pro.f ect environments, and shall be designed to resist dead
load, live load, corrosion, UV degradation, snow loads, wind loads, and seismic loads
appropriate to the geographic area over the expected 28-year lifetime. Mounting systems must
also meet the following requirements at a minimum:
UL2703, Standard for Mounting Systems, Mounting Devices, Clamping/Retention
Devices, and Ground Lugs for Use with Flat-Plate Photovoltaic Modules and Panels]
Ground array piles should cornply with, American Society of Civil Engineers
(ASCE): 7, Minirnum Design Loads for Buildings and Other Structures as modified
by CBSC and local Governmental Authority requirements for seismic, wind, snow
loading and ad-freeze requirements.
Wind pressures and shape factors shall be applied to PV Rack foundation design as
specified in the Building Code.
Snow loads shall take drifting into account across the modules by incorporating the
tilt angle into the snow design, as well as the effects of snow drifting from the ground
at the lower edge of the modules.
All structural components, includingarray structures, shall be designed in a manner
commensurate with attaining a minimum 2\-year design life. Parlicular attention
shall be given to the prevention of corrosion at the connections between dissirnilar
metals and to withstand significant snow loads.
Thermal loads caused by fluctLrations of component and ambient temperatures shall
be accounted for in the design and selection of mounting systems such that neither
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the mounting system nor the surface on which it is mounted shall degrade or be
damaged over time.
Integrated electrical grounding systems, if any, will be identified during schematic
design phase.
Each PV module mounting system must be certified by the module manufacturer as
(1) an acceptable mounting system that shall not void the rnodule warranty, and (2)
that it conforms to the module manufacturer's mounting parameters.
For unframed modules, bolted and similar connections shall be non-corrosive and
include locking devices designed to prevent twisting over the 29-year design life of
the PV system.
Painting or other coatings must not interfere with the grounding and bonding of the
array.
PV rnodules, at their lowest point, shall be at least four feet above the ground, with a
flexible variance of up to four (4) inches in areas of uneven terrain.
3.4.7 Corrosion Control
In addition to the above, Corrosion Control proposed by Seller must comply with the following
requirements:
o Fasteners ancl hardware throughout system shall be stainless steel, galvanized steel,
or rnaterial of equivalent corrosion resistance
. Racking components shall be ah¡minum, galvanized steel, or material of equivalent
corrosion resistance
. Unprotected steel not to be used in any components
. Each PV systern and associated components must be designed and selected to
withstand the environmental conditions of the site (e.g., snow, temperature extrernes,
winds, rain, flooding, etc.) to which they will be exposed.
3.4.8 [Reserved]
3.4.9 [Reserved]
3.4.10 Ancillary Equipment Enclosures
Seller will be responsible for incorporating the following elements in the design and construction
of the System:
Location: all ancillary equipment shall be located in a manner that minimizes its
irnpact to nonnal Purchaser operations and minimizes the visual impacts to the Site
3.4.11 Placards and Signage
Placards and signs shall corespond with requirements in the National Electric Code
and the interconnecting utility in terms of appearance, wording, and placement.
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Permanent labels shall be affixed to all electrical enclosures, with nomenclature
matching that found in As-Built Electrical Documents.
3.4.12 Infrastructure for Ground Mount Systerns
Seller will be responsible for incorporating the following elements in the design and construction
of the Systems:
. Fencing: the Site shall be surrounded by a fence to prevent unauthorized personnel
from gaining access the Site. The fence shall be a seven (7) foot high chain link
fence.
. Gates shall be installed to erTable site access for trucks.
. A pathway a minimum of ten (10) feet wide passable by a maintenance truck sliall be
provided within the array fence to allow for access to all equipment enclosed within
the lence area.
. Access to low voltage (120V) AC power to power maintenance equipment and
miscel laneous equipment.
. Se ller rnay install security cameras on site.
. Seller shall be responsible fol ongoing vegetation rnitigation of the site to reduce
irnpacts of shading on modules and for fire risk mitigation.
. Seller will be responsible for constructing an access road to any ground rnount
systern fbr maintenance and fire access purposes. The access road shall be passable
for ernergency and fìre protectiorr vehicles under allweather conditions. Seller sliall
be responsible for obtaining approvals from all applicable Governmental Authorities,
including the Tahoe Regional Planning Agency, for construction of the access road.
Seller's responsibilities include, but are not limited to, compliance with the Tahoe
Regional Planning Agency's land coverage requirements.
3.4.13 Wiring ancl Cabling Runs.
. Seller shall install all AC conductors in conduit.
. Direct burial wire will not be acceptable. Condr"rit buried underground shall be
suitable for the application and compliant with all applicable codes. PVC shall be
constructed of a virgin homopolyrner PVC compound and be manufactured
according to NEX4A and UL specifications. All PVC conduit feeders shall contain a
copper grounding conductor sized per NEC requirements and continuity shall be
maintained throughout conduit runs and pullboxes. Minimum conduit size shall be
3/4". A tracing/caution tape must be installed in the trench over all buried conduit.
. Conduit installed using horizontal directional boring (HDB), shall include tracer tape
or traceable conduit. The minimum depth of the conduit shall be perNEC. The
Seller is responsible for dernonstrating that all conduits installed utilizing horizontal
boring meets the minimum depth requirernent and is solely responsible for any
rernediation costs and schedule impacts if the specification is not met. The HDB
contractor must provide documentation of final depth and routes of all conduit
installed in horizontal bores.
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Allexposed conduit runs over 1O0-feet in length shall have expansion joints to allow
for thermal expansion. \
Seller shall install and secure the exposed string cable homeruns along the beams or
structure where any combiner box is installed.
All exposed string wiring must be installed above the lower surface of the racking
members.
Acceptable wire loss in DC circuits is <1.5% and acceptable wire loss in AC circuits
is <1.5% as well.
All cable terminatiohs, excluding module-to-module and module-to-cable harness
connections, shall be permanently labeled.
All electrical connections and terminations shall be torqued according to
manufacturer specifications and marked/sealed at appropriate torque point.
3.4.14 Grounding and Bonding
. Module grouncl wiiing splices shall be made with irreversible crimp connectors.. All exposed ground wiring must be routed above the lower surface of any structural
lrarning.
3.4.15 [Reserved]
3.4.16
.
Monitoring System, DAS, and Reporting
Seller shall design, build, activate and ensure proper functioning of Data Acquisition Systems
(DAS), and enable the Purchaser to track the perforrnance of the System as well as
environmental conditions thrbugh an online web-enabled graphical user interface and
information dispíays. Seller shill provide equipment to cõnnèct the DAS via existing hardline,
Wi-Fi network, or cellular data network at all locations. The means of data connection will be
determined during design. :
The DASIs),shall provide access to at least the followin g data:
o Instantaneous AC, system output (kW)
. ' The System prodr.rction (kwh) over pre-defined intervals that may be user cpnfigured
. In-plane irradiance. Ambient and cell temperature. Wind Speed¡ Inverter status flags and general system status information. System availability
_- Environmental data (wind speed, temperatures and irradiance) shall be collected via an
individual weather station installed at the site.
Data collected by the DAS shall be presented in añ online web interface, accessible from any
computer throu$h the Internet with appropriate security (e.g., password controlled access). The
user interface shall allow visualization of the dataat least in the following increments: 15
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minutes, hour, day, week, month, and year. The interface shall access data recorded in a server
that may be stored on-site or remotely with unfettered access by Purchaser for the life of the
Project. The online interface shall enable users to export all available data in Excel or ASCII
con'ìma-separated format for further analysis and data shall be downloadable in at least l5-
minute intervals for daily, weekly, monthly and annual production.
The Monitoring system shall enable Purchaser's staff to diagnose potential problems and
perform remediating action. The monitoring system shall provicle alerts when the system is not
functioning within acceptable operating parameters. These parameters shall be defined during
the design phase of the Project and specified in the DAS design document. At a minimum,
Purchaser shall have the ability to compare irradiance to simultaneous power prodr-rction
lneasureffrents through linear regression analysis.
Additionally, Seller shall rnake available, at no additional cost, the following reports for a term
of 5 years after the Commercial Operation Date of the System:
Monthly Production report shall be available online to the Purchaser personnel.a
A Monitoring manual shall be provided to the Purchaser in printed or on-line form tl-rat describes
how to use the monitoring system, inch"rding the export of data and the creation of custom
reports.
3.4.17 FAA Requirements
Seller shall be lesponsible to subrnit the appropriate FAA Form 7460-1, along with any other
required fonns and documentation, for the System within the approach or takeoff paths or on the
property of airports as defined by the Code of Federal Regulations Title I 4 Paft 77 .9.
3.5 Warranties
Seller shall obtain from its construction contractor a comprehensive two (2) year warranty on all
system components against defects in materials and workmanship under normal application,
installation, and use and service conditions.
Additionally, the following minimum warranties are required to be obtained from the equipment
manufacturers, to the extent available:
. PV Modules: The PV modules are to be warranted against degradation of power
output of greater than I 0% of the original minimum rated power in the first ten ( I 0)
years and greater Than 20%o in the first twenty (25) years of operation.. Invefters: Inverters shall carry a minimum l0-year warranty.. Meters: At minimum, meters shall have a five (5) year \varranty. For meters
integrated in inverters, the meter warranty period must match the inverter.r Mounting system: Minimum twenty (20) year warranty, covering at least structural
integrity and corrosion.
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Balance of system components: The remainder of system components shall carry
manufacturer warranties conforming to industry standards.
All warranties must be documented and be fully transferable to the Purchaser, in the event
Purchaser exercises its purchase option under Article XXIII of the Agreement.
All work performed by Seller must not rencler void, violate, or otherwise jeopardize the System
corxponents (to the extent such warranties have been providecf to Seller in writing prior to the
Effective Date of the Agreernent).
4. Procurement/Construction
4.1 Tree Removal
Seller shall be responsible for permitting and removal of any trees or other vegetation located
within the Site as necessary for design and installation of the System, subject to the approval of
applicable Governmental Authorities.
4.2 Line Location
Seller will be responsible fbr locating, identifying and protecting existing underground Lrtilities
conduits, piping, substructures, etc. and ensuring tliat no damage is inflicted upon existing
infrastructure. [n addition to USA Dig and Lrtility lirre-locating, a private line-locator must be
used for any pro.iect requiring underground work.
4.3 Oualit)¡ Control
To ensure safety and quality of the installation, Seller shall
Implement policies and procedures to ensLrre proper oversight of construction work,
verification of adherence to construction documents and contractual requirements,
and rapid identifìcation and mitigation of issues and risks.
Utilize best practice methods for communicating progress. performing work
according to the approved Project schedule, and completing the Project on-time.
Keep the Site clean and orderly throughout the duration of constmction. All trash
and rubbish shall be disposed of off-site by licensed waste disposal companies and in
accordance with applicable Law.
Fully comply with all applicable notification, safety and work n-rles (including
Purchaser safety standards that are communicated in writing to Seller) when working
on or near Purchaser facilities. Seller to develop and provide a Safety Plan as part of
the work.
Provide Special lnspection for trenching, rebar, concrete, welding, and roof
attachment work, according to Governmental Authority requirements.
Provide all ternporary road and warning signs, flagmen or equipment as required to
safely execute the work. Street sweeping services shall also be provided as required
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to keep any dirt, soil, mud, etc. off of roads. Comply with all state and localstorm
water pollution prevention (SWPP) ordinances.
4.4 Removaland Remediation
Seller shall remove all construction spoils, abandoned footings, utilities, construction equipment
and other byproducts of construction. All disturbed areas including landscaping, asphalt, and
concrete shall be remediated to be in equal or better condition than found.
The Site shallbe left clean and free of debris or dirt that has accumulated as a result of
construction operations.
5. Testing and Commissioninq
Following completion of construction, Seller shall provide the following services related to
startlrp and performance testing of the PV systems:
¡ Acceptance Testing
. Proving Period
A detailed testirrg plan covering each of the phases above shall be submitted and approveclby the
Purchaser prior to substantial cornpletion of construction. A detailed description of each phase is
provided below.
5.I Acceotance Testi ng
Seller shall perform a cornplete acceptance test for the System. The acceptance test procedures
include component tests as well as other standard tests, inspections, safety and quality checks.
All testing and commissioning shall be conducted in accordance with the manufacturer's
specifications.
The section of the testing plan that covers acceptance testing shall be eqr-rivalent or superior to
the CEC (California Energy Commission) "Guide to Photovoltaic (PV) System Design and
Installation", Section 4 and shall cover at least the following:
. Detailed list of all items to be inspected and tests to be conducted.. Acceptance Criteria: For each test phase, specifically indicate what is considered an
acceptable test result.
The acceptance testing section of the testing plan shall include (but not be limited to) the
following tests:
String-level voltage (open circuit) and amperage (under load) testing for all PV
strings. Amperage testing shall be performed concurrently with irradiance testing
Inverter testing for all invefters. The inverters shall be commissioned on-site by a
qualified teclrnician and shall confirm that the inverter can be operated locally per
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specilication and that automatic operations such as wake-up and sleep routines,
power tracking and fault detection responses occur as specified. Performance testing
shall be perforrned concurrently with irradiance testing.. Testing of all sensors of the DAS.
o Testing of the Data Presentation interface of the DAS.
After Seller conducts all acceptance testing basecl on the testing plan approved by the Purchaser
prior to substantial completion, Seller shall subrnit within 72 hours, a detailed Acceptance test
report to the Purchaser for review.
The Acceptance test report shall document the results of the tests conducted following the testing
plan, ancl include additional infonnation such as the date and time each test was perfonned. It
shall also make leference to any problem and deficiencies found during testing. If there was
troubleshooting done, the Report shall describe the troubleshooting n-rethods and strategy. Seller
shall be responsible for providing the labor and equiprnent necessary to troubleshoot the System.
5.2 Proving Period (15 Da)¡sl
Upon the Cornrnercial Opelation Date and con,pletion of acceptance testing, and reasonable
approval by the Purchaser, Seller shall monitorthe System cluring a fifteen (15) day period (the
"Proving Period") and sirbmit a report within 30 clays after the Proving Period for Purchaser
review and approval prior to final acceptance by the Purchaser. This inclucles monitoring
System output and ensuring the correct functioning of systern components over tliis time. The
values for the following data shall be acquirecl every fìfteen (15) lninutes over the Proving
Period:
. AC system output (kW)
. PV system production (kwh)
. In-plane irradiance. Wind speed. Ambient and cell temperature. Inverter status flags and general system status information
r System availability¡ Active weather data from site meteorological station
Seller shall utilize calibrated test instruments and the DAS and monitoring systern to collect the
test data described above, which shall be r¡ade available to the Purchaser for access throughout
the Proving Period. Seller shall determine through analysis of data from the Proving Period
whether the System delivers the expected production as determined by the final approved design
(i.e., construction documents). Actual production shall be compared against expected prodr"rction
rusing actual weather data and other systern inputs (such as module cell temperature factor,
module mismatch, inverter efficiency, and wiring losses) for calculating expected production.
The production figures for all meters, whether existing or installed by or on behalf of the
Purchaser or by or on behalf of the Seller, shall be correlated during this test to verify their
aaauracy in measuring system production.
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All data monitoring and reports required in Section 3.4.16 of this Exhibit F shallbe fully
functional and available to the Purchaser at the commencement of the Proving Period. Data and
reporting requirernents are included in the testing scope of the Proving Period and deficiencies in
these areas (including missing data, inaccurate reports, and other issues that make validation of
system performance inconclusive) will be corectecl.
If the System does not perform to design specifications, Seller shall perform diagnostic testing.
Deficiencies shall be identified with proposed corrective actions submitted to Purchaser, and the
Proving Period test repeated. Seller shall be responsible for providing the labor and equipment
necessary to troubleshoot the System. A report (the "Proving Period Report") shall be submitted
after the successful completion of this phase and submitted to Purchaser fbr review ancl approval.
The report shall contain the following inforrnation; calculations shall be provided in Excel
forrnat with fonnulas visible to allow for peer review:
. System description. Test period
. Test results
. Anomalies icieniilìed during iesir Corrective action performed
. Actual measured performance
. Calculations detailing expected perf'ormance under TMY conclitions
5.3 Close-outDocumentationRequirements
Close-Out documents preparecl by Seller lnust include at minirnum, but not limited to, the
following items:. Final As-Built Drawirrg Set with accurate string diagram, provided in (2) hard copy
sets ancl an electronic copy in both DWG and PDF fbrrnat.. Megger test results. Module flash-test results with serial numbers. Operations manuals provided by equipment manufacturers f'or major eqr-ripment
including racking systems and inverters.
. Signed inspectior-rs cards from applicable Governmental ALrthorities and required
Special Inspections
. Interconnection agreements and perrnission to operate
5.4 Training
The Seller sliall provide two (2) hours of on-site training for Pr"rrchaser personnel in all aspects of
operation, routine maintenance, and safety of the System, DAS, and rnonitoring solution. At a
minirnurn, training topics shall inclLrde the following:
. The System safety, including shut-down procedures
. PV module rnaintenance and troubleshooting
o Inverter overview and maintenance procedures
. Calibration and adjustment procedures for the inverters
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a DAS and rnonitoring solution, inclLrding standard and custom reporting
The on-site portion of the training program shall be scheduled to take place at the jobsite at a
time agreeable to both the Purchaser and Seller.
6. Operations and Maintenance
Seller is responsible for perforn-ring the operations and maintenance of the System in accorclance
with Prudent Operating Practices and as set forth in Section 2.9 of the Agreement.
6.1 Preventative Maintenance
Preventive Maintenance shall be perfolmed by Seller at least annually and include:
. System testing (voltage/arnperage) at inverter and string levels as manufacturer
recommendations.
. Systern visual inspection to include br-rt not be limited to the list below. All discovered
issues should be resolved as needed.
¡ lnspect f'or stolen, broken or damaged PV modules, record damage ancl location.
¡ Inspect PV wiring for loose connections and wire condition.
r Inspect fol wires in contact with the structure or hanging loose from rackirrg.
¡ Check mechanical attachment of the PV rnodules to the racking.
¡ Check attachrnent of rackirrg components to each otlier and the structure.
. Verify proper system grounding is in place fì'onr panels to the inverter.
. Check conduits and raceways fol proper anchorage to structures.
o Inspect all rnetallic parts for corrosion.
o Check combiner boxes for proper fuse sizes and continuity.
o Inspect all wiring connections for signs of poor contact at terminals (burning,
discoloration).
o Inspect disconnects for proper operation.
¡ Survey entire.iobsite for debris or obstructions.
o Inspect fasteners for proper torque and corrosion.
o Inspect inverter pad for cracking or settling.
o Inspect electrical hardware for proper warning and rating labeling.
r Inspect alignment of arrays and racking to identify settling foundations or loose
attachments.
¡ Inspect operation of tracking hinges, pivots, motors and actuators if present.
. Check for proper operation and reporting of monitoring hardware.
o Inspect sealed electrical components for condensation buildup.
o Inspect wiring and hardware for signs of damage from vandalism or animal damage.
o Routine system maintenance to include correction of loose electrical connections, ground
connections, replacement of defective modules found during testing, other minor
maintenance repair work.
o Module cleaning, at a frequency to be determined by the ongoing monitoring of the
system such that effect on production is no more than 50á.
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DAS maintenance including sensor calibration and data integrity check.
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In addition to the above Seller maintenance responsibilities, Seller shall provide Purchaser
2417 access to the DAS irradiance sensor to enable Purchaser to clean the sensor at such
times as determined by Purchaser.
6.2 Troubleshooting. Inspection and Additional Repairs
Dispatch of field service resources within two business days of notification (via
automated or manual means) for repairs as necessary to maintain Systern performance.
Commercially reasonable efforts to restore the systern to fr"rlly operational status in a
reasonable period of time after Notice.
Major system repairs as necessary, not to include mid-voltage su,itchgear or transfonners
6.3 Customer Service Support
Support telephone line rnade available to Purchaser staff to report functional and
emergency issues.
Support line shall be staffed during operational hours from 8 am - 6 prn California
Standarcl Tirne. During times outside of this operational period, an urgerrt call shall be
able to be routecl to a supervisor for immediate action.
6.4 Maior Component Maintenance and Repair
o lnverter repair and component replacernent and refurbishment as required in the event of
inverter failure.
¡ Inverter inspection and regular servicing as required under inverter manufacturer's
warranty specifications. Those inclucle but are not lirnited to the following annually:
. Check appearance/cleanliness ofthe cabinet, ventilation system and all exposed surfaces.
¡ Inspect, clean/replace air filter elements
¡ Check for corrosion on all tenninals, cables and enclosure.
. Check all fuses.
o Perform a cornplete visual inspection of all internally mor"rnted equipment including
subassemblies, wiring harnesses, contactors, power supplies and all rnajor components.
¡ Check condition of all the AC and DC surge suppressors.
¡ Torque terminals and all fasteners in electrical power connections.
. Check the operation of all safety devices (E-stop, door switches).
o Record all operating voltages and current readings via the front display panel.
o Record all inspections completed.
¡ Inform inverter manufacturer of all deficiencies identified.
o Oversee inverter manufacturer performance of In-Warranty replacement of failed inverter
components.
. Maintain manufacturer warranties and communicate with equiprnent manufacturers to
resolve equiprnent issues where manufacturer warranties are available.
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6.5 Other S)¡stem Services
O&M Manuals - Seller shall provide three (3) copies of the O&M Manuals required by
section 2.3 of this Exhibit F, pursuant to the requirements of such section. Updated
editions of O&M Manuals shall be sent electronically to the Purchaser as they become
available.
Upon request by Purchaser, Seller shall provide reasonable reports of maintenance calls
and maintenance activities, in a form provided by Seller's O&M provider in the ordinary
course ofbusiness.
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