HomeMy WebLinkAbout460317 BELLA ENERGY INC - CONTRACT - AGREEMENT MISC - BELLA ENERGY INC02/17/2015 1
POWER PURCHASE AGREEMENT
This POWER PURCHASE AGREEMENT, (the “Agreement”), effective as of the last date of
signature provided below, is by and between Bella Energy, Inc. (“Owner”) as a (Select one)
SP3 ☐ Class I – under 100kW or ☒Class II - 100 to 1000kW generator, and the City of Fort
Collins, Colorado (“Utilities”).
RECITALS:
WHEREAS, Utilities owns, directly or indirectly, an electric power distribution network
within the municipal boundaries of the City of Fort Collins, Colorado, (the “Network”); and
WHEREAS, Platte River Power Authority (“Platte River”), a Colorado political
subdivision, (“Platte River”) provides wholesale power and energy to Utilities under an all-
requirements agreement dated September 1, 2010; and
WHEREAS, Utilities desires that Owner install, maintain and operate, and Owner
desires to install, maintain and operate the “feed-in tariff” System to be interconnected (fed-
into) into the Network on property owned or leased by Owner, as more fully described in
Exhibit A hereto, (the “Site”); and
WHEREAS, Utilities and Platte River have entered into a Memorandum of
Understanding (“MOU”) in order to support development of a local solar energy purchase
program, which MOU describes the administrative activities to be undertaken by Utilities; and
WHEREAS, to preserve the rights and obligations contained in the all-requirements
agreement between Platte River and Utilities, Platte River will accept title to all electric energy
(“Energy”) generated by Owner, which Energy will be sold by Platte River to Utilities under
terms described in the MOU; and
WHEREAS, Owner desires to sell, and Utilities desires to purchase, the Environmental
Attributes (as defined herein) generated by the System and other services pursuant to the terms
and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises set forth below, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
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AGREEMENT:
1. Definitions. Unless otherwise required by the context in which any term appears:
(a) capitalized terms used in this Agreement shall have the respective meanings set forth
in this Section 1; (b) the singular shall include the plural and vice versa; (c) the word
“including” shall mean “including, without limitation”, (d) references to “Sections” and
“Exhibits” shall be to sections and exhibits hereof; (e) the words “herein,” “hereof” and
“hereunder” shall refer to this Agreement as a whole and not to any particular section or
subsection hereof; and (f) references to this Agreement shall include a reference to all exhibits
hereto, as the same may be amended, modified, supplemented or replaced from time to time.
“Agreement” shall have the meaning set forth in the recitals.
“Applicable Law” shall mean, with respect to any Governmental Authority, any constitutional
provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment,
decision, certificate, holding, injunction, registration, license, franchise, permit,
authorization, guideline, governmental approval, consent or requirement of such
Governmental Authority, enforceable at law or in equity, along with the interpretation
and administration thereof by any Governmental Authority.
“Commercial Operation” shall mean the production of Energy by Owner which is available for
purchase pursuant to the terms of the Agreement, including satisfaction of all
Conditions, as set forth in Section 3.3.1.
“Commercial Operation Date” shall mean, subject to verification by Utilities, the date on which
Owner notifies Utilities of Owner’s declaration that all conditions set forth in Section
3.3 have occurred or otherwise been satisfied.
“Contractor” shall mean Owner and any third party contractor, subcontractor, or assignee.
“Delivery Point” shall mean the point of electrical interconnection of the Site and the Network,
as shown on Exhibit A.
“Energy” shall have the meaning set forth in the Recitals.
“Environmental Attributes” means the characteristics of electric power generation of the
System that have intrinsic value, separate and apart from the Energy, arising from the
environmental benefits of the System or the Energy, including but not limited to all
environmental and other attributes that differentiate the System or the Energy from
energy generated by fossil-fuel based generation units, fuels or resources, characteristics
of the System that may result in the avoidance of environmental impacts on air, soil or
water, such as the absence of emission of any oxides of nitrogen, sulfur or carbon or of
mercury, or other gas or chemical, soot, particulate matter or other substances
attributable to the System or compliance with laws or regulations involving or
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administered by the Clean Air Markets Division of the Environmental Protection
Agency or successor administrator or any state or federal entity given jurisdiction over a
program involving transferability of rights arising from Environmental Attributes and
Reporting Rights, including all RECs; provided, however, that “Environmental
Attributes” shall not include any investment tax credits (including any grants or
payments in lieu thereof) and any tax deductions or other benefits under the Internal
Revenue Code or applicable federal, state, or local law available as a result of the
ownership and operation of the System or the output generated by the System
(including, without limitation, accelerated and/or bonus depreciation).
“Estimated Annual Production” shall mean the annual estimate of Energy, based on PVWatts®
(NREL) or similar as set forth in Schedule 1 to Exhibit B hereto.
“Expiration Date” shall have the meaning set forth in Section 8.1.
“Force Majeure Event” shall have the meaning set forth in Section 7.1.
“Governmental Authority” shall mean any federal, state, regional, county, town, city, or
municipal government, whether domestic or foreign, or any department, agency, bureau,
or other administrative, regulatory or judicial body of any such government, including
the City of Fort Collins.
“Installation Work” shall mean all work performed by Owner in connection with the furnishing,
installation, testing and commissioning of the System.
“kWh Rate” shall have the meaning set forth in Section 5.1.
“Monthly Period” shall mean the period commencing on the Commercial Operation Date and
ending on the last day of the calendar month in which the Commercial Operation Date
occurs, and, thereafter, all subsequent one (1) month periods during the Term.
“Monthly Production” shall mean, for each Monthly Period, the amount of Energy from the
System delivered during such Monthly Period to the Delivery Point.
“Network” shall have the meaning as set forth in the Recitals.
“O&M Work” shall have the meaning set forth in Section 4.1.
“Owner” shall have the meaning set forth in the Recitals. For purposes of access rights and
other rights necessary for Owner to perform its obligations hereunder, the term “Owner”
shall include Owner’s authorized agents, contractors and subcontractors.
“Owner Default” shall have the meaning set forth in Section 9.1
“Party” shall mean each of Utilities and Owner.
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“Person” shall mean any individual, corporation, partnership, company, joint venture,
association, trust, unincorporated organization or Governmental Authority.
“Platte River” shall have the meaning set forth in the Recitals.
“Renewable Energy Credits (RECs)” shall mean a tradable, non-tangible energy commodity in
the United States that represents proof that 1 megawatt-hour (MWh) of electricity was
generated from an eligible renewable energy resource towards compliance with the
Colorado renewable energy standard as set forth in C.R.S. § 40-2-124, as may be
amended from time to time.
“Replacement Costs” means an amount equal to the present value of the economic loss to a
Party, attributable to early termination of the Agreement, , determined in a
commercially reasonable manner. For either Party, Replacement Costs may include
reasonable attorneys’ fees suffered as a result of the early termination of the Agreement.
“Reporting Right” means the right to report ownership of Environmental Attributes (including
RECs) in compliance with federal or state law, if applicable, and to a federal or state
agency or any other party, and include Green Tag Reporting Rights accruing under
Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal,
state, or local law, regulation or bill, and international or foreign emissions trading
program.
“Solar Generator Interconnection Agreement” shall mean the Solar Generator Interconnection
Agreement between Utilities and Customer authorizing the interconnection of the
System and available for contribution to the Network.
“Site” shall have the meaning set forth in the Recitals and depicted on the attachments hereto.
“SP3 Class I” shall mean a solar generation system with a rated capacity less than 100kW dc.
“SP3 Class II” - shall mean a solar generation system with a rated capacity between 100kW dc
and 1000 kW dc.
“State” shall mean the State of Colorado.
“System” shall mean the solar photovoltaic generating system designed and installed pursuant
to this Agreement at the Site and more fully described in Exhibit B hereto.
“Term” shall have the meaning set forth in Section 8.1.
“Termination Date” shall have the meaning set forth in Section 8.1.
“Utilities” shall have the meaning set forth in the Recitals.
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2. Purchase and Sale of Energy and Environmental Attributes. During the Term of
this Agreement, Owner shall sell, and Utilities shall purchase on behalf of Platte River, all
Energy of the System delivered by Owner to the Delivery Point. During the term of this
Agreement, Owner will also provide the Environmental Attributes associated with all Energy
generated by the System to Utilities and Utilities will accept all such Environmental Attributes,
all in accordance with the terms and conditions set forth herein. Owner shall provide Utilities
with access to the Site in accordance with the terms of the separate Solar Generator
Interconnection Agreement, executed contemporaneous to this Agreement.
3. Construction, Installation and Testing of System. With respect to the Site on which
the System is to be installed:
3.1 Detailed Engineering. Owner shall prepare and submit to Utilities engineering
drawings showing the plan and array configuration for the Site, detailed plans of all structures,
electrical systems, interfaces with the grid electricity supply and any necessary facility or utility
infrastructure improvements and/or modifications.
3.2 Installation. Owner will cause the System to be designed, engineered, installed
and constructed substantially in accordance with the terms of this Agreement and in compliance
with local building codes and utility standards, including but not limited to the Solar Generator
Interconnection Agreement. Owner shall organize the procurement of all materials and
equipment for the Installation Work and maintain the same at the Site as necessary.
3.3 Conditions to Commercial Operation. Owner shall notify Utilities in writing
when the System is ready for commercial production of Energy under this Agreement and
interconnection with the Network. This notification is contingent upon verification of the
satisfaction or occurrence of the all of the conditions set forth in this Section (“Conditions”) and
Owner’s providing evidence of such satisfaction or occurrence reasonably acceptable to
Utilities. The parties agree that review and approval of such Conditions may occur on an
ongoing and incremental basis, pending resolution of any disputes, as such Conditions are
satisfied.
3.3.1 The Conditions are as follows:
(a) Commercial Operation has begun within the System Delivery
Period, as set forth in Article 9 of this Agreement;
(b) Owner has successfully completed that testing of the System that
is required by any financing documents, government permits, the City’s parallel
generation interconnection standards (as applicable), the Solar Generator
Interconnection Agreement, and manufacturers’ warranties for the
commencement of commercial operation of the System;
(c) The System has operated continuously for a period of at least
seventy two (72) hours without experiencing any abnormal operating conditions,
and has generated continuously for a period of not less than six (6) hours while
synchronized to the Network at a net output of at least ninety percent (90%) of
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solar resource adjusted net capacity without experiencing abnormal operating
conditions;
(d) The System has met the interconnection requirements for Utilities
and has achieved initial synchronization with the Network, and has demonstrated
reliable communications within the System and with Utilities’ interconnection
monitoring equipment;
(e) If required by Utilities field engineering staff, an independent
professional engineer’s certification has been obtained by Owner stating the
System has been completed in all material respects, including compliance with
applicable parallel generation interconnection standards;
(f) Certificates of insurance evidencing appropriate coverage have
been obtained and submitted to Utilities; and
(g) Owner has made all necessary governmental filings and/or
applications for Environmental Attributes and other system accreditations.
3.4 Utility Approvals. System interconnection with the Network must comply with
Utilities’ interconnection protocols as set forth in the Fort Collins City Code and
interconnection standards, including applicable parallel generation interconnection standards.
Owner will be responsible to have current licenses and all permits to do the work indicated.
Owner shall be responsible for any taxes or fees involved in constructing the System.
4. Operation and Maintenance of System.
4.1 O&M Work. Owner, at its sole cost and expense, shall provide all spare parts,
System operation, repair, monitoring and maintenance services for Owner-installed equipment
for the Term of this Agreement, excluding any monitoring and maintenance of metering
equipment placed by Utilities to determine the quantity of electricity produced by the System
(collectively, the “O&M Work”).
4.2 Metering.
4.2.1 Maintenance and Testing. Utilities shall install and maintain a utility-
grade kilowatt-hour (“kWh”) meter (“Meter”) on the Site for the measurement of Energy
generated by the System at the Site, which shall measure the kWh output of the System on a
continuous basis for purposes of determining the Monthly Production. Owner shall be allowed
to observe any Meter test, and Utilities shall provide notice of the testing to Owner at least ten
(10) business days prior to the test date. Owner shall reimburse Utilities for the cost of the
additional tests requested by Owner, unless such testing demonstrates that the Meter was
operating outside of industry standard tolerance allowances or an adjustment is required under
Section 4.2.2.
4.2.2 Adjustments. If testing of a Meter pursuant to Section 4.2.1 indicates
that such Meter is in error by more than two percent (2%), then Utilities shall promptly repair
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or replace such Meter. Utilities shall make a corresponding adjustment to the records of the
amount of Energy based on such test results for (a) the actual period of time when such error
caused inaccurate meter recordings, if such period can be determined by Utilities, or (b) if such
period cannot be so determined, then a period equal to one-half (1/2) of the period from the
later of (i) the date of the last previous test confirming accurate metering and (ii) the date the
Meter was placed into service; provided, however, that such period shall in no case exceed two
(2) years.
4.3 Title to System. Owner, or Owner’s permitted assigns, shall at all times retain
title to and be the legal and beneficial owner of the System, including the right to any tax
credits available under federal or state law, and the System shall remain the property of Owner
or Owner’s assigns. Owner shall not transfer title to another entity without prior written
notification to Utilities and written Utilities approval, which approval shall not be unreasonably
withheld, or except as provided in Section 11.3.
4.4 Compliance with Utility Specifications. The Owner agrees to furnish, install,
operate and maintain its interconnection as required by the City of Fort Collins interconnection
standards, available at the City offices and incorporated by this reference, and agrees to meet
the requirements of such policies and procedures, as amended from time to time.
4.5 Title and Risk of Loss. Title to and risk of loss related to the Energy shall
transfer from Owner to City at and after the Delivery Point. Title and risk of loss related to the
Environmental Attributes associated with Energy from the System shall transfer from Owner to
Utilities upon delivery of the associated Energy to the Delivery Point.
5. Purchase of Energy and Environmental Attributes. With respect to the System
installed on the Site pursuant to this Agreement:
5.1 Purchase Entitlement. In addition to all Energy from the System delivered to
the Delivery Point, Utilities shall be entitled to 100% of the Environmental Attributes generated
by the System. Energy production shall be metered and verifiable by Utilities’ personnel. While
the Energy and Environmental Attributes are calculated and billed on a per kWh basis (the
“kWh Rate”) as set forth in Exhibit C, attached hereto and incorporated by this reference, they
represent a package of services as described in the definitions herein. The payments for that
package of services, as provided for in this Agreement, are calculated to include all of the
defined services in the kWh Rate. Neither Utilities nor Owner may claim that by this
Agreement, Owner is an electric utility subject to regulation as an electric utility or subject to
regulated electricity rates. Owner shall not claim to be providing electric utility services to
Utilities or Platte River.
5.2 Purchase Rate. The fee structure and method of compensation shall be as
shown in Exhibit C.
5.3 Environmental Attributes.
5.3.1 Utilities’ purchase of Environmental Attributes includes all RECs, and
Reporting Rights, all of which Owner shall transfer and assign to Utilities. At Utilities’ request,
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Owner shall execute all such documents and instruments reasonably necessary or desirable to
effect or evidence Owner’s transfer and assignment of right, title and interest in and to the
Environmental Attributes.
5.3.2 Owner will at all times retain all tax credits and depreciation associated
with the System.
6. Billing and Payment. Billing and payment for the Energy and Environmental
Attributes sold and purchased under this Agreement and any other amounts due and payable
hereunder shall be as follows:
6.1 Billing. Owner shall not be required to submit invoices or billing to the City for
Monthly Production. City shall monitor though the Meter at the Delivery Point all Energy
delivered by the System in each Monthly Period during the Term of this Agreement, and make
appropriate payments, as set forth in Section 6.2.
6.2 Payments. Utilities shall pay to Owner for each Monthly Period during the
Term within thirty (30) business days after close of the month for the Energy delivered by the
System during each such Monthly Period equal to the product of (a) Monthly Production for the
System for the relevant month multiplied by (b) the relevant kWh Rate for Energy and
Environmental Attributes relating to the System as set forth on Exhibit C, which payment shall
be made by check or by wire transfer of immediately available funds to Owner or to such
assignee as Owner shall designate in writing to Utilities. This payment fully compensates
Owner for all Energy and Environmental Attributes produced by the System.
7. Force Majeure.
7.1 Definition of Force Majeure Event. For the Agreement, an act or event is a
“Force Majeure Event” if such act or event is beyond the reasonable control, and not the result
of the fault or negligence, of the affected Party and such Party had been unable to overcome
such act or event with the exercise of due diligence (including the expenditure of reasonable
sums). Subject to the foregoing conditions, “Force Majeure Event” shall include the following
acts or events: (i) natural phenomena, such as storms, hurricanes, floods, lightning and
earthquakes; (ii) explosions or fires arising from lightning or other causes unrelated to the acts
or omissions of the Party seeking to be excused from performance; (iii) acts of war or public
disorders, civil disturbances, riots, insurrection, sabotage, epidemic, terrorist acts, or rebellion;
(iv) strikes or labor disputes; (v) action by a Governmental Authority, including a moratorium
on any activities related to this Agreement; (vi) the impossibility for one of the Parties, despite
reasonable efforts, to obtain any approval necessary to enable the affected Party to fulfill its
obligations, provided that the impossibility is not attributable to the Party and that such Party
has exercised reasonable efforts to obtain such approval; (vii) termination of the MOU by Platte
River without any subsequent agreement under which Utilities would be compensated for solar
power generated by the System.
7.2 Termination in Consequence of Force Majeure Event. If a Force Majeure
Event shall have occurred that has affected a Party’s performance of its obligations hereunder
and that Force Majeure Event has continued for a period of three hundred sixty-five (365)
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consecutive days, then the non-affected Party shall be entitled to terminate this Agreement upon
thirty (30) days’ prior written notice to the other Party and Platte River. If at the end of such
thirty (30) day period such Force Majeure Event shall still continue, this Agreement shall
automatically terminate. Upon such termination, neither Party shall have any liability to the
other or Platte River. By mutual agreement of the Parties, the System damaged or destroyed by
a Force Majeure Event may be replaced by Owner within the time frames set forth above and
subsequent to replacement and upon commencement of operation of the replacement System all
terms and conditions of this Agreement will remain in effect. Except in the event of
termination, following the conclusion or resolution of any Force Majeure Event, the parties
agree that to the extent possible, the Term of this Agreement shall be extended as necessary to
preserve the rights, obligations and economic benefits of Owner and Utilities hereunder.
8. Term; Utilities Options; Termination.
8.1 Term. The operating term of this Agreement shall commence on the
Commercial Operation Date and shall expire on the date (the “Expiration Date”) that is twenty
(20) years after the Commercial Operation Date (the “Term”), unless and until terminated
earlier with respect to the Site pursuant to Sections 7.3, 8.2, 8.3, or 9.3 (the date of any such
termination, the “Termination Date”) of this Agreement or unless extended pursuant to Section
8.2.
8.2 End or Extension of Term.
8.2.1 Extension of Term. Upon prior written notice to Owner of at least one-
hundred eighty (180) days, and no time earlier than five (5) years prior to the Expiration Date,
Utilities shall have the option to renew the Term of this Agreement for two (2) additional five
(5)-year periods under terms and conditions acceptable to the Parties, including but not limited
to setting a new power purchase rate.
8.2.2 End of Term without Extension. Upon expiration of the term without
notice of extension by Utilities, ownership of Energy and Environmental Attributes shall revert
to Owner, and where feasible and at Owner’s election, (i) Owner will have the option to operate
the system as a net-metered system, subject to the interconnection and parallel generation
standards in place at that time, or (ii) Utilities will continue to purchase power upon separate
agreement with Owner on terms and conditions acceptable to the Parties, including but not
limited to setting a new power purchase rate.
8.3 Owner Early Termination for Convenience. Prior to the Commercial
Operation Date, but after Owner has issued a Notice to Proceed to the project engineering,
construction and procurement partner (“EPC”), Owner may terminate this Agreement at any
time upon written notice to Utilities, which termination shall be effective thirty (30) days after
Utilities receipt of such notice, subject to Utilities’ right to recover from Owner any
Replacement Costs, calculated as of the date of termination. After the Commercial Operation
Date, Owner may terminate this Agreement at any time following the fifth year of the Term by
giving Utilities thirty (30) days prior written notice of Owner’s intention to terminate, subject to
Utilities’ right to recover from Owner any Replacement Costs, calculated as of the Termination
Date. The Parties agrees damages would be difficult to quantify upon an early termination and
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agrees that any component of Replacement Costs that is characterized as an “early termination
fee” is not a penalty.
9. Default.
9.1 Owner Defaults. The following events shall constitute events of default with
respect to Owner (each an “Owner’s default”):
9.1.1 If Owner fails to generate and deliver any useful amount of Energy
and/or Environmental Attributes after the Commercial Operation Date, as contemplated in this
Agreement (though it shall not be an Owner’s default if the System does not achieve the
Estimated Annual Production, but otherwise continues to deliver useful Energy consistent with
this Agreement) and (i) if such condition can be cured within thirty (30) days after Utilities’
notice of such event and Owner fails to so cure, or (ii) Owner fails to commence and pursue
said cure within such thirty (30) day period if a longer cure period is needed; provided that the
Owner provides the Utilities with notice of the expected time it will take to cure the breach and
such timeframe is not greater than 365 days; or
9.1.2 If Owner is unable to achieve a Commercial Operation Date at the Site
within six months of the execution of this Agreement for a Class I system, or twelve months of
the execution of this Agreement for a Class II system (“System Delivery Period”);
9.1.3 If Owner files or is adjudged bankrupt or fails to demonstrate the ability
to perform under the Agreement, following the filing or adjudication of a bankruptcy
proceeding.
9.1.4 If less than a full project development period (six months for SP3 Class I
systems, 12 months for SP3 Class II systems based on the date of notification of an SP3 Energy
Allocation) is available prior to June 30, 2015, Owner will not be in default of this Agreement
so long as at least 65% of the system equipment by total system cost is on-site by June 30, 2015
and 50% of the System is constructed by September 30, 2015. Owner will not be in default
thereafter so long as Commercial Operation as defined in this Agreement is achieved by the
earlier of twelve (12) months from the date of the Energy allocation notice or November 30,
2015.
9.2 Utilities Defaults. The following events shall constitute events of defaults with
respect to Utilities (each, a “Utilities Default”):
9.2.1 Utilities fails to pay Owner any amount due Owner under this Agreement
within thirty (30) days from receipt of notice from Owner of such past due amount; or
9.2.2 Utilities refuses to sign documents needed to obtain any federal, state or
utility incentives or tax benefits or refuses to sign or intentionally breaches any term of the
interconnection agreement required by the Utility for interconnection of the System.
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9.3 Remedies.
9.3.1 Upon default by one Party, the other Party shall have the right, but not
the obligation, to terminate or suspend this Agreement with respect to all obligations arising
after the effective date of such termination or suspension (other than payment obligations
relating to obligations arising prior to such termination or suspension). The Parties agree that in
the event of a default under this contract that leads to termination, the non-defaulting Party may
pursue all remedies available to it in law and in equity.
9.3.2 Any notice of termination shall inform the other party that upon the
Termination Date, that party is to stop or terminate all work or performance under this
Agreement. After receipt of a notice of termination, and except as otherwise directed by the
party providing notice, the receiving party shall stop work under this Agreement on the date
specified in the notice of termination. Each Party shall have a duty to mitigate any damages or
Replacement Costs due under this Agreement upon any termination. Any obligations to
terminate performance under this Agreement shall be without prejudice to Owner’s rights to
exercise its option to operate the System as a net-metered system or enter into a new power
purchase agreement, as provided in Section 8.2.2.
9.3.3 Upon a default prior to the date at which Owner has provided a Notice to
Proceed to the project engineering, construction and procurement partner (“EPC”), the non-
defaulting Party shall not be entitled to Replacement Costs. In addition, upon Owner’s Default
for failure to achieve the Commercial Operation Date within the applicable System Delivery
Period, Owner shall forfeit any deposit previously paid by Owner to Utilities.
9.4 Actions to Prevent Injury. If any Utilities Default or Owner’s Default creates
an imminent risk of damage or injury to any Person or any Person’s property, then in any such
case, in addition to any other right or remedy that the non-defaulting Party may have, the non-
defaulting Party may (but shall not be obligated to) take such action as the non-defaulting Party
deems appropriate which may include disconnecting and removing all or a portion of the
System, or suspending the supply or receipt of Energy from the System, as applicable.
9.5 No Consequential Damages. Nothing in this Agreement is intended to cause
either Party to be, and neither Party shall be, liable to the other Party for any lost business, lost
profits or revenues from others or other special or consequential damages, all claims for which
are hereby irrevocably waived by Utilities and Owner. Notwithstanding the foregoing, none of
the payments for Environmental Attributes or any other amount specified as payable by
Utilities to Owner under the terms of this Agreement upon the termination of this Agreement
shall be deemed consequential damages.
9.6 Effect of Termination of Agreement. Upon the Termination Date or the
Expiration Date, as applicable, any amounts then owing by a Party to the other Party shall
become immediately due and payable and the then future obligations of Utilities and Owner
under this Agreement shall be terminated (other than the indemnity and responsibility
obligations set forth in Section 10). Such termination shall not relieve either Party from
obligations accrued prior to the effective date of termination or expiration.
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10. Indemnification and Defense.
10.1 Each Party (an “Indemnifying Party”) agrees that it shall indemnify and hold
harmless the other party and Platte River, their permitted successors and assigns and their
respective directors, officers, members, shareholders and employees (each an “Indemnified
Party” and collectively, the “Indemnified Parties”) from and against any and all losses incurred
by the Indemnified Parties, including costs and reasonable attorney fees, to the extent arising
from or out of the following: (i) any claim for or arising out of any injury to or death of any
person or loss or damage to property of any person to the extent arising out of the Indemnifying
Party’s acts or omissions; (ii) any infringement of patents or the improper use of other
proprietary rights by an Indemnifying Party or its employees or representatives that may occur
in connection with the performance of this Agreement; and (iii), with respect to Owner,
Utilities agrees to indemnify Owner and any Owner Indemnified Party from and against any
and all losses arising from any claim asserting that the transfer of title to Energy by Owner to
Platte River is ineffective. An Indemnifying Party shall not, however, be required to reimburse
or indemnify any Indemnified Party for any loss to the extent such loss is due to the negligence
or willful misconduct of any Indemnified Party. The liability of Utilities is governed, limited
and controlled by the Governmental Immunity Act, Colo. Rev. Stat. §§ 24-10-101 et seq., as
now or hereafter amended. Nothing in this Agreement shall be construed as a limitation or
waiver of the immunities, limits, or protections provided under said Act.
11. Miscellaneous Provisions.
11.1 Notices. All notices, communications and waivers under this Agreement shall
be in writing and shall be (a) delivered in person or (b) mailed, postage prepaid, either by
registered or certified mail, return receipt requested or (c) sent by reputable overnight express
courier, addressed in each case to the addresses set forth below, or to any other address either of
the parties to this Agreement shall designate in a written notice to the other Party:
If to Owner:
500 S Arthur Ave. Suite 500
Louisville, Colorado 80027
Attention: Jim Welch
Phone: 970-217-4424
If to Utilities:
City of Fort Collins
Utilities Department
PO Box 580
Fort Collins, CO 80522-0580
Attention: Norm Weaver
Phone: 970-221-6700
If to Platte River:
Platte River Power Authority
2000 E Horsetooth Rd,
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Fort Collins, CO 80525
Attention: John Bleem
Phone: 970-229-5304
All notices, communications and waivers under this Agreement, if applicable, to any Person
who has or will provide financing for this Agreement pursuant to Section 11.4 shall be to the
name and address specified in a notice from Owner to Utilities, which Utilities shall
acknowledge. All notices sent pursuant to the terms of this Section 11.1 shall be deemed
received (i) if personally delivered, then on the date of delivery, (ii) if sent by reputable
overnight, express courier, then on the next business day immediately following the day sent, or
(iii) if sent by registered or certified mail, then on the earlier of the third (3rd) business day
following the day sent or when actually received.
11.2 Authority.
11.2.1 Owner Representations. Owner hereby represents and warrants that: (i)
This Agreement is a legal, valid and binding obligation of Owner enforceable against Owner in
accordance with its terms, subject to the qualification, however, that the enforcement of the
rights and remedies herein is subject to (a) bankruptcy and other similar laws of general
application affecting rights and remedies of creditors and (b) the application of general
principles of equity (regardless of whether considered in a proceeding in equity or at law); (ii)
To the best knowledge of Owner, as of the date of execution hereof, no approval of a
Governmental Authority (other than any approvals that have been previously obtained or
disclosed in writing to Utilities) is required in connection with the due authorization, execution
and delivery of this Agreement by Owner or the performance by Owner of its obligations
hereunder which Owner has reason to believe that it will be unable to obtain in due course on or
before the date required for Owner to perform such obligations; (iii) As of the date of execution
hereof, Owner (a) has taken all actions required of it under the terms of this Agreement, (b) is
not intending to dedicate its property to public use, (c) is not a “public utility” and (d) is not an
electric utility subject to rate regulation by any Governmental Authority; (iv) Neither the
execution and delivery of this Agreement by Owner nor compliance by Owner with any of the
terms and provisions hereof (a) conflicts with, breaches or contravenes the provisions of the
Articles of Organization or any operating agreement of Owner or any contractual obligation of
Owner or (b) results in a condition or event that constitutes (or that, upon notice or lapse of time
or both, would constitute) an event of default under any material contractual obligation of
Owner.
11.2.2 Utilities Representations. Utilities hereby represents and warrants that:
(i) It is a legally and regularly created, established, organized and existing home-rule municipal
governmental unit, which municipality duly exists under the laws of the State and has all
requisite power and authority to enter into this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby; (ii) The execution and delivery of
this Agreement and the performance of its obligations hereunder have been duly authorized by
all necessary action; (iii) This Agreement is a legal, valid and binding obligation of Utilities
enforceable against Utilities in accordance with its terms, subject to the qualification, however,
that the enforcement of the rights and remedies herein is subject to bankruptcy, reorganization,
insolvency, moratorium or other laws of equitable principles affecting the enforcement of
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creditors’ rights; (iv) No approval by a Governmental Authority (other than any approvals
which have been previously obtained or disclosed in writing to Owner) is required in
connection with the due authorization, execution and delivery of this Agreement by Utilities or
the performance by Utilities of its obligations hereunder which Utilities has reason to believe
that it will be unable to obtain in due course; (v) Neither the execution and delivery of this
Agreement by Utilities nor compliance by Utilities with any of the terms and provisions of this
Agreement (a) conflicts with, breaches or contravenes any contractual obligation of Utilities, or
(b) results in a condition or event that constitutes (or that, upon notice or lapse of time or both,
would constitute) an event of default under any contractual obligation of Utilities; and (vi)
Utilities has not entered into any contracts or agreements with any other person regarding the
provision of the services contemplated to be provided by Owner under this Agreement.
11.3 Assignment.
11.3.1 Owner Assignment. Owner shall not sell, transfer or assign
(collectively, an “Assignment”) this Agreement or any interest therein, without the prior written
consent of Utilities, which consent shall not be unreasonably withheld; provided, however, that
Owner is not required to obtain Utilities’ consent in order to: (a) assign this Agreement to any
affiliate of Owner with an equal or greater credit rating and with the legal authority and
operational ability to satisfy the obligations of Owner under this Agreement, and undertakes in
writing to perform those obligations, or (b) sell, transfer, assign or pledge its interest in the
System or any monies due under this Agreement to a financial institution (“Financial
Institution”) or affiliate as part of a financing (provided that Utilities will not pay to a third
party any monies owed hereunder without the advance written direction of Owner). Utilities’
consent to any other Assignment shall not be unreasonably withheld if Utilities has been
provided with reasonable proof that the proposed assignee: (i) has or is prepared to obtain
comparable experience and/or capability in operating and maintaining photovoltaic solar
systems comparable to the System and providing services required by this Agreement; and (ii)
has the financial capability to maintain and operate the System and provide the services
required by this Agreement. A direct assignee from Owner of this Agreement (that is not a
Financial Institution acquiring an interest pursuant to a security agreement) shall assume in
writing, in form and content reasonably satisfactory to Utilities, the due performance of all
Owner’s obligations under this Agreement, including any accrued obligations at the time of the
Assignment. A copy of the Assignment agreement, fully executed and acknowledged by the
assignee, together with a certified copy of a properly executed corporate resolution (if the
assignee be a corporation) authorizing such Assignment agreement shall be sent to Utilities not
less than ten (10) days after the contract date of such Assignment.
11.3.2 Utilities Assignment. Utilities shall not assign its interests in this
Agreement, nor any part thereof, without Owner’s prior written consent, which consent shall
not be unreasonably withheld.
11.4 Financing Accommodations. Utilities acknowledges that upon Owner’s
financing the acquisition and installation of the System or mortgaging the Site with a Financial
Institution, that Owner’s obligations under the financing may be secured by, among other
collateral, a pledge or collateral assignment of this Agreement and a transfer of an ownership
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interest in the System (subject to a leaseback from the Financial Institution). In order to
facilitate such necessary financing, Utilities agrees as follows:
11.4.1 Consent to Collateral Assignment. Utilities consents to the security
assignment by Owner to the Financing Institution of this Agreement, and a transfer of the
Owner’s right, title and interest in and to the System to the Financing Institution, provided that
such assignment shall not relieve the Owner of its obligations hereunder.
11.4.2 Financing Institution’s Default Rights. Notwithstanding any contrary
term of this Agreement:
11.4.2.1 The Financing Institution, as collateral assignee, shall be
entitled to exercise, in the place and stead of Owner, any and all rights and remedies of Owner
under this Agreement in accordance with the terms of this Agreement. Financing Institution
shall also be entitled to exercise all rights and remedies of secured parties generally with respect
to this Agreement and the System.
11.4.2.2 The Financing Institution shall have the right, but not the
obligation, to pay all sums due under this Agreement and to perform any other act, duty or
obligation required of Owner hereunder or cause to be cured any default of Owner hereunder in
the time and manner provided by the terms of this Agreement plus an additional fifteen (15)
business days. Nothing herein requires the Financing Institution to cure any default of Owner
under this Agreement or (unless the Financing Institution has succeeded to Owner’s interests
under this Agreement) to perform any act, duty or obligation of Owner under this Agreement,
but Utilities hereby gives it the option to do so.
11.4.2.3 Upon the exercise of remedies under its security interest in
the System, including any sale thereof by the Financing Institution, whether by judicial
proceeding or under any power of sale contained therein, or any conveyance from Owner to the
Financing Institution (or any qualified assignee of the Financing Institution as defined below) in
lieu thereof, the Financing Institution shall give notice to Utilities of the transferee or assignee
of this Agreement. Any such exercise of remedies shall not constitute a default under this
Agreement.
11.5 Successors and Assigns. The rights, powers and remedies of each Party shall
inure to the benefit of such party and its successors and permitted assigns.
11.6 Amendments.
(a) In writing. Any modification, alteration, amendment, change or
extension of any term, provision or condition of this Agreement permitted by this
Agreement shall be made by written amendment to this Agreement, signed by Owner
and Utilities.
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(b) No oral modification. No oral modification, alteration, amendment,
change or extension of any term, provision or condition of this Agreement shall be
permitted.
(c) Changes or modification required by Fort Collins City Council.
Notwithstanding any other provision, this Agreement shall, at all times, be subject to
such changes or modifications by the Fort Collins City Council as it may, from time to
time, direct in the exercise of its jurisdiction, provided that no such changes or
modifications i) shall affect the rights, obligations and economic benefits of the Parties
hereto or ii) shall be effective without the prior written consent of Owner and Platte
River.
(d) Claim barred after final payment. No claim by Owner for an
adjustment hereunder shall be allowed if written modification of this Agreement is not
made prior to final payment under this Agreement.
11.7 Waiver. The failure by either Party to insist upon the strict compliance with any
term, provision or condition of this Agreement shall not constitute or be deemed to constitute a
waiver or relinquishment of that Party’s right to enforce the same in accordance with this
Agreement. The fact that Utilities specifically refers to one provision of the procurement rules
or one section of applicable statutes, and does not include other provisions or statutory sections
in this Agreement shall not constitute a waiver or relinquishment of Utilities’ rights or Owner’s
obligations under the procurement rules or statutes.
11.8 Partial Invalidity. In the event that any provision of this Agreement is deemed
to be invalid by reason of the operation of Applicable Law, Owner and Utilities shall negotiate
an equitable adjustment in the provisions of the same in order to effect, to the maximum extent
permitted by law, the purpose of this Agreement (and in the event that Owner and Utilities
cannot agree then such provisions shall be severed from this Agreement) and the validity and
enforceability of the remaining provisions, or portions or applications thereof, shall not be
affected by such adjustment and shall remain in full force and effect.
11.9 Disputes; Governing Law; Venue; Jurisdiction.
(a) Disputes shall be resolved in accordance with the laws of the State, as the
same may be amended from time to time.
(b) The validity of this Agreement and any of its terms or provisions, as well
as the rights and duties of the parties to this Agreement, shall be governed by the laws
of the State.
(c) Either party may initiate dispute resolution procedures by sending a
notice of dispute (“Notice of Dispute”). The parties will attempt to resolve the dispute
promptly through good faith negotiations. If the dispute has not been resolved within
ten (10) days from the Notice of Dispute, the Parties may proceed to mediation.
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(d) If a dispute remains unresolved for sixty (60) days after receipt of the
Notice of Dispute, either party may submit the Dispute to the courts, as provided in this
Section 11.9.
(e) Any action at law or in equity to enforce or interpret the provisions of
this Agreement shall be brought in the District Court in and for Larimer County,
Colorado. Each party irrevocably agrees to submit to the exclusive jurisdiction of such
court over any claim or matter arising under or in connection with this Agreement.
11.10 Third Parties. This Agreement is for the exclusive benefit of the parties to this
Agreement, and Platte River, their successors and permitted assigns and Persons expressly
benefited by the indemnity provisions of this Agreement. No other Person (including, without
limitation, tenants of the Site) shall be entitled to rely on any matter set forth in, or shall have
any rights on account of the performance or non-performance by any Party of its obligations
under, this Agreement.
11.11 Relationship of Parties; Independent Contractor Status, Responsibilities.
(a) In the performance of services required under this Agreement, Owner is
an “independent contractor,” with the authority and responsibility to control and direct
the performance and details of the work and services required under this Agreement;
however, Utilities shall have a general right to inspect work in progress to determine
whether, in Utilities’ opinion, the services are being performed by Owner in compliance
with this Agreement. Unless otherwise provided by special condition, it is understood
that Utilities does not agree to use Owner exclusively, and that Owner is free to contract
to provide services to other individuals or entities while under contract with Utilities.
(b) Owner and Owner’s employees and agents are not by reason of this
Agreement, agents or employees of Utilities for any purpose, and Owner and Owner’s
employees and agents shall not be entitled to claim or receive from the State any
vacation, sick leave, retirement, workers’ compensation, unemployment insurance, or
other benefits provided to state employees.
(c) Owner shall be responsible for payment of all applicable federal, state,
and county taxes and fees which may become due and owing by Owner by reason of
this Agreement, including but not limited to (i) income taxes, (ii) employment related
fees, assessments, and taxes, and (iii) general excise taxes, including any property tax,
associated with the equipment. Owner also is responsible for obtaining all licenses,
permits, and certificates that may be required in order to perform this Agreement.
(d) Owner is responsible for securing all employee-related insurance
coverage for Owner and Owner’s employees and agents that is or may be required by
law, and for payment of all premiums, costs, and other liabilities associated with
securing the insurance coverage.
11.12 No Public Utility. Nothing contained in this Agreement shall be construed as
an intent by Owner to dedicate its property to public use or subject itself to regulation as a
“public utility” (as defined by Applicable Law).
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11.13 Cooperation with Financing. Utilities acknowledges that Owner may be
financing the System and/or the Site and Utilities agrees that it shall reasonably cooperate with
Owner and its financing parties in connection with such financing, including (a) the furnishing
of such information, (b) the giving of such certificates, and (c) providing such opinions of
counsel and other matters as Owner and its financing parties may reasonably request; provided,
that the foregoing undertaking shall not obligate Utilities to materially change any rights or
benefits, or materially increase any burdens, liabilities or obligations of Utilities, under this
Agreement (except for providing notices and additional cure periods to the financing parties
with respect to Events of Defaults with respect to Owner as a financing party may reasonably
request).
11.14 Rights and Remedies. Except as otherwise set forth herein, each Party reserves
to itself all rights, counterclaims and other remedies and/or defenses to which it is or may be
entitled, arising from or out of this Agreement.
11.15 Precedence. The provisions of this Agreement shall take precedence over any
other document and shall govern the agreement between the Owner and Utilities.
11.16 Timely Submission of all Certificates. All required certificates should be
applied for and submitted to Utilities as soon as possible. If a valid certificate is not submitted
on a timely basis for award of a contract, an offer otherwise responsive and responsible may not
receive the award.
11.17 Confidentiality.
(a) All material given to or made available to Owner by virtue of this
Agreement, which is identified as proprietary or confidential information, will be
safeguarded by Owner and shall not be disclosed to any individual or organization
without the prior written approval of Utilities.
(b) All information, data or other material provided by Owner to Utilities
shall be subject to the Utilities’ information regulations.
11.18 Laws and Regulations. Owner shall keep itself fully informed of all laws,
ordinances, codes, rules and regulations, governmental general and development plans, setback
limitations, rights of way, and all changes thereto, which in any manner affect the contract and
all performance thereof. Owner shall comply with all such present laws, ordinances, codes,
rules, regulations, design standards and criteria, governmental general and development plans,
setback imitations, rights-of-way, including the giving of all notices necessary and incident to
proper and lawful prosecution of the work, and all changes thereto. If any discrepancy or
inconsistency is discovered between this Agreement and any such law, ordinance, code, rule,
regulation, design standard, design criterion, governmental general and development plans,
setback limitation, or rights-of-way, Owner shall forthwith report the same in writing to
Utilities.
11.19 Survival. The provisions of Sections 1, 7, 8, 9, 10, and 11 shall survive the
expiration or termination of this Agreement.
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11.20 Entire Agreement. This Agreement (including all exhibits attached hereto)
represents the entire agreement between the parties to this Agreement with respect to the
subject matter hereof and thereof and supersedes all prior and contemporaneous oral and prior
written agreements. This Agreement may be executed in one or more counterparts, all of which
taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date set forth above.
OWNER:
BELLA ENERGY, INC.
By: _______________________________________
Name: Jim Welch
Title:
Date:
CITY OF FORT COLLINS, COLORADO
A municipal corporation
By:
Gerry S. Paul
Director of Purchasing and Risk Management
Date:
ATTEST:
By:
City Clerk
APPROVAL AS TO FORM:
By:
Assistant City Attorney
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CEO
2/24/2015
EXHIBIT A
Description of Property and Premises
Approximate location of leased Premises outlined in red. Approximate Property definition is the Premises
outlined in yellow. Final boundaries of leased Premises will be determined after survey is completed and
included in Exhibit “A” of this Agreement.
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EXHIBIT B
DESCRIPTION OF SYSTEM; SPECIFICATION; MAINTENANCE
997 KW photovoltaic renewable power system including fixed-tilt ground mount racking,
utility scale inverters and related equipment.
Including:
Schedule 1: Estimated Annual Production, as derived through PVWatts® (NREL) or
similar production estimation calculator of 1,577,000 kwh in Year 1,m declining approximately
.5% per year.
Year Production (kwh)
1 1,577,000
2 1,569,115
3 1,561,269
4 1,553,463
5 1,545,696
6 1,537,967
7 1,530,277
8 1,522,626
9 1,515,013
10 1,507,438
11 1,499,901
12 1,492,401
13 1,484,939
14 1,477,514
15 1,470,127
16 1,462,776
17 1,455,462
18 1,448,185
19 1,440,944
20 1,433,739
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EXHIBIT C
PRICING
PRICE SCHEDULE
Period kWh Rate:
The rate(s) set forth on this Exhibit C shall control over any contrary provision in the
Agreement. For all Energy transferred to Platte River and Environmental Attributes made
available to Utilities during the period commencing on the Commercial Operation Date and
ending on the last Day of the First Commercial Operation Year, the following rate(s) shall
apply:
YEAR RATE:
Class I System
Class II System
Commercial Operation Year 1 $0.18 kWh $0.15 kWh
Commercial Operation Year 2 $0.18 kWh $0.15 kWh
Commercial Operation Year 3 $0.18 kWh $0.15 kWh
Commercial Operation Year 4 $0.18 kWh $0.15 kWh
Commercial Operation Year 5 $0.18 kWh $0.15 kWh
Commercial Operation Year 6 $0.18 kWh $0.15 kWh
Commercial Operation Year 7 $0.18 kWh $0.15 kWh
Commercial Operation Year 8 $0.18 kWh $0.15 kWh
Commercial Operation Year 9 $0.18 kWh $0.15 kWh
Commercial Operation Year 10 $0.18 kWh $0.15 kWh
Commercial Operation Year 11 $0.18 kWh $0.15 kWh
Commercial Operation Year 12 $0.18 kWh $0.15 kWh
Commercial Operation Year 13 $0.18 kWh $0.15 kWh
Commercial Operation Year 14 $0.18 kWh $0.15 kWh
Commercial Operation Year 15 $0.18 kWh $0.15 kWh
Commercial Operation Year 16 $0.18 kWh $0.15 kWh
Commercial Operation Year 17 $0.18 kWh $0.15 kWh
Commercial Operation Year 18 $0.18 kWh $0.15 kWh
Commercial Operation Year 19 $0.18 kWh $0.15 kWh
Commercial Operation Year 20 $0.18 kWh $0.15 kWh
Commercial Operation Year shall mean the period commencing on the Commercial Operation
Date and ending on the last day of the calendar year in which the Commercial Operation Date
occurs, and, thereafter, all subsequent one (1)-year periods during the Term.
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