HomeMy WebLinkAbout551634 SOLARIS INVESTMENT GROUP LLC - CONTRACT - AGREEMENT MISC - SOLARIS INVESMENT GROUP LLCFort Collins
POWER PURCHASE AGREEMENT
This POWER PURCHASE AGREEMENT, (the "Agreement"), effective as of the last date of
signature provided below, is by and between Edwards Renewable Energy, LLC, a Colorado
Limited Liability Company; Parmalee Renewable Energy, LLC, a Colorado Limited Liability
Company; SRC Renewable Energy, LLC; a Colorado Limited Liability Company; and VTH
Renewable Energy, LLC (collectively "Owners") as a (Select one) 0"SP3 Class I" — under
100kW or ®"SP3 Class II" - 100 to 1000kW generators, 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 Owners each install, maintain and operate, and
Owners desire to install, maintain and operate the "feed -in tariff' Systems to be interconnected
(fed -into) into the Network on property owned or leased by Owners, as more fully described in
Exhibits A-1 through A4 hereto, (the "Site(s)"); 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 Owners, which Energy will be sold by Platte River to Utilities under
terms described in the MOU; and
WHEREAS, Owners desire to sell, and Utilities desires to purchase, the Environmental
Attributes (as defined herein) generated by the Systems and other services pursuant to the terms
and conditions set forth herein.
other or Platte River. By mutual agreement of the Parties, the System damaged or destroyed by
a Force Majeure Event may be replaced by Owners 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 Owners and Utilities hereunder. If
during a Budget Non -Appropriation Event, Utilities continues to receive Energy (on behalf of
Platte River) and Environmental Attributes from Owners, then upon the conclusion of such
event, Utilities shall pay for such Energy and Environmental Attributes.
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 "Tenn"), unless and until terminated
earlier with respect to the Site(s) 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 Owners 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 Owners, and where feasible and at Owners' election, (i) Owners 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 Owners on terms and conditions acceptable to the Parties, including
but not limited to setting a new power purchase rate.
8.3 Owners Termination for Convenience. Prior to the Commercial Operation
Date, Owners 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 Owners any Replacement Costs, calculated as of the date of
termination. After the Commercial Operation Date, Owners may terminate this Agreement at
any time following the fifth year of the Term by giving Utilities thirty (30) days prior written
notice of Owners' intention to terminate, subject to Utilities' right to recover from Owners any
Replacement Costs, calculated as of the Termination Date. The Parties agrees damages would
be difficult to quantify upon an early termination and agrees that any component of
Replacement Costs that is characterized as an "early termination fee" is not a penalty.
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9. Default.
9.1 Owners Defaults. The following events shall constitute events of default with
respect to Owners (each an "Owner's default"):
9.1.1 If Owners fail 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 Owners' 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 Owners fail to so cure, or (ii) Owners fail to commence and pursue said cure
within such thirty (30) day period if a longer cure period is needed; provided that the Owners
provide 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 an Owners are unable to achieve a Commercial Operation Date at any
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 11 system ("System Delivery Period');
9.1.3 If Owners file or is adjudged bankrupt or fails to demonstrate the ability
to perform under the Agreement, following the filing or adjudication of a bankruptcy
proceeding.
9.2 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 Owners any amount due Owners under this
Agreement within thirty (30) days from receipt of notice from Owners 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.
9.3 Remedies.
9.3.1 If Owners' Default or a Utilities Default has occurred, the non -defaulting
Party shall have the right to: (a) send notice, designating a day, no earlier than five (5) days
after such notice and no later than twenty (20) days after such notice, as the Termination Date
of this Agreement; (b) accelerate all amounts owing between the Parties; (c) terminate this
Agreement and end the Term effective as of the Termination Date; and (d) if the default is after
Commercial Operation, collect any Replacement Costs, which shall be paid on the Termination
Date. 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
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this Agreement shall be without prejudice to Owners' 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.
9.3.2 Upon a default prior to the Commercial Operation Date, the non -
defaulting Party shall not be entitled to Replacement Costs, other than the flat fee provided in
Section 1. In addition, upon Owners' Default for failure to achieve the Commercial Operation
Date within the applicable System Delivery Period, Owners shall forfeit any deposit previously
paid by Owners to Utilities.
9.4 Actions to Prevent Injury. If any Utilities Default or Owners' 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 Owners. Notwithstanding the foregoing, none of
the payments for Environmental Attributes or any other amount specified as payable by
Utilities to Owners 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 Owners
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.
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
Parry'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 Owners,
Utilities agrees to indemnify the Owners and any of the Owners' Indemnified Party from and
against any and all losses arising from any claim asserting that the transfer of title to Energy by
Owners to Platte River is ineffective. An Indemnifying Party shall not, however, be required to
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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 Owners:
Solaris Investment Group, LLC
430 West Myrtle Street
Fort Collins, Colorado 80521
Attention: Alex Blackmer
Phone: 970-231-1798
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,
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 Owners 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.
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11.2 Authority.
11.2.1 Owners Representations. Owners hereby represent and warrant that: (i)
This Agreement is a legal, valid and binding obligation of Owners enforceable against Owners
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 Owners, 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 Owners or the performance by Owners of their obligations
hereunder which such Owners have reason to believe that it will be unable to obtain in due
course on or before the date required for Owners to perform such obligations; (iii) As of the
date of execution hereof, Owners (a) have 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 Owners nor compliance by Owners
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 Owners or any
contractual obligation of Owners 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 the Owners.
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
creditors' rights; (iv) No approval by a Governmental Authority (other than any approvals
which have been previously obtained or disclosed in writing to the Owners) 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 Owners under this Agreement.
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11.3 Assignment.
11.3.1 Owners Assignment. Owners 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
Owners are not required to obtain Utilities' consent in order to: (a) assign this Agreement to
any affiliate of the Owners with an equal or greater credit rating and with the legal authority
and operational ability to satisfy the obligations of the Owners 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 the Owners).
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 any of the Owners 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 of Owners' 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 before 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 Owners' prior written consent, which consent shall
not be unreasonably withheld.
11.4 Financing Accommodations. Utilities acknowledges that upon Owners'
financing the acquisition and installation of the System or mortgaging any Site with a Financial
Institution, that Owners' 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
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 Owners to the Financing Institution of this Agreement, and a transfer of the
Owners' right, title and interest in and to the System to the Financing Institution, provided that
such assignment shall not relieve the Owners of their obligations hereunder.
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11.4.2 Financing Institution's Default Rights. Notwithstanding any contrary
term of this Agreement:
(a) The Financing Institution, as collateral assignee, shall be entitled
to exercise, in the place and stead of the Owners, any and all rights and remedies
of the Owners 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.
(b) 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 the Owners hereunder or cause to be cured
any default of the Owners 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 the Owners under
this Agreement or (unless the Financing Institution has succeeded to Owners'
interests under this Agreement) to perform any act, duty or obligation of the
Owners under this Agreement, but Utilities hereby gives it the option to do so.
(c) 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 Owners to the Financing Institution (or any qualified assignee
thereof 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 Owners
and Utilities.
(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 as the Fort Collins City Council may, from time to time,
direct in the exercise of its jurisdiction, provided that no such changes or modifications
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i) shall affect the rights, obligations and economic benefits of the Parties hereto or ii)
shall be effective without the prior written consent of the Owners and Platte River.
(d) Claim barred after final payment. No claim by the Owners 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 Parry'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 Owners'
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, Owners 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 Owners 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.
(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 or U.S. District Court in Colorado. Each party irrevocably agrees to submit to
the exclusive jurisdiction of such courts over any claim or matter arising under or in
connection with this Agreement.
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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 any 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, Owners
are each 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 the
Owners in compliance with this Agreement. Unless otherwise provided by special
condition, it is understood that Utilities does not agree to use Owners exclusively, and
that the Owners are each free to contract to provide services to other individuals or
entities while under contract with Utilities.
(b) Owners and Owners' employees and agents are not by reason of this
Agreement, agents or employees of Utilities for any purpose, and Owners and Owners'
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) Owners shall be responsible for payment of all applicable federal, state,
and county taxes and fees which may become due and owing by the Owners 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. Owners also are responsible for obtaining all licenses,
permits, and certificates that may be required in order to perform this Agreement.
(d) Owners are responsible for securing all employee -related insurance
coverage for Owners and Owners' 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 Owners to dedicate its property to public use or subject itself to regulation as a
"public utility" (as defined by Applicable Law).
11.13 Cooperation with Financing. Utilities acknowledges that Owners may be
financing the System and/or any Site and Utilities agrees that it shall reasonably cooperate with
the Owners and their 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 the Owners and its financing parties may reasonably
request; provided, that the foregoing undertaking shall not obligate Utilities to materially
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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 the Owners 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.
1 1.15 Precedence. The provisions of this Agreement shall take precedence over any
other document and shall govern the agreement between the Owners 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 the Owners by virtue of this
Agreement, which is identified as proprietary or confidential information, will be
safeguarded by the Owners 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 the Owners to
Utilities shall be subject to the Utilities' information regulations.
11.18 Laws and Regulations. Owners shall each keep themselves 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. Owners 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, Owners 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.
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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NOW THEREFORE, in consideration of the mutual promises set forth below, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
AGREEMENT:
1. Definitions. Unless otherwise required by the context in which any term appears:
(a) capitalized terms used in this Agreement shall have the respective meanings set forth
in this Section l; (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.
"Budget Non -Appropriation Event" shall have the meaning set forth in Section 7.2.
"Commercial Operation" shall mean the production of Energy by Owners 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
each 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 Owners and any third party contractor, subcontractor, or assignee.
"Delivery Point" shall mean the point of electrical interconnection of each Site and the
Network, as shown on Exhibits A-1 through A4.
"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
2
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date set forth above.
OWNERS: Edwards Renewable Energy, LLC
Address: 430 West Myrtle St., Fort Collins, CO 80521
By:
Name, Title: Alex Blackmer, Manager
Date: 1 L— S — 1 q
OWNER: Parmalee Renewable Energy, LLC
Address: 430 West yrtle St., Fort Collins, CO 80521
By:
Name, Title: Alex Blackmer, Manager
Date: % 2 — $ 1 `4
OWNER:
SRC Renewable Energy, LLC
Address:
430 West Myrtle St., Fort Collins, CO 80521
By:
Z&:::�
Name, Title:
Alex Blackmer, Manager
Date:
1 L — Q — 1 `(
OWNER:
VTH Renewable Energy, LLC
Address:
430 Myrtle St., Fort Collins, CO 80521
By:
Name, Title:
Alex Blackmer, Manager
Date:
i Z — 9` ) y
20
CITY OF FORT COLLINS, COLORADO
A municipal corporation
By:
Ge S. A.Paul
Director of Purchasing and Risk Management
Date: � �l
ATTEST:
City Clerk �1 fj/r t1--
APPROVAL AS TO FORM:
City
21
EXHIBIT A
DESCRIPTION OF SITE
(Legal and narrative description, including address and aerial photo to be attached)
EXHIBIT A -I -- Edwards Hall
EXHIBIT A-2— Parmalee Hall
EXHIBIT A-3— Student Recreation Center
EXHIBIT A-4 — Vet Teaching Hospital
EXHIBIT A-1
DESCRIPTION OF SITE
Legal Description for Edwards Hall
A parcel of land located in the Northwest quarter (NW %) of the Southwest quarter (SW
'/4) of Section Fourteen (14), Township Seven North (T.7.N.), Range Sixty-nine West
(R.69.W.), of the Sixth Principal Meridian (6th P.M.), County of Larimer, State of
Colorado and being more particularly described as follows.
COMMENCING at the West quarter corner of said Section 14, THENCE North 1390 43'
12" East, a distance of 1078.18 feet to the POINT OF BEGINNING;
THENCE North 900 31' 48" East a distance of 323.15 feet;
THENCE North 1790 25' 48" West a distance of 266.95 feet;
THENCE North 880 43' 12" West a distance of 324.80 feet;
THENCE North 000 55' 12" East a distance of 262.69 feet to the POINT OF
BEGINNING.
This parcel contains 1.97 acres more or less U, and is subject to any rights -of -way or
other easements of record or as now existing on said described parcel of land.
This description does not constitute a legal survey.
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EXHIBIT A-2
DESCRIPTION OF SITE
Legal Description for Parmalee Hall
A parcel of land located in the Southeast quarter (SE %) of the Northwest Quarter (NW
%) of Section Fourteen (14), Township Seven North (T.7.N.), Range Sixty-nine West
(R.69.W.), of the Sixth Principal Meridian (6t" P.M.), County of Larimer, State of
Colorado and being more particularly described as follows:
COMMENCING at the Center quarter corner of said Section 14, THENCE North 320 11'
24" West, a distance of 1069.76 feet to the POINT OF BEGINNING;
THENCE North 89' 49' 47" West a distance of 327.50 feet;
THENCE North 000 30' 00° East a distance of 316.68 feet;
THENCE North 900 31' 48" East a distance of 328.98 feet;
THENCE North 1790 16' 12" East a distance of 314.73 feet to the POINT OF
BEGINNING.
This parcel contains 2.38 acres more or less U, and is subject to any rights -of -way or
other easements of record or as now existing on said described parcel of land.
This description does not constitute a legal survey.
Laurel Street
Lease Boundary
CORBETT PARMELEE Q
HALL HALL
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PARMELEEERSITY
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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
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 PV Watts®
(NREL) or similar metric, as set forth in Schedule 1 to Exhibits B through B4 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 Owners 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(s).
"Network" shall have the meaning as set forth in the Recitals.
"O&M Work" shall have the meaning set forth in Section 4.1.
"Owners" shall have the meaning set forth in the Recitals. For purposes of access rights and
other rights necessary for Owners to perform its obligations hereunder, the term
"Owners" shall include Owners' authorized agents, contractors and subcontractors.
3
No Text
EXHIBIT A-3
DESCRIPTION OF SITE
Legal Description for Student Recreation Center
A parcel of land located in the Southeast quarter (SE '/4) of the Northwest Quarter (NW '/4) of
Section Fourteen (14), Township Seven North (T.7.N.), Range Sixty-nine West (R.69.W.), of the
Sixth Principal Meridian (6h P.M.), County of Larimer, State of Colorado and being more
particularly described as follows:
COMMENCING at the West quarter corner of said Section 14, THENCE North 90' 44' 24"
East along the South line of said NW Y4 quarter, a distance of 1324.73 feet to the POINT OF
BEGINNING;
THENCE North 00' 37' 12" East a distance of 400.59 feet;
THENCE North 90' 12' 00" East a distance of 502.56 feet;
THENCE North 00' 15' 36" East a distance of 155.55 feet;
THENCE North 89' 54' 36" East a distance of 214.24 feet;
THENCE South 00' 18' 00" West a distance of 563.42 feet;
THENCE South 90' 42' 00" West a distance of 719.0 feet to the POINT OF BEGINNING.
This parcel contains 7.43 acres more or less (+, and is subject to any rights -of -way or other
easements of record or as now existing on said described parcel of land.
This description does not constitute a legal survey.
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EXHIBIT A-4
DESCRIPTION OF SITE
Legal Description for Vet Teaching Hospital
A parcel of land located in the Southwest quarter (SW %) of the Southeast quarter (SE
%) of Section Twenty-three (23), Township Seven North (T.7.N.), Range Sixty-nine
West (R.69.W.), of the Sixth Principal Meridian (6th P.M.), County of Larimer, State of
Colorado and being more particularly described as follows:
COMMENCING at the South quarter comer of said Section 23, THENCE North 59' 55'
54" East, a distance of 796.82 feet to the POINT OF BEGINNING;
THENCE North 000 18' 55" East a distance of 504.87 feet;
THENCE North 890 52' 10" East a distance of 304.86 feet;
THENCE North 1790 53' 52" West a distance of 507.17 feet;
THENCE North 890 41' 57" West a distance of 306.74 feet to the POINT OF
BEGINNING
This parcel contains 3.56 acres more or less U: and is subject to any rights -of -,:-ay or
7 -- ��=e^?eni _ of record or as now existing on said described parcel of land
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Medicine Center
Bldg. C
James L. Voss
Veterinary Teaching
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Bldg. A
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Bldg. B
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EXHIBIT B-1 - Description of the Site
Edwards Hall
Edwards Hall is a student residence facility located on the Colorado State University campus in Fort
Collins, Colorado. The Hall consists of three parts: North Wing, South Wing and Dining Hall. The
North Wings have flat roof surfaces covered with a modified bitumen roofing membrane and the
Dining Hall is covered with fully adhered EPDM roofing.
Solar arrays will be installed on both wings of the North Tower, as well as the Dining Hall. Due to
limited structural capacity of a small section of the Dining Hall roof, a small section of the array will
require positive attachments.
SCHEDULE 1 TO EXHIBIT B-1
Site:
Edwards Hall
System Size:
91.81
Production factor
(kWh/kW/yr):
1,482
Annual derate:
0.5%
Year
kWh Production Estimate
1
136,062
2
135,382
3
134,705
4
134,032
5
133,362
6
132,695
7
132,031
8
131,371
9
130,714
10
130,061
11
129,410
12
128,763
13
128,119
14
127,479
15
126,841
16
126,207
17
125,576
18
124,948
19
124,324
20
123,702
"Owners Default" shall have the meaning set forth in Section 9.1
"Party" shall mean each of Utilities and Owners.
"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, limited to the twelve months
following the Termination Date, determined in a commercially reasonable manner.
For Utilities, commercially reasonable Replacement Costs include incremental costs
suffered by Utilities to replace the Estimated Annual Production and/or Environmental
Attributes that an Owner fails to deliver under this Agreement, including the amounts
paid or incurred by Utilities for replacement capacity, replacement energy, transmission
and ancillary services associated with delivery of replacement capacity and energy and
directly associated transaction costs. As a point of reference for current estimated
Replacement Costs, the rate charged by Utilities' wholesale energy provider (Platte
River Power Authority) under Tariffs 1 and 7 ("Resale Power" and "Renewable Energy
Premium") for all such costs is $0.061 per kWh. In the event of an Owners' termination
prior to Commercial Operation Date, Replacement Costs for the Utilities shall be
limited to the following flat fee:
i) Class I systems, $250 per City solar power generation account ("Account");
ii) Class H systems, a fee per Account calculated as $5 per rated kilowatt- DC
from 100 to 1000 M
For Owners, commercially reasonable Replacement Costs include the amounts Utilities
would have paid over the subsequent twelve months for the Estimated Annual
Production and Environmental Attributes, had the same been delivered as reflected on
Exhibit C.
For either Party, Replacement Costs may include reasonable attorneys' fees suffered as
a result of the early termination of the Agreement.
4
EXHIBIT B-2 - Description of the Site
Parmalee Hall
Parmalee Hall is a student residence facility located on the Colorado State University campus in Fort
Collins, Colorado. The Hall consists of three parts: North Tower, South Tower and Dining Hall. The
North and South Towers have pitched roof surfaces with composite shingles while the Dining Hall
has a flat roof covered with a fully adhered TPO membrane. Both Towers are connected to the
Dining Hall by enclosed hallways.
SCHEDULE I TO EXHIBIT B-2
Site:
Parmalee Hall
System Size:
139.1
Production factor
(kWh/kW/yr):
1,494
Annual derate:
0.5%
Year
kWh Production Estimate
1
207,815
2
206,776
3
205,742
4
204,714
5
203,690
6
202,672
7
201,658
8
200,650
9
199,647
10
198,649
11
197,655
12
196,667
13
195,684
14
194,705
15
193,732
16
192,763
17
191,799
18
190,840
19
189,886
20
188,937
EXHIBIT B-3 - Description of the Site
Student Recreation Center
Student Recreation Center
The Student Recreation Center is the primary recreational facility located on the Colorado State
University campus in Fort Collins, Colorado. The building has several sections that have been built
out at separate time, all of which are physically connected to each other. The entire building has a
flat roof covered with a fully adhered membrane. Solar arrays will be installed on all the available
roof space.
Solar arrays will be installed on the flat roof of the Dining Hall and the pitched south facing roofs of
the North Tower.
SCHEDULE 1 TO EXHIBIT B-3
Site:
Student Recreation Center
System Size:
544.7
Production factor
(kWh/kW/yr):
1,505
Annual derate:
0.5%
Year
kWh Production Estimate
1
819,774
2
815,675
3
811,596
4
807,538
5
803,501
6
799,483
7
795,486
8
791,508
9
787,551
10
783,613
11
779,695
12
775,796
13
771,917
14
768,058
15
764,218
16
760,396
17
756,594
18
752,812
19
749,047
20
745,302
EXHIBIT B-4 - Description of the Site
Vet Teaching Hospital
Veterinarian Teaching Hospital (VTH)
VTH is located south of the main CSU campus in Fort Collins, Colorado. The building has several
wings, all of which are physically connected to each other. The largest solar array will be installed
on the center section of the main building roof, with a small array installed on the northern most
section of roof that is lower than the main building's roof. The entire building has a flat roof covered
with a fully adhered membrane.
SCHEDULE I TO EXHIBIT B-4
Site:
VTH
System Size:
220.2
Production factor
(kWhAW/yr):
1,482
Annual derate:
0.5%
Year
kWh Production Estimate
1
326,336
2
324,705
3
323,081
4
321,466
5
319,858
6
318,259
7
316,668
8
315,085
9
313,509
10
311,942
11
310,382
12
308,830
13
307,286
14
305,749
15
304,221
16
302,700
17
301,186
18
299,680
19
298,182
20
296,691
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 (I) -year periods during the Term.
"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(s)" 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 de.
"SP3 Class 11" - shall mean a solar generation system with a rated capacity between 100kW do
and 1000 kW de.
"State" shall mean the State of Colorado.
"System(s)" shall mean the full scope of solar photovoltaic generating equipment designed and
installed pursuant to this Agreement at the Site(s) and more fully described in Exhibits
B through B4 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.
2. Purchase and Sale of Energy and Environmental Attributes. During the Term of
this Agreement, Owners shall sell, and Utilities shall purchase on behalf of Platte River, all
Energy of the System delivered by Owners to the respective Delivery Point. During the term of
this Agreement, Owners will also provide the Environmental Attributes associated with all
Energy generated by the Systems to Utilities and Utilities will accept all such Environmental
Attributes, all in accordance with the terms and conditions set forth herein. Owners shall
provide Utilities with access to the Site(s) 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(s) on
which the System is to be installed:
3.1 Detailed Engineering. Owners shall prepare and submit to Utilities engineering
drawings showing the plan and array configuration for the Site(s), detailed plans of all
F1
structures, electrical systems, interfaces with the grid electricity supply and any necessary
facility or utility infrastructure improvements and/or modifications.
3.2 Installation. Owners 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. Owners shall organize the procurement of all
materials and equipment for the Installation Work and maintain the same at the Site(s) as
necessary.
3.3 Conditions to Commercial Operation. Owners 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
Owners 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) Each 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;
(b) 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
solar resource adjusted net capacity without experiencing abnormal operating
conditions;
(c) 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;
(d) If required by Utilities field engineering staff, an independent
professional engineer's certification has been obtained by each Owner stating
the System has been completed in all material respects, including compliance
with applicable parallel generation interconnection standards;
(e) Certificates of insurance evidencing appropriate coverage have
been obtained and submitted to Utilities; and
(f) Each 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.
Owners will be responsible to have current licenses and all permits to do the work indicated.
Owners shall be responsible for any taxes or fees involved in constructing the System.
4. Operation and Maintenance of System.
4.1 O&M Work. Owners, at their 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") at each 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. Owners shall be allowed
to observe any Meter test, and Utilities shall provide notice of the testing to Owners at least ten
(10) business days prior to the test date. Owners shall reimburse Utilities for the cost of the
additional tests requested by Owners, 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
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. Owners, or Owners' 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 Owners
or Owners' assigns. Owners 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 0.
7
4.4 Compliance with Utility Specifications. The Owners agree 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 Owners 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 Owners
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(s) 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 Owners may claim that by this
Agreement, Owners are an electric utility subject to regulation as an electric utility or subject to
regulated electricity rates. Owners 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 Owners shall transfer and assign to Utilities. At Utilities'
request, Owners shall execute all such documents and instruments reasonably necessary or
desirable to effect or evidence each Owner's transfer and assignment of right, title and interest
in and to the Environmental Attributes_
5.3.2 Owners 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. Owners 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.
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6.2 Payments. Utilities shall pay to Owners 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 Owners or to such
assignee as Owners shall designate in writing to Utilities. This payment fully compensates
Owners 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. 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; and
(viii) a Budget Non -Appropriation Event as described in Section 6.2.
7.2 Non -Appropriation. For Utilities, due to constitutional and charter limitations
pertaining to multiple -year contracts, a Force Majeure Event shall include an event in which the
City of Fort Collins Budget of any year covered in this Agreement does not appropriate funds
for the procurement of parallel generation services for Utilities (a "Budget Non -Appropriation
Event"). Upon occurrence of a Budget Non -Appropriation Event, the obligation of Utilities to
pay for the Energy in accordance with Section 6.2 shall be suspended for the Force Majeure
period. Utilities agrees it shall use its best efforts to seek appropriation for parallel generation
services during the term of this Agreement. Utilities will notify Owners no later than June 30th
of the fiscal year if a Budget Non -Appropriation Event has occurred.
7.3 Termination in Consequence of Force Majeure Event. If a Force Majeure
Event shall have occurred that has affected a Parry's performance of its obligations hereunder
and that Force Majeure Event has continued for a period of three hundred sixty-five (365)
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
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