FINAL DRAFT 07-09-2012
SOLAR POWER SERVICES AGREEMENT between I among SEC Amherst Solar One, LLC-, a Delaware limited liability company ("Provider"), and Town of Amherst, Massachusetts a municipal corporation ("Customer"),
July_, 2012 (the "Effective Date")
FINAL DRAFT 07-09-2012 Article VII. TERM 7.01 7.02 7.03 7.04 7.05 Term Early Termination by Provider Early Termination by Customer Purchase Option Upon Expiration or Early Termination of this Agreement.. Determination of Fair Market Value AND WARRANTIES 17 17 17 17 19 19 20 .20 20 20 20 20 20 21 22 " 23 23 security 24 24 24 24 25 25 25 26 26 .26 26 26 27 27 .27 27 28 28 28
Article VIII. REPRESENTATIONS 8.01 8.02 8.03 8.04
Organization; Existence; Good Standing Binding Obligation No Litigation Execution and Performance
Article IX. DEFAULT AND FORCE MAJEURE 9.01 9.02 9.03 Provider Defaults Customer Defaults Force Majeure
Article X. DISPUTE RESOLUTION 10.01 Resolution by Parties
Article XI. INSURANCE, CASUALTY AND CONDEMNATION; 11.01 11.02 11.03 11.04 11.05 11.06 Provider's Insurance Customer's Insurance Generally Casualty Condemnation Additional Security
Article XII ..ASSIGNMENT 12.01 12.02 12.03 12.04 Generally Assignment by Customer Assignment by Provider Financing Accommodations
Article XIII. INDEMNIFICATION 13.01 13.02 13.03 13.05 Indemnification by Provider Indemnification by Customer Notice of Claims Survival ofProvisions
Article XIV. MISCELLANEOUS 14.01 Additional Documents
SOLAR POWER SERVICES AGREEMENT THIS SOLAR POWER SERVICES AGREEMENT (this "Agreement") is made effective as of July _, 2012 (the "Effective Date"), between/among SEC Amherst Solar One, LLC, a Delaware limited liability company ("Provider"), and the Town of Amherst, Massachusetts ("Customer"). Provider and Customer are sometimes referred to individually as a Party and collectively as the Parties. BACKGROUND WHEREAS, Customer owns, directly or indirectly, the Property (as hereafter defined). Customer desires that Provider install, maintain, own and operate at the Property a solar photovoltaic system (the "System") for the purpose of providing Solar Services (as hereafter defined) to Customer, and Provider is willing to undertake and to provide the same. NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: ARTICLE 1. DEFINITIONS. 1.01 Definitions. In addition to other terms specifically defined elsewhere in this Agreement, where capitalized, the following words and phrases shall be defined as follows: "Actual Production" means for any period, the actual net electrical production, in kWh, of the System and delivered to Customer at the Delivery Point, in conformance with Applicable Law. "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such first Person. "Agreement" means this Solar Power Services Agreement, including the Schedules and Exhibits attached hereto. "Applicable Law" means, with respect to any Person (including any Party), any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction, registration, license, franchise, permit, authorization, guideline, Governmental Approval, consent or requirement of any Governmental Authority, including, but not limited to, Environmental Law and the Massachusetts Department of Environmental Protection's requirements regarding use of closed landfills, having jurisdiction over such Person or its property, enforceable at law or in equity, including the interpretation and administration thereof by such Governmental Authority. "Assignment" has the meaning set forth in Section 12.03. "Business Day" means any day other than Saturday, Sunday or any other day on which banking institutions in New York, New York are required or authorized by Applicable Law to be closed for business.
value of the energy and capacity ifused by the owner or operator), emission trading agreements, renewable energy certificate sales agreements or revenue producing agreements which may reasonably arise from the ownership and operation of the System; (v) the present and reasonably expected estimated future operating costs (including, but not limited to, routine operation and maintenance, taxes and insurance); and (vi) any cancellation penalty imposed on Provider by a Lender as a result of the sale of the System to Customer, including, without limitation, penalties for early termination or assignment of a contract for the sale of Massachusetts Solar Carve-Out Renewable Generation Attributes (as such term is defined in 225 C.M.R. § 14.02), hedging penalties, interest rate hedging penalties, and penalties arising from termination of lending arrangements. If Customer and Provider cannot mutually agree to a Fair Market Value within ten (10) days of the need to determine Fair Market Value either pursuant to Section 7.04 or a Renewal Term, then the Parties shall select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry as per Section 7.05. "Final Site Notification" means the written notice by Customer to Provider identifying the area of Customer's capped landfill that is available for installation, operation and maintenance of the System. "Force Majeure Event" has the meaning set forth in Section 9.03. "Governmental Approval" means any approval, consent, franchise, permit, certificate, resolution, concession, license or authorization issued by or on behalf of any applicable Governmental Authority. "Governmental Authority" means any federal, state, regional, county, town, city or municipal government, whether domestic or foreign, or any department, agency, bureau, or other administrative, regulatory or judicial body of any such government including, without limitation, any governmental or quasi-governmental entity or independent system operation or regional transmission operator. "Hazardous Materials" means any pollutant, contaminant, hazardous substance, hazardous waste, medical waste, special waste, toxic substance, petroleum or petroleum-derived substance, waste or additive, asbestos, polychlorinated biphenyl (PCB), radioactive material, or other compound, element or substance in any form (including products) regulated, restricted or addressed by or under any Applicable. Law. "Indemnified Party" has the meaning set forth in Section 13.03. "Indemnifying Party" has the meaning set forth in Section 13.03. "Initial Term" has the meaning set forth in Section 7.01. "Insolation" means the amount of kWhs per square meter falling on a particular location, as publi.shed by the National Renewable Energy Laboratory. "kWh Rate" has the meaning set forth in Section 3.01.
"Provider Default" has the meaning set forth in Section 9.01(a). "Provider Hazardous Materials" has the meaning set forth in Section 5.07(c).
"Rebates" shall mean any and all Governmental Authority or utility rebates or other funding offered for the development of photovoltaic systems. "Renewal Term" has the meaning set forth in Section 7.01. "Shared SRECs" shall mean any Massachusetts Solar Carve-Out Renewable Generation Attributes ("SRECs"), as defined in 225 C.M.R. § 14.02, that are generated by the System at any time after the sixth (6th) anniversary of the Commercial Operation Date. "Shortfall Liquidated Damages" has the meaning set forth in Section 5.09. "Shortfall Period" has the meaning set forth in Section 5.09. "Site" has the meaning set f011h in Section 4.01 (a). "Site Plan" means, a plan depicting the locations within and upon the Property of System components, including interconnection arrangements and access points, as revised by final asbuilt drawingts) and subsequent revisions depicting any System alterations, and incorporated in Schedule 2 hereto. "Solar Services" means the supply of Actual Production from the System to Customer.
"Solar Services Payment" has the meaning set forth in Section 3.01. "System" means an integrated assembly of photo voltaic panels, mounting assemblies, inverters, converters, metering, lighting fixtures, transformers, ballasts, disconnects, combiners, switches, wiring devices and wiring and interconnections with the Local Electric Utility, as more specifically described in Schedule 2. "System of Assurance" means the System of Assurance of Net Metering Eligibility, Appendix B to D.P.U. 11-11 (May 7, 2012), together with any subsequent amendments thereto. "Term" has the meaning set f011h in Section 7.01.
ARTICLE II. OF SOLAR SERVICES.
2.01 Purchase Requirement. Customer agrees to purchase one hundred percent (100%) of the Solar Services of the System during the Term. The payment for Solar Services is calculated to include all of the defined Solar Services in the kWh Rate. The purchase of Solar Services hereunder does not include Environmental Attributes or any other attributes of ownership of the System, title to which shall rest solely with Provider. Each Party shall be permitted to make public statements with respect to this Agreement or the System. Notwithstanding the foregoing, 5
or credits owed by such Party to the other Party any undisputed amounts during the time that a Dispute is pending. 3.04 Change in Law.
(a) If there is any change in Applicable Law subsequent to the Commercial Operation Date that results in a direct and material change in Provider's costs to provide the Solar Services, Provider shall promptly submit to Customer a written notice setting forth (i) the citation of the change in Applicable Law, (ii) the manner in which such change materially increases Provider's costs to provide the Solar Services, and (iii) Provider's proposed adjustment to the kWh Rates to reflect such material changes in Provider's costs. Customer agrees to an adjustment in the kWh Rates such that the new kWh Rates effectively compensate Provider for the cost increase related to the change of Applicable Law. No such adjustment shall be more than five percent (5%) in any Contract Year. Customer shall have no responsibility for any change in Applicable Law prior to the Commercial Operation Date that results in a direct and material change in Provider's costs to provide the Solar Services. (b) If there is any change in Applicable Law subsequent to the Notice of Net Metering that terminates Customer's ability to engage in Net Metering (including, but not limited to, Customer's ability to take Net Metering service from the Local Electric Utility under the Tariff as the "Host Customer" (as such term is defined in the Tariff) for the System when the System is not connected to operate behind an existing electric meter of the Customer), then Customer shall continue to purchase all Solar Services from Provider in the manner and at the kWh Rates provided in this Agreement for the remainder of the Tenn. For all periods after any termination of Net Metering, Customer shall be responsible for reselling, transmitting or otherwise disposing of all purchased Solar Services at its own cost. 3.05 Sharing of SREC Revenues. Subject to Provider's sale and exclusive ownership of all Environmental Attributes pursuant to Section 2.01, so long as Customer is not in default of this Agreement, Provider will pay Customer twenty-five percent (25%) of the portion of the payments actually received by Provider for the sale of Shared SRECs in excess of $450.00 per SREC after the 6th year of commercial operation. Thus, if Provider receives a SREC price of $500.00, Customer shall be entitled to 25% of the revenues in excess of $450.00 per Shared SREC, or $12.50 per Shared SREC. Provider will deliver a statement to Customer within thirty (30) days after the end of each calendar year after the sixth (6th) anniversary of the Commercial Operation Date setting forth the total amount of any revenues received during such year from the sale of Shared SRECs generated after such anniversary, and the SREC price associated with such revenues. If a Shared SREC payment is due from Provider to Customer under this Section 3.05, then Provider shall deliver such payment along with the statement. Provider shall have sale discretion over all aspects of the sale of SRECs, including terms, price, purchaser and broker. If Provider sells SRECs on a multi-year, forward basis in return for a lump sum payment, then for purposes of determining whether the price per Shared SREC exceeds $450.00, the payment received by Provider will be deemed to be allocated evenly over the SRECs projected to be generated during such time period, and Provider shall be required to issue only one statement to Customer for the period covered by the forward sale.
(vi) The right of subjacent and lateral support to whatever is necessary for the operation and maintenance of improvements on the Site and other property used in connection with improvements, including, without limitation, guy wires and supports; (vii) The right to grade, level, fill, clear and replant ground; and to use on-site sand, gravel, caliche or other materials suitable for road cover solely to construct the System and related facilities on the Site, all to the extent permitted by law; and (viii) The right to undertake any other activities, whether accomplished by Provider or a third party authorized by Provider, that are reasonably necessary, useful or appropriate to accomplish any of the purposes or uses of the Agreement set forth above. (b) Access to Site. Customer hereby grants to Provider, together with its agents, employees and contractors, a non-exclusive easement and right of way (appurtenant to the exclusive Site access rights) to access the Site across or through the Property and any surrounding or nearby lands or buildings owned or leased by Customer, as may be reasonably required from time to time for (i) Site preparation and System construction, installation, operation, maintenance, repair, replacement and removal of the System; and (ii) compliance by Provider with its obligations hereunder. Customer shall provide sufficient space on the Property, at locations of the Property to be agreed upon and from time to time (and to the extent available), for the temporary storage, laydown and staging of tools, materials and equipment, the parking of construction crew vehicles and temporary construction trailers and facilities, and rigging. (c) Use of Rights. Provider shall utilize the rights granted hereunder in accordance with Applicable Law in a manner that minimizes inconvenience to and interference with Customer and use of the Property by Customer, Customer's guests and invitees, tenants, licensees or other visitors to the extent commercially practical. This Agreement is not intended to (and therefore, shall not) interfere with Customer's right and ability to fulfill any of its obligations to maintain the Property under any Applicable Law and permits, including its right and obligation to monitor and maintain the landfill located thereon, and to access the Property, including the Site, at any time for that purpose, provided that its right to conduct activities on Site are subject to the rights granted to the Provider herein, specifically subject to the terms of Section 6.08. . 4.02 Rent. Apart from the provision of Solar Services, and the sum of One Dollar ($1.00) declared in hand, no other rent shall be due from Provider hereunder. 4.03 Removal of System. Except as otherwise provided in Section 7.04 and Section 9.02, within one hundred twenty (120) days after the expiration or earlier termination of this Agreement, Provider shall, at Provider's expense, decommission and remove all of its tangible property comprising the System from the Property on mutually convenient dates. The Site shall be returned to its condition immediately prior to the installation of the System, except for System mounting pads or other support structures (which may be left in place if required by a Post Closure Use Permit issued by the Department of Environmental Protection) and ordinary wear and tear and without any obligation to replant trees or shrubs. Provider shall provide decommissioning assurance as of the Commercial Operation Date for the removal and
5.02 Installation. Provider shall cause the System to be designed, engineered, installed and constructed substantially in accordance with good industry practices, the terms of this Agreement and Applicable Law. Prior to System installation, Customer shall have the right to review and approve the Site Plan for the System, including but not limited to Provider's plan for integrating any solar panels to be placed on top of capped waste with such caps. Such Customer review and approval shall not be unreasonably withheld, denied, conditioned or delayed. If Customer fails to approve the Site Plan within ten (10) Business Days of receipt from Provider, the Site Plan shall be deemed approved by Customer. Provider will provide at least ten (10) Business Days prior written notice to Customer of the commencement of Site preparation work. The aforementioned review is a contractual review by Customer as the owner of the Property, and is in addition to, and not a limitation of, any regulatory review or process required by Applicable Law. Provider shall select only qualified installation contractors, and shall seek a payment and performance bond in the amount of 100 percent of the cost of the System installation from the general contractor working on the installation of the System and provide copies of such bonds to Customer within thirty (30) days after issuance of the Notice of Permits and Approvals. 5.03 Testing. Provider shall conduct such testing of the System as may be required by the Local Electric Utility, good industry practices, and Applicable Law. Provider shall give advance notice of such testing to Customer so that Customer has an opportunity to attend, and shall notify Customer of the results of any such testing, and the date that the System achieves its Commercial Operation Date. Customer will only purchase test energy to the extent such test energy is net metered by the Local Electric Utility. 5.04 Operations. The System shall be owned, operated, maintained and repaired by or for Provider at its sole cost and expense, and in a manner consistent with Applicable Law, including, but not limited to, any existing or future permit from the Massachusetts Department of Environmental Protection regarding use of the landfill, and good industry practices. Customer shall properly maintain, pay for and provide access to the necessary phone, computer, or other communication lines necessary to permit Provider to record the electrical output of the System for the entire Tenn. Provider and Customer shall each designate personnel and establish procedures such that each Party may provide timely notice of any emergency conditions that might reasonably be expected to affect the other Patty's property. For routine and emergency repairs, the Patties shall contact the persons set forth below: For Customer: Mr. Guilford Mooring Superintendent of Public Works 586 South Pleasant S1. Amherst, MA 01002 . 413-259-3050 For Provider: Rob Krugel 50 Main Street, Suite 812 White Plains, NY 10606 Email: firstname.lastname@example.org
(a) Customer Hazardous Materials. Provider shall not be responsible for any Hazardous Materials encountered at the Site, which were not introduced to or released from the Site by Provider or its contractors or subcontractors ("Customer Hazardous Materials"). To the extent permitted by law, Customer shall defend, indemnify and hold harmless Provider from and against any costs, claims and expenses (including reasonable attorneys' fees) incurred by Provider due to (i) the presence of Customer Hazardous Materials on the Site, or (ii) the violation of any Environmental Law by Customer or its contractors or subcontractors. Upon encountering any materials that Provider suspects may constitute Customer Hazardous Materials, Provider may suspend work in the affected area until such materials are properly remediated by Customer as provided below, and any such suspension shall act to toll day for day any deadline applicable to Provider hereunder and to Provider's suppliers and contractors under their respective arrangements with Provider. (b) Customer Remediation. Customer may opt to remediate the Customer Hazardous Materials that violate Applicable Law so that the System may be installed on the Site or a portion of the Site, or determine that it is not economically justifiable or is otherwise impractical to remediate the Customer Hazardous Materials, in which case (a) this Agreement shall terminate effective as of the delivery of such notice without any further liability of the Parties to each other with respect to the System except as provided in this Section and (b) Customer shall reimburse Provider for all expenses reasonably incurred by Provider in demobilizing and decommissioning the System after the discovery of the Customer Hazardous Materials. (c) Provider Hazardous Materials. Notwithstanding anything herein to Customer is not responsible for any Hazardous Materials introduced to or released by Provider or its contractors or subcontractors ("Provider Hazardous Materials"). defend, indemnify and hold harmless Customer from and against any costs, claims (including reasonable attorneys' fees) incurred by Customer due to (i) the presence Hazardous Materials on the Site or (ii) the violation of any Environmental Law by contractors or subcontractors. the contrary, from the Site Provider shall and expenses of Provider Provider or its
5.08 Utilities. Provider shall be responsible for all utilities and services furnished to or used by it in connection with the installation, operation and maintenance of the System on the Property, 5.09 Delivery Requirement. If Provider fails to deliver at least seventy-five percent (75%) of the Expected Production over a continuous twenty-four (24) month period that begins after the second anniversary of the Commercial Operation Date, then within forty-five (45) days after the occurrence of such a 24-month period (a "Shortfall Period"), the Provider shall be obligated to pay liquidated damages to the Customer ("ShOlifaIlLiguidated Damages") in an amount equal to (Market Rate- kWh Rate, each averaged over the Shortfall Period) multiplied by (Expected Production*75% - Actual Production over such Shortfall Period). Shortfall Periods may not overlap; if a Shortfall Period occurs, no subsequent Shortfall Period will begin earlier than the day after the prior Shortfall Period. In determining whether a Shortfall Period has occurred:
of the System as real property, it will so notify Customer in writing along with the reasons therefore, and any required third party consents arising by reason of such characterization. Except as otherwise set forth herein, as between the Parties, Provider shall retain the exclusive fight to take or sell all System products, including electricity, capacity and all Environmental Attributes. 6.02 Ownership of Rebates; Customer Rebate Assistance. All Rebates available in connection with the System are owned by Provider. Customer shall take all reasonable measures to assist Provider in obtaining all Rebates currently available or subsequently made available in connection with the System, at Provider's expense. 6.03 Risk of Loss; Exclusive Control. As between the Parties, Provider will be deemed to be in exclusive control (and responsible for any property damage or injuries to persons caused thereby) of the Actual Production up to but excluding a delivery point ("Delivery Point") where the System is interconnected to local electric grid and Customer will be deemed to be in exclusive control (and responsible for any property damage or injuries to persons caused thereby) of the Actual Production at and from the Delivery Point. Risk ofloss related to Actual Production will transfer from Provider to Customer at the Delivery Point. Provider shall deliver any Actual Production to Customer at the Delivery Point free and clear of all liens, security interests, claims, and other encumbrances. 6.04 Provider Liens. Provider shall not cause, create, incur, assume or suffer to exist any mortgage, pledge, lien (including mechanics', labor or materialman's lien), charge, security interest, encumbrance or claim of any nature ("Liens") on or with respect to Customer's interests in the Property or any interest therein other than the rights granted Provider hereunder. Provider also shall pay promptly before a fine or penalty may attach to the Property any taxes, charges or fees of whatever type of any relevant Governmental Authority, relating to any work performed hereunder by Provider or its agents and subcontractors on the Property, 6.05 Taxes and Assessments. Provider will pay and be responsible for any sales or use tax imposed with respect to Provider's acquisition and installation of the System. Provider shall not be obligated for any taxes payable by or assessed against Customer based on or related to Customer's income or revenues. Customer shall pay and be responsible for any sales, use, excise, transfer and other similar taxes or assessments levied on the sale or deliveries of the Solar Services hereunder (regardless of whether such taxes or assessments are imposed on Provider or Customer), together with any interest, penalties or additions to tax payable with respect to such taxes or assessments. Provider shall be liable for any real property taxes or assessments associated with the Property, and any real or personal property taxes or assessments related to the operation of the System on the Property. For the kWh of Actual Production representing Provider's estimated annual production from the System delivered to Buyer commencing on the beginning of the month after Provider's receipt of Customer's annual property tax assessment, and for each anniversary of such date thereafter, the kWh Rate may be increased by an amount that is equal to (a) the total amount (in dollars) of such annual assessment, divided by (b) the estimated annual output of the System. On each such anniversary date, the Parties agree to true up the prior years' kWh Rate increase with the Actual Production from the System for the prior year and make any adjustments as necessary to the following years' kWh rate to reflect such true 15
acknowledge and agree that any temporary displacement of any portion of the System required to comply with an order of the Massachusetts Department of Environmental Protection shall be a Force Majeure Event and Customer shall have no liability to Provider for reimbursement of lost solar revenues as a result of such a Force Majeure Event.
ARTICLE VII. TERM. 7.01 Term. The initial term of this Agreement shall commence on the Effective Date and shall continue in effect until the first December 31 following the twenty fifth (25th) anniversary of the Commercial Operation Date of the System (the "Initial Term"), unless terminated earlier pursuant to this Agreement. The Initial Term may be extended for another five (5) years upon mutual agreement of the Patties at least ninety (90) days prior to expiration of the Initial Term (the "Renewal Term"). In connection with a Customer Default under Section 9.02(b), Provider may elect (as evidenced by a written notice delivered to Customer prior to the expiration or termination of the then-current Initial Term or Renewal Term) to extend and renew this Agreement for a period equal to the Renewal Term or any remainder of the Initial Term, as applicable, for the purpose of selling electricity from the System at wholesale or to other patties (a "Provider Renewal Term"). During any Provider Renewal Term, Article II and Article III hereof shall have no effect, and the balance of the Agreement shall remain in effect. The Initial Term and all subsequent Renewal Terms (including any Provider Renewal Terms), if any, are referred to collectively as the "Term." The date on which this Agreement terminates by reason of expiration of the Term is hereafter referred to as the "Expiration Date." Any other date on which this Agreement terminates is hereafter referred to as the "Early Termination Date." 7.02 Early Termination by Provider. Provider may terminate this Agreement at any time and for any reason if the System has not begun to produce electricity, immediately upon provision of written notice thereof to Customer. Provider will not have any liability for such termination, except that no such termination shall act to relieve Provider from any obligation hereunder regarding the removal of such System and the restoration of such Site. 7.03Early Termination by Customer.
(a) Customer shall have the right to terminate this Agreement without any liability in the event that Provider has not submitted an application for interconnection to the Local Electric Utility within ninety (90) days of the Effective Date ofthis Agreement. (b) Customer shall have the right to terminate this Agreement without any liability for a period of fifteen (15) days following the receipt from Provider a fully executed Interconnection Agreement (signed by all necessary parties), in the event that Customer determines, in its sole discretion, not to proceed with Net Metering of the System. The Parties acknowledge and agree that if an Administrator is selected by the Department of Public Utilities for the System of Assurance prior to Provider's receipt of a fully executed (signed by all necessary parties) Interconnection Agreement from the Local Distribution Company, then Customer shall not be obligated to issue a Notice of Net Metering and instead, Customer shall 17
7.04 Purchase Option Upon Expiration or Early Tel111ination of this Agreement. So long as a Customer Default shall not have occurred and be continuing, Provider grants to Customer an option to purchase the System (the "Purchase Option") as of the 6th anniversary of the Commercial Operation Date, the Expiration Date or any Early Termination Date. The purchase price (the "Option Price") for Customer's Purchase Option (excepting the Purchase Option for an early termination for Provider Default) shall be equal to the greater of (a) the Fair Market Value of such System, as determined pursuant to Section 7.05, or (b) the Purchase Option Fee set forth on Schedule 4. The Option Price for Customer's Purchase Option in the event of early termination due to a Provider Default shall be equal to the Fair Market Value of the System. If Customer elects to exercise the Purchase Option, then, not less than sixty (60) days prior to such 6th anniversary of the Commercial Operation Date, Expiration Date or Early Termination Date, as applicable, Customer shall provide written notice to Provider of Customer's intent to exercise the Purchase Option. Within ten (10) days after its receipt of Customer's notice, Provider shall specify the Fair Market Value. If the Patties agree to the amount as to the Fair Market Value and such Fair Market Value is greater than the Purchase Option Fee (excepting any instance in which exel~cise of the Purchase Option is due to a Provider Default, in which case the amount shall be the agreed amount of the Fair Market Value), Customer shall then have a period often (10) days after notification to confirm or retract its decision to exercise the Purchase Option. In the event the Parties do not agree as to the Fair Market Value, the Patties shall determine the Fair Market Value in accordance with Section 7.05, and after receipt of such appraisal for Fair Market Value, Customer shall then have a period often (10) days after such receipt to confirm or retract its decision to exercise the Purchase Option. If Customer confirms its exercise of the Purchase Option, then (i) the Parties shall execute all documents necessary to (A) cause title to such System and the Environmental Attributes to pass to Customer, free and clear of any Liens, and Provider shall retain all liabilities arising from or related to the System and the Environmental Attributes prior to the Transfer Date (as defined herein); and (B) assign any warranties for such System to Customer, and (ii) Customer shall pay the Option Price to Provider in immediately available funds. Customer and Provider shall also execute such documents reasonably necessary for Customer to accept, assume and perform all then-existing agreements relating to such System or the Solar Services, including but not limited to operations and maintenance agreements, and agreements for the sale of Environmental Attributes. If Customer retracts its exercise of, or does not timely confirm, the Purchase Option, then the Purchase Option shall terminate and be of no further force and effect. The closing of any sale of the System (the "Transfer Date") pursuant to this Section 7.04 will occur as soon as practicable following the date of the notice furnished by Customer to Provider to exercise the Purchase Option. Except as expressly set forth herein, this Agreement shall terminate effective upon the Transfer Date 7.05 Detennination afFair Market Value. The Fair Market Value of the System or the Solar Services, as applicable, shall be determined by the mutual agreement of Customer and Provider; provided, however, if Customer and Provider cannot mutually agree to a Fair Market Value within ten (10) days of the need to determine Fair Market Value either pursuant to Section 7.04 or a Renewal Term, then the Parties shall select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry. Such appraiser shall act reasonably and in good faith to determine Fair Market Value and shall set forth such determination in a written opinion delivered to the Parties within twenty (20) days of the initial request for appraisal. The valuation made by the appraiser shall be binding upon the Parties in
(ii)(A) Provider admits in writing its inability to pay its debts generally as they become due; (B) Provider files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any state, district or territory thereof; (C) Provider makes an assignment for the benefit of creditors; (D) Provider consents to the appointment of a receiver of the whole or any substantial part of its assets; (E) Provider has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof; (F) a COUlt of competent jurisdiction enters an order, judgment, or decree appointing a receiver ofthe whole or any substantial part of Provider's assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (G) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Provider's assets and such custody or control is not terminated or stayed within ninety (90) days from the date of assumption of such custody or control; (iii) Provider fails to provide or maintain in full force and effect any required insurance, or the occurrence of a default by the insurer of Provider under any insurance policy provided hereunder, if such failure or default is not remedied within fifteen (15) Business Days after receipt of written notice from the Customer;
(iv) In the event that the financial sureties (including, but not limited to, the additional security under Section 11.06) furnished by Provider in connection with this Agreement are revoked, terminated or otherwise fail and are not replaced within fifteen (15) Business Days after receipt of written notice from the Customer;
(v) For any reason other than a Force Majeure Event or a Customer request to dismantle under Section 6.08 or any Provider election to continue the Project under Section 11.04, Provider is unable to provide any Actual. Production to Customer for ninety (90) consecutive days in any three hundred sixty-five (365) day period commencing on the Commercial Operation Date. (b) Customer's Remedies. Ifa Provider Default described in Section 9.01(a) has occurred and is continuing, then Customer may terminate this Agreement immediately upon the expiration of the respective grace periods set f011hin such provisions, Customer may elect the Purchase Option as set forth in Section 7.04, and otherwise exercise any other remedy it may have at law or equity or under this Agreement. (c) Actions to Prevent Injury. If any Provider Default creates an imminent risk of damage or injury to any Person or any Person's property, then, in addition to any other right or remedy that Customer may have, Customer may (but shall not be obligated to) take such action as Customer deems appropriate to prevent such damage or injury. 9.02 Customer Defaults.
(a) Customer Default Defined. The following events shall be defaults with respect to Customer (each, a "Customer Default"): 21
event with the exercise of due diligence. A "Force Majeure Event" shall not include: inclement weather or unavailability of the sun or unavailability of equipment, repairs or spare parts for the System, unless specified in, or due to a cause specified in, the preceding sentence; non-payment under a third-party agreement; or economic hardship of either Party. Notwithstanding any other term hereof, no payment obligation of either Party under this Agreement may be excused or delayed as the result of a Force Majeure Event. A Party claiming a Force Majeure Event shall not be considered in breach of this Agreement or liable for any delay or failure to comply with the Agreement, if and to the extent that such delay or failure is attributable to the occurrence of such Force Majeure Event; provided that the Patty claiming relief shall immediately notify the other Party in writing of the existence of the Force Majeure Event, exercise all reasonable efforts necessary to minimize delay caused by such Force Majeure Event, and resume performance of its obligations hereunder as soon as practicable thereafter. If a Party claims a Force Majeure Event for a consecutive period of three hundred sixty-five (365) days or longer, and Provider has not invoked its right to continue the Project under Section 11.04, then the non-claiming Party may terminate this Agreement, in whole or in part, without any liability to the claiming Patty as a result of such termination and Provider shall promptly remove the System from the Property in accordance with Section 4.03 of this Agreement. 9.04 LIMITATION ON LIABILITY.
NOTWITHSTANDING ANY OTHER TERM HEREOF, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT. ARTICLEX. DISPUTE RESOLUTION. 10.01 Resolution by Parties. Unless otherwise expressly provided for in this Agreement, the dispute resolution procedures of this Article X shall be the exclusive mechanism to resolve disputes arising under this Agreement. The Parties agree to use their respective best efforts to resolve any dispute(s) that may arise regarding this Agreement. Any dispute that arises under or with respect to this Agreement that cannot be resolved shall in the first instance be the subject of informal negotiations between the Parties, The dispute shall be considered to have arisen when one Party sends the other Patty a written notice of dispute. The period for informal negotiations shall be fourteen (14) days from receipt of the written notice of dispute unless such time period is modified by written agreement of the Parties. In the event that the Patties cannot resolve a dispute by informal negotiations, the Patties agree to submit the dispute to mediation. Within fourteen (14) days following the expiration of the time period for informal negotiations, the Parties shall propose and agree upon a neutral and otherwise qualified mediator. In the event that the Parties fail to agree upon a mediator, the Parties shall request that the American Arbitration Association, Boston, Massachusetts, appoint a mediator. The period for mediation shall commence upon the appointment of the mediator and shall not exceed sixty (60) days, unless such time period is modified by written agreement of the Parties. The decision to continue mediation shall be in the sole discretion of each Party. The Parties will bear their own costs of the mediation. The mediator's fees shall be shared equally by the Parties. In the event 23
with companies either rated no less than A- as to Policy Holder's Rating in the current edition of Best's Insurance Guide (or with an association of companies each of the members of which are so rated) or having a parent company's debt to policyholder surplus ratio of 1: 1. Provider's insurer may be an Affiliate of Provider. 11.04Casualty. If at any time during the Term any part of the Property is so severely damaged by fire or other casualty that substantial alteration, reconstruction or restoration is required on the Property but the System is capable of producing Actual Production, then Customer shall pay for all of the Actual Production that (1) the System is capable of producing and (2) for which Customer receives credit from the Local Electric Utility under its Net Metering program. In such case, this Agreement shall remain in full force and effect, without change, for the remainder of the Term. If Customer is unable to receive credit for one hundred percent (100%) of the Actual Production that the System is capable of producing, Provider shall be permitted to sell any Actual Production that Customer is not able to use (or receive credit for) to one or more third patties for the remainder ofthe Term plus, at Provider's option, up to an additional five (5) years. If at any time during the Term the System is so severely damaged by fire or other casualty that substantial alteration, reconstruction or restoration is required, then Provider shall have the right, but not the obligation, to alter, reconstruct or restore the System and if Provider elects to do so then Customer shall pay for all of the Actual Production that (1) the System is capable of producing and (2)for which Customer receives credit from the Local Electric Utility under its Net Metering program. In such case, this Agreement shall remain in full force and effect, without change, for the remainder of the Term. If Provider elects to not alter, reconstruct or restore the System, Provider shall have the right, upon thirty (30) days prior written notice to Customer, to terminate this Agreement and remove the System from the Site in accordance with the provisions of Section 4.03. 11.05 Condemnation. If at any time during the Term, any part of the Property or System is taken for any public or quasi-public use under Applicable Law, ordinance of or regulation by a Governmental Authority by condemnation or right of eminent domain, then each Patty shall be entitled to separately pursue an award for its respective property interest appropriated as well as any damages suffered thereby, and each Party hereby waives any right to any award that may be prosecuted by the other Patty. 11.06 Additional Security. In addition to the insurance required pursuant to this Article XI, Provider shall purchase and maintain a bond in an amount equal to $1,000,000 per MW of the System's nameplate capacity rating, in a form reasonably acceptable to Customer, to cover Provider's obligations under the Agreement (including, but not limited to, the decommissioning assurance required pursuant Section 4.03, Shortfall Liquidated Damages pursuant to Section 5.09, and Provider's "indemnification obligations pursuant to Section 5.07(c) and Section 13.01). The bond shall be from an issuer with a Best's rating of not less than "A" and from a surety company licensed to do business in the Commonwealth of Massachusetts whose name appears on the U.S. Treasury Dept. Circular 570, and shall name Customer as obligee as its interests may appear. A form of the bond is attached hereto as Schedule 7. Customer shall reimburse Provider for the cost of the bond with an annual adder to the kWh Rate equal to $.001 per $1,000,000 of
capital providers. Such financings may include the sale or sale/leaseback of the System to taxadvantaged entities. In order to facilitate System financings, Customer will provide such Lenders and capital providers with commercially reasonable direct agreements, consents, subordinations, waivers, confirmations and estoppels as may be reasonably requested from time to time, including the ability of such entities to enforce Provider's rights hereunder, cure any Provider Default, receive concurrent notices to Provider and exercise normal and customary rights of secured parties. ARTICLE XIII. INDEMNIFICATION. 13.01 Indemnification by Provider. Subject to Section 11.01, Provider shall fully indemnify, save harmless and defend Customer from and against any and all costs, claims, and expenses (including attorneys' fees) incurred by Customer in connection with or arising from any claim by a third patty for physical damage to or physical destruction of property, or death of or bodily injury to any Person, but only to the extent caused by (a) the gross negligence or willful misconduct of Provider or its agents or employees or others under Provider's control or (b) a Provider Default; provided, however, that Provider's obligations pursuant to this Section 13.01 shall not extend to claims, demands, lawsuits or actions for liability to the extent attributable to the negligence or willful misconduct of Customer; providedfurther, however, that nothing in this Section is intended to modify the limitation of Provider's liability set forth in Section 9.04. 13.02 Indemnification by Customer. Subject to Section 11.02, and to the extent permitted by law, Customer shall fully indemnify, save harmless and defend Provider from and against any and all costs, claims, and expenses (including attorneys' fees) incurred by Provider in connection with or arising from any claim by a third patty for physical damage to or physical destruction of property, or death of or bodily injury to any Person, but only to the extent caused by (a) the gross negligence or willful misconduct of Customer or its agents or employees or others under Customer's control or (b) a Customer Default; provided, however, that Customer's obligations pursuant to this Section 13.02 shall not extend to claims, demands, lawsuits or actions for liabil ity to the extent attributable to the negligence or willful misconduct of Provider; provided further, however, that nothing in this Section is intended to modify the limitation of Customer's liability set forth in Section 9.04. 13.03 Notice of Claims. Any Party seeking indemnification hereunder (the "Indemnified Party") shall deliver to the other Party (the "Indemnifying Patty") a notice describing the facts underlying its indemnification claim and the amount of such claim (each such notice a "Claim Notice"). Such Claim Notice shall be delivered promptly to the Indemnifying Patty after the Indemnified Patty receives notice that an action at law or a suit in equity has commenced; provided, however, that failure to deliver the Claim Notice as aforesaid shall not relieve the Indemnifying Patty of its obligations under this Section, except to the extent that such Indemnifying Party has been prejudiced by such failure. 13.04 Defense of Action. If requested by an Indemnified Party, the Indemnifying Patty shall assume on behalf of the Indemnified Patty, and conduct with due diligence and in good faith, the defense of such Indemnified Patty with counsel reasonably satisfactory to the Indemnified Patty;
14.03 Integration; Attachments. This Agreement, together with the Schedules and any Exhibits attached hereto, constitutes the entire agreement and understanding between Provider and Customer with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof. 14.04 Industry Standards. Except as otherwise set forth herein, for the purpose of this Agreement accepted standards of performance within the solar photovoltaic power generation industry in the relevant market shall be any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known, or which in the exercise of due diligence, should have been known, at the time the decision was made, would have been expected to accomplish the desired result consistent with reliability, safety, expedition, project economics and Applicable Law for similar facilities in the Commonwealth of Massachusetts. Unless expressly defined herein, words having well-known technical or trade meanings shall be so construed. 14.05 No Limitation of Regulator v Authority. The Parties acknowledge that nothing in this Agreement shall be deemed to be an agreement by Customer to issue or cause the issuance of any permit or approval, or to limit or otherwise affect the ability of the Customer or the Commonwealth of Massachusetts to fulfill its regulatory mandate or execute its regulatory powers consistent with Applicable Law. 14.06 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Provider and Customer. 14.07 Waiver. No waiver of any provision of this Agreement shall be effective unless set forth in writing signed by the Party granting such waiver, and any such waiver shall be effective only to the extent it is set f011h in such writing. The failure of Provider or Customer to enforce any of the provisions of this Agreement, or the waiver thereof, shall not be construed as a general waiver or relinquishment on its part of any such provision in any other instance, or of any other provision in any instance. No single or partial exercise of any right under this Agreement shall preclude any other or further exercise thereof or the exercise of any other right; and no waiver of any breach of or default under any provision of this Agreement shall constitute or be construed as a waiver of any subsequent breach of or default under that or any other provision of this Agreement. 14.08 Cumulative Remedies. Except as set forth herein, any right or remedy of Provider or Customer shall be cumulative and without prejudice to any other right or remedy, whether contained herein or not. 14.09 Survival. The obligations hereunder that, by their sense and context, are intended to survive termination of this Agreement.Including, but not limited to, the obligations set forth in Section 4.03 (Removal and Decommissioning), Article X (Dispute Resolution), Section 11.06 (Additional Security), and Article XIII (Indemnification) shall survive the expiration or termination of this Agreement to the extent necessary to give them full effect.
the requirement that the unavailability of such original, executed counterpart of this Agreement first be proven. I4.18No Public Utility. Nothing contained in this Agreement shall be construed as an intent by Provider to dedicate its property to public use or subject itselfto regulation as a public utility, an electric utility, an investor owned utility, a municipal utility, generation company or a merchant power plant otherwise known as an ~xempt wholesale generator. 14.19No Recourse to Affiliates. This Agreement is solely and exclusively between the Parties, and any obligations created herein on the part of either Party shall be the obligations solely of such Party. No Party shall have recourse to any parent, subsidiary, partner, member, affiliate, lender, director, officer or employee of the other Party for performance or non-performance of any obligation hereunder, unless such obligations were assumed in writing by the Person against whom recourse is sought. 14.20Notices. Unless otherwise provided in this Agreement, all notices and communications concerning this Agreement shall be in writing and addressed to the other Party as follows: If to Provider: Rob Krugel 50 Main Street, Suite 812 White Plains, NY 10606 Email: email@example.com Phone: (914) 618 4694 Fax: (914) 239 5317 Ifto Customer: Mr. Guilford Mooring Superintendent of Public Works 586 South Pleasant St. Amherst, MA 01002 Phone: (413) 259-3050 With a copy to: Jeffrey M. Bernstein, Esq. BCK Law, P.C. One Gateway Center, Suite 809 Newton, MA 02458 Email:.jbernsteinrmbck.com Phone: (617) 244-9500 or at such other address as may be designated in writing to the other Party. Unless otherwise provided herein, any notice provided far in this Agreement shall be hand-delivered, or sent by (a) registered or certified U.S. Mail, postage prepaid, (b) commercial overnight delivery service, or
IN WITNESS WHEREOF intending to be legally bound hereby, the Parties have executed this Solar Power Services Agreement as of the Effective Date. SEC Amherst Solar One, LLC, a Delaware limited liability company By: Smart Energy Capital, LLC, a Delaware limited liability company, As managing member,
By: _ Its: ------------------------------
Town of Amherst, a municipal corporation
By: ----------------------------~ Its: ----------------------------~
SIGNATURE PAGE TO SOLAR POWER SERVICES AGREEMENT
Town of Amherst - Capped Landfill
'RighI QfWay liile Fonner P,oper!Y'li'ne.
o a7.S 175
1 inell ~ 350 fe·et AmhefSt
Schedule 1- page 1
Schedule 3 kWh RATE The kWh Rate with respect to the System contemplated in the Agreement shall be in accordance with the following schedule: PPA Rate ($/kWh) Year 1 0.0675
0.0685 0.0695 0.0706 0.0716 0.0727 0.0738 0.0749 0.0760 0.0772 0.0783 0.0795 0.0807 0.0819 0.0831 0.0844 0.0857 0.0869 0.0882 0.0896 0.0909 0.0923 0.0937 0.0951 0.0965
10 11 12
14 15 16 17 18 19 20 21 22 23 24 25
Schedule 3- page 1
Schedule 5 FORM OF MEMORANDUM OF SOLAR POWER SERVICES AGREEMENT
OF SOLAR POWER SERVICES AGREEMENT
[Revise to comply with local recording laws.] THIS MEMORANDUM Memorandum"), dated this __ ___________ ,a _________________ _______________ of OF SOLAR POWER SERVICES AGREEMENT (the day of , 2010, by and between ------(the "Customer"), with an address of , and ,a (hereinafter referred to as "Provider"), with an address
1. Customer is the fee simple owner of a certain tract of land more particularly described in EXHIBIT A, which is attached hereto and hereby incorporated herein (the "Property"), located in the of , County of , State of ; and -----2. Customer has entered into that certain Solar Power Services Agreement dated ______ , __ (the "Agreement"), with Provider, relating to the Property, which Agreement is for a term of U years commencing on __ ...,.---...,.---_----:- _ and ending , which Agreement includes the right of Provider to install, operate and maintain on the Property an electric grid-connected photovoltaic solar power plant with a total generating capacity rated at approximately [_] kW owned by Provider (the "System"); and
3. The Agreement includes a grant of certain easements and other rights on and over portions of the Property including but not limited to an exclusive easement for the installation, operation and maintenance of the System on and over that portion of the Property described on EXHIBIT B attached hereto and hereby incorporated herein as well as an easement to receive unobstructed sunlight; and 4. Customer and Provider desire to execute this Memorandum to give public record notice of the Agreement, Provider's easement and other rights in and to the Property and Provider's ownership of the System and appurtenances thereto.
This Memorandum is hereby executed for the purpose of recording in the office ofthe [Register of Deeds] [County Recorder] for County, ,111 order to give public record notice of: (a) The Agreement and the terms and provisions set forth therein;
Schedule 5 - page 1
IN WITNESS WHEREOF, this Memorandum day, month and year first above written.
has been executed and delivered as of the
Name Printed: Tit1e: PROVIDER _
Name Printed: Title: _
) ) SS.
Personally came before me this . _ _ day of , 20_, the above-named , to me known to be the of ---------------, who executed the foregoing document on behalf of such ________ and acknowledged the same.
Name: --------------Notary Public, State of _ My Commission: [NOT ARIAL SEAL]
Schedule 5- page 1
Schedule 6 FORM OF BOND
Please see attached.
Schedule 5- page 1