Loading...
HomeMy WebLinkAbout2016-27252016 -2725 l ON 1 4 This Solar Photovoltaic System Power Purchase Agreement ("Agreement ") is made and entered into as of E_, 2016 ( "Effective Date "), by and between New Energy Equity, LLC, a Maryland limited liability company ( "System Owner "), and City of Columbia Heights, a municipal corporation located at 590 40th Ave. NE Columbia Heights, Minnesota ( "Host Customer "). Each of System Owner and Host Customer may be referred to herein as a "Party" and collectively, as the "Parties." RECITALS WHEREAS, Host Customer owns and controls certain properties located in Columbia Heights, Minnesota which use electricity ( "Premises "); WHEREAS, System Owner is willing to design, install, insure, own, operate and maintain a solar photovoltaic electric generating system ( "System "), on Premises; REAS, the System would satisfy a portion of Host Customer's electricity requirements at Host Customer's Premises, and System Owner desires to sell and Host Customer desires to purchase all of the electricity generated by the System ( "Output "); WHEREAS, Host Customer is willing to provide System Owner with access to, and the right to occupy a portion of, its property for the purpose of having the System Owner design, install, operate and maintain the System; WHEREAS System Owner and Host Customer agree that System Owner will obtain and retain all Environmental Credits and all Financial Incentives and Tax Benefits associated with the installation, ownership, operation and Output of the System; NOW, THEREFORE, in consideration of the agreements and covenants hereinafter set forth, the Parties hereby covenant and agree as follows: ,l DEFfMTIONS AND INTERPRETATIOV, 1.1 Definitions "Agreement' means this Solar Photovoltaic System Power Purchase Agreement, as the same may be modified or amended from time to time in accordance with the provisions hereof. "Ancillary Services" means any supplemental services necessary to support the transmission of electric power from a seller to a purchaser and available from the System from time to time, whether existing as of the Effective Date or thereafter. "Late Fee" means the late fee that System Owner may impose on Host Customer for payments not made by the Due Date pursuant to Section 9.6.2. "Meter" means the standard instrument(s) and equipment installed at the Site by System Owner as part of the System to be used to measurr, and record the Output delivered to the Host Customer at the Delivery Point. "Net Metering Arrangements" shall have the meaning set forth in Section 4.7 herein. "Non-Defaulting Party" means the Party to whom the Defaulting Party is liable in accordance with the provisions of Article XV. "Non-Delivery Period" means the unexcused non-delivery of Output by System Owner as set forth in Section 15.1.1. "Output" means, and is limited to, the electricity produced by the System and delivered to Host Customer at the Delivery Point. "Person" means any natural person, partnership, trust, estate, association, corporation, limited liability company, governmental authority or agency or any other individual or entity, "Premises" means Host Customer's property, as described in Exhibit PPA-A. "Services" means the design, installation and testing of the System and, upon successful completion of installation and testing, the operation, maintenance and repair of the System, by System Operator as necessary to produce and delivery Output to Host Customer in accordance with the terms and conditions of this Agreement. "Service Commencement Date" means the successful completion of the installation and testing of the System with notice to Host Customer that the System is ready to deliver Output as set forth in Section 4.9. "Service Term" means the period commencing, on the Service Commencement Date and continuing until the termination of this Agreement. "Site" means the area on the Premises described in Exhibit PPA-A on which the System Owner will install the System. "Site Electrical System" means Host Customer's existing building electrical systems that are owned or leased, operated, maintained and controlled by Host Customer, and which systems are interconnected with the Host Utility. "Solar Electricity Price" means the price specified in Exhibit PPA-C that Host Customer shall pay System Owner for the delivery of Output. "System" means all equipment and materials, including but not limited to photovoltaic arrays, DC/AC inverters, )Airing, meters, tools, software, and any other property now or hereafter installed, owned, operated, or controlled by System Owner for the purpose of, or incidental or useful to, maintaining and modifying the use of the solar generation system and providing MKI V 01010 13 By VA I M a] 3.1 Pre-Installation Conditions 3.1.1 Completion of Detailed System Design At the time of the execution of this Agreement, Host Customer shall have provided System Owner with all available, necessary and up-to-date Premises, Site and Site Electrical System drawings, specifications and other documentation that System Owner may reasonably require to develop and complete a detailed System design. For this purpose Host Customer shall provide System Owner with access to the Premises and the Site to verify field conditions, and shall make appropriate staff available to answer questions and provide information required by System Owner to support the detailed design process. 3.1.2 Receipt of Required Third Party Authorizations Within ten (10) days of the execution of this Agreement, Host Customer shall have obtained or shall obtain on behalf of itself and System Owner, any and all easements, leases, licenses, consents, acknowledgments, approvals and other rights and authorizations from third parties, including entities or persons holding any mortgage or other lien or lease burdening the Premises on the Effective Date, necessary for System Owner to begin installation of the System at the Site, to install and test the System, to produce and deliver Output to Host Customer to the Delivery Point, and to own, operate and maintain the System under this Agreement. Host Customer shall obtain and forward the foregoing authorizations and approvals to System Owner as each is received. 3.1.3 Receipt of all Necessary Construction and Other Permits System Owner shall apply for, pay for, and obtain all necessary construction and other permits from local authorities and Host Utility. Host Customer shall cooperate with System Owner as necessary in the permitting process and shall apply directly for permits if necessary. C) System Owner shall deliver copies of all permits obtained to Host Customer upon Host Customer's request, and where applicable Host Customer shall do the same. 3.1.4 Failure to Satisfy Pre - Installation Conditions (a) If System Owner determines in its sole discretion that a pre-installation condition set forth in this Section 3.1 cannot be satisfied, or that the System as described in Exhibit PPA-B cannot be installed on the Site because the roof is structurally inadequate to support the System, the Site Electrical System is inadequate to accept the Output of the System, or architectural and other requirements are discovered that would add to the cost of the System, System Owner will notify Host Customer that the System cannot be constructed as proposed, and this Agreement will terminate with neither Party having further obligations under this Agreement; provided During the Installation Period, System Owner or its Contractors may test the System, and Host Customer shall accept delivery of any Output resulting from such testing during the Installation Period. There shall be no charge to Host Customer for Output delivered from the System during the Installation Period. 4.1.5 Connection of System to Site Electrical System System Owner shall be responsible for the interconnection of the System to the Site Electrical System and shall be solely responsible for all equipment, maintenance, and repairs associated with such interconnection equipment in accordance with the terms and conditions of this Agreement. Host Customer shall at all times own and be responsible for the operation and maintenance of the Site Electrical System at and from the Delivery Point. 4.2 Hazardous Materials and Refuse 4.2.1 Host Customer Representation Host Customer represents that at the time it executes this Agreement, it has disclosed to System Owner any and all hazardous materials that exist at the Site or Premises in Exhibit PPA- A of this Agreement. 4.2.2 System Owner Res ppnsibilities During the Installation Period and thereafter, System Owner agrees and shall cause its Contractors to agree, as follows: (a) To take reasonable measures to reduce or mitigate noise, dust, the spread of debris and installation materials; (b) To remove all debris, extra materials, scaffolding, tools, machinery and other installation materials from the Site and other work areas at the conclusion of the Installation Period; and (c) To use and dispose of any "hazardous materials" as defined in any applicable federal or state environmental laws brought to the Site or the Premises in connection with Services being performed in accordance with all applicable laws. 4.2.3 Effect of Discovery of Hazardous Materials If System Owner or its Contractors discover any hazardous materials existing on the Premises or the Site during the installation and testing of the System that System Owner reasonably believes may require removal or remediation, or that otherwise impairs or prevents installation and testing of the System, System Owner shall promptly notify Host Customer, and System Owner may, in its sole discretion, suspend installation or testing of the System until such time as Host Customer has removed the hazardous materials and remediated the Premises to System Owner's satisfaction. System Owner shall have no responsibility or liability in respect of hazardous materials existing at the Premises (other than any hazardous materials brought to the Premises by or on behalf of System Owner). If Host Customer does not agree on a schedule and terms to remove the hazardous materials which permits System Owner to resume installation While at the Premises and the Site, System Owner and its Contractors will take all reasonable and customary steps to ensure the safety of workers and visitors in accordance with all applicable laws. System Owner shall cause the work to be carried out in accordance with Host Customer's published safety program, a copy of which is appended hereto as Exhibit PPA- E. 4.6 Installation of Meter System Owner shall install the Meter at the Delivery Point to measure the amount of Output delivered by the System to Host Customer. System Owner will own, operate and maintain the Meter during the Service Term at its own expense. 4.7 Net Metering Arrangements 4.7.1 System Owner Notification to Make Net Metering Arrangements System Owner shall provide Host Customer with timely notification that Host Customer must make Net Metering Arrangements with the Host Utility in order for System Owner to be able to complete the installation and testing of the System. Within five (5) business days of such notification from System Owner, Host Customer shall enter into Net Metering Arrangements by executing such agreements as may be required by Host Utility to permit the interconnection of the System with the Site Electrical System and to allow any Output of the System not consumed by the Host Customer to flow to the Host Utility. Host Customer shall promptly provide copies of such agreements and arrangements to System Owner when executed. 4.7.1 Required Documentation System Owner shall provide Host Customer with documentation under System Owner's control that the Host Utility requires by its Tariff to demonstrate that the System complies with the requirements of the Host Utility's interconnection standards. 4.8 Internet Access Consistent with the System Description and Specifications in Exhibit PPA-B, Host Customer shall make available to System Owner such internet access at the Premises and the Site as System Owner shall require for the continuous remote monitoring of the System's operation and performance. 4.9 Notification of Service Commencement Date Upon the successful completion of the installation and testing of the System and Host Utility approval to operate the System, System Owner shall provide Host Customer with notice that the System is ready to deliver Output and of the Service Commencement Date on the form in Exhibit PPA-F. 5.3 Host Customer Qperatiolb Maintenance and Repair of Premises and Site 5.3.1 Host, Customer Responsibility and Coordination with System Owner Host Customer shall be solely responsible for the operation, maintenance and repair of the Premises and the Site, including any repair, maintenance or replacement of the roof on which the System is located. Host Customer will advise System Owner in writing prior to making any adjustments, modifications, or upgrades to the Premises or Site to ensure that the Output of the System is not negatively impacted. The duration of any maintenance or repair that disrupts System Output shall constitute a Disruption of Delivery on the part of the Host Customer in accordance with Section 11.3, and shall not constitute a Non-Delivery Period by System Owner as set forth in Section 15.1.1; provided, that if the need for any such repair or maintenance is caused by the negligence or intentional misconduct of System Owner, then the period required for maintenance or repair shall not constitute a Disruption of Delivery on the part of the Host Customer. Host Customer and System Owner shall coordinate such activities so as to minimize disruption to the System. 5.3.2 Separate Contract to Accommodate Host Customer Site Roof Repair If during the Term Of this Agreement, Host Customer performs Site repairs or maintenance which may include replacement of the roof on which the System is located, Host Customer will contract separately with System Owner to disassemble, temporarily relocate, move, and reassemble System components as necessary to coordinate with the repairs, maintenance or replacement. System Owner will coordinate with Host Customer to minimize the disruption of Output during such repairs, maintenance, or replacement, and to restore the System to full capacity in a timely manner; provided, however that the duration of the repairs, maintenance or replacement shall constitute a Disruption of Delivery on the part of the Host Customer in accordance with the provisions of Section 11.3, and shall not constitute a Non- Delivery Period by System Owner in accordance with the provisions of Section 15.1.1. 5.4 Host Customer Maintenance and Repair of Site Electrical System Host Customer shall maintain the Site Electrical System in good working order, and shall perform such other maintenance, repair and upgrades as may be required including but not limited to such work required by the Host Utility or by applicable laws, regulations, ordinances, and codes, Host Customer will advise System Owner in writing prior to making any adjustments, modifications, or upgrades to the Site Electrical System to ensure that the Output of the System is not negatively impacted. The duration of any maintenance, repair, or upgrade that disrupts System Output shall constitute a Disruption of Delivery on the part of the Host Customer in accordance with Section 11.3, and shall not constitute a Non-Delivery Period by System Owner as set forth in Section 15.1. 1; provided, that if the need for any such repair or maintenance is caused by the negligence or intentional misconduct of System Owner, then and the period required for such maintenance or repair shall not constitute a Disruption of Delivery on the part of the Host Customer. Host Customer and System Owner shall coordinate such activities so as to minimize disruption to the System. Customer will insure that any other license or other allowed use of the Premises shall not interfere with System Owner's reasonable access hereunder. 6.2.3 As used in this Article VI access rights applicable to System Owner shall include access for System Owner's agents, Contractors and assigns. 6.3 Access by Host Customer to System Because the System will be located on the Premises, the Parties acknowledge that Host Customer will have access to the Site for maintenance of Host Customer's property, safety, security, and emergency purposes. Host Customer shall take all reasonable actions to ensure that the operation of the System is not disrupted when Host Customer accesses the Site, and that the System will not be damaged thereby as a result of the actions or inactions of Host Customer, its designee(s) or invitees. 6.4 Prevention of Unauthorized Access Host Customer, in consultation with the System Owner, shall develop and implement, prior to the Service Commencement Date, written policies, systems and practices to prevent unauthorized access to and trespass on the System and to prevent harm or damage to the System or to Output. 7.1 Ownership of System by System Owner 7.1.1 Host Customer and System Owner (a) intend that the System shall at all times be the personal property of System Owner severable from the Site and the Premises and shall not become a fixture and (b) shall each take such actions as are reasonably required by the other Party to ensure that the System constitutes the personal property of System Owner and shall not become a fixture. 7.1.2 If any person attempts to claim ownership of or other rights to the System by asserting any claim against or through Host Customer, and such claim is not attributable to any act or omission of System Owner, Host Customer agrees to protect and defend System Owner's title to the System, at Host Customer's expense. Host Customer will at all times keep the System free from any legal process and any lien not attributable to any act or omission of System Owner, and will give System Owner immediate notice if any legal process or lien is asserted or made against the System or against Host Customer where the System may be subject to any lien, attachment or seizure by any Person. 7.2 Use of Premises 7.2.1 Host Customer intends to continue to use the Premises in a manner similar to its present use throughout the Term, except as has been disclosed to System Owner by Host Customer and included in Exhibit PPA-A of this Agreement. Host Customer shall give 7.5 Host Customer's On-Roing Ability to Perform During the Tenn of the Agreement and when requested by System Owner, Host Customer shall promptly provide reasonable evidence of creditworthiness and ability to pay amounts due under this Agreement. Vin EWIRONMENTAL CREDITS AND SYSTEM ATTRIBUTES 8.1 System Attributes System Owner shall at all times during the Term of this Agreement own and retain exclusive rights to any and all attributes, products or economic benefits attributable to the System or to the production and delivery of Output, including but not limited to Environmental Credits, Capacity and Ancillary Services. 8.2 Environmental Credits All Environmental Credits, whether available directly or indirectly, shall be and shall remain the property of System Owner for the Service Term. System Owner shall have sole Use of such Environmental Credits and shall be permitted to use such Environmental Credits for itself, or to sell, grant, convey, or otherwise dispose of such Environmental Credits to any other Person, in System Owner's sole discretion. Host Customer hereby grants, makes and conveys to System Owner an absolute and irrevocable assignment of any and all right, title and interest Host Customer may at any time have in or to any Environmental Credits. 8.3 Documentation At System Owner's request, Host Customer will complete any and all documentation required to substantiate the existence, nature, and/or quantity of Environmental credits produced by the System, or required to validate System Owner's rights to and ownership of the Environmental Credits. 8.4 Conditions Precedent. The System Owner's obligations hereunder shall be subject to and conditional upon each of the following conditions been met to the System Owners satisfaction: a) Structural and electrical engineering review completed as acceptable to System Owner. b) System Owner approval of this Agreement by Financial Partners. Arrangements, and as a result of such failure, System Owner cannot deliver Output to Host Customer, then such failure shall constitute a Disruption of Delivery and an Event of Default, and Host Customer shall be liable to System Owner for the electricity that the System produced, or was capable of producing, and that would otherwise have been delivered to Host Customer as Output, in accordance with the provisions of Article XV. 9.5 Taxes Host Customer shall either pay or reimburse System Owner for any and all taxes assessed on the generation, sale, delivery or consumption of electric energy produced by the System. For purposes of this Section, "Taxes" means any state and local ad valorem, occupation, generation, privilege, gross receipts, sales, use, consumption, excise, transaction, and other taxes, regulatory fees, surcharges or other similar charges, but shall not include any income taxes or similar taxes imposed on System Owner's revenues due to the sale of energy under this Agreement, which shall be System Owner's responsibility. The purchaser is required to provide the seller with any documentation for exemptions from taxes. 9.6 Invoice and Payment Following the end of each calendar month during the Service Term, System Owner shall prepare and provide Host Customer an invoice for the Output delivered in the prior month (or partial month if the Service Commencement Date is not the first day of a month). Deliveries during the month of an anniversary date shall be prorated as to the applicable Solar Electricity Price. The amount due for the Output shall be determined by multiplying the applicable Solar Electricity Price by the Output delivered (or deemed delivered) to Host Customer during such month, and each invoice shall set forth in reasonable detail the calculation of all amounts owed. A sample invoice calculation is shown in Exhibit PPA-D. Delays in the issuance of any such invoice shall not constitute any waiver of Host Customer's obligation to pay once Host Customer has actually received and invoice from System Owner, or System Owner's right to collect, any payment under any such invoice. 9.6.1 Payments Subject to its contest rights set forth in Section 9.6.3, Host Customer shall pay the full amount of each invoice on or before the thirtieth (30d) day following issuance thereof ("Due Date"). All payments made by Host Customer under this Agreement shall be by electronic funds transfer pursuant to the instructions set forth in Exhibit PPA-D attached hereto, or by check payable to System Owner (unless otherwise directed in writing by System Owner) at the address for notices set forth in Section 18.3, as such instructions or address may be modified by System Owner by notice to Host Customer in writing. 9.6.2 Late Payment Fees If any part of a monthly payment is not made by Host Customer within thirty (30) days following the Due Date, Host Customer agrees to pay System Owner a late fee that shall accrue to record properly and any previous readings from such Meter used to compute invoices for Output shall be corrected to zero error. If no reliable information exists as to the period over which such Meter registered inaccurately, it shall be assumed for purposes of correcting previous invoices that such inaccuracy began at a point in time midway between the testing date and the next previous date on which such Meter was tested and found to be accurate. 10.3.4 If upon testing, any Meter shall be found to be inaccurate by an amount exceeding plus or minus two percent (±2%), then the payments for Output made since the previous test of such Meter shall be adjusted to reflect the corrected readings as determined in accordance with Section 10.3.3. If the difference in the previously invoiced amounts minus the adjusted payment is a positive number (Meter has over-registered Output), that difference will offset amounts owing by Host Customer to System Owner in subsequent month(s). If the difference is a negative number (Meter has under-registered Output), the difference shall be added to the next month's invoice and paid by Host Customer to System Owner on the Due Date of such invoice. 11.1 Intermittent Interruptions Are Expected Host Customer acknowledges and understands that the System, as a solar photovoltaic system, will produce Output intermittently, and will not provide Host Customer with an uninterrupted supply of electricity. THIS AGREEMENT PROVIDES NO WARRANTY OR GUARANTEE TO HOST CUSTOMER OF AN UNINTERRUPTED SUPPLY OF ELECTRICITY. System Owner shall not be liable to Host Customer for any intermittent interruption in Output during the Term, nor shall System Owner be responsible for Host Customer's cost of alternative supplies of electricity during any such interruption. If delivery of Output from the System is interrupted other than as a result of the default, negligent acts or omissions of Host Customer or as otherwise provided in Section 11.2, System Owner will make commercially reasonable efforts to restore Output in a timely manner. 11.2 Interruption of Output 11.2.1 Notwithstanding anything to the contrary herein, System Owner shall have the right to interrupt, reduce or discontinue the delivery of Output for purposes of inspection, maintenance, repair, replacement, or alteration of the System, or at the direction of authorized governmental authorities or electric utilities. Other than in the event of an unexpected interruption or in the event of an emergency, System Owner shall give Host Customer notice prior to an interruption of Output and an estimate of the expected duration of the interruption. 11.2.2 System Owner shall not be required to supply Output to Host customer at any time System Owner reasonably believes the Site or Site Electrical System to be unsafe, but in no event will System Owner have any responsibility to inspect or approve the Site Electrical end of the Service Term that Host Customer intends to exercise its option under this Section 12.1. 12.1.2 If Host Customer exercises its option under this Section 12. 1, Host Customer shall pay System Owner an amount equal to fair market value for the System and its Output, 12.1.3 Upon Host Customer's payment for the System, System Owner shall furnish the System to Host Customer, including all components thereof and operation manuals, in the condition at the time of determination of the fair market value, subject to normal wear and tear, 12.1.4 The term "fair market value" as used herein shall mean (i) the price that would be negotiated in an arm's-length, free market transaction, for cash, between an informed, willing seller and an informed, willing buyer (other than the user currently in possession), neither of whom is under compulsion to complete the transaction, for the purchase of the System as removed from the Site at the date of determination, de-installed, packed, crated and ready for shipment to such buyer or, if higher, as installed on the Site and (h) as determined by the mutual agreement of the Parties. If unable to agree, the Parties shall select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry to value the System; such valuation to be binding absent fraud or manifest error. The costs of the appraisal shall be borne equally by the Parties. If the Paz-ties are unable to agree on the selection of an appraiser, such appraiser shall be selected by the two proposed appraiser firms. 12.1.5 Transfer to Host Customer Upon transfer of ownership of the System to Host Customer, System Owner shall have no further obligation with respect to the performance, installation, operation, maintenance or repair of any part or component of the System; provided, however, System Owner agrees to pass through and to transfer to Host Customer any applicable manufacturers' warranties provided on the System, to the extent that such warranties are transferable. 12.1.6 Non-Election and Removal 12-1.6 If Host Customer does not purchase the System pursuant to Section 12.1, or if System Owner and Host Customer do not agree to renew this Agreement pursuant to Section 2.2, System Owner shall, within ninety (90) days after the end of the Service Term, remove the System from the Site at its expense including the reasonable expense of repairing any adverse impact such removal directly causes to the Site or the Premises. IRM 13.1 Host Customer Representations Host Customer makes the following representations and warranties to System Owner: 13. 1.1 Host Customer is duly authorized and has the power to enter into this Agreement and perform its obligations hereunder. xl-��� Lait, U0313 14.1 Definition of Force Majeure , Force Majeure Events j -- Force Majeure means any circumstance not within the reasonable control, directly or indirectly, of the Party affected, but only if and to the extent that (a) such circumstance, despite the exercise of due diligence, cannot be or be caused to be prevented, avoided or removed by such Party, (b) such event is not due to such Party's negligence or intentional misconduct, (c) such event is not the result of any failure of such Party to perform any of its obligations under this Agreement, (d) such Party has taken all reasonable precautions, due care, and reasonable alternative measures to avoid the effect of such event and to mitigate the consequences thereof, and (e) such Party has given the other Party prompt notice describing such event, the effect thereof and the actions being taken to comply with this Agreement. Subject to the foregoing conditions, Force Majeure Events may include: strikes or other labor disputes, other than strikes or labor disputes solely by employees of the Party declaring the Force Majeure Event or as a result of such Party's failure to comply with a collective bargaining agreement; adverse weather conditions and other acts of nature; earthquakes; and riot or civil unrest; provided, that Force Majeure Events shall not include any inability to make any payments that are due hereunder or to any third party or to procure insurance required to be procured hereunder. 14.2 No Default Neither System Owner nor Host Customer shall be considered to be in default in The performance of its obligations under this Agreement to the extent that performance of any such obligation is prevented or delayed by a Force Majeure Event. Not withstanding any provision herein to the contrary, the Host Customer shall not be obligated to make payments under this Agreement for any period during which the System Owner is unable to deliver Output to the Host Customer by reason of a Force Majeure Event, 14.3 Notice and Cure If a Party is prevented or delayed in the Performance of any such obligation by a Force Majeure Event, then such Party shall immediately provide notice to the other Party of the circumstances preventing or delaying performance and the expected duration thereof. Such notice shall be confirmed in writing as soon as reasonably possible. The Party affected by a Force Majeure Event shall use commercially reasonable efforts to remove or repair the cause of the Force Majeure Event and shall resume performance of its obligations as soon as reasonably practicable. 14.4 —Termination for Force Majeure Either Party shall be entitled to terminate this Agreement upon ten (10) days prior written notice to the other Party if any Force Majeure Event affecting the other Party has been in (h) Host Customer's failure to maintain the Internet access pursuant to Section 5.7. (i) A Party's failure to perform fully any other material obligation under a provision of this Agreement including but not limited to those provisions explicitly set forth in this Section 15. 1.1 and either (a) such failure continues for a period of ten (10) business days after written notice of such nonperformance from the other Party or (b) if the nonperforming Party commences an action to cure such failure to perform within such ten (10) business day period, and thereafter proceeds with all due diligence to cure such failure, but such failure is still not cured within thirty (30) days after the expiration of the initial ten (10) business day period. 15. 1 .2 Material Misrepresentation Representations, warranties and other statements made by a Party that misrepresents a material fact as of the Effective Date or thereafter, and such misrepresentation has a material adverse effect on the other Party that is not cured within ten (10) business days from the earlier of (a) notice from the Party affected by the misrepresentation and (b) the discovery or determination by a Party of its misrepresentation; provided, that if the Party that has made the misrepresentation commences an action to cure such misrepresentation within such ten (10) business day period, and thereafter proceeds with all due diligence to cure such failure, the cure period shall extend for an additional thirty (30) days after the expiration of the initial ten (10) business day period. 15.1.3 Bankruptcy A Party (a) voluntarily or involuntarily files or has filed against it a bankruptcy or other similar petition, (b) enters into an assignment of its assets for the benefit of its creditors or (c) otherwise is unable to pay its debts as they become due. 15.2 Remedies. Upon the occurrence of, and during the continuation without cure of, an Event of Default, the Non-Defaulting Party shall have the option, but not the obligation, to terminate this Agreement, and the Defaulting Party shall be liable to the Non-Defaulting Party for damages for Default. 15.2.1 If a Host Customer Event of Default occurs, (i) System Owner shall have the right to terminate this Agreement upon thirty (30) days prior written notice to Host Customer, and promptly following such termination, shall have the right to remove the System from the Premises, and (ii) Host Customer shall be liable to System Owner for actual, direct damages. At all times following an Event of Default by the Host Customer until the termination of this Agreement, System Owner shall have the right, but not the obligation, to deliver the Output to the Host Customer, and the Host Customer shall be obligated to purchase and pay for such Output in accordance with this Agreement. 15.2.2 If a System Owner Event of Default occurs, then Host Customer shall have the right to terminate this Agreement upon thirty (30) days prior written notice to System Owner. Following such termination, System Owner shall have the right to remove the System from the Site within thirty (30) days after such termination, and shall promptly make or have made any Indemnified Party, with respect to any claims within the indemnification obligations hereof, subject to any limitations imposed by the Indemnifying Party's insurer. The Parties shall give each other prompt written notice of any asserted claims or actions indemnified against hereunder and shall cooperate with each other in the defense of any such claims or actions. No Indemnified Party shall take any action relating to such claims or actions within the indemnification obligations hereof without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, and no Indemnifying Party shall settle any such claims without the Indemnified Party's prior written consent, unless the settlement includes a full and unconditional release of claims against the Indemnified Party. 15.5 Release of Liens and Claims So long as Host Customer has paid all amounts that became due and owing to System. Owner hereunder, System Owner shall hold harmless Host Customer from all liens and claims filed or asserted by System Owner's independent contractors, second -tier contractors or other third parties against Host Customer or the Premises for services performed or material furnished to System Owner by such parties. System Owner shall, at no cost to Host Customer, promptly release, discharge or otherwise remove any such lien or claim by bonding, payment or otherwise and shall notify Host Customer of such release, discharge or removal. If System Owner does not timely cause any such lien or claim to be released, discharged or otherwise removed, Bost Customer shall have the right (but not the obligation) to pay all sums necessary to obtain releases, discharges or removals (including the settlement of any lien or claim). In such event, Host Customer shall have the right to deduct all amounts so paid (plus reasonable attorneys' fees) from amounts due System Owner hereunder. Alternatively, upon reasonable demand by Host Customer, System Owner shall reimburse Host Customer for such amounts 15.6 Disclaimer of Warranties EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER (INCLUDING ANY SERVICES, GOODS, MATERIALS OR OTHER ITEMS SUPPLIED HEREUNDER), INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. TICLE XVI INSURANCE 16.1 System Owner's Insurance 16.1.1 System Owner's Insurance Coverage At all times relevant to this Agreement, System Owner shall maintain (or shall cause its Contractors to maintain), with a company or companies licensed or qualified to do business in the State of Minnesota and rated A / VIII or above by A.M. Best, the following insurance coverage: 16.3 Certificates Host Customer and System Owner shall cause certified copies of all required insurance policies to be endorsed by the insurance providers for the above coverages. Evidence of the above insurance policies shall be provided on a continuous basis and on a standard ACORD form 25, providing not less than thirty (30) days notice of cancellation or material alteration or in the case of non-payment of premium, at least 10 days' written notice of cancellation. All policies listed in Section 16.2.1 shall grant System owner and Host Customer, its successors, subsidiaries, directors, officers, agents and employees a waiver of subrogation. The commercial general liability policy in Section 16.2.1(b) shall name the System Owner, its successors, subsidiaries, directors, officers, agents and employees as an additional insured. The property coverage policy in Section 16.2.1(c) shall name System Owner, its successors, subsidiaries, directors, officers, agents and employees as a loss payee. 17.1 Assignment by HostCustom Host Customer shall not assign this Agreement without the consent of System Owner, such consent not to be unreasonably withheld, 17.1.1 Substitute Solar Energy Power Purchase and Sale Agreement In the event that Host Customer terminates this Agreement during the Term because it will no longer own or occupy the Premises, Host Customer shall use commercially reasonable efforts to facilitate discussions between System Owner and a successor owner or occupant of the Premises regarding the sale of Output to such new owner or occupant pursuant to an assignment of this Agreement acceptable to System Owner. In the event that System Owner accepts such an assignment or enters into an agreement with such new owner or occupant for the sale of Output on terms at least as favorable to System Owner as this Agreement, then Host Customer shall have no further liability to System Owner. Otherwise, Host Customer shall be liable to System Owner for damages in accordance with the provisions of Article XV. 17.2 Assignment by System Owner 17.2.1 System Owner may, with the prior written consent of Host Customer which consent shall not be unreasonably withheld, assign its interest in and be released from its obligations under this Agreement, as long as the assignee shall expressly assume this Agreement and agrees to be bound by the terms and conditions hereof. 17.2.2 System Owner may, without the consent of Host Customer, (a) transfer or assign all or substantially all of its rights and obligations hereunder to an affiliate or successor or (b) collaterally assign to its lenders, in connection with a financing of the System, all or any part of System Owner's rights or obligations hereunder. Host Customer agrees to provide 18.2.3 The Parties agree and acknowledge that each Party may promote the installation and use of the System by any means; provided, that neither Party shall identify the other byname (or in the case of the Host Customer, by location) without the consent of the other Party and the approval by such other Party of all written materials identifying such other Party. 18.3 Notices Any written notice, direction, instruction, request or other communication required or permitted under this Agreement shall be deemed to have been duly given on the date of receipt, and shall be delivered (a) personally to the Party to whom notice is to be given, (b) by electronic mail to the Party to whom notice is to be given (provided receiving Party issues an electronic mail receipt acknowledgment), (c) by a recognized overnight delivery service to the Party to whom notice is to be given, or (d) to the Party to whom notice is to he given, by first class registered or certified mail, return receipt requested, postage prepaid (with additional notice by regular mail), and addressed to the addressee at the address stated opposite its name below, or at the most recent address specified by written notice given to the other Party in the manner provided in this Section 18.3. If to System Owner: New Energy Equity, LLC 705 Melvin Ave., Suite 100 Annapolis, MD 21401 Attention: Matthew Hankey If to Host Customer: City of Columbia Heights 590 40th Ave. NE Columbia Heights, MN 55421 Attention: 18.4 Applicable Law and Jurisdiction, Waiver 18-4.1 This Agreement is made and shall be interpreted and enforced in accordance with the laws of Minnesota, The Parties hereby consent and submit to the personal jurisdiction of the courts of Minnesota. 18.5 Entire Agreement This Agreement and any documents expressly incorporated herein by reference shall constitute the entire Agreement between the Parties regarding the subject matter hereof and supersedes all prior agreements, understandings, representations, and statements, including any marketing materials and sales presentations whether oral or written. There are no agreements, understandings, or covenants between the Parties of any kind, expressed or implied, or 18.12 Survival Any provisions that are necessary to give effect to the intent of the parties hereunder after the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement. IN WITNESS WHEREOF, the duly authorized representatives of the parties have each executed this Solar Energy Power Purchase and Sale Agreement as of the Effective Date. @33� I M. -�§ I Libran Parcel Number 36-30-24-33-0148 located at 3939 Central Ave NE Columbia Heights, NIN 55421. Public Safety Parcel Number 36-30-24-13-0100 located at 825 41 st Ave. NE Columbia Heights, MN 55421 Public Works Parcel Number 35-30-24-43-0008 located at 637 38th Ave. NE Columbia Heights, MN 55421. ' The Public Works system isa85kVV roof mount installation comprised of approximately 4S2 solar modules. /n this location and at this orientation, the system is expected tu produce 99,[0D kWh of electricity per year. � m --~- gem --~- Sample Invoice and Electronic Funds Transfer Instructions NEWENERGY Says *,'It, EQUITY 705 Melvin Ave Ste IDD AnnaPDIIS MD 21401 443-267-5012 www. ne Weriet4YeC �utcom TO Custorne Tal) Period I Due Date INVOICE NO. 007-15 DATE October 6,2015 CUSTOMER 10 XXX SHIP TO Delivery Point if Karen by CneCK payable to: New Energy Equity LLC 705 Melvin Ave Ste 100 Annapolis MD 21401 AtmAccounting THANK YOU FOR YOUR BUSINESS! I U"i0tice of Installation Co New Energy Equity, LLC ("System owner,,) hereby notifies City of Columbia Heights ( "Host Customer) that pursuant to the Solar Photovoltaic System power Purchase Agreement between the Parties dated 2015 the System has been installed and tested successfully and is fully operational and is ready to produce Output to be delivered to Host Customer at the Delivery Point beginning 2015, the Service Commencement Date. Invoicing calculations will be based on the following Meter readings recorded on the Service Commencement Date: Building Meter Reading (kVAi) Upon receipt of this Notice of Installation Completion and Service Commencement Date please sign one of the duplicate originals of this notice and return one fully executed original to the undersigned. New Energy Equity, LLC [Date] City of Columbia Heights [Name & Title] [Date]