Edmonds Sommunity Solar Cooperative for Solar Power Energy ServicesSOLAR POWER ENERGY SERVICES AGREEMENT
COVER SHEET OF TERMS
Seller: Edmonds Community Solar Cooperative
a Washington Cooperative Association
Address:
C/O Tangerine Power
999 Northlake Way #301
Seattle, WA 98103
Contact:
Stanley Florek
Tel. (425) 891-4001
Customer: City of Edmonds
Address:
121 5`s Ave No
Edmonds, WA 98020
Contact: Phil Williams
Public Works Director
Tel. (425) 771-0235
Premises: As described on the attached Exhibit A.
Type of Structure (if applicable): Frances Anderson Center Roof
Owner of Premises:
Estimated Construction
Commencement Date:
Agreement Termination Date:
Solar Energy Facility:
Estimated Annual Output:
Energy Price:
Delivery Point:
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City of Edmonds
March 1, 2011
July 1, 2020
Specifications:
Up to 375 —Silicon-Energy Cascade Series 200w PV modules
(WA) or equivalent products
Up to 18 — Silicon -Energy SIE-4.2 Commercial Inverters or
equivalent products
Fixed roof mounted ballast trays
As more particularly set forth on Exhibit A.
As set forth on Exhibit B.
As set forth on Exhibit B.
As set forth on Exhibit A.
SOLAR POWER ENERGY SERVICES AGREEMENT
COVER SHEET OF TERMS
Net Metering Agreement: Attached as Exhibit D.
Buyout Option: Attached as Exhibit E.
(wsx8¢0942.noc, 11D17f106..91XX)o(n !
SOLAR POWER ENERGY SERVICES AGREEMENT
This SOLAR ENERGY SERVICES AGREEMENT (this "Agreement") is made and
entered into as of 14- f -3 " 20 11 (the "Effective Date") by and between EDMONDS
COMMUNITY SOLAR COOPERATIVE, a Washington cooperative association ("Seller") and
the CITY OF EDMONDS, a Washington State Municipal Corporation ("Customer') for the
installation of a Solar Energy Facility (defined below) on certain real property owned by
Customer (the "Premises") as more particularly described on the attached Exhibit A, and the
production and sale of solar electricity therefrom (all as more particularly described herein).
Seller and Customer hereby agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined in this Agreement
shall have the meanings assigned to them in this Section 1:
"Business Day" means any day except a Saturday, Sunday, or a holiday recognized by
Customer by ordinance.
"Contract Term" means, collectively, the Initial Term and each Extension Term, as
applicable.
"D�a ' means a calendar day unless clearly indicated otherwise.
"Deliver Point" means that point at which Energy from the Solar Energy Facility is
delivered to Customer, as more particularly described and depicted on the attached Exhibit A.
"Energy" means electrical energy, measured in kilowatt-hours ("kWh") that is produced
by the Solar Energy Facility.
"Energy Price" means, as of the Effective Date, $.05/kWh, escalating annually by three
percent (3%) as set forth on Exhibit B.
"Environmental Attributes" means any and all environmental benefits, air quality credits,
emissions reductions, offsets, and allowances, howsoever entitled, directly attributable to the
energy generated from the Solar Energy Facility and its displacement of energy generation by
conventional nonrenewable, and/or carbon based fuel sources. Environmental Attributes include
but are not limited to: (1) any benefit accruing from the renewable nature of the generation's
motive source, (2) any avoided emissions of pollutants to the air, soil or water (such as sulfur
oxides (SOX), nitrogen oxides (NOX), carbon monoxide (CO), and other pollutants other than
those that are regulated pursuant to state or federal law); (3) any avoided emissions of carbon
dioxide (COA methane (CH4) and other greenhouse gases (GHGs) that have been determined
by the United Nations Intergovernmental Panel on Climate Change to contribute to the actual or
potential threat of altering the Earth's climate by trapping heat in the atmosphere; (4) any
property rights that may exist with respect to the foregoing attributes howsoever entitled, and (5)
any reporting rights to these avoided emissions such as Green Tag Reporting Rights (as defined
below). Environmental Attributes do not include (i) any energy, capacity, reliability or other
power attributes from the SEF, (ii) federal, state or local investment tax credits associated with
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the construction or operation of the energy projects; (iii) any other financial incentives in the
form of credits, reductions, or allowances associated with the Solar Energy Facility that are
applicable to a local, state or federal income taxation obligation, (iv) grants or subsidies in
support of renewable energy, or (v) emission reduction credits encumbered or used by the Solar
Energy Facility for compliance with local, state, or federal operating and/or air quality permits.
"Environmental Incentives" include, but are not limited to, (i) federal, state, or local tax
credits associated with the construction, ownership, or production of electricity from the Solar
Energy Facility; (ii) any other financial incentives in the form of credits, reductions, or
allowances associated with the Solar Energy Facility that are applicable to a local, state, or
federal income taxation obligation; and (iii) grants or subsidies for which the Solar Energy
Facility may be eligible. Environmental Incentives do not include Environmental Attributes or
Green Tag Reporting Rights.
"Estimated Annual Production" means the anticipated Energy output of the Solar Energy
Facility as set forth on the attached Exhibit B.
"Extension Term(s)" means up to two (2) consecutive period(s) of two (2) years
immediately following the Initial Term, each, upon mutual agreement of Seller and Customer
delivered in writing not less than 180 days prior to expiration of Initial Term or the applicable
Extension Term.
"Force Majeure" means any act or event that delays or prevents a Party from timely
performing its obligations under this Agreement or from complying with conditions required
under this Agreement if such act or event, despite the exercise of reasonable efforts, cannot be
avoided or mitigated by, and is beyond the reasonable control of and without the fault or
negligence of the Party relying thereon as justification for such delay, nonperformance, or
noncompliance. Without limiting the generality of the foregoing, so long as the following
events, despite the exercise of reasonable efforts, cannot be avoided or mitigated by, and are
beyond the reasonable control of and without the fault or negligence of the Party relying thereon
as justification for such delay, nonperformance or noncompliance, then Force Majeure may
include without limitation: an act of God or the elements, site conditions, extreme or severe
weather conditions, explosion, fire, epidemic, landslide, mudslide, sabotage, terrorism, lightning,
earthquake, flood or similar cataclysmic event, an act of public enemy, war, blockade, civil
insurrection, riot, civil disturbance or strike or other labor difficulty caused or suffered by a Party
or any third party beyond the reasonable control of such Party. However, financial cost alone or
as the principal factor shall not constitute grounds for a claim of Force Majeure.
"Green Taa" means a commercially recognized unit representing the value or amounts of
Environmental Attributes.
"Green Tag Reporting Rights" means the right of a green tag buyer to report the
ownership of accumulated green tags in compliance with federal or state law, if applicable, to a
federal or state buyer or any other party at the green tag buyer's discretion. Such rights include
without limitation those green tag reporting rights accruing under Section 1605(b) of The Energy
I WSS840942.DOC; 1\00006.900000\ ] 2
Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and
international or foreign emissions trading program.
"Governmental Authorities" means the United States of America, the State, and any
political subdivision thereof and any agency, department, commission, board, court or
instrumentality thereof.
"Initial Term" means a period of ten (10) years commencing on the Commercial
Operation Date (as defined in Section 5.1) and expiring on the IOth anniversary thereof.
"Interest Rate" means an annual rate equal to: (a) the rate published in The Wall Street
Journal as the "Prime Rate" (or, if more than one rate is published, the arithmetic mean of such
rates) as of the date payment is due; plus (b) five percentage points (5%); provided, however, that
in no event shall the Interest Rate exceed the maximum interest rate permitted by Law.
"Law" means any applicable law, statute, regulation, rule, regulation, decision, writ,
order, decree or judgment, or any interpretation thereof, promulgated or issued by federal, State,
municipal, local and administrative authorities.
"Lien" means any mortgage, pledge, lien (including mechanics', labor or materialmen's
liens), charge, security interest, encumbrance or claim of any nature.
"Net Metering Agreement" means that agreement between Seller and Utility for the
interconnection and net metering of the Solar Energy Facility to the electrical grid of the Utility,
which agreement is attached as Exhibit E and incorporated herein by this reference.
"Person" means any individual, corporation (including, without limitation, any non -stock
or non-profit corporation), limited liability company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or governmental body.
"Project Areas" means those portions of the Premises to be used by Seller for the
installation, construction, access to and egress from, maintenance, repair, and removal of the
SEF, as described and depicted on the attached Exhibit A-1 and incorporated herein by this
reference.
"Prudent Operating Practice" means the practices, methods and standards of professional
care, skill and diligence engaged in or approved by a significant portion of the electric power
industry for facilities of similar size, type, and design, that, in the exercise of reasonable
judgment, in light of the facts known at the time, would have been expected to accomplish
results consistent with Law, reliability, safety, environmental protection, applicable codes, and
standards of economy and expedition.
"Qualified Assignee" means any person or entity that has competent experience in the
operation and maintenance of solar photovoltaic systems and is financially capable of performing
Seller's obligations under this Agreement and agrees in writing to assume Seller's duties and
obligations under this Agreement.
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"Renewable Eneray Credit" or "REC" represents the Environmental Attributes associated
with the energy produced by the SEF. Renewable Energy Credits are accumulated and reported
on a MWh basis.
"Replacement Energy Cost" means the difference, if any, between (1) the cost of
Customer's purchases of substitute energy at normal tariff rates from Utility, minus (2) the cost
Customer would otherwise then have paid for an equivalent amount of Energy under this
Agreement.
"Solar Energy Facility" or "SEF" means that system for the generation and sale of solar
photovoltaic —generated electrical energy described on the attached Exhibit A and incorporated
herein by this reference.
"State" means the State of Washington.
"Utility" means Snohomish County PUD.
2. GRANT OF USE RIGHTS; CONSTRUCTION LAYDOWN AREA.
2.1 Premises Utilities. Customer agrees to provide certain specified utilities to the
Project Areas in connection with Seller's construction, start-up, maintenance, repair,
replacement and operation of the SEF. Customer acknowledges and agrees that Seller's use of
the Project Areas includes the nonexclusive appurtenant right to the use of such water lines,
sewer lines, storm water lines, power lines, and telephone and communication lines as are
reasonably necessary for installation and operation of the SEF. The specifications and their
locations shall be specifically designated by mutual agreement of the parties following
preliminary site review. The lines designated for use shall be agreed on in writing and that
writing shall become incorporated by reference into this Lease Agreement.
2.2 Solar Energy Facility Site Lease Agreement. Concurrently with the execution
and delivery of this Agreement, Seller, as Lessee, and Customer, as Lessor, have entered into
that certain Solar Energy Facility Site Lease Agreement (the "Lease Agreement"), pursuant to
which Customer has granted to Seller certain rights on, over, and across the Premises for the
installation, maintenance, and operation of the SEF for the Contract Term on the terms and
conditions set forth in the Lease Agreement. The Lease Agreement is incorporated herein by
this reference.
3. SELLER'S RIGHTS, DUTIES AND OBLIGATIONS.
3.1 Sale of Energy. Seller will sell to Customer, and Customer will purchase from
Seller, all of the Energy produced by the SEF, as and when the same is produced, at the Energy
Price set forth on Exhibit B as in effect at the time of delivery. Seller will deliver the Energy to
the Delivery Point, and Customer will accept the Energy delivered for the full Contract Term.
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3.2 Monitoring, Metering and Billing. Seller will provide all monitoring, metering,
billing, invoicing and administrative services necessary to fulfill Seller's duties under this
Agreement.
3.3 Ownership of RECs, Environmental Incentives, and Environmental Attributes.
During the Contract Term, the rights to all RECs relating to the SEF shall belong to the Seller,
unless otherwise specified herein or negotiated hereafter. Seller shall have all right, title and
interest in and to all other credits relating to the Environmental Attributes of the SEF, all Green
Tag Reporting Rights, and Environmental Incentives available under applicable law.
3.4 Title to SEF. Seller is the sole legal and beneficial owner of the SEF and all
equipment (including, but not limited to, photovoltaic modules or panels, inverters, meters,
wire, data monitoring equipment, and cabling) and all moveable property of Seller attached to
or used in the operation of the SEF. Customer acknowledges that the SEF (i) is the personal
property of Seller as defined under Article 9 of the Uniform Commercial Code as in effect in
the State and (ii) shall not be deemed a part of, or fixture to, the Premises.
3.5 Installation, Operation, and Maintenance of the SEF. Seller will be responsible
for the installation, operation, and maintenance of the SEF in a manner consistent with Prudent
Operating Practices. If the supply of Energy from the SEF in interrupted as a result of
malfunction or other shutdown, Seller shall use commercially reasonable efforts to remedy
such interruption. Seller will comply with all applicable laws and regulations relating to the
operation of the SEF and the generation and sale of Energy, including obtaining and
maintaining in effect all relevant approvals and permits.
3.6 Installation and Maintenance of the Utility Interconnection. Seller shall comply
at Seller's sole cost with all applicable operational standards and requirements imposed by the
Utility, including interconnection requirements, as stated in the Net Metering Agreement.
3.7 Maintenance of Health and Safety. Seller will take all reasonable safety
precautions with respect to the operation, maintenance, repair and replacement of the SEF and
will comply with all applicable health and safety Laws, rules, regulations, and permit
requirements. If Seller becomes aware of any circumstance relating to the Premises or the SEF
that creates an imminent risk of damage or injury to any Person or any Person's property,
Seller shall take prompt action to prevent such damage or injury and will give notice of such
condition to Customer's emergency contact identified on Exhibit C. Such action may include
disconnecting and removing all or a portion of the SEF, or suspending the supply of Energy to
Customer. If Seller determines that the SEF should be removed to avoid an imminent risk of
damage or injury to any Person or any Person's property, Seller will comply with the same
conditions and requirements that apply to a removal of the SEF at the expiration of the
Contract Term as detailed in Section 7.5. If the cause of the threat relates to the SEF itself or
the actions of Seller or other Persons for whom Seller is legally responsible, such remedial
action will be at Seller's sole cost and expense. If the cause of the threat is unrelated to the
SEF or the actions of Customer or other Persons for whom Customer is legally responsible,
such remedial action will be at Customer's sole cost and expense.
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3.8 Avoidance of Liens on the Premises; Obligation to Cure Liens. Seller will not
directly or indirectly allow any Lien by, through or under Seller, on or with respect to the
Premises or any interest therein or any other asset of Customer, including, without limitation,
any Lien arising from or relating to the construction, ownership, maintenance or operation of
the SEF by Seller. Seller will defend and indemnify Customer against all costs and expenses
(including reasonable attorneys' fees and court costs at trial and on appeal) incurred in
discharging and releasing any such Lien.
3.9 Payment of Taxes and Assessments. Subject to Section 4.7, Seller is solely
responsible for all income, gross receipts, ad valorem, personal property or real property, or
other similar tax relating to Seller's ownership of the SEF.
3.10 Consultation with Customer; Roof Penetrations; Cooperation. Seller will
provide Customer with plans and specifications for installation of the SEF before commencing
any work on the Premises, and such plans shall be subject to Customer's approval. Section
2.3.1 of the Lease Agreement governs any roof penetration. Seller will cooperate with
Customer in temporarily relocating the SEF during any periods in which roof is being repaired
or replaced, subject to Section 7.4.
3.11 No Infrin eg ment. Seller is responsible for ensuring that neither the SEF nor any
of Seller's services provided to Customer pursuant to this Agreement infringes on any third
party's intellectual property or other proprietary rights.
4. BUYER'S RIGHTS DUTIES AND OBLIGATIONS
4.1 Accept Energy. Customer shall accept at the Delivery Point all Energy
produced by the SEF at the then -applicable Energy Price set forth on Exhibit B.
4.2 Assistance with Net Metering Applications, Permits and Licenses. At Seller's
sole cost, Customer will use commercially reasonable efforts to assist Seller and cooperate
with Seller, as necessary, to acquire and maintain approvals, permits, and authorizations related
to the construction, operation, maintenance and repair of the SEF, including providing any
building owner or occupant authorizations, and signing any applications for permits, Utility
interconnection and net metering applications, and rebate applications as are required by law to
be signed by Customer. By way of illustration, Customer will assist in acquisition of a
certificate of appropriateness under Section 20.45.050 of the Edmonds Community
Development Code, Provided, However, that nothing herein shall be deemed to limit the quasi
judicial discretion of the City of Edmonds. Customer will deliver to Seller copies of any
necessary approvals, permits, rebates or other financial incentives that are required by law in
the name or physical control of Customer.
4.3 Maintenance of Premises. Customer will maintain the roof and the Premises in
good condition and repair, and will use commercially reasonable efforts to maintain
Customer's electrical energy equipment located on the Premises in good condition and repair
so as to be able to receive and use the Energy generated by the SEF. Customer's obligations
are based on the estimates of the weight of the SEF provided by Seller in Section 6.2 of the
Lease Agreement. Customer will maintain its connection and service contract(s) with the
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Utility, or any successors thereto, so that Customer can, upon any suspension or interruption of
delivery of Energy from the SEF, provide the Premises with its full requirements for
electricity.
4.4 Rebates Belong to Seller. Any grant, rebate, incentive payment or credit paid
by the Utility or any other entity resulting from or relating to the design, construction, and
operation of the SEF at the Premises (a "System Rebate") shall be the sole property of Seller.
Any System Rebate which is initially credited or paid to Customer will be assigned by
Customer to Seller without delay. At Seller's expense, Customer agrees to cooperate with
Seller in any applications for System Rebates; provided, however, Customer is not required to
disclose proprietary information in connection with completing such applications.
4.5 Liens.
4.5.1 Notice to Premises Lienholders and Release. Customer will use
reasonable commercial efforts to give effective notice of Seller's ownership of the SEF and the
SEF's status as personal property to all parties having an interest in or Lien upon the real
property and fixtures that are part of the Premises. If there is any Lien against the Premises that
could reasonably be construed as prospectively attaching to the SEF as a fixture of the Premises,
Customer shall use commercially reasonable efforts to obtain a disclaimer or release of such
Lien. If Customer is the fee owner of the Premises, Customer consents to the filing of a
disclaimer of the SEF as a fixture of the Premises in the office where real estate records are
customarily filed in the jurisdiction of the Premises.
4.5.2 Avoidance of Liens on the SEF. Customer will not directly or indirectly
allow any Lien on or with respect to the SEF by, through or under Customer. If Customer
becomes aware of a Lien on the SEF by, through or under Customer, Customer will promptly
give Seller written notice of such Lien and will take such action as is necessary or appropriate to
have such Lien discharged and removed. Customer will indemnify Seller against all reasonable
costs and expenses (including reasonable attorneys' fees) incurred in discharging and releasing
such Lien.
4.6 Seller Failure to Pay Taxes and Charges. If Customer, either directly or as a
levy against the Premises, is assessed any taxes or fees that are the responsibility of Seller
under this Agreement, Customer will promptly give Seller written notice of such imposition
and Seller will promptly pay such taxes to avoid penalties and interest accruing on such
assessments.
4.7 Customer's Taxes, Fees and Charges. Customer is responsible for paying all
taxes, charges, levies and assessments against the Premises except to the extent such taxes,
charges, levies and assessments arise directly from the installation of the SEF on the Premises.
Customer is also responsible for paying all sales, use and other taxes, and any and all franchise
fees or similar fees assessed against Customer as a result of Customer's purchase of the Energy
and, in the event that Customer exercises its purchase option, its purchase of the SEF, which
fees are not otherwise the obligation of Seller.
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4.8 Security, Health and Safety. Customer will provide reasonable measures for the
security of the Premises, including restricting access to the area on which the SEF is located
and providing commercially reasonable monitoring of the Premises' security alarms.
Customer will use commercially reasonable efforts to maintain the Premises in a structurally
sound and safe condition consistent with all applicable Laws. If Customer becomes aware of
any circumstances relating to the SEF that creates an imminent risk of damage or injury to the
SEF or any employee of Seller, Customer will promptly notify Seller's emergency contact
identified on Exhibit C of such threat.
4.9 Notice of Damage. If Customer becomes aware of any physical conditions or
other circumstances that indicate there has been or might be damage to or loss of the use of the
SEF or that could reasonably be expected to adversely affect the SEF, Customer will promptly
notify Seller's emergency contact identified on Exhibit C.
5. ACCEPTANCE TESTING, METERING, INVOICING AND. PAYMENT
5.1 SEF Acceptance Testing. Seller will conduct one or more tests on the SEF
during installation to confirm the operation of the installed capacity of the SEF. Commercial
operation will begin on the date that: (i) one hundred percent (100%) of the nameplate
capacity has been installed; (ii) testing indicates that the SEF is producing Energy at no less
than the nameplate capacity; (iii) the SEF has operated for a period of not fewer than five (5)
hours at capacity without experiencing any abnormal or unsafe operating conditions; and
(iv) Seller has acquired all permits necessary to authorize the production, sale and delivery of
Energy in the intended amounts (such date, the "Commercial Operation Date"). Customer may
attend the testing session at Customer's own cost. The Commercial Operation Date shall occur
on or before December 31, 2012 or this Agreement shall be terminated and at an end. No
notice of termination is required.
5.2 Estimated Annual Production. The expected annual output of the SEF for each
year of the Contract Term is set forth on Exhibit B. Customer acknowledges that the Estimated
Annual Production amounts shown on Exhibit B are estimates for planning purposes only and
do not represent guaranteed levels of the delivery of Energy.
5.3 Metering of Delivery. Seller shall measure the amount of Energy supplied to
Customer at the Delivery Point using a commercially available, revenue -grade metering
system. Such meter shall be installed and maintained at Seller's cost. Customer shall
cooperate with Seller to enable Seller to have reasonable access to the meter as needed to
inspect, repair and maintain such meter. At Seller's option, the meter may have standard
industry telemetry and/or automated meter reading capabilities to allow Seller to read the meter
remotely. If Seller elects to install telemetry allowing for remote reading, Customer shall
allow for the installation of necessary communication lines and shall reasonably cooperate in
providing access for such installation. The meter shall be kept under seal, such seals to be
broken only when the meter is to be tested, adjusted, modified or relocated. In the event that
Seller breaks a seal, Seller shall notify Customer as soon as practicable. Seller shall provide
Customer, for information purposes only, a monthly summary of Energy delivered to the
Delivery Point.
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5.4 Consideration for Energy Delivered. For each year of the Contract Term, as
consideration for the delivery of Energy by Seller, Customer shall pay the Energy Price set
forth on Exhibit B.
5.5 Invoicing. Seller shall invoice Customer for Energy delivered within ten (10)
Business Days after the end of the prior quarterly billing period. Each invoice will set out the
amount of Energy delivered in kWh during the prior billing period, the then -applicable Energy
Price, and the amount then due, including any taxes assessed on the delivery and sale of
Energy to Customer at the Delivery Point. Such invoice shall include sufficient details so that
Customer can reasonably confirm the accuracy of the invoice including, among other details,
beginning and ending meter readings.
5.6 Payment. Customer shall make payment to Seller for Energy at the address
specified by Seller in this Agreement. If made by mail, payment shall be posted within
thirty (30) Business Days following the date Customer receives the applicable invoice. If such
due date falls on a weekend or legal holiday, the due date shall be the next Business Day.
Payments posted after the due date shall be considered late and shall bear Interest on the
unpaid balance.
5.7 Meter Verification. Annually, or earlier if Seller has reason to believe there
may be a meter malfunction, Seller will test the meter and provide copies of such tests to
Customer. Each test shall be conducted by an independent third -party qualified to conduct
such tests. Customer shall be notified seven (7) days in advance of each such test and have a
right to be present during such test. If a meter is inaccurate, it shall be promptly repaired or
replaced. If a meter is inaccurate by more than two percent (2%) and it is not known when the
meter inaccuracy commenced (if such evidence exists, such date will be used to adjust prior
invoices), then the invoices covering the period of time since the last meter test shall be
adjusted for the amount of the inaccuracy on the assumption that the inaccuracy persisted
during one-half of such period.
5.8 Books and Records. To facilitate payment and verification, Seller shall
maintain all books and records necessary for billing and payments, including copies of all
invoices under this Agreement, for a period of at least five (5) years, and Seller shall grant
Customer reasonable access to those books, records and data at the principal place of business
of Seller. Customer may examine such books and records relating to transactions under, and
administration of, this Agreement, at any time during the period the records are required to be
maintained, upon request with reasonable notice and during normal business hours.
5.9 Payment Adjustments: Billing Errors. Payment adjustments will be made if
Customer or Seller discovers any inaccuracy in invoicing, or if, pursuant to Section 5.7 above,
there is determined to have been a meter inaccuracy sufficient to require a payment adjustment.
If the required adjustment is in favor of Customer, Customer's monthly payment shall be
credited in an amount equal to the adjustment. If the required adjustment is in favor of Seller,
Seller will add the adjustment amount to Customer's next monthly invoice. Adjustments in
favor of either Customer or Seller shall bear Interest until settled in full.
6. NOTICES
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6.1 Addresses for the Delivery of Notices. Any notice required, permitted, or
contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the
address set forth below or at such other address or addresses as a Party may designate for itself
from time to time by notice hereunder. Such notices may also be sent by fax transmission:
To Seller: Edmonds Community Solar Cooperative
C/O Tangerine Power Corporation
999 N. Northlake Way, Suite 301
Seattle, WA 98103
Attention: Chris Herman
Fax No.: (206) 973.5385
Phone No.: (206) 525.3969
To Customer: City of Edmonds
121 5th Ave No
Edmonds, WA 98020
Facsimile No.: 425-744-6057
Attn: Phil Williams
To Customer (invoices):
City of Edmonds
121 5th Ave No
Edmonds, WA 98020
Attn: Carla Raymond
6.2 Acceptable Means of Delivering Notice. Each notice required, permitted, or
contemplated hereunder shall be deemed to have been validly served, given or delivered as
follows: (a) if sent by United States mail with proper first class postage prepaid, three (3)
calendar days following the date of the postmark on the envelop in which such notice was
deposited in the United States mail; (b) if sent by a regularly scheduled overnight delivery
carrier with delivery fees either prepaid or an arrangement with such carrier made for the
payment of such fees, the next Business Day after the same is delivered by the sending Party to
such carrier; (c) if sent by fax and if concurrently with the transmittal of such fax the sending
Party contacts the receiving Party at the phone number set forth above to indicate such fax has
been sent (which indication by phone may be done by leaving a voicemail for the receiving
Party at such phone number), at the time such fax is transmitted by the sending Party as shown
by the fax transmittal confirmation of the sending Party; or (d) if delivered in person, upon
receipt by the receiving Party.
7. CHANGES IN CIRCUMSTANCE; TERMINATION; PURCHASE OPTION
7.1 Change in Circumstances.
7.1.1 Substitution of Premises. Except to the extent this Agreement is assigned
by Customer as permitted by Section 11 or as excused by Force Majeure, if Customer vacates the
Premises prior to the expiration of this Agreement, Customer may provide Seller a mutually
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agreeable substitute location on which Seller may operate the SEF. The substitute location must
be (a) acceptable to Seller in its reasonable discretion and (b) serviced by the same Utility as the
Premises or have similar solar characteristics and local utility rates as the Premises. Customer
will provide Seller not fewer than one hundred and eighty days (180) days' written notice prior
to the date on which it desires to effect such substitution.
7.1.2 Amendment to Agreement Upon Substitution of Premises. In connection
with any location substitution, Customer and Seller shall amend this Agreement to identify the
substitute location and set forth any modifications to the commercial terms of this Agreement.
The Contract Term of any amendment will be equal to the remaining Contract Term of this
Agreement. The execution and delivery of any amendment will not be deemed a termination of
this Agreement triggering any Early Termination Fee. Customer will provide Seller any and all
consents or releases from any owner, lessor, or mortgagee of the substituted location as may be
required by Seller or Seller's Lender in connection with the substitute location. Customer will
pay all costs associated with relocation of the SEF, including all costs and expenses incurred by
or on behalf of Seller in connection with: (i) removal of the SEF from the Premises;
(ii) installation and testing of the SEF at the substitute location; (iii) applicable interconnection
fees, permit fees, and expenses at the substitute location; (iv) new title search; and (iv) other
reasonable and documented out of pocket expenses of Seller connected to preserving and re -
filing any security interest in the SEF held by Seller's Lender.
7.1.3 Removal of SEF Upon Substitution. If Seller and Customer have agreed
upon a substitute location for the SEF, Seller will remove the SEF from the Premises within one
hundred and eighty (180) days after execution of the amendment to this Agreement. Seller will
restore the Premises to its original condition, except for SEF weather heads and ordinary wear
and tear. Seller will take care to assure that the removal of the SEF will not affect the integrity
of the Premises, which will be as weather- and leak -proof as it was prior to removal of SEF.
7.2 Early Termination Rights.
7.2.1 Seller's Early Termination Rights. In addition to any other rights to
terminate under other provisions of this Agreement, Seller may terminate this Agreement at any
time prior to Commercial Operation Date upon thirty (30) days written notice to Customer,
without further liability except as provided herein, if Seller (a) determines that the SEF cannot be
built as planned or that its construction and operation would not be economically viable for
Seller; or (b) Seller in unable, after diligent efforts, to obtain or maintain required approvals from
Governmental Authorities for the installation and operation of the SEF. If Seller exercises its
early termination right under this Section 7.2.1, Seller will reimburse Customer for any costs
incurred by Customer in connection with the planned installation of the SEF and will remove, at
Seller's sole cost and expense, any portion of the SEF already installed at the Premises.
7.2.2 Customer's Early Termination Rights. In addition to any other rights to
terminate under other provisions of this Agreement, Customer may terminate this Agreement at
any time on thirty (30) days written notice to Seller, without further liability except as provided
herein. In the event of termination by Customer, Customer shall pay Seller the amounts set forth
below:
{WSS840942.DOC;1\00006.900000\ ) 11
(a) If Customer elects to terminate this Agreement pursuant to this
Section 7.2.2 prior to the commencement of physical installation of the SEF on the
Premises, Customer shall pay or reimburse Seller for all reasonable and documented time
and materials expenses incurred by Seller relating to the planned installation and
operation of the SEF on the Premises arising on or after the Commercial Operation Date
until the date of Customer's notice of termination of this Agreement.
(b) Customer may not, under any circumstances, terminate this
Agreement without cause for a period commencing on the Commercial Operation Date
(so long as that date occurs on or before December 31, 2012) and for five (5) years
thereafter.
(c) The Customer may elect to terminate without cause and without
cost, after the five (5) year period established by Subsection (b) above has expired by
providing thirty (30) days written notice to the Seller.
7.3 Temporary Closure of the Premises. If Customer desires or needs to conduct
any type of work on the roof areas or supporting structures of the Premises requiring in excess
of one week (168 hours) per year of SEF downtime, Customer will notify the seller at the
contact record listed in this Agreement within 5 business days of when such downtime may be
predicted. Customer is requested to keep such discretionary maintenance to the months of
October through March, when solar energy production is lowest. If Customer incurs a power
outage that will require Seller to immediately cease making deliveries of Energy, Customer
will notify the seller at the contact record listed in this Agreement within twenty-four (24)
hours. Customer will make a reasonable effort to give Seller as much advance notice as
possible, but in no event fewer than thirty (30) calendar days notice of Seller's need to
permanently move or relocate the SEF. Customer will keep Seller notified of the anticipated
date on which Seller can start reinstalling the SEF in fully functional form.
7.4 Removal of SEF at Expiration, Early Termination or Event of Default. Seller
will remove the SEF from the Premises at the end of the Contract Term or upon any early
termination of this Agreement, unless a replacement agreement is in place or being negotiated.
Seller will pay all costs and expenses of removal except where Seller has terminated this
Agreement due to a Customer Default. Customer shall be responsible for the costs and
expenses of removal if the termination is due to a Customer Default. Removal will occur
within sixty (60) days of termination, and the Premises will be returned to its original
condition, except for SEF weather heads and ordinary wear and tear. Seller will take all
practicable steps to ensure the removal of the SEF does not affect the integrity of the Premises,
which will be as weather and leak proof as it was prior to removal of SEF. If Seller fails to
remove or commence substantial efforts to remove the SEF within the sixty (60)-day period,
Customer has the right, at its option, to have the SEF removed and stored in a public
warehouse at Seller's cost. Customer may also undertake the restoration of the Premises to its
original condition (other than SEF weather heads and ordinary wear and tear) at Seller's cost;
{WSS840942.DOC;1\00006.900000\ 1 12
provided, however that Customer may not undertake any improvements or betterments to the
condition of the Premises at Seller's cost.
7.5 Customer's Purchase Option. Customer shall have the option at the end of the
Initial Term and any applicable Extension Term to purchase the SEF at the Buy Out Price.
Customer may exercise its purchase option by giving Seller no fewer than ninety (90) calendar
days' written notice prior to the expiration of the Initial Term or any applicable Extension
Term of its interest in exercising the purchase option. If Customer provides such timely notice,
the Parties shall attempt to agree on a fair market price for the SEF. If the Parties cannot agree
on a value within thirty (30) calendar days after the date of Customer's notice to Seller, fair
market value shall be determined by an independent energy appraiser mutually acceptable to
the Parties. In any case, `fair market value' shall mean the price that would be established in an
arm's-length transaction between an informed and willing buyer and an informed and willing
seller for the equipment that comprises the SEF as installed at the Premises. However, except
to the extent specifically set forth herein, the determination of fair market value will not take
into account the value of this Agreement or the Lease Agreement. Customer acknowledges
that Seller makes no representation or promise as to the fair market value of the SEF at any
future time. After having been informed in writing of the fair market value of the SEF for
purposes of exercising its option, if Customer chooses to commit to such exercise, (i) Customer
shall notify Seller in writing delivered not fewer than thirty (30) days prior to the expiration of
the Initial Term or any Extension Term (as applicable), and (ii) Customer and Seller will
promptly execute all documents necessary to (A) pass title to the SEF to Customer, free and
clear of any Liens (except those Liens that will be paid and removed by Seller upon receipt of
the Buy Out Price), (B) assign all license and other rights to Customer necessary for Customer
to own, operate and maintain the SEF and (C) assign all valid and existing warranties for the
SEF to Customer. Customer will pay the Buy Out Price to Seller concurrently with the passage
of title to the SEF. Customer waives it right to exercise the purchase option if Customer does
not give Seller timely written notice of Customer's intent to exercise.
8. FORCE MAJEURE
8.1 No Liability If a Force Majeure Event Occurs. Neither Seller nor Customer will
liable to the other in the event it is prevented from performing its obligations hereunder in whole
or in part due to an event of Force Majeure. The Party unable to fulfill any obligation by reason
of a Force Majeure shall take all action necessary to remove such inability with all due speed and
diligence. The nonperforming party will be prompt and diligent in attempting to remove the
cause of its failure to perform, and nothing herein shall be construed as permitting such Party to
continue to fail to perform after said cause has been removed; provided, however, the obligation
to use due diligence shall not be interpreted to require resolution of labor disputes by acceding to
demands of the opposition when such course is inadvisable in the discretion of the party having
such difficulty.
8.2 Notice. In the event of any delay or nonperformance resulting from an event of
Force Majeure, the party suffering the event of Force Majeure shall, as soon as practicable,
notify the other party in writing of the nature, cause, date of commencement thereof and the
anticipated extent of any delay or interruption in performance; provided, however, that a
(WSS840942.DOC;1\00006.900000\ 1 13
party's failure to give timely notice shall not affect such party's ability to assert Force Majeure
unless the delay in giving notice prejudices the other party.
9. DEFAULTS/REMEDIES
9.1 Seller Defaults. The following events shall be defaults with respect to Seller
(each, a "Seller Default"):
9.1.1 Seller fails to pay any undisputed amounts due Customer pursuant to this
Agreement or the incorporated Lease Agreement, and such breach remains uncured for fifteen
(15) Business Days following notice of such breach to Seller;
9.1.2 Seller breaches any material term of this Agreement, or the Lease
Agreement, and (A) if such breach is capable of being cured within thirty (30) days after
Customer's notice of such breach, Seller has failed to cure the breach within such thirty (30) day
period, or (B) if Seller has diligently commenced work to cure such breach during such thirty
(30) day period but such breach is not capable of cure within such period, Seller has failed to
cure the breach within a further thirty (30) day period (such aggregate period not to exceed sixty
(60) days from the date of Customer's notice; or
9.1.3 (A) Seller commences a voluntary case under any bankruptcy law;
(B) Seller fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any
petition filed against Seller in an involuntary case under any bankruptcy law; or (C) any
involuntary bankruptcy proceeding commenced against Seller remains undismissed or
undischarged for a period of sixty (60) days.
9.2 Customer's Remedies. If a Seller Default described in Section 9.1.3 has
occurred, this Agreement shall terminate automatically (without requirement of notice). If a
Seller Default described in Sections 9.1.1 or 9.1.2 has occurred and is continuing, Customer
may terminate this Agreement by written notice to Seller following the expiration of the
applicable cure period. In the event of a Seller Default, Customer may also exercise any other
remedy it may have at law or equity.
9.3 Customer Defaults. The following events shall be defaults with respect to
Customer (each, a "Customer Default"):
9.3.1 Customer fails to pay any undisputed amounts due Seller pursuant to this
Agreement and such breach remains uncured for fifteen (15) Business Days following notice of
such breach to Seller;
9.3.2 Customer breaches any material term of this Agreement, and (A) if such
breach is capable of being cured within thirty (30) days after Seller's notice of such breach,
Customer has failed to cure the breach within such thirty (30) day period, or (B) if Customer has
diligently commenced work to cure such breach during such thirty (30) day period but such
breach is not capable of cure within such period, Customer has failed to cure the breach within a
further thirty (30) day period (such aggregate period not to exceed sixty (60) days from the date
of Seller's notice);
1 WSS840942.DOC;1%00006.900000% 1 14
9.3.3 (A) Customer commences a voluntary case under any bankruptcy law;
(B) Customer fails to controvert in a timely and appropriate manner, or acquiesces in writing to,
any petition filed against Customer in an involuntary case under any bankruptcy law; or (C) any
involuntary bankruptcy proceeding commenced against Customer remains undismissed or
undischarged for a period of sixty (60) days;
9.3.4 Customer (A) refuses to sign authorizations needed to obtain any
Environmental Attributes or Environmental Incentives, (B) causes any material change to the
condition of the Premises that has a material adverse effect on the SEF, or (C) purposefully
causes a breach of any term of the Net Metering Agreement.
9.4 Seller's Remedies. If a Customer Default described in Sections 9.3.1, 9.3.2 or
9.3.4 has occurred and is continuing, Seller may terminate this Agreement immediately upon
the expiration of the respective cure periods set forth in such provisions; and in addition to any
other remedy hereunder, Seller may (i) discontinue delivering Energy from the SEF to the
Premises, (ii) remove the SEF from the Premises in compliance with the terms of this
Agreement. If a Customer Default described in Section 9.3.3 has occurred and is continuing,
Seller may terminate this Agreement upon fifteen (15) calendar days' prior notice to Customer.
Following the occurrence of a Customer Default, Seller shall use commercially reasonable
efforts to redeploy the SEF in another location in order to mitigate its damages but shall be
under no obligation to redeploy the SEF on terms that Seller, in its own commercially
reasonable discretion, determines to be commercially unacceptable. In addition, upon a
Customer Default, Seller may pursue any other remedy given under this Agreement or now or
hereafter existing at law or in equity or otherwise.
10. LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES
10.1 LIMITATION OF LIABILITY_. EXCEPT AS EXPRESSLY PROVIDED
FOR IN SECTIONS 14.1 AND 14.2 OF THIS AGREEMENT RELATING TO
INDEMNIFICATION OBLIGATIONS OF SELLER AND CUSTOMER, NEITHER
SELLER, CUSTOMER OR ANY OF THEIR RESPECTIVE INDEMNIFIED PERSONS
SHALL BE LIABLE TO THE OTHER OR ITS INDEMNIFIED PERSONS FOR ANY
SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL
DAMAGES, OR LOSSES OR DAMAGES FOR LOST REVENUE OR LOST PROFITS,
WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION
WITH THIS AGREEMENT, OTHER THAN INDEMNITY OBLIGATIONS WITH
RESPECT TO THIRD -PARTY CLAIMS. NOTWITHSTANDING ANY PROVISION
OF THIS AGREEMENT TO THE CONTRARY, SELLER'S AND CUSTOMER'S
MAXIMUM LIABILITY TO THE OTHER PARTY, EXCEPT INDEMNITY
OBLIGATIONS IN RESPECT OF PERSONAL INJURY, PROPERTY DAMAGE AND
INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS, UNDER THIS
AGREEMENT SHALL BE LIMITED, IN THE AGGREGATE, TO THE
DIFFERENCE BETWEEN THE ENERGY PRICE CUSTOMER WOULD PAY
UNDER THIS AGREEMENT AND CUSTOMER'S REPLACEMENT ENERGY COST
DURING THE INITIAL TERM.
{WSS940942.DOC;1\00006.900000\ ] 15
10.2 EXCLUSION OF WARRANTIES. EXCEPT AS EXPRESSLY SET
FORTH IN SECTIONS 3.5, 3_6, AND 3_7, THE INSTALLATION WORK, SEF
OPERATIONS, AND MAINTENANCE SERVICES PROVIDED BY SELLER TO
CUSTOMER PURSUANT TO THIS AGREEMENT SHALL BE "AS -IS WHERE -IS."
NO OTHER WARRANTY TO CUSTOMER OR ANY OTHER PERSON, WHETHER
EXPRESS, IMPLIED OR STATUTORY, IS MADE AS TO THE INSTALLATION,
DESIGN, DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS,
USEFUL LIFE, FUTURE ECONOMIC VIABILITY, OR FITNESS FOR ANY
PARTICULAR PURPOSE OF THE SOLAR ENERGY FACILITY OR AS TO ANY
OTHER MATTER, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY SELLER.
11. ASSIGNMENT
11.1 General Prohibition on Assignments. Except as provided in this Section 11 and
Section 12, neither party shall have the right to assign any of its rights, duties or obligations
under this Agreement without the prior written consent of the other party, which consent may
not be unreasonably withheld or delayed. Seller may assign any of its rights, duties or
obligations under this Agreement, without the consent of Customer, (i) to one or more of its
affiliates, (ii) to one or more third parties in connection with a financing transaction, (iii) to any
Person succeeding to all or substantially all of the assets of Seller, or (v) to a successor entity in
a merger or acquisition transaction.
11.2 Change of Control of Seller. Any direct or indirect change of control of Seller
(whether voluntary or by operation of law) shall be deemed an assignment that shall not require
the prior written consent of Customer.
11.3 Change of Control of Customer; Sale of Premises. Upon ten (10) Business
Days' prior written notice to Seller but without Seller's consent, Customer may assign its
interests in this Agreement to any Person that has acquired title to the Premises or any Person
that has acquired title to all or substantially all of Customer's assets or business, whether by
merger, acquisition or otherwise. Customer will be released from all obligations and liabilities
under this Agreement only to the extent the proposed assignee assumes in writing, prior to such
assignment purporting to become effective, all of Customer's obligations and liabilities under
this Agreement and delivers to Seller evidence satisfactory to Seller demonstrating such
Person's financial capability to perform all of Customer's obligations under this Agreement.
In the event of a transfer or sale of the Premises that does not result in the assumption of this
Agreement by a Person meeting the qualifications set forth above, Customer shall not be so
released.
12. GOVERNING LAW; DISPUTE RESOLUTION
12.1 Governing Law; Jurisdiction; Venue. This Agreement is governed by and shall
be interpreted in accordance with the laws of the State, without regard to principles of conflicts
of law. EACH PARTY WAIVES ITS RESPECTIVE RIGHT TO ANY JURY TRIAL WITH
RESPECT TO ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS
AGREEMENT.
[WSS840942.DOC;1\00006.900000\ ) 16
12.2 Dispute Resolution. In the event of any dispute between the Parties arising out
of or relating to this Agreement, or the breach thereof, and in the event said dispute cannot be
settled through negotiation, the Parties agree to use good faith efforts to settle the dispute by
mediation with a mutually agreed upon mediator before resorting to arbitration, litigation, or
some other dispute resolution procedure. Any mediation or litigation arising from or relating
to this Agreement shall take place in Seattle, Washington. The prevailing party in any
proceeding under this Section 13.2 shall be entitled to recover its reasonable costs and
expenses incurred in connection with such action, including reasonable attorneys' fees.
13. INDEMNIFICATION
13.1 Seller's Indemnity to Customer. Seller agrees that it will indemnify, defend and
hold harmless Customer and Customer's permitted successors and assigns and each of its
respective officers, agents, and employees (collectively, "Customer Indemnified Parties") from
and against any and all claims, losses, costs, damages and expenses, including reasonable
attorneys' fees, incurred by Customer Indemnified Parties arising from or out of the following:
(a) any injury or death, or a loss or damage to property was caused by Seller, or any agent,
subcontractor or component supplier of Seller ("Seller's Agents") relating to the installation or
operation of the SEF or otherwise caused by the activities or conduct of Seller or Seller's
Agents at the Premises, or (b) any claim that the SEF infringes on patents or improperly uses
proprietary rights. Seller is excused from any indemnity obligation to Customer Indemnified
Parties and is not required to reimburse or indemnify any Customer Indemnified Party for any
claim to the extent such claim is due to the gross negligence or willful misconduct of any
Customer Indemnified Party.
13.2 Customer's Indemnity to Seller. Customer agrees that it will indemnify and
hold harmless Seller and Seller's permitted successors and assigns and each of their respective
subsidiaries, directors, officers, members, shareholders and employees (collectively, "Seller
Indemnified Parties") from and against any and all damages and expenses incurred by Seller
Indemnified Parties arising from or out of a claim against Seller by any third person that an
injury or death, or a loss or damage to property was caused by the activities or conduct of
Customer at the Premises. Customer is excused from any indemnity obligation to Customer
Indemnified Parties and is not required to reimburse or indemnify any Seller Indemnified Party
for any claim to the extent such claim is due to the gross negligence or willful misconduct of
any Seller Indemnified Party.
14. INSURANCE
14.1 Obligation to Maintain Coverage. Customer and Seller shall each maintain in
full force and effect the insurance coverages usual and typical for their respective types of
businesses throughout the Contract Term. In addition, Customer and Seller each shall maintain
Commercial General Liability Insurance having limits of not less than $2,000,000 general
aggregate, $1,000,000 per occurrence. Participation in a governmental insurance pool qualifies
as insurance coverage usual and typical for the Customer. In addition, Seller will carry
adequate property loss insurance on the SEF. Seller and Customer agree that the SEF need not
be covered by Customer's property coverage. The amount and terms of the SEF insurance
coverage will be determined at Seller's sole discretion.
{WSS840942.DOC;1\00006.900000\ } 17
14.2 Certificates of Insurance. Seller will furnish to Customer and Customer will
furnish to Seller current certificates evidencing that the insurance required under Section 15.1
is being maintained. Each of Seller's and Customer's insurance policies provided hereunder
shall contain a provision whereby the insurer agrees to give the other Party thirty (30) days'
written notice before the insurance is cancelled or materially altered.
14.3 Additional Insureds. To the extent deemed necessary or appropriate by Seller or
Customer, Seller's insurance policy will include Customer as an additional insured as
Customer's interest may appear to the extent commercially reasonable.
15. MISCELLANEOUS
15.1 Tax and Regulatory Compliance; Seller Tax Benefits. Seller is the owner of the
SEF for all purposes, including in respect of any federal, State or local income or property
taxes. The Parties agree to reasonably cooperate to structure the transactions contemplated by
this Agreement to address, to the mutual benefit of the Parties, the various tax and regulatory
compliance issues associated with the SEF, so long as neither Party incurs additional costs or
expenses, or suffers adverse economic effects as a result.
15.2 Entire Agreement; Integration; Exhibits. This Agreement, together with the
Exhibits attached hereto, constitutes the entire agreement and understanding between Seller
and Customer with respect to the subject matter hereof and supersedes all prior agreements
relating to the subject matter hereof, which are of no further force or effect. The Exhibits
attached hereto are integral parts hereof and are made a part of this Agreement by reference. In
the event of a conflict between the provisions of this Agreement and those of any Exhibit, the
provisions of this Agreement shall prevail, and such Exhibit shall be corrected accordingly.
15.3 Amendments. This Agreement may only be amended, modified or
supplemented by an instrument in writing executed by duly authorized representatives of Seller
and Customer.
15.4 Prudent Operating Practices. Except where a higher standard may be expressly
required by the terms of this Agreement, for the purpose of this Agreement, Prudent Operating
Practices shall be the measure of whether Seller's performance is reasonable and timely.
Unless expressly defined herein, words having well-known technical or trade meanings shall
be so construed.
15.5 No Partnership or Joint Venture. Seller and Seller's Agents, in the performance
of this Agreement, shall act in an independent capacity and not as officers or employees or
agents of Customer. This Agreement shall not impart any rights enforceable by any third party
(other than a permitted successor or assignee bound to this Agreement).
15.6 Time. Time is of the essence in this Agreement.
15.7 Unenforceable Provision. In the event that any provision of this Agreement is
unenforceable or held to be unenforceable, the Parties agree that all other provisions of this
Agreement have force and effect and shall not be affected thereby. The Parties will, however,
use their best endeavors to agree on the replacement of the void, illegal or unenforceable
f WSS840942.DOC;1\00006.900000\ ) 18
provision(s) with legally acceptable clauses which correspond as closely as possible to the
sense and purpose of the affected provision and this Agreement as a whole.
15.8 Counterparts. This Agreement may be executed in one or more counterparts, all
of which taken together shall constitute one and the same instrument and each of which shall
be deemed an original.
15.9 Facsimile Delivery. This Agreement may be duly executed and delivered by a
Party by execution and facsimile delivery of the signature page of a counterpart to the other
Party, and, if delivery is made by facsimile, the executing Party shall promptly deliver, via
overnight delivery, a complete original counterpart that it has executed to the other Party, but
this Agreement shall be binding on and enforceable against the executing Party whether or not
it delivers such original counterpart.
[SIGNATURE PAGES FOLLOW]
{ WS5840942.DOC; I100006 .900000% 1 19
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duty executed
as of the Effective Date.
SELLER:
EDMONDS COMMUNITY SOLAR
COOPERATIVE,
a Washington Cooperative Association
B
ame: �'IS � �L' /7"? '
Title:%✓T Rf fl?
CUSTOMER:
CITY IM NDS
By: ft
Name:
Title: M&I iv{
twsssa0942,DOC,IW000r.90000(A 1 20
F.XHTRTT A
DESCRIPTION OF THE PREMISES AND SOLAR ENERGY FACILITY
Address:
Frances Anderson Center, 700 Main Street, Edmonds WA 98020
Common and/or adjoining rooftops of the following buildings:
None
Solar Energy Facility:
Up to 375 —Silicon-Euergy Cascade Series 200w PV modules (WA) or equivalent products
Up to 18 — Silicon -Energy SIE-4.2 Commercial Inverters or equivalent products
Fixed roof mount with ballast tray racks
(WSS84W42.D0C,1W0006.9000001 } Exhibit A- I
EXHIBIT B
ESTIMATED ANNUAL PRODUCTION AND YEARLY ENERGY PRICE
Annual Production in Average Energy
Year KWH Price
1
72,041
0.051
2
71,682
0.052
3
71,324
0.054
4
70,969
0.055
5
70,615
0.057
6
70, 262
0.061
7
69,912
0.063
8
69,563
0.064
9
69, 216
0.066
10
68,871
0.068
1. Reflects a fully funded 75kW system.
2. Reflects 0.5% annual panel production degradation.
3.. Reflects 3% annual kWh rate escalation.
( WSS940942.DOC;110 .90M\ ) Exhibit B - 1
EXHIBIT C
EMERGENCY CONTACT INFORMATION
CUSTOMER:
Phil Williams
Public Works & Utilities Director
Attention:
Phone No.: (425) 771-0234
Entail: phil.williams@ci.edmonds.wa.us
SELLER:
Attention:
Phone No.: (^)
Email:
Attention:
Phone No.: {j
Email:
[wSS840942.DOC-,A00006.90[]OM ) Exhibit C - t
EXHIBIT D
NET METERING AGREEMENT ATTACHED IN:
I L-IL I 1 1�
Sack to PUD Home Rage
http: //www. snopud. comlS itelContentlDocuments/solarexpINetMeterAgrmt6O9web.pdf
Final version to be added here when available. Should a net metering agreement not be
successfully consummated the energy services agreement is voided
{WSS840942.DOC;1\00006.900000\ }
EXHIBIT E
TERMINATION BUYOUT AND BUYOUT VALUE
Due to tax implications, there is no buyout / termination value provided in the first six years. The customer is not
permitted to exercise the buyout option in the first six (6) years of operation. The buyout / termination value shown
for Year 6 refers to buyout / termination at the end of Year 6 / beginning of Year 7. Buy out values are estimates
provided for the city's planning and are based on the following factors:
(a) The energy production from the solar energy system over its remaining useful life;
(b) The cost of the lease for the property on which the solar energy system is located; and
(c) Maintenance, insurance, and cost of removal of the solar energy system if the host facility decides not to renew
the lease.
An opinion by the coop's advisors as to the Fair Market Value of the system at the time a buyout option is exercised
will be sought and a mutually agreed -to value will be established with the city by at that time.
Year Estimated' BuyoutValue/kW
1 No Buyout/Termination Option
2 No Buyout/Termination Option
3. No Buyout/Termination Option
4 No Buyout/Termination Option
5 No Buyout/Termination Option
6 $ 7,000
7 $ 5,800
8 $ 4,600
9 $ 3,400
10 $ 2,200
11 $ 1,000
12 $ 800
13 $ 600
14 $ 400
15 $ 200
16+ $ 100
1WSS840942.DOC;1\00006.900000\ )
Estimated 75kw Buyout price
$ 525,000
$ 435,000
$ 345,000
$ 255,000
$ 165,000
$ 75,000
$ 60,000
$ 45,000
$ 30,000
$ 15,E
$ 7,500