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HomeMy WebLinkAboutResolution 2015-0019CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 19 Series of 2015 TITLE: A RESOLUTION APPROVING A COMMUNITY SOLAR INTEREST PURCHASE AND ENERGY AGENCY AGREEMENT WITH CLEAN ENERGY COLLECTIVE IN THE AMOUNT OF $776,628 TO PARTICIPATE IN A SOLAR GARDEN PROJECT IN JEFFERSON COUNTY WHEREAS, the City of Wheat Ridge is a customer of Xcel Energy for electric service and desires to participate in the Solar*Rewards Community program; and WHEREAS, Clean Energy Collective (CEC) has constructed a community solar garden which will generate power that will be delivered to Xcel Energy; and WHEREAS. the City of Wheat Rtdge wtshes to purchase from CEC the electric generating capacity and actual electric production of solar panels at the solar garden; and WHEREAS, Xcel Energy will provide credits on the City of Wheat Ridge's monthly electric bills for power generated by the solar panels. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, as follows: The Community Solar Interest Purchase and Energy Agency Agreement with Clean Energy Collective in the amount of $776,628 to participate in a solar garden project in Jefferson County is hereby approved. DONE AND RESOLVED this 23rd day of March 2015. ATTEST: COMMUNITY SOLAR INTEREST PURCHASE AND ENERGY AGENCY AGREEMENT This Community Solar Interest Purchase and Energ) Agency Agreement {the "Agreement'') is made by and between City of Wheat Ridge ("Customer"), a Colorado municipality with an address of7500 W. 291.h Avenue, Wheat Ridge, CO 80033. and a utility account serving the address set forth in Appendix A (the "Location"), and CEC Solar# I 023, LLC, a Colorado limited liability company with principal offices at 361 Centennial Parkway, Suite 300, Louisville. CO 80027 ("Company"), effective as of the Effective Date (as set forth in Appendix A) (Customer and Company are referred to individually as a "Party" and collectively as the "Parties"). Capitalized terms used in this Agreement shall have the meanings set forth in the body of this Agreement and/or in an Appendix. RECITALS A. Customer is a customer of Public Service Company of Colorado d/b/a Xcel Energy (the "Utility") for electric service at the Location, and desires to participate in the Solar•Rewards Communit} program currently offered by Utility pursuant to the terms of a Rate Schedule found at Colo. PUC No. 7 Electric, Sheet Nos. 94 through 94G (the "Program"), as may be amended from time-to-time. B. Company has constructed or intends to construct a community solar garden as that term is defined in the Program at the location set forth in Appendix A (the "Facility"). Company will also interconnect the Facility with the Utility pursuant to the terms of a power purchase agreement. interconnection agreement, any applicable tariff. and/or any other required agreement with Utility (collectively, the "ICA"} pursuant to which Company and/or its Affiliate wiU deliver power generated at the Facility to Utility and Utility will provide credits on the bills for certain customers for power generated by the Facility (''Bill Credits''), as set forth in the ICA and the Program and as directed by Company and/or its Affiliate. C. Customer wishes to purchase from Company the electric generating capacity and actual electric production of solar panels at the Facility with nameplate electric generation capacity as set forth on Appendix A and intends for this purchase to qualify as the acquisition of a Photovoltaic Energy Subscription (lhe "Interest") as that term is defined in the Program. D. Customer wishes to appoint Compan> as Customer's agent with authority to deliver and sell power and related Environmental Anributes (as defined in Appendix B) attributable to the Interest. Customer also wishes to appoint Company as Customer's agent with authority to exchange information with Utility with respect to Customer's account for electric service at the Location to effectuate the terms of this Agreement. the ICA and the Program. 1 SV.03191S.sc NOW. THEREFORE. for and in consideration of the mutual promises contained herein. Customer and Company agree as follows: 1. Purchase of Interest 1.1 Sale and Purchase. Company hereby sells to Customer, and Customer hereby purchases from Company. the entire electric generating capacity of solar panels at the Facility with nameplate electric generation capacity as se t forth on Appendix A (the "Capacity") along with the actual electric production attributable to the Capacity (the "Customer Output''), calculated as set forth in Appendix B. for the Term (as defined herein). The Capacity represents the percentage of the total nameplate electric generating capacity of the Facility as set forth on Appendix A as Customer Portion (as defined in Appendix B). 1.2 Purchase Price. Customer agrees to pay Company for the Capacity. the Customer Output. and all other services and rights under this Agreement. the total amount of $776,628.00 (the "Purchase Price" as further defined in Appendix B). payable as set forth bela\\. a. Timing of Pa-,ment. If the facilit) is interconnected with Utility as of the Effective Date of this Agreement. and Cit} Council approval has been obtained. Customer shaJI pay the entire Purchase Price on or before the Effective Date. If the Facility is not interconnected \\<ith Utili[) as of the Effective Date. Customer shall pa)' a deposit and the balance of the Purchase Price as set forth in Sections 1.2(b) and (c). b. Deposit. If the Facility is not interconnected with Utility as of the Effective Date, Customer shall pay a deposit in the amount of I 0 percent of the Purchase Price (the " Deposit") on or before the Effective Date of this Agreement. The Deposit shall be refundable upon request of the Customer made in writing at any time before payment of the balance of the Purchase Price is due under Section 1.2(c), or if City Council approval is not obtained. in which case this Agreement shall terminate. The Deposit is held in a Trust Account and funds are not deployed until the sale has been completed. c. Balance. If Customer has paid a deposit under Section 1.2(b), then Customer shall pay the balance of the Purchase Price within seven (7) days after Company provides notice to Customer that the Facility has been interconnected to the Utility and is capable of delivering electricity to Utility. Company may provide such notice by mail. email. or fax addressed as set forth in Appendix A. Notice by email or fax is effective when sent If Customer does not pay the balance of the Purchase Price as required by this Section. then Compan) may. at its sole option, terminate this Agreement by refunding the Deposit. 2. Appointment of Company as Customer's Agent 2.1 Sale of Energy and Environmental Attributes. Customer hereby appoints Company and its Affiliates as Customer's sole, exclusive, and authorized agent with full power and authority to deliver. assign. transfer, and sell all of the Customer Output to Utility pursuant to the terms of 2 SV.031915.sc the JCA as it may be amended or replaced from time to time (in Company's sole discretion). and to enter into, administer, and enforce the ICA on Customer's behalf. Customer also appoints Company and its Affiliates as Customer's sole, exclusive. and authorized agent with full power and authority to deliver, assign. transfer, and sell all of the Environmental Attributes associated with the Capacity and the Customer Output to Utility and/or other third parties. Customer waives. relinquishes, and quitclaims any right, claim, and interest in the Customer Output and associated Environmental Attributes. Customer shall execute any additional documents and instruments necessary to evidence the Environmental Attributes and to effect or evidence the transfer of the Environmental Attributes to Company and/or its Affiliates, Utility. a third party, or their designee. 2.2 Interaction with Utility. Customer hereby appoints Company and its Affiliates as Customer's authorized agent with full power and authority to provide information to Utility as provided in the ICA and the Program to allow Utility to provide Bill Credits to which Customer may be entitled, based on Customer's Lnterest, on Customer's account and bills for electric service from Utility to the Location. Such information includes, but is not limited to, Customer's name. address, Utility account number, the Capacity, Customer's Portion. and the Customer Output. on a monthly or other periodic basis. Customer retains authority to communicate with, instruct, and direct the Utility with respect to other matters pertaining to electric service to the Location, as well as with respect to Customer's participation in the Program. 2.3 Release/Letter of Authori zation. Customer will permit Utility to release consumption and other information to Company to effectuate the terms of this Agreement, the ICA and the Program. Customer will execute any documents reasonably requested by Utility and Company to permit the release of such information. 2.4 Effect of Termination of Program by Utility. In the event Utility ceases to offer the Program or a comparable substitute, then the Parties shall use commercially reasonable efforts ro explore and consider alternative means by "hich Customer may realize value from the Interest lfthe Parties agree to a different arrangement. that will be documented in a new agreement. If the Parties are unable to so agree, then provided that Customer is not in default of this Agreement and this Agreement has not been earlier terminated. Customer may exercise its Purchase Option as set forth in Section 9 of this Agreement by giving 90 days' notice after the date Utility ceases to offer the Program or a comparable substitute. Whether or not Customer chooses to exercise the Purchase Option as set forth above, this Agreement will terminate on the date when Utility ceases ro offer bill credits or other payments to Customer in respect of the Interest. 3. Bill Credits and Incentive Payments 3.1 Payable by Utility. Customer shall be entitled to receive credits on its bills from Utility in respect of the Customer Output, to be made solely by Utility and according to the terms of the Program . Customer acknowledges that the duration. terms and conditions of the Program, including the amount of Bill Credits to be applied, are subject to the sole and exclusive control of Utility. For informational purposes only, as of the Effective Date, the Program provides that Utility shall provide a bill credit in the amount of $0.19859 per kilowatt-hour lbr the Customer Output. and also provides that this rate may be revised by Utility from time-to-time. Customer acknowledges that Company has not made any representations or warranties with respect to the expected duration of the Program or the amounts to be provided by Utility as bill credits. 3 SV.03191S.sc 3.2 Incentive Payments. Customer acknowledges that Utility and/or another third party may provide incentives and/or renewable energy incentives, including payments or bill credits. with respect to the Environmental Attributes attributable to Customer's Interest. or othe~ ise. other than as a bill credit for Customer Output as addressed in Section 3.1 (collectively. the "Incentives"). and that Utility and/or another third party may pay the Incentives directly to Company and/or its Affiliates. Customer waives. relinquishes, and quitclaims an} right. claim. and interest in the Incentives during the Term and, to the extent necessar}. assigns all right. title, and interest to the Incentives to Company and acknowledges that Customer is not entitled to retain any such Incentives. Customer hereby authorizes Company to notify Utility that Customer has assigned such Incentives to Company and tbat Utility may make any such payment to which Customer may otherwise be entitled directly to Company. Customer will promptly execute any additional documents as requested by Utility. Company and/or another third party necessary for Company to claim such Incentives and/or to enable or authorize Utility and/or another third party to make such payments directly to Company. In the event that Ulility and/or another third party provides any such Incentives directly to Customer. whether as a payment or bill credit. Customer agrees to inform Company and to pa} the amount of such Incentives to Company within ten (I 0) days of Customer's receipt. 3.3 No Other Payments. Customer acknowledges and agrees that Company's only obligations with respect to payments to Customer are that Compan) shall request and use commerciall} reasonable efTorts to require Utility to make B1ll Credits and the REC Payments discussed in Section 3.4 below. In addition. Company shall not be required to request Utility to make an} credits or Payments in excess of the limitations set forth in Section 6.3 of this Agreement. 3.4 REC Payments. The Incentives may include pa)ments made to Company by Utility in respect of RECs assigned to Utility relating to the Facility (the "REC Payments"). Company agrees to share with Customer a portion of the REC Payments it actually receives from Utility. Customer acknowledges and agrees that Company shall first apply a portion of the REC Payments to the O&M Fund as described in Section 5. Company shall pay to Customer all amounts remaining, if any, from the REC Payments that are not applied to the O&M Fund, on a quarterly bas is (the Customer REC Payments). The Customer REC Payments will be made to Customer by bill credit. check or electronic funds transfer within 30 days following the end of a calendar quarter in respect of REC Payments received for the prior calendar quarter. 4. Term and Termination 4.1 Term. The Term of this Agreement shall be the Initial Term plus any Extended Term, unless the Agreement is terminated earlier as provided in Section 4.4, in which case the Term shall expire on the effecti\e date of such termination. 4.2 Initial Term. The Initial Term of this Agreement shall commence on tbe Effective Date and end twenty (20) years after the Interconnection Date set forth in Appendix A. 4.3 Extended Term. In the event that the term of the ICA continues or is extended beyond the Initial Term, the term of this Agreement shall automatically be extended for commensurate terms (the "Extended Terms''). 4 SV.03191S.sc 4.4 Tennination. a. Tennination of ICA. This Agreement will tenninate automatically upon the expiration or termination of the JCA unless a new ICA is entered as provided in section 2.1. b. Material Breach. Either Party may terminate this Agreement upon written notice if a Party breaches any of the material tenns of this Agreement, including without limitation the representations and warranties. Before terminating the Agreement, the non- breaching Party shall give the breaching Party written notice of the breach and thirty (30) days to cure any such breach to the non-breaching Parry's reasonable satisfaction. c. Termination in Other Events. This Agreement may also be terminated as provided in Sections 1.2, 2.4, 5, 8.3. 8.4, 9.4, and 18. d. Survival. ln the event of expiration or earlier termination of this Agreement, the following sections shall survive: Sections 3.2. II. 12, 13 and 14. 5. Operation and Maintenance of Facility 5.1 Company shall perform acts necessary or appropriate for the proper operation and maintenance of the Facility. Company shall employ or retain qualified personnel to perfonn services customarily perfonned with respect to property of the type comprising the Facility, in keeping with industry standards. and shall pa} such persons reasonable compensation for performing such services. Company will initially appoint or has appointed CE Services, Ltd. as property manager to operate and maintain the Facility. 5.2 In order to ensure that there is sufficient funding to pay for initial operation and maintenance of the Facility, Compan) shall deposit Three Thousand and Seven Hundred Dollars ($3.700.00) into a segregated and independently administered account with a reputable banking institution or savings and loan association within twenty (20) business days of the receipt of the full Purchase Price, as defined in Section 1.2, from the Customer, which segregated account shall be dedicated solely to the costs of operation and maintenance of the Facility as provided in this Section 5 and the payment of insurance costs (the "O&M Fund"). The money to be deposited in the O&M Fund as set forth in this Section 5 is for the benefit of the entire Facility, not just the portion that represents Customer's Interest. 5.3 Supplemental Operation and Maintenance Fee. Company shall be entitled to utilize additional funds from what would otherwise be paid as Customer REC Payments (the ''Recurring O&M Fee''). The Recurring O&M Fee shall be $0.02 per kWh of Customer Output. Customer hereby authorizes Company to make deductions for the Recurring O&M Fee. Any amounts Company receives as a Recurring O&M Fee will be deposited into the O&M Fund. 6. Customer's Representations and Warranties Customer represents and warrants the following: 6. I Utility Customer Status. Customer is an electric service customer of Utility at the s SV.03191S.sc Location and shall so remain for the entire Term of this Agreemen t. 6.2 Provision of Information to Utilitv. Customer shall provide to Utility all applications, documentation and information required by Ut ility and othen.v ise to qualify Customer to participate in the Program. 6.3 Maximum Capacity. Customer's Capacity does not and shall not exceed the limitations set forth in Appendix C (the "Maxinutm Capacity"). Customer acknowledges that Utili ty is not obligated to make any payment or bill credit to the extent Customer's Capacity exceeds those limitations. Customer also acknowledges that the limitations set forth in Appendix C are derived from the ICA and the Program and agrees that this Agreement will be deemed au tomatically amended to incorporate any changes to corresponding provisions in the ICA or the Program. 6.4 No Other Assignment or Authorization. Customer has not assigned or sold the Capacity, interest. Customer Output or Environmental Attr ibutes to any other person or entity, and v. ill not do so during the Term of this Agreement, except as permitted under Section 8.3 and I 0.1. Customer has not prO\ ided an} other person or entit} any of the authori[) granted to Company under this Agreement and ""ill not do so during the Term of this Agreement. 6.5 No Liens or Encumbrances. Customer has not granted or placed or allowed others to place any liens, security interests. or other encumbrances on the Capacity. Customer Output or Environmental Attributes and will not do so during the Term of this Agreement. Customer may grant a security interest in the Interest and this Agreement to secure a loan for the Purchase Price. 7. Company's Representations and Warranties Company represents and warrants that it shall at all times perform its obligations under the ICA and the Program and exercise commercially reasonable efforts to maintain the ICA in effect for the Term of this Agreement. 8. Chaoe:e of Customer Location For the Posting of Bill Credits 8. I Notice. Each Party shall notify the other in writing thirty (30) days prior to any change in the notifying Party's Location during the Term. 8.2 Nev. Location Within Utility Service Territory. If Customer ceases to be a Utility customer at the Location and moves to a ne~ location within the service territory of Utility. then Customer shall take all steps and provide all information required by Utility under the Program to transfer the Interest to the new location. y, hich shall be substituted as the Location under this Agreement and thi s Agreement shall continue in effect. Customer acknowledges that it will no longer be entitled to participate in the Program, or Customer's participation may be limited. if the Location or any new location of Customer within Utility's service territory does not compl y with the Utility's requirements. including but not limited to Maximum Capacity. 8.3 Transfer to Another Utilitv Customer. So long as permitted to do so under, and in compl iance with all terms of. the Program. if Customer ceases to be a Utility customer at the Location, Customer may transfer the Interest to another Utility customer(s) who qualifies for participation in 6 sv 03191S.sc the Program (includin g but not limited to Maximum Capacity). Customer shall provide Company with all requested documentary evidence and information relating to the transfer, including without limitation the new customer's name, address, Utility account number, and qualification by the Uti lity to participate in the Program. Upon receipt of such documents and information, Company wi ll prepare an agreement similar to this Agreement for execution by the new customer, except that the Term shall be only the remaining Term under this Agreement. Upon execution of such new agreement, this Agreement wi ll terminate. Compan)' shall have no obligation to assist Customer in identifying any ne" customer to whom Customer may transfer the Interest, nor shall Company be obl igated to purchase the Interest or othern ise compensate Customer in the event Customer does not transfer the Interest. In addition, prior to obtaining approval for an} such transfer, the new customer must cure all outstanding obligations of Customer under this Agreement. 8.4 Other Termination of Utility Service. If Customer ceases to be a Utili ty customer for electric service at the Location and does not comply with either Section 8.2 or 8.3 within the time periods set forth in the Program, then Customer shall cease to receive any billing credits or other payments from Util ity in respect of the Lnterest and this Agreement will terminate. Customer will not make any claim against Company for payment or other compensation with respect to Customer's Interest. 8.5 Re-Assignment by Customer's Lender. In the event a Lender (as defined herein) or other third party is granted any rights under this Agreement, then in the event of Customer's default or otherwise. Company may follow any reasonable instructions by such third party with respect to changing the location and/or ben eficiary of this Agreement, and Customer hereby reJeases Company from any liability in that regard. Any such new location or beneficiary must comply with aJI applicable requirements and procedures set forth in Section 8.3 for transfer of the Interest to another customer. 9. Purchase Option 9.1 Grant of Option. During the period beginning upon the fifth anniversary of the Interconnection Date and ending upon the last day of the Term, and provided that Customer is not in default of this Agreement and th is Agreement has not been earlier terminated, Customer may purchase the solar panels upon which Customer's Interest is based, on an AS IS BASIS from Company for the Purchase Option Price as set forth in Section 9.2. In the event Customer purchases such panels, Customer will provide Company with a valid sales tax exemption certificate in respect to such purchase. Customer must give Company at least thirty (30) days, but no more than ninety (90) days. prior written notice of its election to exercise this option to purchase. Upon payment of the Purchase Option Price and execution of the Co-Location Agreement and other purchase-related documents, Company will convey ownership of the panels, including. without limitation. all Environmental Attributes (that are still owned by Company at the time of conveyance or not otherwise encumbered by Incentives, the ICA or the Program) by Bill of Sale. The obligations of both Parties in this Agreement will continue as to such panels and their output to the extent permissible under the ICA and the Program. 9.2 Purchase Option Price. The price for exercising the purchase option (the "Purchase Option Price") shall be (a) rhe fair market value of the panels as of the Exercise Date, minus (b) the product of (i) the fraction obtained by dividing the number of years remaining in the Term by 20 and (ii) the Purchase Price; however, in no event sha ll the Purchase Option Price be less than $1.00. If 7 sv.031915.sc the Parties cannot agree to a fair market value. the Parties shall select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry to determine the fair market value of the panels. Such appraiser shall act reasonabl) and in good faith to determine the fair market value of the panels on an installed basis and shall set forth such determination in a wrinen opinion delivered to the Parties. The valuation made by the appraiser shall be binding upon the Parties in the absence of fraud or manifest error. The costs of the appraisal shall be borne by the Parties equally. Notwithstanding any other provision of this Agreement to the contrary, in the event Customer has elected to purchase the panels before the fair market value is finally determined, then Customer shall have the right to withdraw such election without liability or obligation to Company within thirty (30) days after the date upon which Customer receives notice ofthe final determination of such fair market value. 9.3 Continuing and Additional Obligations Following Purchase. In the event Customer exercises this purchase option, except if done under Section 2.4. it is the Parties' intention that Company shall continue to sell and deliver the Customer Output and all Environmental Attributes to Utility and/or another third-part) and that Utilit} shall continue to provide bill credits to Customer to the extent permissible under the ICA and the Program, and that this Agreement shall continue to operate for the Term. If Customer is no longer permitted to participate in the Program after purchasing the panels. then the Parties shall explore and consider alternative means by which Customer may realize value from the Panels. 9.4 Removal or Sale of Panels. Following exercise of its purchase option. Customer may request Compan) to remove Customer's panels from the Facilil). Customer shall be required to pa) all costs of removal as determined by Company in its sole discretion. including but not limited to an) required modifications to the Facility to accommodate such removal. in advance of Company performing any such work. Upon completion of such removal. this Agreement shall terminate. Customer may also sell Customer's panels. to the extent permitted by law. to another Utility customer who qualifies for participation in the Program and in compliance with all of the requirements and procedures of Section 8.3 (pertaining to transfer of Customer's lnterest). 10. Assignment I 0.1 Assie.nment by Customer. Customer may not assign this Agreement and may not otherwise assign or transfer Customer's Interest without the consent of Company, which will not be unreasonably withheld. conditioned or delayed, except as provided in Section 8.3; provided however, that the Parties acknowledge that Customer may finance all or part of Customer's payment of the Purchase Price by receiving a Joan (the ''Loan") from a third-party lender (the "Lender"), and that as collateral for such Loan. Company may assign this Agreement and may assign or transfer Customer's Interest to the Lender. I 0.2 Assignment by Companv. Except as othern ise provided in this Agreement, Company may not assign this Agreement except with the consent of Customer. which will not be unreasonably withheld. conditioned or delayed. I 0.3 Permined Actions. Provided that the Company remains responsible for the ultimate performance of Company obligations under this Agreement, Company may assign any of its rights. duties, or obligations under this Agreement to another entity or individual. including any Affiliate. 8 sv 03191S.sc whether by contract, change of control, operation of law or otherwise. without Customer's prior written consent. 11. Dispute Resolu tion 11.1 Credit or Payment Dispute. lf Customer disputes the amount of any Bill Credit or Customer REC Payment made under this Agreement, Customer shall provide written notice explaining the dispute to Company, along with documentation sufficient to support Customer's claim. Company shall consider Customer's claim and respond in writing within twenty (20) days. 11.2 Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the state of Colorado without regard to its conflict of laws rules. Jurisdiction and venue shall be proper and exclusive in the District Court for Jefferson County, Colorado. 11.3 Attorney's Fees and Costs. In any proceeding to enforce any of the provisions or rights under this Agreement, the prevailing Party shall be entitled to recover all costs and reasonable attorney's fees incurred by the prevailing Party. 12. Hold Harmless 12.1 General. Within the limitations of the Colorado Constitution and statutes, each Party shall hold harmless the other Party and its Affiliates, di rectors, officers, managers, members, partners, employees, representatives, agents and affiliates (together, "Related Parties") from and aga inst any and all claims, demands, losses, damages, liabilities, legal proceedings. judgments and awards. costs and expenses (includ ing but not limited to reasonable attorneys' fees) arising directly or indirectly in whole or in pan out of personal injury (including death) and property damage (real and personal) arising out of such Party's act or omission. The Customer does not hereby waive any of the immunities. defenses and limitations of liability contained in the Colorado Governmental Immunity Act, CRS 24-10-101 et ~-. or by statute or the common law. 12.2 Other Agreements. To the extent permitted by law, Customer shall hold Company and its Related Parties hannless from any and all claims, liability, charges, actions, and demands arising out of or relating to: (a) credits and payments made or required to be made by Utility to or on Customer's behalf pursuant to this Agreement, the Program, and/or the ICA; (b) amounts owed by Customer to Utility or actions taken by Company with respect to Customer's Utility accoun~ and (c) payments made or required to be made or actions taken or required to be taken by Customer under any agreement for the purchase or financing of the Interest or the Panels. 13. Reporting and Marketing Customer authorizes Company and its affiliates to use Customer's name and Capacity ("Customer lnformatiou") for reporting and marketing purposes. Company shall use the Customer Information only for official reporting to governmental authorities, Utility, public utility commissions, and similar organizations, and in marketing material generated and distributed by Company or its affiliates. Under no circumstances, except as required by law and as otherwise provided in this Agreement, will Company release or otherwise publish any information collected from Customer other than the Customer Information. Nonvithstanding this Section, Company will 9 SV.031915.sc not use or disclose Customer's name for marketing purposes if Customer provides written notice prohibiting such use. 14. Applicability of Open Records Act The parties acknowledge and agree (a) that the Customer is required to comply with the Colorado Open Records Act. and (b) that the terms of this Agreement contain and constitute confidential and privileged market information and trade secrets of Company, which if disclosed to Com pan) 's competitors could harm the Company The Customer agrees to not disclose the terms hereof to any other entity or person. except for the limited purpose of facilitating the business relationship with Company and the transactions contemplated herein or as may be required under the Open Records Act or other requirements of law. Customer will advise Company of any request for the foregoing information under the Open Records Act. 15. Notices In the event that an) notice or other communication is required or permitted to be given hereunder. such notice or communications ''ill be in \\ riting and may be delivered in person or sent b) certified mail. overnight courier or transmitted by facsimile to the address of the addressee as specified below. Except as otherwise pro\ ided, all such notices or other communications will be deemed to have been dul) given and received upon receipt. To Company: To Customer: 16. Entire Agreement CEC Solar #I 023, LLC 36 I Centennial Parkway, Ste. 300 Louisville. CO 80027 Attn: Manager Fax No.: 970-692-2592 As set forth in Appendix A. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes any other agreement or understanding. written or oral. Customer acknowledges that it will also execute Utility's SRC Subscriber Agency Agreement for the Program. In the event of any conflict between the terms of that agreement and this Agreement. this Agreement shall control. Customer acknowledges that the Utility's SRC Subscriber Agency Agreement is needed for participation under the Program. In the event that Customer elects not to execute the Utility's SRC Subscriber Agency Agreement or the Customer elects to revoke or cancel the Uti lity 's SRC Subscriber Agency Agreement, then the Customer may terminate this contract. and such termination shall be considered a termination for convenience and not for breach of either Party. The provisions of the Utility's SRC Subscriber Agency Agreement shall not be considered to modify any of the terms or cond itions of this Agreement. except as may be detailed in a subsequent written amendment to this Agreement. duly executed by both Parties hereto. 10 SV.031915.sc 17. Governmental Immunity Customer and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement. the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10- 101. et seq., as amended. or otherwise available to Customer and its officers, attorneys or employees. 18. Annual Appropriation Financial obligations of the Customer under this Agreement payable after the_current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available by the City Council ofthe City of Wheat Ridge. Colorado. If sufficient funds shall not be made available, this Agreement may be terminated by either Party without penalty; provided, however, that in the event of termination of this Agreement pursuant to this section Customer shall pay all sums due from it during the fiscal year which includes the date of termination. The Customer's obligations hereunder shall not constitute a general obligation indebtedness or multiple year direct or indirect debt or other financial obligation whatsoever within the meaning of the Constitution or laws of the State of Colorado. 19. Gene ral 19.1 Modification and Waiver. This Agreement may be modified, or any provision waived, only by a written instrument signed by both Parties. 19.2 Authority. The Parties represent and warrant that they have full authority to execute and deliver this Agreement and to perform their obligations under this Agreement. and that the person whose signature appears on the Agreement is duly authorized to enter into this Agreement on behalf of the respective Party. 19.3 Severability. Should any terms of this Agreement be declared void or unenforceable by any court of competent jurisdiction. such terms will be amended to achieve as nearly as possible the same economic efTect for the Parties as the original terms and the remainder of the Agreement wi ll remain in full force and effect. 19.4 No Partnership. Nothing contained in this Agreement will constitute Company as a joint venturer, employee, or partne r of Customer, or render Company liable for any debts, obligations. acts. omissions, representations, or contracts of Customer. including without limitation Customer's obligations to Utility for electric service. 19.5 Third Party Beneficiaries. There are no third party beneficiaries of this Agreement. 20. Prohibition Against Employing Illegal Aliens (This section shall not apply to an individual person who does not hire employees to perform this contract.) This paragraph shall apply to all Contractors whose performance of work under this Agreement does not involve the delivery of a specific end product other than reports that are merely incidental to the performance of said work. Pursuant to Section 8-17.5-101. C.R.S .. et seq., Company represents and agrees that: a. UNLAWFUL EMPLOYEES, CONTRACTORS AND SUBCONTRACTORS: Company shall not knowingly employ or contract with an illegal alien to perform work under this Agreement (here inafter. in this paragraph 20 ("Contract'). Company shall not knowingly contract \\ ith a subcontractor that (i) knowing!) employs or contracts with an illegal alien to perform \\<Ork under this Agreement or (ii) fails to certify to the Company that the subcontractor will not kno~ ingly employ or contract with an illegal alien to perform work under this Agreement. b. VERJFICATION REGARDING ILLEGAL ALIENS: Upon entry into a new contract or renewal of a contract for services Company will verify through participation in either the E-verify Program or the Department Program of the State of Colorado that Company does not employ any illegal aliens. If Company chooses to use the Department Program, Company shall complete a "Notice of Participation in the Department Program for Public Contracts for Services·· and distribute said notice to the Colorado Division of Labor and the City. If Company has chosen to use the Department Program. and if, during the contract period, Company hires an employee who is newly hired for employment to perform work under the contract. Company shalL within twenty days of hiring an employee, al1irm that Company has examined the legal work status of such employee. retained file copies of the documents required by 8.U.S.C. 1324a, and not altered or falsified the identification documents for such employees. The Company shall provide a wrinen. notarized cop) of the affirmation to the City. c. LIMITATION REGARDING E-VERIFY PROGRAM AND DEPARTMENT PROGRAM . Compan) shall not use either the E-verify Program or the Department Program procedures to undertake pre-employment screenmg of job applicants while pcrfonning this Contract. d. DUTY TO TERMINATE A SUBCONTRACT; EXCEPTIONS: If Compan) obtains actual kno~ ledge that a subcontractor performing work under this Contract knowingly employs or contracts with an illegal alien. the Compan) shall, unless the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien: i. notify the subcontractor and the City within three days that the Company has actual knowledge that the subcontractor is employing or contracting with an illegal alien: and 11. terminate the subcontract with the subcont ractor if. ~ ithin three days of receiving notice that the Company has actual knowledge that the subcontractor is employing or contracting with an illega l alien, the subcontractor does not stop employing or contracting with the illegal alien. e. DUTY TO COMPLY WJTit STATC INVESTIGATION: Company shall com pi) with any reasonable request of the Colorado Department of Labor and Employment made in the course of an investigation pursuant to C .R.S. 8-17 .5-I 02 ( 5). f. DAMAGES FOR BREACH OF CONTRACT: In addition to any other legal or eq uitable remedy the City may be entitled to a breach of this Contract. ifthe City terminates this Contract, in whole or in part. due to Company's breach of any paragraph in this Section, Company shall be liable for actual and consequential damages to the Cit). g. CERTIFICATION: Prior to executing contract, the Company shall certify that it does not knowingly employ or contract with an illegal alien who will perform work under the contract and that the Company will participate in the E-Verify Program or the Department Program in order to confirm the employment eligibility of its employees. 21. Open Records The City of Wheat Ridge is a governmental agency and as such is subject to the Colorado Open Records Act. IN WlTNESS WHEREOF, each Part) has caused this Agreement to be duly executed by its authorized representative as on.1arch 23 , 2015 . CEC SOLAR #1023, LLC By: ____________ _ Mark Boyer. Authorized Representative Date: ATTEST: CITY OF WHEAT RIDGE APPENDIX A Customer and Facility Information Customer Name(s): Customer's Location: Initial Meter # for Crediting: City of Wheat Ridge 7500 W. 29th Avenue Wheat Ridge, CO 80033 Tel: 303-235-2805 Fax: Email: Facility Company Name: Facility Name: Facility Location: Capacity purchased by Customer: Estimated initial annual amount of Customer Output ("Estimated initial Annual Production"): Customer Portion: Effective Date: Interconnection Date: Panels: Panel Locations: pgoff@ci. wheatridge.co.us CEC Solar # I 023, LLC Jefferson County 2 W. 56'h Ave., Golden, CO 80403 228.42 kW 371,702 kWh 40.00% November 5. 20 14 . J " ·-=l--I'-~· G Seri al numbers will be provided in updated Appendix A's. APPENDIX B Definitions Capitalized terms used in the Agreement are defined as follows unless defined in the body of the Agreement. "Affiliate" means any person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by or pannered with, or is under common control with the person or entity specified. "Customer Output" equals Customer Portion times Output for any applicable time period. "Customer Portion" means the fraction or percentage obtained by dividing (i) Customer's Capacity by (ii) the total nameplate generating capacity of all panels at the Facility. "Effective Date" means the date set fonh on Appendix A. "Environmental Attributes" means the full set of environmental, power source and emissions characteristics, whether in the form of credits (including Renewable Energy Credits), benefits, emissions reductions, offsets, allowances or by any other designation, attributable to the Capacity and Customer Output. Environmental Attributes include but are not limited to (I) any avoided emissions of carbon dioxide (C02), methane (CH4), nitrous oxide, hydrofluoro carbons. perfluoro carbons. sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change as of the effective date of this agreement, or otherwise under Law. to contribute to the actual or potential threat of altering the Eanh's climate by trapping heat in the atmosphere. (2} any avoided emissions of sulfur oxides (S0x), nitrogen oxides CNox) and carbon monoxide (CO), and of any other pollutant of the air. soil or water (other than GHGs) that is no"' regulated under law. including as pan of any renewable ponfolio standard, or tradable under any registration or trading program; and (3) the right of the Utility and/or another th ird party as the owner or prospective owner of Environmental Attributes to repon the ownership of accumulated Environmental Attributes to any agency. authority or other party, including without limitation those Green Tag Reponing Rights accruing under Section 1605(b) ofThe Energy Policy Act of 1992 and any present domestic, international or fo reign Law, renewable ponfolio standard or registration or trading program. One (I) MWh of energy output is assumed to be the equivalent to one unit of Environmental Attributes, subject to applicable law. standards, or trading program requirements. EnvironmentaJ Attributes do not include: (i) any energy, capacity, reliability or other power attributes from the Panels or the Facility; (ii) production tax credits associated with the construction or operation of the energy projects and other financial incentives in the fonn of credits, reductions, or allowances associated with the project that are applicable to a state or federal income taxation obligation; or (iii) fue l-related subsidies or "tipping fees" that may be paid to accept or dispose of cenain fuels, or local subsidies received by the generator for the destruction of particular pre-existing pollutants or the promotion of local environmental benefits. "Output" means the actual generating output of the Facility that is delivered to Utility as measured by the Utility's meter for any applicable time period. Output is net of any electricity consumed at the Facility. ''Purchase Price" equals the Total System Price less the PeakSavings Discount less any applicable rebates or incentives from the Utility (all as specified on the Closing Statement provided by Company). Re11ewable E~rergy Credit" or "REC' means a contractual right to the full set of Environmental Attributes resulting from one megav.·an-hour of electric energy generated from an Eligible Energ) Resource, as further provided in regulations adopted pursuant to C.R.S. § 40-2-124. currently set forth at 4 CCR 733-3, Rule 3652(n), as may be amended from time to time or as further defined or supplemented by lav •. APPENDIX C The Estimated Initial Annual Production as set forth in Appendix A shall not exceed 120% of Customer's average annual electric power consumption at the Location. In addition. should Customer have an interest in any other Communit) Solar Facility, the sum total of the annual production attributable to aU such interests shall not exceed 120% of Customer's average annual electric power consumption at the Location. Should Customer also be a net-metered customer of Utility at the Location, the sum total of the annual production attributable to all Communi ty Solar interests in combinati on with the estimated output from its net- metered Eligible Energy Resource Facility shaJI not exceed the limits described herein.