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.