HomeMy WebLinkAboutSRCEA Item 4 - Ex B - PPA Area 2
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
SOLAR POWER PURCHASE AGREEMENT
(Sublease Area 2 (City of Lake Elsinore))
Between
SMER Research 1, LLC
and
Southwest Riverside County Energy Authority
Dated as of _____________, 2017
TABLE OF CONTENTS
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DOCS 124394-000004/2789584.9
1. Definitions ............................................................................................................ 1
2. Installation, Leasehold Interest, and Operation of the Generating Facility ........... 1
(a) Leasehold Interest .................................................................................... 1
(b) Installation ................................................................................................. 1
(c) Pre-Construction Activities ........................................................................ 2
(d) Commercial Operation .............................................................................. 3
(e) Operation and Maintenance ...................................................................... 4
(f) Expenses .................................................................................................. 4
3. Purchase and Sale of Power ............................................................................... 4
(a) Purchase and Sale ................................................................................... 4
(b) Purchase Price ......................................................................................... 4
(c) Taxes ........................................................................................................ 4
(d) Fees .......................................................................................................... 5
4. PPA Term; Termination ....................................................................................... 5
(a) Initial PPA Term ........................................................................................ 5
(b) Extension PPA Term................................................................................. 5
5. Green Attributes and Retained Environmental Financial Incentives .................... 5
(a) Ownership and Sale of Green Attributes ................................................... 5
(b) Ownership of Retained Environmental Financial Incentives ..................... 5
(c) No Impairment of Green Attributes or Retained Environmental
Financial Incentives .................................................................................. 6
6. Metering .............................................................................................................. 6
(a) Equipment ................................................................................................. 6
(b) Data Collection ......................................................................................... 6
(c) Audit.......................................................................................................... 7
(d) Confidentiality ........................................................................................... 7
7. Delivery ............................................................................................................... 7
(a) Title; Risk of Loss ..................................................................................... 7
(b) Specifications ............................................................................................ 7
(c) Intermittent Resource ................................................................................ 7
8. Invoices and Payment ......................................................................................... 8
9. Invoice Adjustments; Disputes over Invoices ...................................................... 8
10. Representations and Warranties; Covenants ...................................................... 8
(a) Representations and Warranties .............................................................. 8
(b) Purchaser Representations, Warranties and Covenants ........................ 10
TABLE OF CONTENTS
(continued)
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11. Liens .................................................................................................................. 11
12. Indemnification; Insurance; Loss ....................................................................... 11
(a) Indemnification ........................................................................................ 11
(b) Insurance ................................................................................................ 12
13. Default and Remedies ....................................................................................... 12
(a) PPA Event of Default .............................................................................. 12
(b) Termination ............................................................................................. 13
(c) Damages ................................................................................................ 13
(d) Costs ....................................................................................................... 14
(e) No Waiver; Remedies Cumulative .......................................................... 14
14. Limitation of Liability .......................................................................................... 14
15. Force Majeure ................................................................................................... 14
(a) Excuse .................................................................................................... 14
(b) Force Majeure Events ............................................................................. 15
(c) Early Termination by Power Provider ..................................................... 15
(d) Early Termination by Purchaser .............................................................. 16
(e) No Extension of Term ............................................................................. 16
16. Records ............................................................................................................. 16
17. Notices .............................................................................................................. 16
18. Confidentiality .................................................................................................... 17
19. Assignment ........................................................................................................ 18
(a) Consent .................................................................................................. 18
(b) Power Provider Financing ....................................................................... 18
20. Publicity ............................................................................................................. 19
(a) Press Releases ....................................................................................... 19
(b) Advertisements ....................................................................................... 19
(c) Information .............................................................................................. 19
21. No Set-Off ......................................................................................................... 19
22. Intellectual Property ........................................................................................... 19
23. Binding Effect .................................................................................................... 20
24. Amendments ..................................................................................................... 20
25. Counterparts ...................................................................................................... 20
26. Other Agreements ............................................................................................. 20
27. Third Party Beneficiaries ................................................................................... 20
TABLE OF CONTENTS
(continued)
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28. Severability ........................................................................................................ 21
29. Survival .............................................................................................................. 21
30. Governing Law .................................................................................................. 21
31. Legal Effect of Contract ..................................................................................... 21
(a) Forward Contract .................................................................................... 21
(b) No Lease ................................................................................................ 21
(c) No Partnership ........................................................................................ 21
32. Cooperation ....................................................................................................... 22
(a) Additional Documents ............................................................................. 22
(b) Utility Rule Changes ............................................................................... 22
(c) Dispute Resolution .................................................................................. 22
33. Ownership of the Generating Facility for Tax Purposes .................................... 22
(a) Generating Facility Ownership ................................................................ 22
(b) Financial Burden ..................................................................................... 23
(c) Financial Benefit ..................................................................................... 23
EXHIBITS
Exhibit A Definitions and Rules of Interpretation
Exhibit B Generating Facility Specifications
Exhibit C Termination Value
Exhibit D Form of Interconnection Agreement
Exhibit E Energy Delivery Point Single-Line Drawing
Exhibit F Form of Lender Consent
Exhibit G Form of Estoppel
Exhibit H Land Use Agreement
Exhibit I City of Lake Elsinore Guaranty
SCHEDULES
Schedule 10(a)(iv) Approvals
Schedule 10(a)(vi) Litigation
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Solar Power Purchase Agreement
(Sublease Area 2)
This Solar Power Purchase Agreement (Sublease Area 2) (this “Agreement” or
“PPA”), dated as of __________, 2017 (the “PPA Effective Date”), is between SMER
Research 1, LLC (“Power Provider”), a California Limited Liability Company, and the
Southwest Riverside County Energy Authority, a California Joint Powers Authority
(“Purchaser”).
RECITALS
A. Power Provider desires to install an electricity grid-connected photovoltaic,
solar power plant with a total generating capacity rated at approximately 1,400 kW (as
further described in Exhibits A and B of this Agreement, the “Generating Facility”) on
real property identified as the “Premises” in the Land Use Agreement (“Exhibit H”) at the
Santa Margarita Ecological Reserve SOLAR Initiative Research Site, in Temecula,
California (hereinafter the “Site”); and
B. Purchaser desires to purchase from Power Provider and Power Provider
desires to sell to Purchaser the entire Energy Output of the Generating Facility.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
Power Provider and Purchaser, intending to be legally bound, agree as follows:
1. Definitions
Capitalized terms used and not otherwise defined herein shall have the
meanings set forth in Exhibit A, unless the context clearly requires otherwise. The
Rules of Interpretation set forth in Exhibit A shall apply to the interpretation of this
Agreement.
2. Installation, Leasehold Interest, and Operation of the Generating Facility
(a) Leasehold Interest. Purchaser is the subtenant of the Premises pursuant
to the Land Use Agreement dated of even date herewith such that the Premises is
“under the control” of Purchaser for the purposes of the Public Utility Code Section
2830.
(b) Installation. Power Provider shall install or cause to be installed the
Generating Facility. Power Provider shall provide Purchaser reasonable notice of the
progress of the installation of the Generating Facility and shall provide reasonable
notice to Purchaser of the anticipated Commercial Operation Date and the actual
Commercial Operation Date. Purchaser shall provide Power Provider with the non-
exclusive right to use additional space at the Premises as may be reasonably necessary
in connection with the installation (including but not limited to temporary construction
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laydown areas and designated parking spaces) and as further described in the Land
Use Agreement (Exhibit H).
(c) Pre-Construction Activities. Promptly following the execution of this
Agreement, Power Provider and, to the limited extent set forth below in Section 2(c)(v)
through (vii), Purchaser, shall use commercially reasonable efforts to complete pre-
construction activities relating to the Generating Facility in accordance with the dates
provided below in the last paragraph of this Section 2(c), which shall be considered
conditions subsequent to the execution of this PPA to be satisfied prior to Purchaser’s
obligation to purchase power from the Generating Facility and shall include, without
limitation, the following (each a “Pre-Construction Activity,” and collectively the “Pre-
Construction Activities”):
(i) Power Provider shall, at its sole cost and expense, obtain or
cause to be obtained: (A) financing for installation of the Generating Facility; and (B)
applicable Retained Environmental Financial Incentives for operation of the
Generating Facility.
(ii) Power Provider shall have obtained the right to use the Premises
under the License Use Agreement (the form of the License Use Agreement is
attached as an exhibit to the Land Use Agreement) (Exhibit H) on a long-term basis,
for the construction, installation, maintenance and operation of the Generating Facility
subject to and conditional upon approval the Governing Body of the Purchaser;
(iii) Power Provider has, at its sole cost and expense, obtained in
Power Provider’s own name all necessary authority from regulatory entities and all
other governmental approvals, permits, entitlements, contracts, and agreements
including approval of the project consistent with the California Environmental Quality
Act requirements, required for the construction and installation of the Generating
Facility;
(iv) Power Provider shall, at its sole cost and expense, provide an
approved interconnection study and provide Purchaser with any and all forms for
Interconnection Agreement and assist in completion of such forms and ensure such
forms and requirements are acceptable to Power Provider and Purchaser;
(v) Purchaser shall have entered into the Interconnection Agreement,
consistent with the approved interconnection study, which will be substantially in the
form in Exhibit D upon the approval of same by the Purchaser’s Governing Body,
provided, however, that Power Provider shall be responsible for all costs and
expenses related to the Interconnection Agreement;
(vi) Purchaser shall have delivered to Power Provider the executed
the City of Lake Elsinore Guaranty substantially in the form in Exhibit I.
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(vii) Power Provider shall, at its sole cost and expense: (A) cause the
installation and maintenance of the Generating Facility at the Premises, subject to the
terms of any proposed financing and consistent with the approvals in Section 2(c)(iii),
and (B) cause the installation and maintenance of all Interconnection Facilities and
other facilities required of the Purchaser by the Interconnection Agreement in
accordance with the terms of the Interconnection Agreement and the specifications
described in the Interconnection Agreement; and
(viii) Power Provider shall, at its sole cost and expense, obtain or
cause to be obtained all necessary authority from the CPUC or other regulatory entities
for the operation and maintenance of the Generating Facility, the Interconnection
Facilities, and the sale and delivery of Energy Output to Purchaser.
Power Provider shall use commercially reasonable efforts to complete the Pre-
Construction Activity in Section 2(c)(i)-(iii) by no later than ________ 1, 20__.
Purchaser shall use commercially reasonable efforts to meet the foregoing Pre-
Construction Activities in Section 2(c)(iv)-(v) no later than _________1, 20__. If, after
exercising such commercially reasonable efforts, any of the Pre-Construction Activities
is not completed by such dates, Power Provider or Purchaser shall have the option to
terminate this Agreement without triggering the default provisions of this Agreement or
any liability under this Agreement. Upon satisfaction of all Pre-Construction Activities,
Power Provider shall proceed with construction of the Generating Facility.
(d) Commercial Operation. Power Provider shall be solely responsible for all
costs and the performance of all tasks required for installation of the Generating Facility.
Promptly upon satisfaction of all Pre-Construction Activities, Power Provider shall use
commercially reasonable efforts to complete construction and completion activities
relating to the Generating Facility, which shall include, without limitation, the following
(“Completion Activities”):
(i) Power Provider shall reasonably assist Purchaser as requested
by Purchaser in connection with the execution by Purchaser of any ancillary
agreements required for Utility interconnection of the Generating Facility, provided that
Power Provider shall be solely responsible for all costs and the performance of all
obligations under such agreements. Notwithstanding the foregoing, Power Provider
shall not be responsible to reimburse Purchaser for direct cost incurred by Purchaser in
assisting Power Provider.
Each of Power Provider and Purchaser shall use commercially reasonable efforts to
complete the foregoing Completion Activities, and Power Provider shall use
commercially reasonable efforts to cause installation of the Generating Facility to be
completed and to cause the Generating Facility to begin Commercial Operation on or
before the date that is two hundred seventy (270) days following the PPA Effective Date
(the “Target Commercial Operation Date”). Notwithstanding the foregoing, to the extent
that Commercial Operation has not commenced on or before the Target Commercial
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Operation Date, Power Provider may by written notice to Purchaser within three (3)
Business Days after the Target Commercial Operation Date, extend the Target
Commercial Operation Date by no more than an additional one hundred eighty (180)
days. If Power Provider does not elect to extend the Target Commercial Operation
Date as set forth in the immediately preceding sentence, or if following such election by
Power Provider Commercial Operation has not commenced after the expiration of such
one hundred eighty (180) day period, then Power Provider shall have the option (to be
exercised within thirty (30) days of Power Provider’s failure to extend the Target
Commercial Operation Date or the expiration of such one hundred eighty (180) day
period, as applicable) to terminate this Agreement without triggering the default
provisions of this Agreement or any liability under this Agreement.
(e) Operation and Maintenance. Power Provider shall be solely responsible
for operation and maintenance of the Generating Facility and Interconnection Facilities,
as defined in and subject to the requirements of the Interconnection Agreement, and
shall, at all times during the PPA Term, maintain the Generating Facility and
Interconnection Facilities in accordance with Prudent Industry Practices. Power
Provider shall bear all risk of loss with respect to the Generating Facility and
Interconnection Facilities and shall have full responsibility for its operation and
maintenance in compliance with all laws, regulations and governmental Permits.
(f) Expenses. Purchaser shall have no responsibility for costs and expenses
required for the activities completed by non-Purchaser employees, consultants, agents
or guests described in this Section 2. To the extent Purchaser may incur any such
expenses, Power Provider shall reimburse Purchaser for such expenses within thirty
(30) days of a demand from the Purchaser.
3. Purchase and Sale of Power
(a) Purchase and Sale. Throughout the PPA Term, Purchaser shall purchase
and accept delivery from Power Provider, and Power Provider shall sell and deliver to
Purchaser, the entire Energy Output in such amounts as may be generated from time to
time. Purchaser shall not resell any of the Energy Output.
(b) Purchase Price. Purchaser shall pay to Power Provider the applicable
Purchase Price, $0.1253/kWh-ac, for the duration of the PPA Term, for Energy Output
delivered hereunder throughout the PPA Term. Such amount shall be paid in
accordance with the terms of Section 8 hereof.
(c) Taxes. If any taxes are assessed against the generation, sale, delivery or
consumption of Energy Output, or if taxes that are, or are in the nature of, property or ad
valorem taxes, including without limitation, possessory interest taxes, if any, are
assessed in respect of the Generating Facility, Power Provider shall be responsible for
all such amounts due, including any taxes assessed thereon, in accordance with the
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terms of Section 8. Notwithstanding the above, Purchaser may not assess a tax on
Power Provider’s activities in any way.
(d) Fees. If any fees are assessed by the Utility by reason of this PPA, or any
supporting agreement, on any Purchaser account which is receiving credits for Energy
Output from the Generating Facility, including but not limited to Departing Load
Charges, application fees, one time set-up fees, monthly billing fees, or review fees, the
Power Provider shall be responsible for all such amounts. Notwithstanding the above,
Purchaser may not assess any fees on Power Provider’s activities in any way.
4. PPA Term; Termination
(a) Initial PPA Term. Unless terminated early in accordance with the terms
hereof, the (x) initial term of this Agreement (the “Initial PPA Term”) shall commence on
the PPA Effective Date and (y) the Parties’ respective purchase and sale obligations
under this Agreement with respect to Energy Output from the Generating Facility shall
commence at 0000 hours on the Commercial Operation Date; and each shall continue
in effect until 2400 hours on the date that is twenty (20) years after the Commercial
Operation Date.
(b) Extension PPA Term. At the end of the Initial PPA Term, this Agreement,
including the purchase and sale obligation under Section 3(a), can be extended for
five (5) years (the “Extension PPA Term”), if Purchaser delivers written notice to the
Power Provider at least six (6) months prior to the end of the Initial PPA Term. If no
such notice of extension is provided by Purchaser at least six (6) months prior to the
end of the initial PPA Term, Power Provider may assume that the PPA with Purchaser
will terminate at the end of the Initial PPA Term and Power Provider may immediately
negotiate a new PPA with an alternate Purchaser, which may be effective upon
expiration of the Initial PPA Term. Unless otherwise agreed to by the Parties, during the
Extension PPA Term, the terms and conditions of this Agreement shall remain in effect.
5. Green Attributes and Retained Environmental Financial Incentives
(a) Ownership and Sale of Green Attributes. Power Provider hereby provides
and conveys all Green Attributes associated with all electricity generation from the
Project to Purchaser as part of the Product being delivered. Power Provider represents
and warrants that Purchaser holds the rights to all Green Attributes from the Project,
and Power Provider agrees to convey and hereby conveys all such Green Attributes to
Purchaser as included in the delivery of the Energy from the Project.
(b) Ownership of Retained Environmental Financial Incentives.
Notwithstanding the purchase and sale of Energy Output pursuant to this Agreement,
Power Provider shall at all times continue to own, and may assign or sell in its sole
discretion to one or more third parties, all Retained Environmental Financial Incentives
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associated with or resulting from the development, installation, ownership or operation
of the Generating Facility.
(c) No Impairment of Green Attributes or Retained Environmental Financial
Incentives. No Party shall take any action or knowingly suffer any omission that would
have the effect of impairing the value of the Green Attributes or the Retained
Environmental Financial Incentives, without regard to the amount of the Green
Attributes or the Retained Environmental Financial Incentives produced by the
Generating Facility, including without limitation claiming ownership or claiming any grant
of assignment of the Green Attributes or the Retained Environmental Financial
Incentives inconsistent with the terms and provisions of this Agreement. Each Party
shall be responsible for notifying the other Party of any action or omission of which it
has knowledge that could impair such value and for consulting with the other Party as
necessary to prevent impairment of the value of such Green Attributes or Retained
Environmental Financial Incentives.
6. Metering
(a) Equipment.
(i) Power Provider shall install and maintain a standard revenue
quality meter and an electronic system for supervisory control and data acquisition
(“SCADA”) at the Generating Facility. The SCADA will be owned by Power Provider.
The meter shall measure the alternating current output of the Generating Facility on a
continuous basis. Power Provider shall be responsible for maintaining the metering
equipment in good working order and, if Purchaser so requests, for testing the
metering equipment once per calendar year and certifying the results of such testing
to Purchaser. In the event of a failure of the electronic meter reading system and until
such failure has been corrected, Power Provider shall be responsible for conducting
monthly on-site readings of the standard electricity meter to determine the output of
the Generating Facility delivered to Purchaser. Data retrieved from any such meter
shall serve as the basis for invoicing Purchaser for all Energy.
(ii) Purchaser shall share with Power Provider, or allow Power
Provider to retrieve, electrical load data for the Site from the Site’s Utility meters for
periods before and after the Commercial Operation Date. At Power Provider’s sole
option and expense Power Provider may install an additional meter to measure the
electrical load of the Site.
(b) Data Collection. Power Provider shall maintain all production meter data
and shall provide to Purchaser a report of the Generating Facility’s individual metered
Energy, as read and collected on a monthly basis, once each month within fourteen (14)
Business Days after the last day of the preceding month. Subject to Section 6(a), such
data shall serve as the basis for invoicing Purchaser for all Energy. Power Provider
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shall preserve all data compiled hereunder for a period of at least two (2) years
following the compilation of such data.
(c) Audit. Once per calendar year, Purchaser shall have the right to audit all
such meter data upon reasonable notice, and any such audit shall be at Purchaser’s
sole cost (unless an audit reveals at least a five percent (5%) overcharge to Purchaser,
in which case Power Provider shall bear the cost of that audit). If the metering
equipment is found to be inaccurate, it shall be corrected as follows and past readings
within the year of the audit shall be promptly adjusted and reflected in the following
invoice: (i) if reliable information exists as to the period of time during which the meter
was registering inaccurately, by estimating by reference to quantities of Energy Output
measured during periods of similar conditions when the meter was registering
accurately and (ii) if no reliable information exists as to the period of time during which
the meter was registering inaccurately it shall be assumed that the period of such
inaccuracy was equal to one-half of the period from the date of the last previous test of
the meter (provided that the period covered by the correction shall not exceed six
months).
(d) Confidentiality. Purchaser shall not share information provided by the
Power Provider to the Purchaser from the production meter, or any other performance
data related to the Generating Facility, with any third parties unless: (1) such disclosure
is required by the California Public Records Act, Government Code Section 6250 et
seq; or (2) Power Provider gives written consent to Purchaser for the disclosure of such
information prior to disclosure.
7. Delivery
(a) Title; Risk of Loss. Title and risk of loss of the Energy Output shall pass
from Power Provider to Purchaser upon delivery of the Energy Output at the Energy
Delivery Point. Purchaser shall purchase and accept delivery of metered Energy Output
at the Energy Delivery Point. Power Provider, at its sole cost and expense shall be
responsible for arranging delivery of Energy Output from the Energy Delivery Point to
Purchaser and for any installation and operation of equipment on Purchaser’s side of
the Energy Delivery Point necessary for acceptance and use of the Energy Output.
(b) Specifications. Power Provider shall ensure that all Energy Output
generated by the Generating Facility conforms to Utility specifications for Energy Output
being generated and delivered to the Site’s electric distribution system, which shall
include the installation of proper power conditioning and safety equipment, submittal of
necessary specifications, coordination of Utility testing and verification, and all related
costs. All deliveries of Energy Output hereunder shall be in the form of three-phase,
sixty-cycle alternating current.
(c) Intermittent Resource. Purchaser acknowledges that the Generating
Facility is an intermittent energy resource, and that the Generating Facility will not
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supply a consistent or uninterrupted supply of energy to the SCE electric distribution
system.
8. Invoices and Payment
Power Provider shall deliver to Purchaser an invoice at the address set forth in
Section 17 by the fourteenth (14th) Business Day of each calendar month (or upon a
monthly schedule mutually acceptable to Purchaser and Power Provider), stating the
Energy Output delivered to Purchaser during the preceding calendar month and the
applicable Purchase Price, and calculating the total amount due to Power Provider.
Without offset for any amount owed or claimed to be owed by Power Provider,
Purchaser shall pay the amount due to Power Provider by wire transfer or ACH
payment, on or before thirty (30) days following the date of the invoice, which shall be
referred to as the “Due Date”. If the Due Date is a bank holiday, publicly designated
holiday, or a weekend, payment shall be due on the next following Business Day. Any
undisputed amount remaining unpaid after the Due Date shall bear interest at the
Default Rate. Invoices and payments schedule shall commence following Commercial
Operation.
9. Invoice Adjustments; Disputes over Invoices
Either Party may, in good faith, dispute the correctness of any invoice or any
adjustment to an invoice rendered or adjust any invoice for any arithmetic,
computational or meter-related error within twelve (12) months of the date of the invoice
or the date the adjustment to an invoice was rendered, as the case may be. In the
event a Party disputes all or a portion of an invoice, or any other claim for an adjustment
arises, that Party shall pay the disputed and undisputed portion when due and provide
the other Party notice of the dispute and the amount in dispute. Following a Party’s
delivery of a notice of a dispute, the Parties shall first use good faith, reasonable,
diligent efforts to resolve such dispute within a reasonable period of time not to exceed
thirty (30) days from the date of such notice. If the Parties do not resolve such a dispute
within such thirty (30) days, then the Parties may pursue their rights appropriately.
Power Provider shall return to Purchaser any disputed amount which is ultimately
determined to have been improperly billed to Purchaser, together with interest thereon
at the Default Rate.
10. Representations and Warranties; Covenants
(a) Representations and Warranties. Each Party represents and warrants to
the other Party as of the PPA Effective Date that:
(i) Existence. Such Party is duly organized, validly existing and in
good standing under the laws of the state of its formation and has all requisite power
and authority to enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby;
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(ii) Authorization. The execution and delivery of this Agreement and
the performance of such Party’s obligations hereunder have been duly authorized by
all necessary company action;
(iii) Validity. This Agreement is a legal, valid and binding obligation of
such Party enforceable against such Party in accordance with its terms, subject to the
qualification, however, that the enforcement of the rights and remedies herein is
subject to (i) bankruptcy and other similar laws of general application affecting rights
and remedies of creditors and (ii) the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law);
(iv) Approvals. Except for the approvals specifically referenced in this
Agreement, including without limitation Schedule 10(a)(iv), Section 2(c)(iii), and the
process for compliance with the California Environmental Quality Act (“CEQA”) and
Riverside County Multi-Species Habitat Conservation Plan, if applicable, to such
Party’s knowledge, no other governmental, corporate, utility, direct access provider,
regulatory, municipal, state, district, school district or other third party consent or
approval is required in connection with the due authorization, execution and delivery of
this Agreement by such Party or the performance by such Party of its obligations
hereunder;
(v) No Conflict. Neither the execution and delivery of this Agreement
by such Party nor compliance by such Party with any of the terms and provisions of
this Agreement conflicts with, breaches or contravenes the provisions of such Party’s
organizational documents, court judgments or adjudicative administrative orders
applicable to such Party;
(vi) No Litigation. Except as set forth on Schedule 10(a)(vi), to the
back of the parties’ knowledge, there is no pending litigation or adjudicative
administrative proceedings served upon the Party, or, to the knowledge of such Party,
litigation, action or proceeding that has been threaten in writing against such Party
which would reasonably be expected to have a material adverse effect or which
purports to affect the legality, validity or enforceability of this Agreement or the
transactions contemplated hereby;
(vii) Bankruptcy. Except as previously disclosed in writing to the other
Party there is no pending bankruptcy, reorganization, debt arrangement or other case
or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up
or liquidation proceeding, in respect to such Party; and
(viii) Other Facts. To the Power Provider’s knowledge there are no
facts, circumstances or other matters that may materially interfere with or materially
delay the construction, installation, maintenance or operation (including facts,
circumstances or other matters adversely affecting the Generating Facility’s exposure
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to sunlight) of the Generating Facility, except as have been disclosed in writing to the
other Party.
(ix) Premises. Power Provider will maintain the Premises in
accordance with applicable law and Prudent Industry Practice (including maintenance
of permits held by Power Provider)
(b) Purchaser Representations, Warranties and Covenants.
(i) No Adverse Actions. Purchaser will not initiate, conduct or, to the
extent within its control, permit, activities that it knows or reasonably should know may
damage, impair or otherwise adversely affect the Generating Facility or its function
(including activities that may adversely affect the Generating Facility’s exposure to
sunlight).
(ii) Interconnection and Other Agreements. Purchaser shall enter into
the Interconnection Agreement upon approval by Purchaser’s Governing Body and at
Power Provider’s written request in substantially the same form as provided in Exhibit
D.
(iii) Land Use Agreement. Purchaser shall enter into a Land Use
Agreement in the form attached as Exhibit H.
(iv) Copies of Documents. Within five Business Days following
receipt, Purchaser shall send to Power Provider pursuant to Section 17 complete
copies of the Interconnection Agreement, permission to operate letter or any other
material document or communication from Utility related to the Generating Facility, its
operation, or interconnection.
(v) Appropriations. Purchaser covenants to take such action as may
be necessary to include all payments due under Section 8 of this PPA (the
“Payments”) (to the extent the amounts of such Payments are known to Purchaser at
the time its annual budget is proposed) in its annual budget and to make the
necessary annual appropriations for such Payments. To the extent the amount of
such Payments becomes known after the adoption of the annual budget, such
amounts shall be included and maintained in such budget as amended. The
covenants of Purchaser shall be deemed to be a duty imposed by law and it shall be
the ministerial duty of Purchaser to take such actions as are required by law to enable
Purchaser to perform this PPA. The obligation of Purchaser to make Payments
hereunder shall constitute a current operating expense of Purchaser and shall not in
any way be construed to be a debt of Purchaser or the State, or any political
subdivision thereof, nor shall anything contained herein constitute a pledge of general
revenues, funds or moneys of Purchaser beyond the fiscal year for which Purchaser
has appropriated funds to make Payments hereunder or an obligation of Purchaser for
which Purchaser is obligated to levy or pledge any form of taxation or for which
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Purchaser has levied or pledged any form of taxation. To the extent that any provision
herein is determined to be in violation of any debt limitation applicable to Purchaser
under State or federal Constitution, then such provision shall be deemed amended to
the extent necessary to conform to such State or federal Constitutional debt limitation.
11. Liens
Power Provider shall not directly or indirectly cause, create, incur, assume or
suffer to exist any mortgage, pledge, lien (including any mechanics’, labor or
materialman’s lien), charge, security interest, encumbrance or claim on or with respect
to the Generating Facility or any interest therein. Power Provider shall pay promptly
before a fine or penalty may attach to the Generating Facility any taxes, possessory
interest taxes, charges or fees of whatever type of any relevant governmental authority
for which Power Provider is responsible. If Power Provider breaches its obligations
under this Section 11, it shall immediately notify Purchaser in writing, shall promptly
cause such liens to be discharged and released of record without cost to Purchaser,
and shall indemnify Purchaser against all costs and expenses (including reasonable
attorneys’ fees and court costs at trial and on appeal) incurred in discharging and
releasing such liens.
12. Indemnification; Insurance; Loss
(a) Indemnification. Power Provider and Purchaser (each, in such case, an
“Indemnifying PPA Party”) shall indemnify, defend and hold harmless the other Party
and its Affiliates, employees, directors, officers, managers, members, partners (if
applicable), shareholders and agents (each, in such case, an “Indemnified PPA Party”)
harmless from and against any claim, demand, lawsuit or action of any kind for property
damage, bodily injury or death, sustained by a third party arising out of (i) negligent acts
or omissions or willful misconduct of Indemnifying PPA Party, its agents, officers,
directors, employees, or contractors ; or (ii) the material breach by Indemnifying PPA
Party of any of its obligations under this Agreement. The obligation to indemnify shall
extend to and encompass all reasonable costs incurred by Indemnified PPA Party in
defending such claims, demands, lawsuits or actions, including, but not limited to,
attorney, witness and expert witness fees, and any other litigation related expenses,
provided, however, that such costs for Power Provider shall not exceed the actual costs
incurred by the Purchaser in such action, if Purchaser paid such attorneys at the highest
hourly billing rate by attorneys employed or contracted with Purchaser within the
previous year.
Indemnifying PPA Party’s obligations pursuant to this Section 12(a) shall not
extend to claims, demands, lawsuits or actions for any kind for property damage, bodily
injury or death to the extent attributable to the negligence or willful misconduct of
Indemnified PPA Party or to the acts of third parties.
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Indemnifying PPA Party shall pay any cost that may be incurred by Indemnified
PPA Party in enforcing this indemnity, including reasonable attorney fees, provided,
however, that such costs for Power Provider shall not exceed the actual costs incurred
by the Purchaser, if Purchaser paid such attorneys at the highest hourly billing rate by
attorneys employed or contracted with Purchaser within the previous year.
The obligations of the Parties under this Section 12(a) shall survive termination of
this Agreement.
(b) Insurance. The Power Provider shall maintain insurance as required by
the applicable provision of the Land Use Agreement which incorporates equivalent
insurance provisions provided in the Ground Lease, provided, however, that any excess
costs incurred by the Purchaser in the form of Special Fees for a Certificate of
Insurance for Power Provider to be included as an additional insured for such insurance
shall be the responsibility of the Power Provider.
13. Default and Remedies
(a) PPA Event of Default. With respect to a Party, there shall be an event of
default (each a “PPA Event of Default”) if:
(i) such Party fails to pay any amount within five (5) Business Days
after receipt of written notice that such amount is past due;
(ii) except as otherwise set forth in this Section 13(a), such Party is in
breach of any representation or warranty set forth herein or fails to perform any
material obligation set forth in this Agreement and such breach or failure is not cured
within sixty (60) days after notice in writing from the non-defaulting Party; provided,
however, that the cure period shall be extended by the number of days during which
the defaulting Party is prevented from taking curative action solely by Force Majeure if
the defaulting Party had begun curative action and was proceeding diligently, using
commercially reasonable efforts, to complete such curative action;
(iii) such Party admits in writing its inability to pay its debts generally
as they become due;
(iv) such Party files a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any other applicable law or statute
of the United States of America or any State, district or territory thereof;
(v) such Party makes an assignment for the benefit of creditors;
(vi) such Party consents to the appointment of a receiver of the whole
or any substantial part of its assets;
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(vii) such Party has a petition in bankruptcy filed against it, and such
petition is not dismissed within ninety (90) days after the filing thereof;
(viii) with respect to Power Provider, a default by Tenant under the
Ground Lease Agreement has occurred and is continuing;
(ix) such Party causes an event of default under the Interconnection
Agreement or otherwise causes through its actions or omissions the Interconnection
Agreement to be terminated or cancelled;
(x) such party fails to maintain insurance as required by this
Agreement, unless such failure is the result of Power Provider's failure to pay for such
excess insurance, or special fees for a certificate of insurance for Power Provider to
be included as additional insured after reimbursement for such costs are submitted in
writing and Power Provider fails to make reimbursement within forty-five (45) days;
(xi) a court of competent jurisdiction enters an order, judgment, or
decree appointing a receiver of the whole or any substantial part of such Party’s
assets, and such order, judgment or decree is not vacated or set aside or stayed
within ninety (90) days from the date of entry thereof; or
(xii) under the provisions of any other law for the relief or aid of
debtors, any court of competent jurisdiction shall assume custody or control of the
whole or any substantial part of such Party’s assets and such custody or control is not
terminated or stayed within ninety (90) days from the date of assumption of such
custody or control.
(b) Termination. Upon a PPA Event of Default by one Party, the other Party
shall have the right, but not the obligation, to terminate or suspend this Agreement with
respect to all obligations arising after the effective date of such termination or
suspension (other than payment obligations relating to obligations arising prior to such
termination or suspension).
(c) Damages. The Parties acknowledge that given the complexity of the
technology used by the Generating Facility and the volatility of energy markets,
adequate damages in the event of Purchaser’s breach of contract will be difficult, if not
impossible, to calculate. Consequently, the Parties agree that if a PPA Event of a
Default by Purchaser leads to termination of this Agreement, in order to compensate
Power Provider for all damages, including the costs of termination and lost revenues
associated with payments for Energy Output, Green Attributes and Retained
Environmental Incentives, Purchaser’s liability for damages hereunder shall be an equal
to the Termination Value as set forth in Exhibit C (which shall be prorated for partial
years as of the date of default), plus (ii) all other amounts including, but not limited to,
any unpaid invoices or amounts due to be paid to Power Provider by Purchaser due to
energy units already delivered to Purchaser. Each member agency of Purchaser shall
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be responsible for the Termination Value proportionate to that member agency’s energy
allocation at the time that the PPA Event of Default occurs. In the event of Purchaser’s
breach of this Agreement and the Purchaser’s failure to cure, no damages shall be
awarded to Power Provider other than those set forth in this subsection.
(d) Costs. The defaulting Party shall be liable to reimburse the non-defaulting
Party for such non-defaulting Party's expenses and costs relating to such PPA Event of
Default, including but not limited to reasonable attorneys' fees provided, however, that
the hourly rate for attorney fees awarded to the Power Provider shall not exceed the
highest hourly rates paid by the Purchaser for legal services to outside counsel in the
previous year.
(e) No Waiver; Remedies Cumulative. Any waiver at any time by either Party
of its rights with respect to a PPA Event of Default under this Agreement, or with respect
to any other matters arising in connection with this Agreement, shall not be deemed to
be a waiver with respect to any subsequent default or other matter. Any waiver under
this Agreement must be in writing. The rights and remedies of each of the Parties under
this Section 14 shall be cumulative and in addition to the rights of the Parties otherwise
provided in this Agreement and at law or equity.
14. Limitation of Liability
FOR BREACH OF ANY PROVISION OF THIS AGREEMENT FOR WHICH AN
EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED IN THIS
AGREEMENT, THE RIGHTS OF THE NON-DEFAULTING PARTY AND THE
LIABILITY OF THE DEFAULTING PARTY SHALL BE LIMITED AS SET FORTH IN
THIS AGREEMENT, AS THE SOLE AND EXCLUSIVE FULL, AGREED-UPON AND
LIQUIDATED DAMAGES, AND NOT AS A PENALTY, AND ALL OTHER DAMAGES
OR REMEDIES ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS
EXPRESSLY PROVIDED, OR IF A REMEDY OR MEASURE OF DAMAGES IS
EXPRESSLY NONEXCLUSIVE, THE NON-DEFAULTING PARTY SHALL HAVE THE
RIGHT TO EXERCISE ALL RIGHTS AND REMEDIES AVAILABLE TO IT AT LAW OR
IN EQUITY, PROVIDED, HOWEVER, THAT THE LIABILITY OF THE DEFAULTING
PARTY SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES ONLY AND ALL
OTHER DAMAGES AND REMEDIES ARE WAIVED. OTHER THAN WITH RESPECT
TO ANY LIQUIDATED DAMAGES PROVIDED FOR UNDER THIS AGREEMENT, IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT
DAMAGES, LOST PROFITS OR BUSINESS INTERRUPTION DAMAGES, BY
STATUTE, IN TORT, CONTRACT OR OTHERWISE.
15. Force Majeure
(a) Excuse. If either Party is delayed in or prevented from performing or
carrying out its obligations under this Agreement by reason of Force Majeure, such
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circumstance shall not constitute a breach hereunder, and such Party shall not be liable
to the other Party for or on account of any loss, damage, injury, or expense resulting
from, or arising out of, such delay or prevention; provided, however, that the Party
encountering such delay or prevention shall use commercially reasonable efforts to
remove the causes thereof (with failure to use such efforts constituting a breach
hereunder).
(b) Force Majeure Events. As used herein, the term “Force Majeure” shall
include, without limitation, (i) sabotage, riots or civil disturbances, (ii) acts of God, (iii)
acts of the public enemy, (iv) acts of vandalism, (v) terrorist acts affecting the Site, (vi)
volcanic eruptions, earthquake, hurricane, flood, ice storms, explosion, fire, lightning,
landslide or similarly cataclysmic occurrence, (vii) requirement by Utility that the
Generating Facility temporarily discontinue operation for any reason unrelated to any
violation of any standard or requirement of SCE by the Power Provider, or (viii) any
action by any governmental authority which temporarily prevents or prohibits the Power
Provider from carrying out its obligations under this Agreement by no fault of Power
Provider. Economic hardship of either Party or inability to procure funds or
appropriations shall not constitute a Force Majeure under this Agreement. Force
Majeure shall not include strikes and labor disturbances of the Party experiencing that
difficulty, and any such event shall not be grounds for modification, suspension or
termination of this Agreement. In the event a Party desires to invoke these Force
Majeure provisions, such Party shall notify the other Party of a Force Majeure event
within thirty (30) days of the event and include a detailed description of the Force
Majeure event and how it affects Party’s compliance with the terms of this Agreement.
(c) Early Termination by Power Provider. Power Provider shall have the right,
but not the obligation, to terminate this Agreement prior to expiration of the PPA Term
without triggering the default provisions of this Agreement or any liability under this
Agreement upon the occurrence of:
(i) an unstayed order of a court or administrative agency having the
effect of subjecting the sales of Energy Output to federal or state regulation of prices
and/or service; or
(ii) elimination or alteration of one or more Retained Environmental
Financial Incentives or other change in law that results in a material adverse economic
impact on Power Provider; or
(iii) an annual level of direct beam solar resource availability that is
less than or equal to ninety percent (90%) of historical averages as measured by long-
term weather data (minimum of five (5) years) collected at the Site and/or other
reliable calibrated and appropriate weather station representative of the Site; or
(iv) the Purchaser’s termination or material breach of the Land Use
Agreement prior to the PPA Expiration Date or the end of any Extension PPA Term for
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any reason, provided, however, that Power Provider provides Purchaser thirty (30)
days prior written notice of Power Provider’s intent to terminate, which shall include
the date and basis for the intended termination, and Purchaser shall be provided a
reasonable opportunity to correct such basis for termination prior to the termination
date.;
(d) Early Termination by Purchaser. Purchaser shall have the right, but not
the obligation, to terminate this Agreement prior to expiration of the PPA Term without
triggering the default provisions of this Agreement or any liability under this Agreement
upon the occurrence of:
(i) Power Provider’s termination or material breach of the Land Use
Agreement prior to the PPA Expiration Date or the end of any Extension PPA Term for
any reason, provided, however, that Purchaser provides Power Provider thirty (30)
days prior written notice of Purchaser’s intent to terminate, which shall include the
date and basis for the intended termination, and Power Provider shall be provided a
reasonable opportunity to correct such basis for termination prior to the termination
date.;
(ii) an unstayed order of a court or administrative agency having the
effect of subjecting the sales of Energy Output to federal or state regulation of prices
and/or service; or
(iii) rule changes in the respective Utility or Utility control areas, by the
respective independent system operators, or their successors, affecting the price to be
paid by the Purchaser or other rights and benefits of the Purchaser under this
Agreement.
(e) No Extension of Term. The PPA Term shall not be extended by reason of
Force Majeure.
16. Records
Each Party hereto shall keep complete and accurate records of its operations
hereunder in accordance with reasonable and customary accounting practices and shall
maintain such data as may be necessary to determine with reasonable accuracy any
item relevant to this Agreement. Each Party shall have the right to examine all such
records insofar as may be necessary for the purpose of ascertaining the
reasonableness and accuracy of any statements of costs relating to transactions
hereunder.
17. Notices
Any notice required or permitted to be given in writing under this Agreement shall
be mailed by certified mail, postage prepaid, returned receipt requested, or sent by
overnight air courier service, or personally delivered to a representative of the receiving
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party, or sent by facsimile (provided an identical notice is also sent simultaneously by
mail, overnight courier, or personal delivery as otherwise provided in this Section 17).
All such communications shall be mailed, sent or delivered, addressed to the party for
whom it is intended, at its address set forth below:
If to Power Provider: If to Purchaser:
SMER Research 1, LLC
c/o 1458 Strabane Way
Folsom, CA 95630
Southwest Riverside County
Energy Authority
c/o City of Lake Elsinore
130 S. Main Street
Lake Elsinore, CA 92530
Attn: City Manager
with a copy to: with a copy to:
Go Green Consultants, LLC City of Temecula
c/o 10013 Winkle Circle
Elk Grove, California 95757
Attn: Paul Galindo
41000 Main Street
Temecula, CA 92590
Attn: City Manager
All notices shall be deemed to have been received when delivered in person,
sent by facsimile with electronic confirmation of successful transmission, or three days
after being sent by registered or certified mail as provided above.
18. Confidentiality
All non-public information provided by either Party to the other or which is
identified by the disclosing Party in writing as confidential or proprietary information shall
be treated in a confidential manner and shall not be disclosed to any third party without
the prior written consent of the disclosing Party, which consent shall not be
unreasonably withheld. Notwithstanding the preceding, this Section and the restrictions
herein contained shall not apply to any data or documentation which is:
(i) required to be disclosed pursuant to state or federal law, an order or
requirements of a regulatory body or a court, including without limitation the California
Public Records Act, Government Code Section 6250 et seq., after five (5) Business
Days’ notice of such intended disclosure is given by the disclosing Party to the non-
disclosing Party or if five (5) Business Days’ notice is not practical, then such shorter
notice as is practical;
(ii) disclosed by a Party to an Affiliate of such Party or in connection with an
assignment permitted by Section 19; or
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(iii) is, as of the time of disclosure, public knowledge without the fault of the
other Party.
19. Assignment
(a) Consent. 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 shall not be unreasonably withheld or delayed provided the
proposed assignee has sufficient financial capacity and experience to fulfill the
obligations of the assigning party. Any assignment of this Agreement must be made
together with a simultaneous assignment of the Land Use Agreement to the assignee of
this Agreement.
Notwithstanding the foregoing, in the event that Purchaser’s benefitting member
agency under this Agreement (that is, the City of Lake Elsinore) determines, for any
reason, to not purchase power as provided in Section 3, a member agency of
Purchaser, upon obtaining authorization from Purchaser, shall have the right to
purchase power as provided in Section 3 without consent of Power Provider and to take
such other action as may be necessary to prevent a forfeiture of Purchaser’s rights
hereunder. In such a case of another member agency of Purchaser electing to purchase
some or all of City of Lake Elsinore’s power pursuant to this Agreement, it shall be the
sole responsibility of Purchaser to notify Southern California Edison of any changes to
the benefitting accounts and Power Provider shall have no responsibility for notification
or effectuating a change in the benefitting accounts. Notwithstanding the foregoing, the
Guaranty of Power Purchase Agreement provided by the City of Lake Elsinore
(Guarantor therein) shall remain in full force and effect until such time as Power
Provider may elect, in its sole and absolute discretion, to accept a substitute guaranty
from a successor to the City of Lake Elsinore.
(b) Power Provider Financing. Power Provider shall be entitled to collaterally
assign its right, title and interest in and to this Agreement to its financing parties, and
Purchaser shall provide such cooperation and further assurances in connection with
Power Provider’s efforts to obtain debt and/or equity financing for the Generating
Facility as may be reasonably requested by Power Provider. Without limiting the
generality of the foregoing, within ten (10) days of Power Provider’s written request,
Purchaser shall execute and deliver to Power Provider (i) a written consent substantially
in the form attached hereto as Exhibit F for the benefit of Power Provider’s financing
parties, with such changes as may be reasonably requested by such financing parties,
and (ii) an estoppel certificate substantially in the form attached hereto as Exhibit G for
the benefit of Power Provider’s financing parties or equity investors, with such changes
as may be reasonably requested by such financing parties or equity investors.
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20. Publicity
(a) Press Releases. The Parties share a common desire to generate
favorable publicity regarding the Generating Facility and their association with it. The
Parties agree that they will, from time to time, issue press releases regarding the
Generating Facility and that they will cooperate with each other in connection with the
issuance of such releases including, without limitation, completed review of press
releases proposed to be issued by the other Party no later than four (4) Business Days
after submission by such other Party. Each Party agrees that it shall not issue any
official press release regarding the Generating Facility without the prior consent of the
other, and each Party agrees not to unduly withhold, condition, or delay any such
consent. Such agreement to work together in the release of all press releases is not
intended to control, hinder or preclude other casual contact with the media by the
parties.
(b) Advertisements. Nothing in this Agreement shall limit the rights of the
Purchaser to publicize that it is serving as a “solar host” for the Generating Facility and
to display photographs of the Generating Facility in its advertising and promotional
materials, provided that any such materials identify Power Provider as the owner and
developer of the Generating Facility and shall be consistent with Section 5 of this
Agreement. Without limiting the foregoing, the Generating Facility shall be named
“SMER SOLAR Initiative Research Facility”. On all signage at the Site, and in all
publicly distributed materials and other public communications issued by either Party
that refer to the Generating Facility by name, such name shall be followed by a
statement to the effect that Power Provider owns and operates the Generating Facility.
(c) Information. Notwithstanding the foregoing and subject only to the
provisions on confidential information in Section 18 of this Agreement, Power Provider
shall have the right to publish factual information related to the Generating Facility on its
website (or the website of any Affiliate) and through other forms of electronic media.
Such information may include, but is not limited to, the location of the Generating
Facility, the name of the Purchaser, and other features of the Generating Facility.
21. No Set-Off
Except as otherwise set forth herein, each Party hereby waives all rights to set-
offs of amounts due hereunder. The Parties agree that all amounts due hereunder are
independent obligations and shall be made without set-off for other amounts due or
owed hereunder.
22. Intellectual Property
Nothing in this Agreement shall be construed to convey to Purchaser a license or
other right to trademarks, copyrights, technology or other intellectual property of Power
Provider (or any Affiliate of Power Provider).
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23. Binding Effect
The terms and provisions of this Agreement, and the respective rights, privileges,
duties and obligations hereunder of each Party, shall be binding upon, and inure to the
benefit of, the Parties and their respective successors and permitted assigns.
24. Amendments
No modification of this Agreement shall be effective except by written
amendment executed by the Parties; provided, however, that if Purchaser has been
notified that Power Provider has collaterally assigned any of its rights, duties or
obligations under this Agreement to its financing providers, then the prior written
consent of such financing providers is required as well.
25. Counterparts
This Agreement may be executed in counterparts, which shall together constitute
one and the same agreement. Facsimile signatures shall have the same effect as
original signatures and each party consents to the admission in evidence of a facsimile
or photocopy of this Agreement in any court or arbitration proceedings between the
parties.
26. Other Agreements
This Agreement constitutes the entire agreement between the Parties relating to
the subject matter hereof and supersedes any other prior agreements, written or oral,
between the Parties concerning such subject matter.
27. Third Party Beneficiaries
The City of Lake Elsinore, a California municipal corporation and the City of
Temecula, a California municipal corporation, each a member of Purchaser, shall each
be deemed a third-party beneficiary of this Agreement with respect to all provisions of
this Agreement that purport to confer benefits upon the Purchaser. Power Provider’s
financing parties shall be deemed a third-party beneficiary of this Agreement with
respect to all provisions of this Agreement that purport to confer benefits upon the such
financing parties or impose obligations upon Purchaser or Power Provider in order to
protect the interest of such financing parties. Except as provided herein, nothing in this
Agreement shall provide any benefit to any other third party or entitle any third party to
any claim, cause of action, remedy or right of any kind, it being the intent of the Parties
that this Agreement shall not be construed as a third party beneficiary contract except
as provided herein.
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28. Severability
Should any provision of this Agreement for any reason be declared invalid or
unenforceable by final and non-appealable order of any court or regulatory body having
jurisdiction, and such invalidity does not prevent the continued operation of the facility or
materially affect the rights and interest of the parties pursuant to the Agreement, such
decision shall not affect the validity of the remaining portions, and the remaining
portions shall remain in full force and effect as if the Agreement had been executed
without the invalid provision so long as the economic or legal substance of the
transactions contemplated in this Agreement is not affected in any manner materially
adverse to any party hereto.
29. Survival
Any provision of this Agreement that expressly or by implication comes into effect
or should remain in effect following the termination or expiration of this Agreement shall
survive the termination or expiration of this Agreement, including Sections 12, 13, 14
and 18 hereof.
30. Governing Law
This Agreement shall be construed in accordance with the laws of the state of
California (without regard to its conflict of laws principles).
31. Legal Effect of Contract
(a) Forward Contract. The Parties acknowledge and agree that the
transaction contemplated under this Agreement constitutes a “forward contract” within
the meaning of the United States Bankruptcy Code, and the Parties further
acknowledge and agree that each Party is a “forward contract merchant” within the
meaning of the United States Bankruptcy Code.
(b) No Lease. The Parties acknowledge and agree that, for accounting or tax
purposes, this Agreement is not and shall not be construed as a capital lease and,
pursuant to section 7701(e)(3) of the Code, this Agreement is and shall be deemed to
be a service contract with respect to the sale to the Purchaser of electric energy
produced at an alternative energy facility.
(c) No Partnership. This Agreement is not intended, and shall not be
construed, to create any association, joint venture, agency relationship or partnership
between the Parties or to impose any such obligation or liability upon either Party.
Neither Party shall have any right, power or authority to enter into any agreement or
undertaking for, or act as or be an agent or representative of, or otherwise bind, the
other Party.
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32. Cooperation
(a) Additional Documents. Upon the receipt of a written request from the
other Party, each Party shall execute such additional documents, instruments and
assurances and take such additional actions (including assisting the other in obtaining
any applicable permits) as are reasonably necessary to carry out the terms and intent
hereof. Neither Party shall unreasonably withhold, condition or delay its compliance
with any reasonable request made pursuant to this Section 32. Without limiting the
foregoing, the Parties acknowledge that they are entering into a long-term arrangement
in which the cooperation of both of them will be required.
(b) Utility Rule Changes. The Parties acknowledge that adjustments in the
terms and conditions of the Agreement may be appropriate to account for rule changes
in the respective Utility or Utility control areas, by the respective independent system
operators, or their successors, that could not be anticipated at the date of execution of
this Agreement or that are beyond the control of the Parties, and Purchaser agrees to
reasonably consider and accept Power Provider’s proposal(s) regarding commercially
reasonable amendments as may be reasonably required to comply therewith.
(c) Dispute Resolution. In the event that a dispute arises between the Parties
in connection with this Agreement, the Parties agree that for a period of thirty (30) days,
the Parties will attempt to resolve such dispute informally through meetings of senior
executives of each of the Parties. If the dispute is not resolved after such thirty (30) day
period, the Parties may pursue all rights available to each of them.
33. Ownership of the Generating Facility for Tax Purposes
(a) Generating Facility Ownership. It is the intent of the Parties that the
Generating Facility be treated as personal property for all purposes. Purchaser
acknowledges and agrees that regardless of whether the Generating Facility, or any
part thereof, is or becomes a fixture on the Premises, Power Provider is the exclusive
owner and operator of the Generating Facility, and Purchaser shall have no ownership
interest in the Generating Facility or any equipment associated therewith. Power
Provider and Purchaser hereby agree and acknowledge that Purchaser shall have no
responsibility hereunder for operation or maintenance of the Generating Facility under
this Agreement. Neither Purchaser nor any party related thereto shall have the right or
be deemed to operate the Generating Facility within the meaning of section
7701(e)(4)(A)(i) of the Code. The Parties agree that Power Provider is the owner of the
Generating Facility for all purposes, including without limitation all purposes under the
Code. Power Provider shall be entitled to, and is hereby authorized to, file one or more
precautionary UCC financing statements or fixture filings in such jurisdictions as it
deems appropriate with respect to the Generating Facility in order to provide notice of
its ownership of the Generating Facility.
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(b) Financial Burden. Notwithstanding any provision to the contrary under this
Agreement, neither Purchaser nor any Person related to Purchaser shall bear or be
deemed to bear any significant financial burden if there is nonperformance by Power
Provider under this agreement, as the phrase “any significant financial burden if there is
nonperformance” is used in section 7701(e)(4)(A)(ii) of the Code.
(c) Financial Benefit. Notwithstanding any provision to the contrary under this
Agreement, neither Purchaser nor any Person related to Purchaser shall receive or be
deemed to receive any significant financial benefit if the operating costs of the
Generating Facility are less than the standard of performance and/or operation set forth
in this Agreement, as the phrase “significant financial benefit if the operating costs of the
Generating Facility are less than the standards of performance or operation” is used in
section 7701(e)(4)(A)(iii) of the Code.
[Signature page to follow]
Signature Page
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Solar Power Purchase Agreement as of the day and year first above written.
SMER Research 1, LLC
By:
Name: William P. Love
Title: Managing Member
Southwest Riverside County Energy
Authority
By:
Name:
Title:
Attest:
Name:
Title:
Approved as to Form:
By:
Name:
Title:
Exhibit A - 1
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit A
Definitions and Rules of Interpretation
1. Definitions.
“Affiliate” means, when used with reference to a specified Party, any Person that,
directly or indirectly, through one or more intermediaries, controls, is controlled by or is
under common control with the specified Party.
“Agreement” has the meaning given in the preamble.
“Business Day” means any day on which Federal Reserve member banks in San
Francisco, California are open for business.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commercial Operation” means the condition existing when (i) the Generating
Facility is mechanically complete and operating in accordance with the specifications
set forth in Exhibit B, and (ii) energy is delivered to the Energy Delivery Point.
“Commercial Operation Date” means the date on which Power Provider notifies
Purchaser in accordance with Section 2(a) that the Generating Facility has achieved
Commercial Operation.
“Completion Activities” has the meaning given in Section 2(c).
“CPUC” means the California Public Utilities Commission.
“Default Rate” means the lesser of one percent (1%) per month or the maximum
rate permitted by applicable law.
“Due Date” has the meaning given in Section 8.
“Energy Delivery Point” means the energy delivery point within the Site’s
electrical system on Purchaser’s side of the Site’s Utility meter, as designated in the
Interconnection Agreement, as shown in the single-line drawing attached as Exhibit E.
“Energy” means the electrical output generated by the Generating Facility.
“Energy Output” means the total quantity of the actual net energy generated by
the Generating Facility (measured in kWh-ac) and delivered to the Energy Delivery
Point, in any given period of time. Energy Output does not include the Retained
Environmental Financial Incentives or the Green Attributes.
“Environmental Laws” means all federal, state, local and regional laws, statutes,
ordinances, orders, rules and regulations relating to the protection of human health or
the environment including, without limitation, the Resource Conservation and Recovery
Exhibit A - 2
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Act of 1976, the Comprehensive Environmental Response Compensation and Liability
Act of 1980, the Hazardous Materials Transportation Act, the Safe Drinking Water Act,
the Clean Water Act, the Clean Air Act, the Toxic Substances Control Act, and any
other applicable federal, state or local law now in force or hereafter enacted relating to
waste disposal or environmental protection with respect to hazardous, toxic, or other
substances generated, produced, leaked, released, spilled or disposed of at or from the
Site, as any of the same may be amended or supplemented from time to time, and any
regulation promulgated pursuant thereto.
“Extension PPA Term” has the meaning given in Section 4(b).
“Force Majeure” has the meaning given in Section 15.
“Generating Facility” means an electricity grid-connected photovoltaic, solar
power plant with the specifications shown in Exhibit B, and all associated electric power
generation equipment, controls, meters, switches, connections, conduits, wires and
other equipment that may be necessary to connect such solar power plant to the Energy
Delivery Point and to supply electricity to Purchaser at the Energy Delivery Point.
“Green Attributes” means any and all credits, benefits, emissions reductions,
offsets and allowances, howsoever entitled, attributable to the generation of the Energy
Output from the Generating Facility, and its displacement of conventional energy
generation. Green Attributes include but are not limited to Renewable Energy
Certificates, as well as: (1) 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; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous
oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse
gases (GHGs) that have been determined by the United Nations Intergovernmental
Panel on Climate Change, or otherwise by law, to contribute to the actual or potential
threat of altering the earth’s climate by trapping heat in the atmosphere; and (3) the
reporting rights to these avoided emissions, such as REC Reporting Rights. Green
Attributes do not include (i) any Energy, capacity, reliability or other power attributes
from the Generating Facility, (ii) the Retained Environmental Financial Incentives, (iii)
fuel-related subsidies or “tipping fees” that may be paid to Power Provider to accept
certain fuels, or local subsidies received by the generator for the destruction of
particular preexisting pollutants or the promotion of local environmental benefits, or (iv)
emission reduction credits encumbered or used by the Generating Facility for
compliance with local, state, or federal operating and/or air quality permits.
“Ground Lease Agreement” means the certain Ground Lease Agreement
between the Trustees of the California State University San Diego State University and
SMER Research 1, LLC, dates as of October 21, 2014 (SDSU Agreement 40096313).
“Indemnified PPA Party” has the meaning given in Section 12(a).
Exhibit A - 3
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
“Indemnifying PPA Party” has the meaning given in Section 12(a).
“Initial PPA Term” has the meaning given in Section 4(a).
“Interconnection Agreement” means an interconnection agreement entered into
by and between Purchaser and the Utility, as in effect on the PPA Effective Date,
substantially in the form attached to the PPA as Exhibit D or such other approved form
as may be in effect immediately prior to the Commercial Operation Date or as otherwise
applicable during the PPA Term.
“Interconnection Facilities” means collectively to include all facilities and
equipment between the Generating Facility and the Point of Interconnection, including
any modification, additions or upgrades that are necessary to physically and electrically
interconnect the Generating Facility to the Distribution Provider's Distribution System.
“Land Use Agreement” means the Sublease Agreement by and between Power
Provider and Purchaser in substantially the same form as provided in Exhibit H.
“Landlord” has the meaning given in the preamble in the Land Use Agreement.
“Party” and/or “Parties” means a party or the parties to the PPA.
“Permits” has the meaning given in Land Use Agreement Section 6(b).
“Person” means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, trustee, estate, limited liability company,
unincorporated organization, real estate investment trust, government or any agency or
political subdivision thereof, or any other form of entity.
“Power Provider” has the meaning given in the PPA preamble.
“PPA” has the meaning given in the preamble.
“PPA Effective Date” has the meaning given in the preamble to the PPA.
“PPA Expiration Date” means the last day of the PPA Term.
“PPA Event of Default” has the meaning given in Section 13.
“PPA Term” means, collectively, the Initial PPA Term and the Extension PPA
Term.
“Pre-Construction Activities” has the meaning given in Section 2(b).
“Premises” has the meaning given in Land Use Agreement Exhibit H.
Exhibit A - 4
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
“Prudent Industry Practices” means those practices, methods and equipment, as
changed from time to time, that are commonly used in the state of California in prudent
electrical engineering and operations to operate photovoltaic solar generation
equipment lawfully and with safety, reliability, efficiency and expedition. Prudent
Industry Practices are not intended to be limited to the optimum practices, methods or
equipment to the exclusion of others, but rather to those practices, methods or
equipment generally accepted or approved by a significant portion of the photovoltaic
solar power industry during the relevant time period.
“Purchase Price means $0.1253/kWh-ac.
“Purchaser” has the meaning given in the PPA preamble.
“Rebate Payments” means any incentive payments made to Power Provider by a
third party in connection with the Generating Facility.
“RECs” or “Renewable Energy Certificates” mean renewable energy certificates
related to and representing Green Attributes (also known as green tags, renewable
energy credits, or tradable renewable certificates), which are tradable environmental
commodities in the United States and represent 1 megawatt-hour (MWh) of electricity
generated from an eligible renewable energy resource. These certificates can be sold
and traded and the owner of the REC can claim to have purchased renewable energy.
“REC Reporting Rights” are the right of an owner of RECs to report the
ownership of accumulated RECs in compliance with federal or state law, if applicable,
and to a federal or state agency or any other party at its discretion, and include without
limitation those REC Reporting Rights accruing under section 1605(b) of the Energy
Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill,
and international or foreign emissions trading program.
“Retained Environmental Financial Incentives” means each of the following
financial rebates and incentives that is in effect as of the PPA Effective Date or may
come into effect in the future: (1) production, energy, or investment tax credits
associated with the development, construction, ownership or operation of the
Generating Facility, accelerated depreciation and other financial incentives in the form
of credits, reductions or allowances associated with the Generating Facility or the Green
Attributes that may be applied to reduce any state or federal income taxation
obligations, including but not limited to the Tax Incentives, and (2) performance-based
incentives under applicable state or federal law or utility programs, including but not
limited to the Rebate Payments. Without limiting the foregoing, “Retained
Environmental Financial Incentives” includes the right to apply for (and entitlement to
receive) incentives under any demand-side management, distributed generation or
energy efficiency programs offered by a utility company, a third-party provider or the
State in which the Generating Facility is located, any incentive offered pursuant to a
Exhibit A - 5
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
renewable energy program or any other incentive programs offered by or in the state in
which the Generating Facility is located.
“SCADA” has the meaning given in Section 6(a).
“Site” means the Santa Margarita Ecological Reserve, Solar Institute Research
Site, Temecula, Southern Riverside County, or such other location agreed to by Power
Provider and Purchaser on which the Generating Facility is to be located.
“Target Commercial Operation Date” has the meaning given in Section 2(c).
“Tax Incentives” means all rights to and to claim federal income tax credits under
sections 45 or 48 of the Code (or a cash grant in lieu thereof) and all other federal, state
and/or local tax benefits arising from the ownership of the Generating Facility, including
without limitation, any special income tax deductions under the Code.
“Tenant” has the meaning given in the preamble to the Land Use Agreement.
“Termination Value” means the dollar amount for the applicable PPA year as
shown on Exhibit C and is only in consideration to the initial 20 year term, and not to
include any extensions of term.
“Utility” means the electric distribution company responsible for electric energy
transmission and distribution service at the Site. The Parties acknowledge and agree
that, as of the PPA Effective Date, the Utility is Southern California Edison Company.
2. Rules of Interpretation.
Except where otherwise expressly provided or unless the context otherwise
necessarily requires:
(a) Reference within an Agreement to a given Section, Subsection, clause,
Exhibit or Schedule is a reference to an Section, Subsection, clause, Exhibit or
Schedule of such Agreement, as the case may be, unless otherwise specified.
(b) Reference within an Agreement to the terms “hereof”, “herein”, “hereto”,
“hereunder” and “herewith” refer to such Agreement as a whole.
(c) Reference to a given agreement, instrument, document, law, rule or
regulation is a reference to that agreement, instrument, document, law, rule or
regulation as modified, amended, supplemented and restated through the date as of
which such reference is made, and, as to any law, rule or regulation, any successor law,
rule or regulation.
(d) Accounting terms have the meanings given to them by applicable U.S.
generally accepted accounting principles applied on a consistent basis.
Exhibit A - 6
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
(e) Reference to a Person includes its successors and permitted assigns.
(f) The singular shall include the plural and the masculine shall include the
feminine, and vice versa.
(g) “Includes” or “including” means “including, for example and without
limitation.”
(h) References to “days” shall mean calendar days, unless the term “Business
Days” is used.
(i) Preparation of an Agreement has been a joint effort of both Parties thereto
and their legal counsel and the resulting document shall not be construed more severely
against one of the Parties than against the other.
(j) The captions contained in an Agreement are for convenience and
reference only and in no way define, describe, extend or limit the scope or intent of the
Agreement or the intent of any provision contained therein.
(k) Any failure of a Party to enforce any of the provisions of an Agreement or
to require compliance with any of its terms at any time during the term of an Agreement
shall in no way affect the validity thereof, or any part thereof, and shall not be deemed a
waiver of the right of such Party thereafter to enforce any and each of such provisions.
Exhibit B - 1
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit B
Generating Facility Specifications
Purchaser PV Projects
Location Size Est. Annual 1st
Year
Production
Type Number and
Type of Module
Santa Margarita
Ecological Reserve
SOLAR Initiative
Research Site
1,400 KW-dc
2,434,475
Solar PV
TBD
Exhibit C - 1
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.10
Exhibit C
Termination Values
Year of
Contract Total
Sublease Area 1
(Temecula)
Sublease Area 2
(Lake Elsinore)
1 $10,972,750.04 $6,764,024.00 $4,208,726.04
2 $10,508,111.53 $6,477,603.00 $4,030,508.53
3 $10,035,889.13 $6,186,507.00 $3,849,382.13
4 $9,555,893.04 $5,890,619.00 $3,665,274.04
5 $9,068,541.80 $5,590,197.00 $3,478,344.80
6 $8,572,424.07 $5,284,371.00 $3,288,053.07
7 $8,067,935.67 $4,973,385.00 $3,094,550.67
8 $7,554,865.71 $4,657,109.00 $2,897,756.71
9 $7,033,477.00 $4,335,705.00 $2,697,772.00
10 $6,502,609.64 $4,008,458.00 $2,494,151.64
11 $5,962,500.49 $3,675,514.00 $2,286,986.49
12 $5,412,922.42 $3,336,733.00 $2,076,189.42
13 $4,853,963.04 $2,992,169.00 $1,861,794.04
14 $4,284,733.38 $2,641,274.00 $1,643,459.38
15 $3,705,304.80 $2,284,092.00 $1,421,212.80
16 $3,115,421.00 $1,920,465.00 $1,194,956.00
17 $2,514,992.76 $1,550,338.00 $964,654.76
18 $1,903,414.98 $1,173,338.00 $730,076.98
19 $1,280,578.98 $789,398.00 $491,180.98
20 $646,202.49 $398,344.00 $247,858.49
Thereafter $0.00 $0.00 $0.00
Termination Value reflects the amount required as payment due to a PPA Event of
Default (Section 13(a)). The respective termination values for the Lease Area 1 (City of
Temecula) and Lease Area 2 (City of Lake Elsinore) are proportionate to the amount of
energy purchased by the JPA to benefit each City at the initiation of the Agreement.
Should the proportionate energy purchased by the Purchaser JPA participants change
during the term of agreement, the relative termination values would also change
proportionately.
Exhibit D - i
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit D
[Form of Interconnection Agreement]
FORM
RULE 21 GENERATOR INTERCONNECTION AGREEMENT (GIA)
FOR EXPORTING GENERATING FACILITIES
INTERCONNECTING UNDER THE FAST TRACK PROCESS
BETWEEN
AND
SOUTHERN CALIFORNIA EDISON COMPANY
PROJECT: ________ (SCE _______)
Exhibit D - ii
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
TABLE OF CONTENTS
Article 1 Scope and Limitations of Agreement ........................................................ 1
1.1 Applicability ............................................................................................... 1
1.2 Purpose .................................................................................................... 2
1.3 No Agreement to Purchase or Deliver Power ........................................... 2
1.4 Limitations ................................................................................................. 2
1.5 Responsibilities of the Parties ................................................................... 2
1.6 Parallel Operation Obligations .................................................................. 3
1.7 Metering .................................................................................................... 4
1.8 Reactive Power ......................................................................................... 4
1.9 Capitalized Terms ..................................................................................... 4
Article 2 Inspection, Testing, Authorization, and Right of Access ........................... 4
2.1 Equipment Testing and Inspection ............................................................ 4
2.2 Authorization Required Prior to Parallel Operation ................................... 5
2.3 Right of Access ......................................................................................... 5
Article 3 Effective Date, Term, Termination, and Disconnection ............................. 6
3.1 Effective Date ........................................................................................... 6
3.2 Term of Agreement ................................................................................... 6
3.3 Termination ............................................................................................... 6
3.4 Temporary Disconnection ......................................................................... 7
Article 4 Cost Responsibility for Interconnection Facilities and Distribution
Upgrades ............................................................................................................. 9
4.1 Interconnection Facilities .......................................................................... 9
4.2 Distribution Upgrades ............................................................................. 10
Article 5 Cost Responsibility for Network Upgrades .............................................. 10
5.1 Applicability ............................................................................................. 10
5.2 Network Upgrades .................................................................................. 10
5.3 [Intentionally Omitted] ............................................................................. 11
5.4 Rights Under Other Agreements ............................................................. 11
Article 6 Billing, Payment, Milestones, and Financial Security .............................. 12
6.1 Billing and Payment Procedures and Final Accounting .......................... 12
6.2 Milestones ............................................................................................... 12
6.3 Financial Security Arrangements ............................................................ 13
Article 7 Assignment, Liability, Indemnity, Uncontrollable Force,
Consequential Damages, and Default ............................................................... 13
7.1 Assignment ............................................................................................. 13
7.2 Limitation of Liability ............................................................................... 14
7.3 Indemnity ................................................................................................ 14
Exhibit D - iii
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
7.4 Consequential Damages ......................................................................... 15
7.5 Uncontrollable Force ............................................................................... 15
7.6 Default .................................................................................................... 16
Article 8 Insurance ................................................................................................ 16
8.1 General Liability and Additional Insurance .............................................. 16
8.2 Maintenance of Insurance ....................................................................... 17
8.3 Notification .............................................................................................. 17
Article 9 Confidentiality ......................................................................................... 17
9.1 Definition of Confidential Information ...................................................... 17
Article 10 Disputes .................................................................................................. 19
10.1 Dispute Resolution .................................................................................. 19
Article 11 Taxes ...................................................................................................... 19
11.1 Applicable Tax Laws and Regulation ...................................................... 19
11.2 Maintenance of Tax Status ..................................................................... 19
Article 12 Miscellaneous ......................................................................................... 19
12.1 Governing Law, Regulatory Authority, and Rules ................................... 19
12.2 Amendment ............................................................................................ 19
12.3 No Third-Party Beneficiaries ................................................................... 19
12.4 Waiver ..................................................................................................... 20
12.5 Entire Agreement .................................................................................... 20
12.6 Multiple Counterparts .............................................................................. 20
12.7 No Partnership ........................................................................................ 20
12.8 Severability ............................................................................................. 21
12.9 CPUC Modification ................................................................................. 22
12.10 Review of Records and Data .................................................................. 22
Article 13 Notices .................................................................................................... 22
13.1 General ................................................................................................... 22
13.2 Billing and Payment ................................................................................ 23
13.3 Alternative Forms of Notice ..................................................................... 23
13.4 Designated Operating Representative .................................................... 24
13.5 Changes to the Notice Information ......................................................... 25
Article 14 Signatures ............................................................................................... 25
Exhibit D - iv
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Attachment 1 – Glossary of Terms
Attachment 2 – Description and Costs of the Generating Facility, Interconnection Facilities, and
Metering Equipment
Attachment 3 – One-line Diagram Depicting the Generating Facility, Interconnection Facilities,
Metering Equipment, and Upgrades
Attachment 4 – Milestones
Attachment 5 – Additional Operating Requirements for the Distribution Provider's Distribution
System and Affected Systems Needed to Support the Interconnection Customer’s Needs
Attachment 6 – Distribution Provider's Description of its Upgrades and Cost Responsibility
Exhibit D - 1
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
This Interconnection Agreement (“Agreement” or “GIA”) is made and entered into this ________ day of
________________, 2017, by Southern California Edison Company (“Distribution Provider”), and
Southwest Riverside County Energy Authority (“Interconnection Customer”) each hereinafter sometimes
referred to individually as “Party” or both referred to collectively as the “Parties.”
Distribution Provider Information
Distribution Provider: Southern California Edison Company
Attention: Grid Contract Management
Address: 2244 Walnut Grove Avenue
City: State: Zip: Rosemead, California 91770
Phone: (626) 302-9640
Fax: (626) 302-1152
Interconnection Customer Information
Interconnection Customer: Southwest Riverside County Energy Authority
Attention: c/o City of Lake Elsinore
Attn: City Manager
Address: 130 S. Main Street
City: State: Zip: Lake Elsinore, CA 92530
Phone: (951) 674-3124
Fax: (951) 674-2392
Interconnection Customer Application No: [GFID8284]
WHEREAS, Interconnection Customer proposes to interconnect to the Distribution System;
WHEREAS, the basis for the Parties entering into this Agreement is that Interconnection Customer is a
Qualifying Facility (“QF”) and will sell all of its exports to the grid to the Distribution Provider under a
power purchase agreement (“PPA”) entered into pursuant to the Public Utility Regulatory Policies Act of
1978 (“PURPA”); or
WHEREAS, the basis for the Parties entering into this Agreement is:
Interconnection Customer has complied with the Fast Track Process pursuant to Section F.2 of Rule 21.
Interconnection Customer represents that, as of the date of this GIA, it does not have an agreement to sell
or deliver power. Notwithstanding this fact, the Interconnection Customer wishes to continue the
interconnection process and enter into this GIA.
THEREFORE, in consideration of the mutual covenants set forth herein, the Parties agree as follows:
Article 1 Scope and Limitations of Agreement
1.1 Applicability
This Agreement shall be used for an interconnection governed by the Distribution
Provider’s California Public Utilities Commission (“CPUC”) approved Electric Rule 21
(“Rule 21”) of a Generating Facility that sells all of its exports to the grid to the
Exhibit D - 2
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Distribution Provider. This Agreement is not applicable to NEM Producers, Non-Export
Producers and non-compensated exporting Producers.
1.2 Purpose
This Agreement incorporates in its entirety the Distribution Provider’s Rule 21, subject to
any modifications the CPUC may direct in the exercise of its jurisdiction. This
Agreement governs the terms and conditions under which the Interconnection Customer’s
Generating Facility will interconnect with, and operate in parallel with, the Distribution
Provider's Distribution System. In the event of inconsistency between this Agreement
and the terms of Rule 21, the provisions of the latter shall control.
1.3 No Agreement to Purchase or Deliver Power
This Agreement does not constitute an agreement to purchase or deliver the
Interconnection Customer's power. The purchase or delivery of power and other services
that the Interconnection Customer may require will be covered under separate
agreements, if any. The Interconnection Customer will be responsible for separately
making all necessary arrangements (including scheduling) for delivery of electricity.
1.4 Limitations
Nothing in this Agreement is intended to affect any other agreement between the
Distribution Provider and the Interconnection Customer.
1.5 Responsibilities of the Parties
1.5.1 The Parties shall perform all obligations of this Agreement in
accordance with all Applicable Laws and Regulations, Operating
Requirements, and Good Utility Practice.
1.5.2 The Interconnection Customer shall construct, interconnect, operate and
maintain its Generating Facility and construct, operate, and maintain its
Interconnection Facilities in accordance with the applicable
manufacturer's recommended maintenance schedule, and in accordance
with this Agreement, and with Good Utility Practice.
1.5.3 The Distribution Provider shall construct, operate, and maintain its
Distribution System, Transmission System, Interconnection Facilities,
Distribution Upgrades and Network Upgrades in accordance with this
Agreement, and with Good Utility Practice.
1.5.4 The Interconnection Customer agrees to construct its facilities or
systems in accordance with applicable specifications that meet or
exceed those provided by the National Electrical Safety Code, the
American National Standards Institute, IEEE, Underwriter's Laboratory,
Exhibit D - 3
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
and Operating Requirements in effect at the time of construction and
other applicable national and state codes and standards. The
Interconnection Customer agrees to design, install, maintain, and
operate its Generating Facility so as to reasonably minimize the
likelihood of a disturbance adversely affecting or impairing the system
or equipment of the Distribution Provider and any Affected Systems.
The Interconnection Customer shall comply with the Distribution
Provider’s Interconnection Handbook. In the event of a conflict
between the terms of this GIA and the terms of the Distribution
Provider’s Interconnection Handbook, the terms in this GIA shall
govern.
1.5.5 Each Party shall operate, maintain, repair, and inspect, and shall be fully
responsible for the facilities that it now or subsequently may own unless
otherwise specified in the Attachments to this Agreement. Each Party
shall be responsible for the safe installation, maintenance, repair and
condition of their respective lines and appurtenances on their respective
sides of the point of change of ownership. The Distribution Provider
and the Interconnection Customer, as appropriate, shall provide
Interconnection Facilities that adequately protect the Distribution
Provider's Transmission System, Distribution System, personnel, and
other persons from damage and injury. The allocation of responsibility
for the design, installation, operation, maintenance and ownership of
Interconnection Facilities shall be delineated in the Attachments to this
Agreement.
1.5.6 The Distribution Provider shall coordinate with Affected Systems to
support the interconnection.
1.5.7 The Interconnection Customer shall maintain QF status during the term
of this Agreement.
1.6 Parallel Operation Obligations
Once the Generating Facility has been authorized to commence parallel operation, the
Interconnection Customer shall abide by all rules and procedures pertaining to the
parallel operation of the Generating Facility in the applicable balancing authority area,
including, but not limited to; 1) the rules and procedures concerning the operation of
generation set forth in Rule 21 or by the applicable system operator(s) for the Distribution
Provider's Distribution System and; 2) the Operating Requirements set forth in
Attachment 5 of this Agreement.
Exhibit D - 4
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
1.7 Metering
The Interconnection Customer shall be responsible for the Distribution Provider's
reasonable and necessary cost for the purchase, installation, operation, maintenance,
testing, repair, and replacement of metering and data acquisition equipment specified in
Attachments 2 and 3 of this Agreement. The Interconnection Customer's metering (and
data acquisition, as required) equipment shall conform to applicable industry rules and
Operating Requirements. Nothing in this provision replaces or alters the metering
requirements in the Interconnection Customer’s PPA.
1.8 Reactive Power
1.8.1 The Interconnection Customer shall design its Generating Facility to
maintain a composite power delivery at continuous rated power output
at the Point of Interconnection and the Generating Facility shall be
capable of operating within a power factor range of 0.9 leading to 0.9
lagging, unless the Distribution Provider has established different
requirements that apply to all similarly situated generators in the
balancing authority area on a comparable basis. Operation outside this
range is acceptable provided the reactive power of the Generating
Facility is used to meet the reactive power needs of the Host Loads or
that reactive power is otherwise provided under tariff by Distribution
Provider. The Interconnection Customer shall notify Distribution
Provider if it is using the Generating Facility for power factor
correction. Unless otherwise agreed upon by the Interconnection
Customer and Distribution Provider, Generating Facilities shall
automatically regulate power factor, not voltage, while operating in
parallel with Distribution Provider’s Distribution System.
1.9 Capitalized Terms
Capitalized terms used herein shall have the meanings specified in the Glossary of Terms
in Attachment 1 or the body of this Agreement.
Article 2 Inspection, Testing, Authorization, and Right of Access
2.1 Equipment Testing and Inspection
2.1.1 Pursuant to Rule 21, the Interconnection Customer shall test and inspect
its Generating Facility and Interconnection Facilities prior to
interconnection. The Interconnection Customer shall notify the
Distribution Provider of such activities no fewer than five Business
Days (or as may be agreed to by the Parties) prior to such testing and
inspection. Testing and inspection shall occur on a Business Day. The
Distribution Provider may, at its own expense, send qualified personnel
to the Generating Facility site to inspect the interconnection and observe
Exhibit D - 5
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
the testing. The Interconnection Customer shall provide the
Distribution Provider a written test report when such testing and
inspection is completed.
2.1.2 The Distribution Provider shall provide the Interconnection Customer
written acknowledgment that it has received the Interconnection
Customer's written test report. Such written acknowledgment shall not
be deemed to be or construed as any representation, assurance,
guarantee, or warranty by the Distribution Provider of the safety,
durability, suitability, or reliability of the Generating Facility or any
associated control, protective, and safety devices owned or controlled by
the Interconnection Customer or the quality of power produced by the
Generating Facility.
2.2 Authorization Required Prior to Parallel Operation
2.2.1 The Distribution Provider shall use Reasonable Efforts to list applicable
parallel operation requirements in Attachment 5 of this Agreement.
Additionally, the Distribution Provider shall notify the Interconnection
Customer of any changes to these requirements as soon as they are
known. The Distribution Provider shall make Reasonable Efforts to
cooperate with the Interconnection Customer in meeting requirements
necessary for the Interconnection Customer to commence parallel
operations by the in-service date.
2.2.2 The Interconnection Customer shall not operate its Generating Facility
in parallel with the Distribution Provider's Distribution System without
prior written authorization of the Distribution Provider. The
Distribution Provider will provide such authorization once the
Distribution Provider receives notification that the Interconnection
Customer has complied with all applicable parallel operation
requirements. Such authorization shall not be unreasonably withheld,
conditioned, or delayed.
2.3 Right of Access
2.3.1 Upon reasonable notice, the Distribution Provider may send a qualified
person to the premises of the Interconnection Customer at or
immediately before the time the Generating Facility first operates in
parallel to inspect the interconnection, and observe the commissioning
of the Generating Facility (including any required testing), startup, and
operation for a period of up to three (3) Business Days after initial start-
up of the unit. In addition, the Interconnection Customer shall notify
the Distribution Provider at least five (5) Business Days prior to
conducting any on-site verification testing of the Generating Facility.
Exhibit D - 6
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
2.3.2 Following the initial inspection process described above, at reasonable
hours, and upon reasonable notice, or at any time without notice in the
event of an emergency or hazardous condition, the Distribution Provider
shall have access to the Interconnection Customer's premises for any
reasonable purpose in connection with the performance of the
obligations imposed on it by this Agreement or if necessary to meet its
legal obligation to provide service to its customers.
2.3.3 Costs associated with this Article are subject to the relevant provisions
of Rule 21.
Article 3 Effective Date, Term, Termination, and Disconnection
3.1 Effective Date
This Agreement shall become effective upon execution by the Parties.
3.2 Term of Agreement
This Agreement shall become effective on the Effective Date and shall remain in effect
for a period of ______ years from the Effective Date or such other longer period as the
Parties may agree and shall be automatically renewed for each successive one-year period
thereafter, unless terminated earlier in accordance with article 3.3 of this Agreement.
3.3 Termination
No termination shall become effective until the Parties have complied with all Applicable
Laws and Regulations applicable to such termination.
3.3.1 The Interconnection Customer may terminate this Agreement at any
time by giving the Distribution Provider twenty (20) Business Days
written notice.
3.3.2 Either Party may terminate this Agreement after Default pursuant to
article 7.6.
3.3.3 In addition, if the basis for Rule 21 applicability for this interconnection
is based on the Interconnection Customer maintaining QF status and
selling all its exports to the grid to Distribution Provider under a
PURPA PPA, then this provision applies and Distribution Provider may
terminate this Agreement if Interconnection Customer fails to maintain
its QF status for the term of this Agreement or upon termination of
Interconnection Customer’s PURPA PPA.
3.3.3.1 If Section 3.3.3 applies, Interconnection Customer is
responsible for maintaining QF status and must notify
Exhibit D - 7
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Distribution Provider sixty (60) Calendar Days in advance of
Interconnection Customer failing to maintain its QF status,
selling to a third-party, or termination of its PURPA PPA. If
Interconnection Customer fails to provide such notice, it is
wholly responsible for any penalties incurred from any
Governmental Authority or the California Independent System
Operator Corporation (“CAISO”), including penalties and
charges incurred by the Distribution Provider, as a result of this
failure to notify the Distribution Provider.
3.3.3.2 If Interconnection Customer is no longer eligible for a Rule 21
interconnection then Distribution Provider may terminate this
Agreement.
3.3.4 Upon termination of this Agreement, the Generating Facility will be
disconnected from the Distribution Provider's Distribution System. All
costs required to effectuate such disconnection shall be borne by the
terminating Party, unless such termination resulted from the non-
terminating Party’s Default of this GIA or such non-terminating Party
otherwise is responsible for these costs under this GIA.
3.3.5 The termination of this Agreement shall not relieve either Party of its
liabilities and obligations, owed or continuing at the time of the
termination.
3.3.6 This provisions of this article shall survive termination or expiration of
this Agreement.
3.3.7 If the Generating Facility no longer falls within the scope and
description provided in Section 1.1 of this Agreement, this Agreement is
terminated.
3.4 Temporary Disconnection
Temporary disconnection shall continue only for so long as reasonably necessary under
Good Utility Practice.
3.4.1 Emergency Conditions -- "Emergency Condition" shall mean a
condition or situation: (1) that in the judgment of the Party making the
claim is imminently likely to endanger life or property; or (2) that, in the
case of the Distribution Provider, is imminently likely (as determined in
a non-discriminatory manner) to cause a material adverse effect on the
security of, or damage to the Distribution System, the Distribution
Provider's Interconnection Facilities or any Affected Systems(s); or (3)
that, in the case of the Interconnection Customer, is imminently likely
(as determined in a non-discriminatory manner) to cause a material
Exhibit D - 8
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
adverse effect on the security of, or damage to, the Generating Facility
or the Interconnection Customer's Interconnection Facilities. Under
Emergency Conditions, the Distribution Provider may immediately
suspend interconnection service and temporarily disconnect the
Generating Facility. The Distribution Provider shall notify the
Interconnection Customer promptly when it becomes aware of an
Emergency Condition that may reasonably be expected to affect the
Interconnection Customer's operation of the Generating Facility. The
Interconnection Customer shall notify the Distribution Provider
promptly when it becomes aware of an Emergency Condition that may
reasonably be expected to affect the Distribution Provider's Distribution
System or any Affected Systems. To the extent information is known,
the notification shall describe the Emergency Condition, the extent of
the damage or deficiency, the expected effect on the operation of both
Parties' facilities and operations, its anticipated duration, and the
necessary corrective action.
3.4.2 Routine Maintenance, Construction, and Repair. The Distribution
Provider may interrupt interconnection service or curtail the output of
the Generating Facility and temporarily disconnect the Generating
Facility from the Distribution Provider's Distribution System when
necessary for routine maintenance, construction, and repairs on the
Distribution Provider's Distribution System and/or Transmission
System. The Distribution Provider shall provide the Interconnection
Customer with five Business Days’ notice prior to such interruption.
The Distribution Provider shall use Reasonable Efforts to coordinate
such reduction or temporary disconnection with the Interconnection
Customer.
3.4.3 Forced Outages. During any forced outage, the Distribution Provider
may suspend interconnection service to effect immediate repairs on the
Distribution Provider's Distribution System and/or Transmission
System. The Distribution Provider shall use Reasonable Efforts to
provide the Interconnection Customer with prior notice. If prior notice
is not given, the Distribution Provider shall, upon request, provide the
Interconnection Customer written documentation after the fact
explaining the circumstances of the disconnection.
3.4.4 Adverse Operating Effects. The Distribution Provider shall notify the
Interconnection Customer as soon as practicable if, based on Good
Utility Practice, operation of the Generating Facility may cause
disruption or deterioration of service to other customers served from the
same electric system, or if operating the Generating Facility could cause
damage to the Distribution Provider's Distribution System or Affected
Systems. Supporting documentation used to reach the decision to
Exhibit D - 9
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
disconnect shall be provided to the Interconnection Customer upon
request. If, after notice, the Interconnection Customer fails to remedy
the adverse operating effect within a reasonable time, the Distribution
Provider may disconnect the Generating Facility. The Distribution
Provider shall provide the Interconnection Customer with five Business
Day notice of such disconnection, unless the provisions of article 3.4.1
apply.
3.4.5 Modification of the Generating Facility. The Interconnection Customer
must receive written authorization from the Distribution Provider before
making any change to the Generating Facility that may have a material
impact on the safety or reliability of the Distribution System and/or the
Transmission System. Such authorization shall not be unreasonably
withheld. Modifications shall be done in accordance with Good Utility
Practice. If the Interconnection Customer makes such modification
without the Distribution Provider's prior written authorization, the latter
shall have the right to temporarily disconnect the Generating Facility.
3.4.6 Reconnection. The Parties shall cooperate with each other to restore the
Generating Facility, Interconnection Facilities, and the Distribution
Provider's Distribution System and/or Transmission System to their
normal operating state as soon as reasonably practicable following a
temporary disconnection.
Article 4 Cost Responsibility for Interconnection Facilities and Distribution Upgrades
4.1 Interconnection Facilities
4.1.1 The Interconnection Customer shall pay for the cost of the
Interconnection Facilities itemized in Attachment 2 of this Agreement.
The Distribution Provider shall provide a best estimate cost, including
overheads, for the purchase and construction of its Interconnection
Facilities and provide a detailed itemization of such costs. Costs
associated with Interconnection Facilities may be shared with other
entities that may benefit from such facilities by agreement of the
Interconnection Customer, such other entities, and the Distribution
Provider.
4.1.2 The Interconnection Customer shall be responsible for its share of all
reasonable expenses, including overheads, associated with (1) owning,
operating, maintaining, repairing, and replacing its own Interconnection
Facilities, and (2) operating, maintaining, repairing, and replacing the
Distribution Provider's Interconnection Facilities.
Exhibit D - 10
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
4.2 Distribution Upgrades
The Distribution Provider shall design, procure, construct, install, and own the
Distribution Upgrades described in Attachment 6 of this Agreement. If the Distribution
Provider and the Interconnection Customer agree, the Interconnection Customer may
construct Distribution Upgrades that are located on land owned by the Interconnection
Customer. The actual cost of the Distribution Upgrades, including overheads, shall be
directly assigned to the Interconnection Customer.
Article 5 Cost Responsibility for Network Upgrades
5.1 Applicability
No portion of this Article 5 shall apply unless the interconnection of the Generating
Facility requires Network Upgrades.
5.2 Network Upgrades
The Distribution Provider or the Distribution Owner shall design, procure, construct,
install, and own the Network Upgrades described in Attachment 6 of this Agreement. If
the Distribution Provider and the Interconnection Customer agree, the Interconnection
Customer may construct Network Upgrades that are located on land owned by the
Interconnection Customer. Unless the Distribution Provider elects to pay for Network
Upgrades, the actual cost of the Network Upgrades, including overheads, shall be borne
by the Interconnection Customer unless Section 5.2.1 directs otherwise.
5.2.1 Repayment of Amounts Advanced for Network Upgrades. To the extent
that the CAISO Tariff, currently Section 12.3.2 of Appendix Y,
provides for cash repayment to interconnection customers for
contribution to the cost of Network Upgrades, the Interconnection
Customer shall be entitled to a cash repayment, equal to the total
amount paid to the Distribution Provider and Affected System operator,
if any, for Network Upgrades, including any tax gross-up or other tax-
related payments associated with the Network Upgrades, and not
otherwise refunded to the Interconnection Customer, to be paid to the
Interconnection Customer on a dollar-for-dollar basis for the non-usage
sensitive portion of transmission charges, as payments are made under
the Distribution Provider's Tariff and Affected System's Tariff for
transmission services with respect to the Generating Facility. Any
repayment shall include interest calculated in accordance with the
methodology set forth in FERC’s regulations at 18 C.F.R.
§35.19a(a)(2)(iii) from the date of any payment for Network Upgrades
through the date on which the Interconnection Customer receives a
repayment of such payment pursuant to this subparagraph. The
Interconnection Customer may assign such repayment rights to any
Exhibit D - 11
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
person. To the extent that the CAISO Tariff does not provide for cash
repayment to interconnection customers for contribution to the cost of
Network Upgrades, Interconnection Customer is not entitled to a cash
repayment for amounts paid to the Distribution Provider and Affected
System operator for Network Upgrades, and no cash repayment shall be
made pursuant to this Agreement.
5.2.1.1 If the Interconnection Customer is entitled to a cash repayment
pursuant to Article 5.2.1, the Interconnection Customer, the
Distribution Provider, and any applicable Affected System
operators may adopt any alternative payment schedule that is
mutually agreeable so long as the Distribution Provider and
said Affected System operators take one of the following
actions no later than five years from the Commercial Operation
Date: (1) return to the Interconnection Customer any amounts
advanced for Network Upgrades not previously repaid, or (2)
declare in writing that the Distribution Provider or any
applicable Affected System operators will continue to provide
payments to the Interconnection Customer on a dollar-for-
dollar basis for the non-usage sensitive portion of transmission
charges, or develop an alternative schedule that is mutually
agreeable and provides for the return of all amounts advanced
for Network Upgrades not previously repaid; however, full
reimbursement shall not extend beyond twenty (20) years from
the commercial operation date.
5.2.1.2 If the Generating Facility fails to achieve commercial
operation, but it or another generating facility is later
constructed and requires use of the Network Upgrades, the
Distribution Provider and Affected System operator shall at
that time reimburse the Interconnection Customer for the
amounts advanced for the Network Upgrades if the
Interconnection Customer is entitled to a cash repayment
pursuant to Article 5.2.1. Before any such reimbursement can
occur, the Interconnection Customer, or the entity that
ultimately constructs the generating facility, if different, is
responsible for identifying the entity to which reimbursement
must be made.
5.3 [Intentionally Omitted]
5.4 Rights Under Other Agreements
Notwithstanding any other provision of this Agreement, nothing herein shall be construed
as relinquishing or foreclosing any rights, including but not limited to firm transmission
Exhibit D - 12
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
rights, capacity rights, transmission congestion rights, or transmission credits, that the
Interconnection Customer shall be entitled to, now or in the future, under any other
agreement or tariff as a result of, or otherwise associated with, the transmission capacity,
if any, created by the Network Upgrades, including the right to obtain cash
reimbursements or transmission credits for transmission service that is not associated
with the Generating Facility.
Article 6 Billing, Payment, Milestones, and Financial Security
6.1 Billing and Payment Procedures and Final Accounting
6.1.1 The Distribution Provider shall bill the Interconnection Customer for the
design, engineering, construction, and procurement costs, including any
applicable taxes, of Interconnection Facilities and Upgrades
contemplated by this Agreement on a monthly basis, or as otherwise
agreed by the Parties. The Interconnection Customer shall pay each bill
within 30 calendar days of receipt, or as otherwise agreed to by the
Parties.
6.1.2 Within three months of completing the construction and installation of
the Distribution Provider's Interconnection Facilities and/or Upgrades
described in the Attachments to this Agreement, the Distribution
Provider shall provide the Interconnection Customer with a final
accounting report of any difference between (1) the Interconnection
Customer's cost responsibility for the actual cost of such facilities or
Upgrades, and (2) the Interconnection Customer's previous aggregate
payments to the Distribution Provider for such facilities or Upgrades. If
the Interconnection Customer's cost responsibility exceeds its previous
aggregate payments, the Distribution Provider shall invoice the
Interconnection Customer for the amount due and the Interconnection
Customer shall make payment to the Distribution Provider within 30
calendar days. If the Interconnection Customer's previous aggregate
payments exceed its cost responsibility under this Agreement, the
Distribution Provider shall refund to the Interconnection Customer an
amount equal to the difference within 30 calendar days of the final
accounting report.
6.2 Milestones
The Parties shall agree on milestones for which each Party is responsible and list them in
Attachment 4 of this Agreement. A Party's obligations under this provision may be
extended by agreement. If a Party anticipates that it will be unable to meet a milestone
for any reason other than a Uncontrollable Force Event, it shall immediately notify the
other Party of the reason(s) for not meeting the milestone and (1) propose the earliest
reasonable alternate date by which it can attain this and future milestones, and (2)
Exhibit D - 13
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
requesting appropriate amendments to Attachment 4. The Party affected by the failure to
meet a milestone shall not unreasonably withhold agreement to such an amendment
unless it will suffer significant uncompensated economic or operational harm from the
delay, (2) attainment of the same milestone has previously been delayed, or (3) it has
reason to believe that the delay in meeting the milestone is intentional or unwarranted
notwithstanding the circumstances explained by the Party proposing the amendment.
6.3 Financial Security Arrangements
At least 20 Business Days prior to the commencement of the design, procurement,
installation, or construction of a discrete portion of the Distribution Provider's
Interconnection Facilities and Upgrades, the Interconnection Customer shall provide the
Distribution Provider, at the Interconnection Customer's option, a guarantee, a surety
bond, letter of credit or other form of security that is reasonably acceptable to the
Distribution Provider and is consistent with the Uniform Commercial Code of the
jurisdiction where the Point of Interconnection is located. Such security for payment
shall be in an amount sufficient to cover the costs for constructing, designing, procuring,
and installing the applicable portion of the Distribution Provider's Interconnection
Facilities and Upgrades and shall be reduced on a dollar-for-dollar basis for payments
made to the Distribution Provider under this Agreement during its term. In addition:
6.3.1 The guarantee must be made by an entity that meets the
creditworthiness requirements of the Distribution Provider, and contain
terms and conditions that guarantee payment of any amount that may be
due from the Interconnection Customer, up to an agreed-to maximum
amount.
6.3.2 The letter of credit or surety bond must be issued by a financial
institution or insurer reasonably acceptable to the Distribution Provider
and must specify a reasonable expiration date.
Article 7 Assignment, Liability, Indemnity, Uncontrollable Force, Consequential
Damages, and Default
7.1 Assignment
This Agreement may be assigned by either Party upon fifteen (15) Business Days prior
written notice and opportunity to object by the other Party; provided that:
7.1.1 Either Party may assign this Agreement without the consent of the other
Party to any affiliate of the assigning Party with an equal or greater
credit rating and with the legal authority and operational ability to
satisfy the obligations of the assigning Party under this Agreement,
provided that the Interconnection Customer promptly notifies the
Distribution Provider of any such assignment;
Exhibit D - 14
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
7.1.2 The Interconnection Customer shall have the right to assign this
Agreement, without the consent of the Distribution Provider, for
collateral security purposes to aid in providing financing for the
Generating Facility, provided that the Interconnection Customer will
promptly notify the Distribution Provider of any such assignment.
7.1.3 Any attempted assignment that violates this article is void and
ineffective. Assignment shall not relieve a Party of its obligations, nor
shall a Party's obligations be enlarged, in whole or in part, by reason
thereof. An assignee is responsible for meeting the same financial,
credit, and insurance obligations as the Interconnection Customer.
Where required, consent to assignment will not be unreasonably
withheld, conditioned or delayed.
7.2 Limitation of Liability
Each Party's liability to the other Party for any loss, cost, claim, injury, liability, or
expense, including reasonable attorney's fees, relating to or arising from any act or
omission in its performance of this Agreement, shall be limited to the amount of direct
damage actually incurred. In no event shall either Party be liable to the other Party for
any indirect, special, consequential, or punitive damages, except as authorized by this
Agreement.
7.3 Indemnity
7.3.1 This provision protects each Party from liability incurred to third parties
as a result of carrying out the provisions of this Agreement. Liability
under this provision is exempt from the general limitations on liability
found in article 7.2.
7.3.2 The Parties shall at all times indemnify, defend, and hold the other Party
harmless from, any and all damages, losses, claims, including claims
and actions relating to injury to or death of any person or damage to
property, demand, suits, recoveries, costs and expenses, court costs,
attorney fees, and all other obligations by or to third parties, arising out
of or resulting from the other Party's action or failure to meet its
obligations under this Agreement on behalf of the indemnifying Party,
except in cases of gross negligence or intentional wrongdoing by the
indemnified Party.
7.3.3 If an indemnified person is entitled to indemnification under this article
as a result of a claim by a third party, and the indemnifying Party fails,
after notice and reasonable opportunity to proceed under this article, to
assume the defense of such claim, such indemnified person may at the
Exhibit D - 15
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
expense of the indemnifying Party contest, settle or consent to the entry
of any judgment with respect to, or pay in full, such claim.
7.3.4 If an indemnifying party is obligated to indemnify and hold any
indemnified person harmless under this article, the amount owing to the
indemnified person shall be the amount of such indemnified person's
actual loss, net of any insurance or other recovery.
7.3.5 Promptly after receipt by an indemnified person of any claim or notice
of the commencement of any action or administrative or legal
proceeding or investigation as to which the indemnity provided for in
this article may apply, the indemnified person shall notify the
indemnifying party of such fact. Any failure of or delay in such
notification shall not affect a Party's indemnification obligation unless
such failure or delay is materially prejudicial to the indemnifying party.
7.4 Consequential Damages
Other than as expressly provided for in this Agreement, neither Party shall be liable under
any provision of this Agreement for any losses, damages, costs or expenses for any
special, indirect, incidental, consequential, or punitive damages, including but not limited
to loss of profit or revenue, loss of the use of equipment, cost of capital, cost of
temporary equipment or services, whether based in whole or in part in contract, in tort,
including negligence, strict liability, or any other theory of liability; provided, however,
that damages for which a Party may be liable to the other Party under another agreement
will not be considered to be special, indirect, incidental, or consequential damages
hereunder.
7.5 Uncontrollable Force
7.5.1 As used in this article, an Uncontrollable Force Event shall mean "any
act of God, labor disturbance, act of the public enemy, war, insurrection,
riot, fire, storm, flood, earthquake, explosion, breakage or accident to
machinery or equipment, any curtailment, order, regulation or restriction
imposed by governmental, military or lawfully established civilian
authorities, or any other cause beyond the reasonable control of the
Distribution Provider or Interconnection Customer which could not be
avoided through the exercise of Good Utility Practice. An
Uncontrollable Force Event does not include an act of negligence or
intentional wrongdoing by the Party claiming Uncontrollable Force."
7.5.2 If an Uncontrollable Force Event prevents a Party from fulfilling any
obligations under this Agreement, the Party affected by the
Uncontrollable Force Event (Affected Party) shall promptly notify the
other Party, either in writing or via the telephone, of the existence of the
Exhibit D - 16
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Uncontrollable Force Event. The notification must specify in
reasonable detail the circumstances of the Uncontrollable Force Event,
its expected duration, and the steps that the Affected Party is taking to
mitigate the effects of the event on its performance. The Affected Party
shall keep the other Party informed on a continuing basis of
developments relating to the Uncontrollable Force Event until the event
ends. The Affected Party will be entitled to suspend or modify its
performance of obligations under this Agreement (other than the
obligation to make payments) only to the extent that the effect of the
Uncontrollable Force Event cannot be mitigated by the use of
Reasonable Efforts. The Affected Party will use Reasonable Efforts to
resume its performance as soon as possible.
7.6 Default
7.6.1 No Default shall exist where such failure to discharge an obligation
(other than the payment of money) is the result of an Uncontrollable
Force Event as defined in this Agreement or the result of an act or
omission of the other Party. Upon a Default, the non-defaulting Party
shall give written notice of such Default to the defaulting Party. Except
as provided in article 7.6.2, the defaulting Party shall have 60 calendar
days from receipt of the Default notice within which to cure such
Default; provided however, if such Default is not capable of cure within
60 calendar days, the defaulting Party shall commence such cure within
20 calendar days after notice and continuously and diligently complete
such cure within six months from receipt of the Default notice; and, if
cured within such time, the Default specified in such notice shall cease
to exist.
7.6.2 If a Default is not cured as provided in this article, or if a Default is not
capable of being cured within the period provided for herein, the non-
defaulting Party shall have the right to terminate this Agreement by
written notice at any time until cure occurs, and be relieved of any
further obligation hereunder and, whether or not that Party terminates
this Agreement, to recover from the defaulting Party all amounts due
hereunder, plus all other damages and remedies to which it is entitled at
law or in equity. The provisions of this article will survive termination
of this Agreement.
Article 8 Insurance
8.1 General Liability and Additional Insurance
The Interconnection Customer shall, at its own expense, maintain in force general
liability insurance without any exclusion for liabilities related to the interconnection
Exhibit D - 17
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
undertaken pursuant to this Agreement. The amount of such insurance shall be sufficient
to insure against all reasonably foreseeable direct liabilities given the size and nature of
the generating equipment being interconnected, the interconnection itself, and the
characteristics of the system to which the interconnection is made. The Interconnection
Customer shall obtain additional insurance only if necessary as a function of owning and
operating a generating facility. Such insurance shall be obtained from an insurance
provider authorized to do business in California. Certification that such insurance is in
effect shall be provided upon request of the Distribution Provider, except that the
Interconnection Customer shall show proof of insurance to the Distribution Provider no
later than ten (10) Business Days prior to the anticipated Parallel Operation date. An
Interconnection Customer of sufficient credit-worthiness may propose to self-insure for
such liabilities, and such a proposal shall not be unreasonably rejected.
8.2 Maintenance of Insurance
The Distribution Provider agrees to maintain general liability insurance or self-insurance
consistent with the Distribution Provider’s commercial practice. Such insurance or self-
insurance shall not exclude coverage for the Distribution Provider's liabilities undertaken
pursuant to this Agreement.
8.3 Notification
The Parties further agree to notify each other whenever an accident or incident occurs
resulting in any injuries or damages that are included within the scope of coverage of
such insurance, whether or not such coverage is sought.
Article 9 Confidentiality
9.1 Definition of Confidential Information
The confidentiality provisions applicable to this Agreement are set forth in Section D.7,
Confidentiality of Rule 21 and in the following provisions included in this Article.
9.1.1 Release of Confidential Information. Neither Party shall release or disclose
Confidential Information to any other person, employees, consultants, or to
parties who may be or considering providing financing to or equity participation
with Interconnection Customer, or to potential purchasers or assignees of
Interconnection Customer, on a need-to-know basis in connection with these
procedures, unless such person has first been advised of the confidentiality
provisions of this Article and has agreed to comply with such provisions.
Notwithstanding the foregoing, a Party providing Confidential Information to any
person shall remain primarily responsible for any release of Confidential
Information in contravention of this Article.
9.1.2 Rights. Each Party retains all rights, title, and interest in the
Confidential Information that each Party discloses to the other Party.
Exhibit D - 18
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
The disclosure by each Party to the other Party of Confidential
Information shall not be deemed a waiver by either Party or any other
person or entity of the right to protect the Confidential Information from
public disclosure.
9.1.3 No Warranties. By providing Confidential Information, neither Party
makes any warranties or representations as to its accuracy or
completeness. In addition, by supplying Confidential Information,
neither Party obligates itself to provide any particular information or
Confidential Information to the other Party nor to enter into any further
agreements or proceed with any other relationship or joint venture.
9.1.4 Standard of Care. Each Party shall use at least the same standard of care
to protect Confidential Information it receives as it uses to protect its
own Confidential Information from unauthorized disclosure, publication
or dissemination; however, in no case shall a Party use less than
reasonable care in protecting Confidential Information. Each Party may
use Confidential Information solely to fulfill its obligations to the other
Party under this Agreement or its regulatory requirements.
9.1.5 Order of Disclosure. If a court or a Government Authority or entity with
the right, power, and apparent authority to do so requests or requires
either Party, by subpoena, oral deposition, interrogatories, requests for
production of documents, administrative order, or otherwise, to disclose
Confidential Information, that Party shall provide the other Party with
prompt notice of such request(s) or requirement(s) so that the other
Party may seek an appropriate protective order or waive compliance.
Notwithstanding the absence of a protective order or waiver, the Party
may disclose such Confidential Information which, in the opinion of its
counsel, the Party is legally compelled to disclose. Each Party will use
Reasonable Efforts to obtain reliable assurance that confidential
treatment will be accorded any Confidential Information so furnished.
9.1.6 Remedies. The Parties agree that monetary damages would be
inadequate to compensate a Party for the other Party's Breach of its
obligations under this Article. Each Party accordingly agrees that the
other Party shall be entitled to equitable relief, by way of injunction or
otherwise, if the first Party Breaches or threatens to Breach its
obligations under this Article, which equitable relief shall be granted
without bond or proof of damages, and the receiving Party shall not
plead in defense that there would be an adequate remedy at law. Such
remedy shall not be deemed an exclusive remedy for the Breach of this
Article, but shall be in addition to all other remedies available at law or
in equity. The Parties further acknowledge and agree that the covenants
contained herein are necessary for the protection of legitimate business
Exhibit D - 19
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
interests and are reasonable in scope. No Party, however, shall be liable
for indirect, incidental, or consequential or punitive damages of any
nature or kind resulting from or arising in connection with this Article.
Article 10 Disputes
10.1 Dispute Resolution
Any dispute arising between the Parties regarding a Party’s performance of its obligations
under this Agreement or requirements related to the interconnection of the Generating
Facility shall be resolved according to the procedures in Rule 21.
Article 11 Taxes
11.1 Applicable Tax Laws and Regulation
The Parties agree to follow all applicable tax laws and regulations, consistent with CPUC
policy and Internal Revenue Service requirements.
11.2 Maintenance of Tax Status
Each Party shall cooperate with the other to maintain the other Party's tax status. Nothing
in this Agreement is intended to adversely affect the Distribution Provider's tax exempt
status with respect to the issuance of bonds including, but not limited to, local furnishing
bonds.
Article 12 Miscellaneous
12.1 Governing Law, Regulatory Authority, and Rules
The validity, interpretation and enforcement of this Agreement and each of its provisions
shall be governed by the laws of the State of California (where the Point of
Interconnection is located), without regard to its conflicts of law principles. This
Agreement is subject to all Applicable Laws and Regulations. Each Party expressly
reserves the right to seek changes in, appeal, or otherwise contest any laws, orders, or
regulations of a Governmental Authority.
12.2 Amendment
The Parties may amend this Agreement by a written instrument duly executed by both
Parties.
12.3 No Third-Party Beneficiaries
This Agreement is not intended to and does not create rights, remedies, or benefits of any
character whatsoever in favor of any persons, corporations, associations, or entities other
Exhibit D - 20
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
than the Parties, and the obligations herein assumed are solely for the use and benefit of
the Parties, their successors in interest and where permitted, their assigns.
12.4 Waiver
12.4.1 The failure of a Party to this Agreement to insist, on any occasion, upon
strict performance of any provision of this Agreement will not be
considered a waiver of any obligation, right, or duty of, or imposed
upon, such Party.
12.4.2 Any waiver at any time by either Party of its rights with respect to this
Agreement shall not be deemed a continuing waiver or a waiver with
respect to any other failure to comply with any other obligation, right,
duty of this Agreement. Termination or default of this Agreement for
any reason by Interconnection Customer shall not constitute a waiver of
the Interconnection Customer's legal rights to obtain an interconnection
from the Distribution Provider. Any waiver of this Agreement shall, if
requested, be provided in writing.
12.5 Entire Agreement
This Agreement, including all Attachments, and any incorporated tariffs or Rules,
constitutes the entire agreement between the Parties with reference to the subject matter
hereof, and supersedes all prior and contemporaneous understandings or agreements, oral
or written, between the Parties with respect to the subject matter of this Agreement.
There are no other agreements, representations, warranties, or covenants which constitute
any part of the consideration for, or any condition to, either Party's compliance with its
obligations under this Agreement.
12.6 Multiple Counterparts
This Agreement may be executed in two or more counterparts, each of which is deemed
an original but all constitute one and the same instrument.
12.7 No Partnership
This Agreement shall not be interpreted or construed to create an association, joint
venture, agency relationship, or partnership between the Parties or to impose any
partnership obligation or partnership liability upon either Party. Neither Party shall have
any right, power or authority to enter into any agreement or undertaking for, or act on
behalf of, or to act as or be an agent or representative of, or to otherwise bind, the other
Party.
Exhibit D - 21
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
12.8 Severability
If any provision or portion of this Agreement shall for any reason be held or adjudged to
be invalid or illegal or unenforceable by any court of competent jurisdiction or other
Governmental Authority, (1) such portion or provision shall be deemed separate and
independent, (2) the Parties shall negotiate in good faith to restore insofar as practicable
the benefits to each Party that were affected by such ruling, and (3) the remainder of this
Agreement shall remain in full force and effect.
12.8.1 Security Arrangements. Infrastructure security of electric system
equipment and operations and control hardware and software is essential
to ensure day-to-day reliability and operational security. All public
utilities are expected to meet basic standards for system infrastructure
and operational security, including physical, operational, and cyber-
security practices.
12.8.2 Environmental Releases. Each Party shall notify the other Party, first
orally and then in writing, of the release of any hazardous substances,
any asbestos or lead abatement activities, or any type of remediation
activities related to the Generating Facility or the Interconnection
Facilities, each of which may reasonably be expected to affect the other
Party. The notifying Party shall (1) provide the notice as soon as
practicable, provided such Party makes a good faith effort to provide the
notice no later than 24 hours after such Party becomes aware of the
occurrence, and (2) promptly furnish to the other Party copies of any
publicly available reports filed with any governmental authorities
addressing such events.
12.8.3 Subcontractors. Nothing in this Agreement shall prevent a Party from
utilizing the services of any subcontractor as it deems appropriate to
perform its obligations under this Agreement; provided, however, that
each Party shall require its subcontractors to comply with all applicable
terms and conditions of this Agreement in providing such services and
each Party shall remain primarily liable to the other Party for the
performance of such subcontractor.
12.8.3.1 The creation of any subcontract relationship shall not relieve
the hiring Party of any of its obligations under this Agreement.
The hiring Party shall be fully responsible to the other Party for
the acts or omissions of any subcontractor the hiring Party hires
as if no subcontract had been made; provided, however, that in
no event shall the Distribution Provider be liable for the actions
or inactions of the Interconnection Customer or its
subcontractors with respect to obligations of the
Interconnection Customer under this Agreement. Any
Exhibit D - 22
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
applicable obligation imposed by this Agreement upon the
hiring Party shall be equally binding upon, and shall be
construed as having application to, any subcontractor of such
Party.
12.8.4 The obligations under this article will not be limited in any way by any
limitation of subcontractor’s insurance.
12.9 CPUC Modification
Unless otherwise ordered by the CPUC, this Agreement at all times shall be subject to
such modifications as the CPUC may direct from time to time in the exercise of its
jurisdiction.
12.10 Review of Records and Data
12.10.1 The Distribution Provider shall have the right to review and obtain
copies of Interconnection Customer’s operations and maintenance
records, logs, or other information such as, unit availability,
maintenance outages, circuit breaker operation requiring manual reset,
relay targets and unusual events pertaining to Interconnection
Customer’s Generating Facility or its interconnection with Distribution
Provider’s Distribution System.
12.10.2 The Interconnection Customer authorizes the Distribution Provider to
release to the California Energy Commission (“CEC”), the CAISO,
and/or the CPUC information regarding the Generating Facility,
including the Interconnection Customer’s name and location, and the
size, location and operational characteristics of the Generating Facility,
as requested from time to time pursuant to the CEC’s, CAISO’s, or
CPUC’s rules and regulations.
Article 13 Notices
13.1 General
Unless otherwise provided in this Agreement, any written notice, demand, or request
required or authorized in connection with this Agreement ("Notice") shall be deemed
properly given if delivered in person, delivered by recognized national currier service, or
sent by first class mail, postage prepaid, to the person specified below:
Exhibit D - 23
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
If to the Interconnection Customer:
Interconnection Customer: Southwest Riverside County
Energy Authority
Attention: c/o City of Lake Elsinore
Attn: City Manager
Address: 130 S. Main Street
City: State: Zip: Lake Elsinore, CA 92530
Phone: (951) 674-3124
Fax: (951) 674-2392
If to the Distribution Provider:
Distribution Provider: Southern California Edison Company
Attention: Grid Contract Management
Address: 2244 Walnut Grove Avenue
City: State: Zip: Rosemead, California 91770
Phone: (626) 302-9640
Fax: (626) 302-1152
13.2 Billing and Payment
Billings and payments shall be sent to the addresses set out below:
Interconnection Customer: Southwest Riverside County
Energy Authority
Attention: c/o City of Lake Elsinore
Attn: City Manager
Address: 130 S. Main Street
City: State: Zip: Lake Elsinore, CA 92530
Phone: (951) 674-3124
Fax: (951) 674-2392
Distribution Provider: Southern California Edison Company
Attention: Accounts Receivable (GCM)
Address: P. O. Box 800
2244 Walnut Grove Avenue
City: State: Zip: Rosemead, CA 91771-0001
13.3 Alternative Forms of Notice
Any notice or request required or permitted to be given by either Party to the other and
not required by this Agreement to be given in writing may be so given by telephone,
facsimile or e-mail to the telephone numbers and e-mail addresses set out below:
Exhibit D - 24
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
If to the Interconnection Customer:
Interconnection Customer: Southwest Riverside County
Energy Authority
Attention: c/o City of Lake Elsinore
Attn: City Manager
Address: 130 S. Main Street
City: State: Zip: Lake Elsinore, CA 92530
Phone: (951) 674-3124
Fax: (951) 674-2392
If to the Distribution Provider:
Distribution Provider: Southern California Edison Company
Attention: Grid Contract Management
Address: 2244 Walnut Grove Avenue
City: State: Zip: Rosemead, California 91770
Phone: (626) 302-9640
Fax: (626) 302-1152
13.4 Designated Operating Representative
The Parties may also designate operating representatives to conduct the communications
which may be necessary or convenient for the administration of this Agreement. This
person will also serve as the point of contact with respect to operations and maintenance
of the Party’s facilities.
Interconnection Customer’s Operating Representative:
Interconnection Customer: Southwest Riverside County
Energy Authority
Attention: c/o City of Lake Elsinore
Attn: City Manager
Address: 130 S. Main Street
City: State: Zip: Lake Elsinore, CA 92530
Phone: (951) 674-3124
Fax: (951) 674-2392
Exhibit D - 25
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Distribution Provider’s Operating Representative:
Distribution Provider: Southern California Edison Company
Attention: Grid Contract Management
Address: 2244 Walnut Grove Avenue
City: State: Zip: Rosemead, California 91770
Phone: (626) 302-9640
Fax: (626) 302-1152
13.5 Changes to the Notice Information
Either Party may change this information by giving five Business Days written notice
prior to the effective date of the change.
Article 14 Signatures
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their
respective duly authorized representatives.
For the Distribution Provider
Name:
Jill Horswell
Title: Director, Contracts & Reliability Standards Operations
Date:
For the Interconnection Customer
Southwest Riverside County Energy Authority
Name:
[Name]
Title:
Date:
Exhibit D - 26
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Attachment 1
Glossary of Terms
Affected System - An electric system other than the Distribution Provider's Distribution System
that may be affected by the proposed interconnection, including but not limited to the
Transmission System.
Applicable Laws and Regulations - All duly promulgated applicable federal, state and local
laws, regulations, rules, ordinances, codes, decrees, judgments, directives, or judicial or
administrative orders, permits and other duly authorized actions of any Governmental Authority.
Business Day - Monday through Friday, excluding Federal and State Holidays.
Default - The failure of a breaching Party to cure its breach under the Agreement.
Distribution Owner - The entity that owns, leases or otherwise possesses an interest in the
portion of the Distribution System at the Point of Interconnection and may be a Party to the
Agreement to the extent necessary.
Distribution Provider - The public utility (or its designated agent) that owns, controls, or
operates transmission or distribution facilities used for the transmission of electricity and
provides distribution service to the Interconnection Customer. The term Distribution Provider
should be read to include the Distribution Owner when the Distribution Owner is separate from
the Distribution Provider.
Distribution System - Those non-CAISO transmission and distribution facilities, owned,
controlled and operated by the Distribution Provider that are used to provide distribution service,
which facilities and equipment are used to transmit electricity to ultimate usage points such as
homes and industries directly from nearby generators or from interchanges with higher voltage
transmission networks which transport bulk power over longer distances. The voltage levels at
which Distribution Systems operate differ among areas.
Distribution Upgrades - The additions, modifications, and upgrades to the Distribution
Provider's Distribution System at or beyond the Point of Interconnection to facilitate
interconnection of the Generating Facility. Distribution Upgrades do not include Interconnection
Facilities.
Fast Track Process - The interconnection study process set forth in Section F.2 of Rule 21.
Generating Facility -The Interconnection Customer's device for the production or storage of
electricity identified in Attachment 2 of the Agreement, but shall not include the Interconnection
Customer's Interconnection Facilities.
Exhibit D - 27
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Good Utility Practice - Any of the practices, methods and acts engaged in or approved by a
significant portion of the electric industry during the relevant time period, or any of the practices,
methods and acts which, in the exercise of reasonable judgment in light of the facts known at the
time the decision was made, could have been expected to accomplish the desired result at a
reasonable cost consistent with good business practices, reliability, safety and expedition. Good
Utility Practice is not intended to be limited to the optimum practice, method, or act to the
exclusion of all others, but rather to be acceptable practices, methods, or acts generally accepted
in the region.
Governmental Authority - Any federal, state, local or other governmental regulatory or
administrative agency, court, commission, department, board, or other governmental subdivision,
legislature, rulemaking board, tribunal, or other governmental authority having jurisdiction over
the Parties, their respective facilities, or the respective services they provide, and exercising or
entitled to exercise any administrative, executive, police, or taxing authority or power; provided,
however, that such term does not include the Interconnection Customer, the Distribution
Provider, or any Affiliate thereof.
Interconnection Customer - Any entity, including the Distribution Provider, Distribution
Owner or any of the affiliates or subsidiaries of either, that proposes to interconnect its
Generating Facility with the Distribution Provider's Distribution System. The definition of
“Interconnection Customer” in this Agreement is intended to be identical to and used
interchangeably with the definition of “Producer” in Rule 21.
Interconnection Facilities - The Distribution Provider's Interconnection Facilities and the
Interconnection Customer's Interconnection Facilities. Collectively, Interconnection Facilities
include all facilities and equipment between the Generating Facility and the Point of
Interconnection, including any modification, additions or upgrades that are necessary to
physically and electrically interconnect the Generating Facility to the Distribution Provider's
Distribution System. Interconnection Facilities are sole use facilities and shall not include
Distribution Upgrades or Network Upgrades.
Interconnection Handbook - A handbook, developed by the Distribution Provider and posted
on the Distribution Provider’s website or otherwise made available by the Distribution Provider,
describing the technical and operational requirements for wholesale generators and loads
connected to the Distribution System, as such handbook may be modified or superseded from
time to time. In the event of a conflict between the terms of this Agreement and the terms of the
Distribution Provider’s Interconnection Handbook, the terms in this Agreement shall govern.
Network Upgrades - Additions, modifications, and upgrades to the Distribution Provider's
Transmission System required at or beyond the point at which the Distribution System connects
to the Distribution Provider’s Transmission System to accommodate the interconnection of the
Generating Facility to the Distribution Provider’s Distribution System. Network Upgrades do
not include Distribution Upgrades.
Exhibit D - 28
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Operating Requirements - Any operating and technical requirements that may be applicable
due to Regional Transmission Organization, the CAISO, balancing authority area, or the
Distribution Provider's requirements, including those set forth in the Agreement.
Party or Parties - The Distribution Provider, Distribution Owner, Interconnection Customer,
Producer or any combination of the above.
Point of Interconnection - The point where the Interconnection Facilities connect with the
Distribution Provider's Distribution System.
Reasonable Efforts - With respect to an action required to be attempted or taken by a Party
under the Agreement, efforts that are timely and consistent with Good Utility Practice and are
otherwise substantially equivalent to those a Party would use to protect its own interests.
Transmission System - Those facilities owned by the Distribution Provider that have been
placed under the CAISO’s operational control and are part of the CAISO Grid.
Upgrades - The required additions and modifications to the Distribution Provider's Distribution
System and Transmission System at or beyond the Point of Interconnection. Upgrades may be
Network Upgrades or Distribution Upgrades. Upgrades do not include Interconnection
Facilities.
Exhibit D - 29
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Attachment 2
Description and Costs of the Generating Facility,
Interconnection Facilities, and Metering Equipment
Equipment, including the Generating Facility, Interconnection Facilities, and metering
equipment shall be itemized and identified as being owned by the Interconnection Customer, the
Distribution Provider, or the Distribution Owner. The Distribution Provider will provide a best
estimate itemized cost, including overheads, of its Interconnection Facilities and metering
equipment, and a best estimate itemized cost of the annual operation and maintenance expenses
associated with its Interconnection Facilities and metering equipment.
Generating Facility: See Attachment 5 for a description of the generating facility.
The Distribution Provider’s Interconnection Facilities, Network Upgrades and Distribution
Upgrades described in Attachments 2 and 6 of this GIA are preliminary based on a conceptual
method of service and their associated estimated costs calculated using a standardized estimating
approach. Such descriptions are subject to modification following completion of the Distribution
Provider’s detailed engineering and design, completion of the actual facilities constructed and
installed, identification of field conditions, and compliance with applicable environmental and
permitting requirements.
1. Interconnection Facilities.
(a) Interconnection Customer's Interconnection Facilities. The Interconnection
Customer shall:
(i) Install three (3) 1000 kVA 12kV- 480V main step-up transformer with a 5.75%
percent impedance on a 1000 kVA base. [NOTE: These figures are used for
example purposes; actual figures should be inserted prior to execution.]
(ii) Install one (1) 12kV switchboard which complies with Distribution Provider’s
electrical service requirements as described in the Interconnection Handbook.
(iii) Procure and construct underground duct banks and related structures required for
Distribution Provider’s Interconnection Facilities (“Civil Construction”) in
accordance with specifications and designs provided by the Distribution Provider.
The Distribution Provider may subsequently determine that the Civil
Construction, or a portion thereof, may need to be owned by the Distribution
Provider pursuant to Section 3(k) of Attachment 5 of this GIA.
(iv) Acquire, and provide to the Distribution Provider within thirty (30) calendar days
following the Effective Date, an agreement from the property owner at Via
Tornado near intersection of Via Novillo, Temecula, CA, for the Distribution
Provider to have the following:
1. the right to enter property owner’s premises for any purpose connected with
the Distribution Provider’s Interconnection Facilities or interconnection
service,
Exhibit D - 30
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
2. the right for the use of a Distribution Provider approved locking device if
Interconnection Customer wants to prevent unauthorized access to
Distribution Provider’s Interconnection Facilities,
3. the right for safe and ready access for Distribution Provider’s personnel free
from unrestrained animals,
4. the right for unobstructed ready access for Distribution Provider’s vehicles
and equipment to install, remove, repair, and maintain its Interconnection
Facilities,
5. the right to remove Distribution Provider’s Interconnection Facilities after
termination of interconnection service.
(v) Telemetry.
In accordance with specifications provided by the Distribution Provider, provide
the following in compliance with the telemetry requirements of the
Interconnection Handbook:
1. Allow the Distribution Provider to review and approve the Interconnection
Customer’s telemetry equipment design and perform inspections to ensure
compatibility with the Distribution Provider’s telemetry equipment; allow
the Distribution Provider to perform acceptance testing of the telemetry
equipment and the right to require the correction of installation deficiencies.
2. Provide broadband internet service to support communication of the
telemetering data to the Distribution Provider’s grid control center.
3. Provide and install a Distribution Provider approved serial device server
(“SDS”) in an approved enclosure located in an area with a suitable
environment.
4. Provide a convenience power source to the SDS enclosure for SDS power.
5. Provide and install data communication cabling for the required telemetering
data from the Interconnection Customer’s data acquisition system to the
SDS enclosure.
6. Allow the Distribution Provider to terminate the data communication cables
inside the Interconnection Customer’s SDS enclosure and program the SDS.
(vi) Install all required metering equipment at the Generating Facility, in accordance
with Rule 21, the CAISO Tariff, and the Interconnection Handbook.
(vii) Allow the Distribution Provider to install, in the switchboard provided by the
Interconnection Customer, revenue meters, potential transformers (“PTs”), current
transformers (“CTs”), and appurtenant equipment required to meter the retail load
at the Generating Facility in accordance with Distribution Provider’s electrical
service requirements as described in the Interconnection Handbook.
(viii) Install all equipment necessary to comply with the power factor requirements of
Article 1.8.1 of the GIA, including the ability to automatically regulate power
factor to a schedule (VAR schedule) in accordance with the Interconnection
Handbook.
(ix) Install all equipment and controls necessary to maintain the Generating Facility’s
output ramp rate within the parameters set forth by the Distribution Provider, in
accordance with Attachment 5 of this GIA.
Exhibit D - 31
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
(x) Install disconnect facilities in accordance with the Distribution Provider’s
Interconnection Handbook to comply with the Distribution Provider’s switching
and tagging procedures.
(b) Distribution Provider’s Interconnection Facilities. The Distribution Provider shall:
(i) Install approximately 250 feet of 12 kV primary cable, approximately 100 feet of
secondary cable and splices. [NOTE: These figures are provided as examples;
actual figures should be inserted prior to execution.]
(ii) Install one (1) 2500 kVA 33kV/12kV transformer.
(iii) Install an automated 4-way gas switch.
(iv) Install one (1) vacuum fault interrupter with controller.
(v) Telemetry.
1. Terminate the Interconnection Customer provided communication cables
inside the Interconnection Customer’s SDS enclosure.
2. Program and test the SDS.
3. Perform setup and programming on the Distribution Provider’s telemetry
equipment as required to support communication of the telemetered data to
the Distribution Provider’s grid control center.
4. Perform a functional test of the telemetry equipment to verify compliance
with the requirements of the Interconnection Handbook.
(vi) Metering.
Install revenue meters, PTs, CTs and appurtenant equipment required to meter the
retail load at the Generating Facility. Notwithstanding that the meters, PTs, CTs
and appurtenant equipment will be located on the Interconnection Customer’s side
of the Point of Change of Ownership, the Distribution Provider shall own, operate
and maintain such facilities as part of the Distribution Provider’s Interconnection
Facilities.
(vii) Real Properties, Permits, and Environmental Health and Safety.
Obtain easements and/or acquire land, obtain licensing and permits, and perform
all required environmental activities for the installation of the Distribution
Provider’s Interconnection Facilities, including any associated
telecommunications equipment.
2. Network Upgrades. See Attachment 6, Section 1.
3. Distribution Upgrades. See Attachment 6, Section 2.
4. Not Used.
5. Point of Change of Ownership. The Point of Change of Ownership shall be at the pull
section of the new 12kV switchboard panel provided, installed, and owned by the
Interconnection Customer.
Exhibit D - 32
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
6. Point of Interconnection. A tap on the Distribution Provider’s Luiseno 33kV distribution
line out of Pechanga 115/33 kV Substation.
7. One-Line Diagram of Interconnection. See Attachment 3.
8. Additional Definitions. For the purposes of these Attachments, the following terms, when
used with initial capitalization, whether in the singular or the plural, shall have the meanings
specified below:
(a) Accounting Practice: Generally accepted accounting principles and practices
applicable to electric utility operations.
(b) Applicable Reliability Council: The reliability council applicable to the Distribution
System to which the Generating Facility is directly interconnected.
(c) Applicable Reliability Standards: The requirements and guidelines of the North
American Electric Reliability Corporation (NERC), the Applicable Reliability Council,
and the Balancing Authority Area of the Distribution System to which the Generating
Facility is directly interconnected, including the requirements adopted pursuant to
Section 215 of the Federal Power Act.
(d) Balancing Authority: The responsible entity that integrates resource plans ahead of
time, maintains load-interchange-generation balance within a Balancing Authority
Area, and supports interconnection frequency in real time.
(e) Balancing Authority Area: The collection of generation, transmission, and loads within
the metered boundaries of the Balancing Authority. The Balancing Authority maintains
load-resource balance within this area.
(f) CAISO Controlled Grid: The system of transmission lines and associated facilities that
have been placed under the CAISO’s Operational Control.
(g) CAISO Tariff: The California Independent System Operator FERC Electric Tariff.
(h) Capital Additions: Any modifications to the Distribution Provider’s Interconnection
Facilities or to the Distribution Upgrades. Such modifications may be any Units of
Property which are added to the Distribution Provider’s Interconnection Facilities or
Distribution Upgrades; the enlargement, modification or betterment of any Units of
Property constituting a part of the Distribution Provider’s Interconnection Facilities or
Distribution Upgrades; or the replacement of any Units of Property constituting a part
of the Distribution Provider’s Interconnection Facilities or Distribution Upgrades,
irrespective of whether such replacement constitutes an enlargement, modification or
betterment of that which it replaces; and the costs of which additions, enlargements,
modifications, betterments or replacements in accordance with Accounting Practice
Exhibit D - 33
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
would be capitalized and have not previously been included in the Interconnection
Facilities Cost or the Distribution Upgrades Cost.
(i) Capital Additions Cost: All costs, excluding One-Time Cost, determined by
Distribution Provider to be associated with the design, engineering, procurement,
construction and installation of Capital Additions.
(j) Commercial Operation: The status of a Generating Facility that has commenced
generating electricity, excluding electricity generated during the period which the
Producer is engaged in on-site test operations and commissioning of the Generating
Facility prior to Commercial Operation.
(k) Commercial Operation Date: The date on which a Generator at a Generating Facility
commences Commercial Operation as agreed to by the Parties.
(l) Credit Support: A parent guarantee, letter of credit, surety bond, or other security
meeting the requirements of Article 6.3 of the GIA and Rule 21 Section F.4.
(m) Customer-Financed Monthly Rate: The rate most recently adopted by the CPUC for
application to the Distribution Provider’s retail electric customers for added facilities,
which does not compensate the Distribution Provider for replacement of added
facilities. The currently effective Customer-Financed Monthly Rate is as provided in
Section 16 of this Attachment 2.
(n) Delivery Network Upgrades: The transmission facilities at or beyond the point where
the Distribution Provider’s Distribution System interconnects to the CAISO Controlled
Grid, other than Reliability Network Upgrades, as defined in the CAISO Tariff.
(o) Delivery Network Upgrades Cost: The Interconnection Customer’s allocated share of
all costs, excluding One-Time Cost, determined by the Distribution Provider to be
associated with the design, engineering, procurement, construction and installation of
the Delivery Network Upgrades. The Delivery Network Upgrades Cost is provided in
Section 15 of this Attachment 2.
(p) Delivery Network Upgrades Payment: The sum of the Delivery Network Upgrades
Cost and associated One-Time Cost. The Delivery Network Upgrades Payment is
provided in Section 17 of this Attachment 2.
(q) Distribution Provider’s Interconnection Facilities: Those facilities as described in
Section 1(b) of this Attachment 2, as such facilities may be modified during the term of
this Agreement.
(r) Distribution Upgrades Cost: The Interconnection Customer’s allocated share of all
costs, excluding One-Time Cost, determined by the Distribution Provider to be
associated with the design, engineering, procurement, construction and installation of
Exhibit D - 34
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
the Distribution Upgrades. The Distribution Upgrades Cost is provided in Section 15
of this Attachment 2.
(s) Distribution Upgrades Payment: The sum of the Distribution Upgrades Cost and
associated One-Time Cost. The Distribution Upgrades Payment is provided in Section
17 of this Attachment 2.
(t) Effective Date: The date on which this Agreement becomes effective pursuant to
Article 3.1.
(u) Generator: A device converting mechanical, chemical, or solar energy into electrical
energy, including all of its protective and control functions and structural
appurtenances. One or more Generators comprise a Generating Facility.
(v) In-Service Date: The estimated date upon which the Interconnection Customer
reasonably expects it will be ready to begin use of the Distribution Provider’s
Interconnection Facilities.
(w) Initial Synchronization Date: The date upon which the Generating Facility is initially
synchronized and upon which Trial Operation begins.
(x) Interconnection Customer's Interconnection Facilities: All facilities and equipment, as
identified in Section 1(a) of this Attachment 2 of this GIA, that are located between the
Generating Facility and the Point of Change of Ownership, including any modification,
addition, or upgrades to such facilities and equipment necessary to physically and
electrically interconnect the Generating Facility to the Distribution System.
Interconnection Customer's Interconnection Facilities are sole use facilities.
(y) Interconnection Facilities Charge: The monthly charge to the Interconnection
Customer to recover the revenue requirements for the Distribution Provider’s
Interconnection Facilities, calculated as the product of the Customer-Financed Monthly
Rate and the Interconnection Facilities Cost. The Interconnection Facilities Charge is
provided in Section 16 of this Attachment 2.
(z) Interconnection Facilities Completion Date: The date upon which the construction of
the Distribution Provider’s Interconnection Facilities is complete and such facilities are
successfully tested and ready for service.
(aa) Interconnection Facilities Cost: All costs, excluding One-Time Cost, determined by the
Distribution Provider to be associated with the design, engineering, procurement,
construction and installation of the Distribution Provider’s Interconnection Facilities.
The Interconnection Facilities Cost is provided in Section 15 of this Attachment 2.
Exhibit D - 35
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
(bb) Interconnection Facilities Payment: The sum of the Interconnection Facilities Cost and
associated One-Time Cost. The Interconnection Facilities Payment is provided in
Section 17 of this Attachment 2.
(cc) ITCC (Income Tax Component of Contribution): The ITCC is equal to the estimated
tax liability and is the Income Tax Component of Contribution specified in the
Preliminary Statement, Part M of the Distribution Provider’s tariff on file with the
CPUC, applicable to the Distribution Upgrades Cost and Interconnection Facilities
Cost. The ITCC applicable to the Distribution Upgrades Cost and Interconnection
Facilities Cost is described in Section 11 of this Attachment 2 and is shown in Section
15 of this Attachment 2.
(dd) NERC: The North American Electric Reliability Corporation or its successor
organization.
(ee) One-Time Cost: All costs determined by the Distribution Provider to be associated
with the installation of the Delivery Network Upgrades, Distribution Upgrades,
Distribution Provider’s Interconnection Facilities, Reliability Network Upgrades, or
Capital Additions which are not capitalized.
(ff) Point of Change of Ownership: The point, as set forth in Attachment 3 to this GIA,
where the Interconnection Customer's Interconnection Facilities connect to the
Distribution Provider’s Interconnection Facilities.
(gg) Reliability Network Upgrades: The transmission facilities at or beyond the point where
Distribution Provider’s Distribution System interconnects to the CAISO Controlled
Grid, necessary to interconnect one or more Generating Facility(ies) safely and reliably
to the CAISO Controlled Grid, as defined in the CAISO Tariff.
(hh) Reliability Network Upgrades Cost: The Interconnection Customer’s allocated share of
all costs, excluding One-Time Cost, determined by the Distribution Provider to be
associated with the design, engineering, procurement, construction and installation of
the Reliability Network Upgrades. The Reliability Network Upgrades Cost is provided
in Section 15 of this Attachment 2.
(ii) Reliability Network Upgrades Payment: The sum of the Reliability Network Upgrades
Cost and associated One-Time Cost. The Reliability Network Upgrades Payment is
provided in Section 17 of this Attachment 2.
(jj) Removal Cost: The actual cost the Distribution Provider incurs for the removal of the
Distribution Provider’s Interconnection Facilities which is calculated as the amount, if
positive, of the costs of removal minus the salvage value of the Distribution Provider’s
Interconnection Facilities.
Exhibit D - 36
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
(kk) Tax Security: The Interconnection Customer’s provision of security with respect to the
Interconnection Customer’s tax indemnification obligations, provided in accordance
with Section 11 of this Attachment 2.
(ll) Trial Operation: The period during which the Interconnection Customer is engaged in
on-site test operations and commissioning of the Generating Facility prior to
Commercial Operation.
(mm) Units of Property: As described in FERC's “List of Units of Property for Use in
Connection with Uniform System of Accounts Prescribed for Public Utilities and
Licensees” in effect as of the date of this GIA, as such “List” may be amended from
time to time.
9. Transmission Credits. None.
10. Security Amount for the Distribution Upgrades, the Distribution Provider’s
Interconnection Facilities and Network Upgrades.
(a) Distribution Upgrades: Pursuant to Article 6.3 and Attachment 4 of the GIA and
Section F.4 of Rule 21, the Interconnection Customer shall provide Credit Support in
the total amount of $0 to cover the costs for constructing, procuring and installing the
Distribution Upgrades.
(b) The Distribution Provider’s Interconnection Facilities: Pursuant to Article 6.3 and
Attachment 4 of the GIA and Section F.4 of Rule 21, the Interconnection Customer
shall provide Credit Support in the total amount of $356,900 to cover the costs for
constructing, procuring and installing the Distribution Provider’s Interconnection
Facilities.
(c) Network Upgrades: Pursuant to Article 6.3 and Attachment 4 of the GIA and Section
F.4 of Rule 21, the Interconnection Customer shall provide Credit Support in the total
amount of $0 to cover the costs for constructing, procuring and installing the Network
Upgrades.
(d) To the extent that any Credit Support is not utilized by the Distribution Provider, the
release of such Credit Support shall be made in accordance with the Interconnection
Customer’s instruction.
11. Security Amount for Estimated Tax Liability. The Interconnection Customer’s estimated
tax liability is as follows: [NOTE: These figures are provided as an example; actual figures
should be inserted prior to execution.]
Current Tax Rate x (Gross Income Amount – Present Value of Tax Depreciation)/(1 –
Current Tax Rate) = 22%
Estimated tax liability for Distribution Provider’s Interconnection Facilities = 22% x
(Interconnection Facilities Cost) = 22% x [($350,800) = $77,176.00]
Exhibit D - 37
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Estimated tax liability for Distribution Upgrades = 22% x (Distribution Upgrades Cost) =
22% x ($0) = $0
Estimated tax liability assumes the following costs:
Interconnection Facilities Cost = [$350,800]
Distribution Upgrades Cost = [$0]
Based upon the total estimated tax liability, the Interconnection Customer shall provide the
Distribution Provider cash or a letter of credit in the amount of [$77,176.00], pursuant to
Attachment 4 of the GIA. The letter of credit or cash shall meet the requirements of Article
6.3 of the GIA and Rule 21 Section F.4.
The Interconnection Customer’s obligation to provide Tax Security shall terminate at the
earlier of (1) the expiration of the ten year testing period and the applicable statute of
limitation, as it may be extended by the Distribution Provider upon request of the IRS, to
keep these years open for audit or adjustment, or (2) the occurrence of a subsequent taxable
event and the payment of any related indemnification obligations. Upon termination of the
Interconnection Customer’s obligation to provide Tax Security, and Distribution Provider’s
receipt of the Interconnection Customer’s written instructions regarding the release of any
unused Tax Security, any unused amount of the Tax Security shall be released to the
Interconnection Customer.
12. Removal of the Distribution Provider’s Interconnection Facilities. Following termination
of the GIA, the Distribution Provider will remove the Distribution Provider’s Interconnection
Facilities from service to the Interconnection Customer, pursuant to Article 3.3 of the GIA.
On or before the date one year following termination of the GIA, the Distribution Provider
shall notify the Interconnection Customer as to whether the Distribution Provider intends to
physically remove the Distribution Provider’s Interconnection Facilities. If the Distribution
Provider intends to physically remove the Distribution Provider’s Interconnection Facilities
then the Distribution Provider shall physically remove such facilities within two years from
the date of notification of intent, and the Interconnection Customer shall pay the Removal
Cost. If the Distribution Provider does not intend to physically remove the Distribution
Provider’s Interconnection Facilities then the Interconnection Customer shall have no
obligation to pay such Removal Cost.
13. Charges.
(a) The Interconnection Customer shall pay to the Distribution Provider the following
charges in accordance with the GIA: (i) Interconnection Facilities Payment; (ii)
Distribution Upgrades Payment; (iii) Reliability Network Upgrades Payment; (iv)
Delivery Network Upgrades Payment; (v) payments for any Capital Additions; (vi)
Interconnection Facilities Charge; (vii) Removal Cost pursuant to Section 12 of this
Exhibit D - 38
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Attachment 2; (viii) termination charges pursuant to Article 3.3.5 of the GIA; and (ix)
disconnection costs pursuant to Article 3.3.4 of the GIA.
(b) The Interconnection Facilities Cost, Distribution Upgrades Cost, Reliability Network
Upgrades Cost, Delivery Network Upgrades Cost, Capital Additions Cost, One-Time
Cost and Removal Cost shall be compiled in accordance with Accounting Practice.
(c) If, during the term of the GIA, the Distribution Provider executes an agreement to
provide service to another entity (other than retail load) that contributes to the need for
the Distribution Provider’s Interconnection Facilities, the charges due hereunder may
be adjusted to appropriately reflect such service based on the Distribution Provider’s
cost allocation principles in effect at such time.
(d) If Capital Additions are required in order to benefit the Distribution Provider, or
because of damage caused by negligence or willful misconduct of the Distribution
Provider, then the Interconnection Customer will not bear cost responsibility for such
Capital Additions; and no adjustment will be made to the Interconnection Facilities
Cost or the Distribution Upgrades Cost; and no Capital Additions Cost or One-Time
Cost will be charged to the Interconnection Customer for such Capital Additions.
14. Supplemental Billing and Payment Provisions.
(a) Pursuant to Article 6 of the GIA, the Distribution Provider shall submit to the
Interconnection Customer invoices due for the preceding month for the Interconnection
Facilities Payment, Distribution Upgrades Payment, Reliability Network Upgrades
Payment and Delivery Network Upgrades Payment.
(b) Pursuant to Articles 4.1.2 and 6.1 of the GIA, commencing on or following the
Interconnection Facilities Completion Date, each month the Distribution Provider will
render bills to the Interconnection Customer for the Interconnection Facilities Charge.
The Interconnection Facilities Charge shall initially be based on the estimated
Interconnection Facilities Cost, as specified in Section 15 of this Attachment 2, and
payments made for such Interconnection Facilities Charge shall be subject to later
adjustment pursuant to Sections 14(b)(i) and 14(b)(ii) of this Attachment 2. The
Interconnection Facilities Charge for the first and last month of service hereunder shall
be pro-rated based on the number of days in which service was provided during said
months.
(i) If the amounts paid for the Interconnection Facilities Charge are less than the
amounts due for the Interconnection Facilities Charge, as determined from the
actual recorded Interconnection Facilities Cost, the Distribution Provider will bill
the Interconnection Customer the difference between the amounts previously paid
by the Interconnection Customer and the amounts which would have been paid
based on actual recorded costs, without interest, on the next regular billing.
Exhibit D - 39
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
(ii) If the amounts paid for the Interconnection Facilities Charge are greater than the
amounts due for the Interconnection Facilities Charge, as determined from the
actual recorded Interconnection Facilities Cost, the Distribution Provider will
credit the Interconnection Customer the difference between the amounts
previously paid by the Interconnection Customer and the amounts which would
have been paid based on actual recorded costs, without interest, on the next
regular billing.
(c) In the event that any portion of the Distribution Provider’s Interconnection Facilities is
not complete but, at the request of the Interconnection Customer, the Distribution
Provider commences interconnection service under this GIA notwithstanding the
incomplete facilities, the Distribution Provider shall commence billing, and the
Interconnection Customer shall pay, the Interconnection Facilities Charge commencing
on the date that such service commences.
(d) In accordance with Articles 4.1.2 and 6.1 of the GIA, the Distribution Provider shall
submit invoices to the Interconnection Customer for the preceding month for Capital
Additions payments due, if any.
(i) For Capital Additions that are the cost responsibility of the Interconnection
Customer, the Distribution Provider will provide at least sixty (60) calendar days
advance written notification to the Interconnection Customer prior to
commencing work, except that the Distribution Provider may commence the work
on the Capital Additions with either shorter advance written notification or
written notification after the work has commenced, at the Distribution Provider’s
sole discretion, if the Distribution Provider determines that the Capital Additions
are required to comply with safety or regulatory requirements or to preserve
system integrity or reliability. Any such written notification will include the
estimated cost of the Capital Additions, and the amount of and due date for the
security, if any, required to be paid by the Interconnection Customer, which is
sufficient to cover the costs for constructing, procuring and installing the Capital
Additions consistent with the applicable terms of Article 6.3 of the GIA.
(ii) Except as provided in Section 13(d) of this Attachment 2, if certain of the
Distribution Provider’s Interconnection Facilities are removed to accommodate
Capital Additions and such removal results in a change in the Interconnection
Facilities Cost the Interconnection Facilities Charge shall be adjusted to reflect
the change in the Interconnection Facilities Cost as of the in-service date of such
Capital Additions.
(iii) Except as provided in Section 13(d) of this Attachment 2, if Capital Additions
result in an increase in the Interconnection Facilities Cost or Distribution
Upgrades Cost, then the Interconnection Facilities Charge or Distribution
Upgrades Charge, as applicable, shall be adjusted as of the in-service date of such
Capital Additions to reflect the change in such costs.
Exhibit D - 40
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
(e) As soon as reasonably practicable, but within three (3) months after the in-service date
of any Capital Additions, the Distribution Provider shall provide an invoice of the final
cost of the construction of the Capital Additions to the Interconnection Customer, and
shall set forth such costs in sufficient detail to enable the Interconnection Customer to
compare the actual costs with the estimates and to ascertain deviations, if any, from the
cost estimates. The Distribution Provider will refund to the Interconnection Customer
any amount by which the payment made by the Interconnection Customer for estimated
costs of the Capital Additions exceeds the actual costs of construction within thirty (30)
calendar days of the issuance of such final construction invoice; or, in the event the
actual costs of construction exceed the Interconnection Customer’s payment made for
the estimated costs of the Capital Additions, then the Interconnection Customer shall
pay to the Distribution Provider any amount by which the actual costs of construction
exceed the payment made by the Interconnection Customer for estimated costs within
thirty (30) calendar days of the issuance of such final construction invoice.
(f) If, in accordance with the removal of the Distribution Provider’s Interconnection
Facilities as specified in Section 12 of this Attachment 2, the Distribution Provider
decides to physically remove the Distribution Provider’s Interconnection Facilities the
Distribution Provider shall render a bill to the Interconnection Customer for the
Removal Cost. The Interconnection Customer shall pay the Removal Cost within thirty
(30) calendar days of such bill. Such billing shall initially be based on the Distribution
Provider’s estimate of the Removal Cost. Within twelve (12) months following the
removal of the Distribution Provider’s Interconnection Facilities the Distribution
Provider shall determine the actual Removal Cost and provide the Interconnection
Customer with a final invoice. The Distribution Provider shall refund to the
Interconnection Customer any amount by which the payment by the Interconnection
Customer for the estimated Removal Cost exceeds the actual Removal Cost within
thirty (30) calendar days of the issuance of such final invoice; or, in the event the actual
Removal Cost exceeds the Interconnection Customer’s payment for the estimated
Removal Cost, then the Interconnection Customer shall pay to the Distribution Provider
any amount by which the actual Removal Cost exceeds the payment by the
Interconnection Customer for the estimated Removal Cost within thirty (30) calendar
days of the issuance of such final invoice.
Exhibit D - 41
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
15. Interconnection Facilities Cost, Distribution Upgrades Cost, Reliability Network
Upgrades Cost and Delivery Network Upgrades Cost Summary.
(a) Estimated Cost: [NOTE: These figures are provided as an example; actual figures
shall be inserted prior to execution.]
Element- Interconnection
Facilities Cost
Distribution
Upgrades
Cost
Reliability
Network
Upgrades
Cost
Delivery
Network
Upgrades
Cost
One-
Time
Cost
Total ITCC*
Distribution
Provider’s
Interconnection
Facilities
- Install
approximately
250 feet of
primary cable
- Install one (1)
automated 4-
way gas switch
- Install one (1)
2500 kVA
33/12kV
transformer
- Install one (1)
vacuum fault
interrupter with
controller
- Install
approximately
100 feet of
secondary cable
- Install 12kV
metering and
associated
wiring
[$350,800] [$350,800] [$77,176]
Telemetry
- Install
centralized RTU [$6,100] [$6,100]
Distribution
Upgrades
None
Reliability
Network
Upgrades
None
Delivery
Network
Upgrades
None
Total [$350,800] [$6,100] [$356,900] [$77,176]
*Note: ITCC/Estimated Tax Liability will be provided pursuant to Attachment 2, Section 11.
Exhibit D - 42
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
All amounts shown above are in nominal dollars.
(b) Actual Cost:
[TO BE INSERTED AFTER TRUE-UP OF ACTUAL COSTS]
Element Interconnection
Facilities Cost
Distribution
Upgrades
Cost
Reliability
Network
Upgrades
Cost
Delivery
Network
Upgrades
Cost
One-
Time
Cost
Total ITCC
Total
16. Interconnection Facilities Charge.
(a) Interconnection Facilities Charge = Customer-Financed Monthly Rate x
(Interconnection Facilities Cost)
Estimated Actual
Effective Customer-
Financed
Monthly Rate
Interconnection
Facilities Cost
Interconnection
Facilities Charge
Interconnection
Facilities Cost
Interconnection
Facilities Charge
As of the
Interconnection
Facilities
Completion
Date
[0.39%] [$350,800] [$1,368.12] [to be inserted
after true-up]
[to be inserted
after true-up]
Exhibit D - 43
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
17. Payment Schedule and Associated ITCC.
The payment amounts shown below are based on an estimate of the costs expected to be
incurred for the Distribution Upgrades, Distribution Provider’s Interconnection Facilities,
and Network Upgrades.
Payment
No.
Payment
Due Date
Interconnecti
on Facilities
Cost
Distributio
n Upgrades
Cost
Reliabilit
y
Network
Upgrades
Cost
Delivery
Network
Upgrades
Cost
One-Time
Cost
Project
Payment
Associated
ITCC*
1.
Within 30
Calendar
Days of
the
Effective
Date [$350,800] [$6,100] [$356,900] [$77,176[
Total [$350,800] [$6,100] [$356,900] [$77,176]
All amounts shown above are in nominal dollars.
Interconnection Facilities Payment = (Interconnection Facilities Cost + associated One-Time Cost) = [$356,900]
Distribution Upgrades Payment = (Distribution Upgrades Cost + associated One-Time Cost) = $0
Reliability Network Upgrades Payment = (Reliability Network Upgrades Cost + associated One-Time Cost) = $0
Delivery Network Upgrades Payment = (Delivery Network Upgrades Cost + associated One-Time Cost) = $0
*ITCC will be provided by Interconnection Customer in accordance with Section 11 of this Attachment 2.
Exhibit D - 44
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Attachment 3
One-line Diagram Depicting the Generating Facility, Interconnection
Facilities, Metering Equipment, and Upgrades
Exhibit D - 45
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Attachment 4
Milestones
In-Service Date: ___________________
Critical milestones and responsibility as agreed to by the Parties:
Item Milestone Responsible Party Due Date
(a) Submit proof of insurance coverage in
accordance with Article 8.1 of the GIA Interconnection
Customer
Within ten (10) calendar
days after the Effective
Date
(b) Submittal of Credit Support for the
Distribution Provider’s Interconnection
Facilities, Distribution Upgrades and
Network Upgrades to the Distribution
Provider pursuant to Section 10 of
Attachment 2 of the GIA
Interconnection
Customer
Within thirty (30)
calendar days after the
Effective Date
(c) Submittal of security for the estimated tax
liability to the Distribution Provider,
pursuant to Section 11 of Attachment 2 of
the GIA
Interconnection
Customer
Within thirty (30)
calendar days after the
Effective Date
(d) Provide the following information
(“Required Information”) in support of the
Distribution Provider’s engineering and
design of the Distribution Provider’s
Interconnection Facilities and Distribution
Upgrades: 1) a completed Distribution
Provider provided Interconnection
Customer information sheet, 2) a unique
address for the project, 3) public right-of-
way (street) base maps as required by the
interconnection, 4) street improvement
plans, 5) site plot plan on a 30:1 scale or
digital file, 6) grading plans, 7) sewer and
storm plot plans, 8) landscape, sprinkler
and pedestal locations, 9) proposed
location for the RTU, if applicable, 10)
easements/lease agreements, and 11)
panel drawings
Interconnection
Customer
Within thirty (30)
calendar days after the
Effective Date
Exhibit D - 46
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Item Milestone Responsible Party Due Date
(e) Completion of the Distribution Provider’s
design and engineering of the Distribution
Provider’s Interconnection Facilities,
Distribution Upgrades, if applicable, and
the Civil Construction
Distribution
Provider
Within ninety (90)
calendar days of
Distribution Provider’s
receipt of the Required
Information
(f) Provide to the Interconnection Customer:
1) an updated scope of work and design
for the Distribution Provider’s
Interconnection Facilities, Distribution
Upgrades, if applicable, and the Civil
Construction; 2) an updated cost estimate
and schedule related to the Distribution
Provider’s Interconnection Facilities and
Distribution Upgrades, as applicable, if
there are any material changes resulting
from completion of the Distribution
Provider’s detailed design of Distribution
Provider’s Interconnection Facilities and
Distribution Upgrades; and 3) comment
on the Interconnection Customer’s
proposed location for the RTU, if
applicable
Distribution
Provider
Within five (5) calendar
days following
completion of
Distribution Provider’s
design and engineering
of the Distribution
Provider’s
Interconnection
Facilities, Distribution
Upgrades, if applicable,
and Civil Construction
(g) Completion of the Civil Construction,
including Distribution Provider’s release,
in accordance with Section 1 of
Attachment 2 and Section 3 of Attachment
5 of the GIA
Interconnection
Customer
Within sixty (60)
calendar days after the
Distribution Provider
provides the design for
the Civil Construction to
the Interconnection
Customer
(h) Submittal of final specifications for the
Interconnection Customer’s
Interconnection Facilities and Generating
Facility, including system protection
facilities, to the Distribution Provider
Interconnection
Customer
At least ninety (90)
calendar days prior to
completion of the
Distribution Provider’s
Interconnection
Facilities, Distribution
Upgrades, and Network
Upgrades
Exhibit D - 47
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Item Milestone Responsible Party Due Date
(i) Review of and comment on the
Interconnection Customer’s final
specifications
Distribution
Provider
Within forty-five (45)
calendar days following
the Interconnection
Customer’s submittal of
the final specifications
for the Interconnection
Customer’s
Interconnection Facilities
and Generating Facility
(j) Notification of testing and inspection of
Interconnection Customer’s
Interconnection Facilities pursuant to
Article 2.1.1 of the GIA
Interconnection
Customer
Within five (5) Business
Days prior to such
testing and inspection
(k) Submission of a written test report to the
Distribution Provider, in accordance with
Article 2.1.1 of the GIA
Interconnection
Customer
Within five (5) Business
Days following
completion of
Interconnection
Customer’s testing and
inspection
(l) Written acknowledgement of
Interconnection Customer’s
Interconnection Facilities written test
report pursuant to Article 2.1.2 of the GIA
Distribution
Provider
Within five (5) Business
Days of Interconnection
Customer’s submission
of the test report
(m) Submission of written documentation
reflecting Interconnection Customer’s
satisfaction of parallel operation
requirements pursuant to Article 2.2.2 of
the GIA
Interconnection
Customer
At least fifteen (15)
calendar days prior to the
Initial Synchronization
Date
(n) Proposed Interconnection Customer’s
Interconnection Facilities completion date
Interconnection
Customer [date]
(o) Completion of the Distribution Provider’s
Interconnection Facilities, Distribution
Upgrades, and Network Upgrades
Distribution
Provider
Within (5) months
following the Effective
Date, assuming Items (d)
and (g) of this
Attachment 4 have
occurred timely*
(p) Notification of Interconnection
Customer’s intention to begin on-site
verification testing of the Generating
Facility pursuant to Article 2.3.1 of the
GIA
Interconnection
Customer
Ten (10) Business Days
prior to Interconnection
Customer’s verification
testing date
Exhibit D - 48
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Item Milestone Responsible Party Due Date
(q) Provide the CAISO written notice that the
required Distribution Provider facilities
have been installed and tested, and that
initial synchronization of the Generating
Facility to the Distribution System is
expected to occur on the Initial
Synchronization
Date
Distribution
Provider
At least ten (10) calendar
days prior to the Initial
Synchronization Date
(r) Performance of a complete calibration test
and functional trip test of the system
protection facilities Interconnection
Customer and
Distribution
Provider
During the on-site
verification testing of the
Generating Facility
pursuant to Article 2.3.1
of the GIA, and prior to
initial synchronization
(s) In-Service Date Interconnection
Customer [date]
(t) Proposed Initial Synchronization Date Interconnection
Customer [date]
(u) Distribution Provider’s written
authorization authorizing Interconnection
Customer to operate its Generating
Facility in parallel with the Distribution
Provider’s Distribution System, pursuant
to Article 2.2.2 of the GIA
Distribution
Provider
Within five (5) calendar
days after the Initial
Synchronization Date
and the Interconnection
Customer’s satisfaction
of parallel operation
requirements pursuant to
Article 2.2.2
(v) Provide the CAISO written notice that the
required Distribution Provider facilities
have been installed and tested, and have
been approved to allow the Generating
Facility to operate in parallel with the
Distribution System
Distribution
Provider
Within five (5) calendar
days after the Initial
Synchronization Date
and the Interconnection
Customer’s satisfaction
of parallel operation
requirements pursuant to
Article 2.2.2
(w) Proposed Commercial Operation Date Interconnection
Customer [date]
(x) Submittal of “as-built” drawings,
information and documents for the
Interconnection Customer’s
Interconnection Facilities, including the
Civil Construction, and the Generating
Facility to the Distribution Provider
Interconnection
Customer
Within one hundred
twenty (120) calendar
days after the
Commercial Operation
Date, unless otherwise
agreed
Exhibit D - 49
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
* Note: The Interconnection Customer understands and acknowledges that such timeline is only
an estimate and that equipment and material lead times, labor availability, outage coordination,
regulatory approvals, right-of-way negotiations, or other unforeseen events could delay the
actual in-service dates of the Distribution Provider’s Interconnection Facilities, Distribution
Upgrades, or Network Upgrades beyond those specified. The Distribution Provider shall not be
liable for any cost or damage incurred by the Interconnection Customer because of any delay in
the work provided for in this GIA.
Agreed to by:
For the Distribution Provider__________________________ Date______________
Jill Horswell
For the Distribution Owner (If Applicable) ________________________ Date_____________
For the Interconnection Customer________________________ Date______________
[Name]
Exhibit D - 50
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Attachment 5
Additional Operating Requirements for the Distribution Provider's
Distribution System and Affected Systems Needed to Support
the Interconnection Customer's Needs
The Distribution Provider shall also provide requirements that must be met by the
Interconnection Customer prior to initiating parallel operation with the Distribution Provider's
Distribution System.
1. Generating Facility: All equipment and facilities comprising the Interconnection
Customer’s [2.999] net MW ([3.0] gross MW) solar photovoltaic __________ generating
facility in Temecula, California, as disclosed by the Interconnection Customer in its
Interconnection Request, as may have been amended, which consists of (i) [thirty (30)
Chint CPS SC 100KT 480 V inverters, three (3) 1000 kVA 12kV/480V transformers], (ii)
the associated infrastructure and step-up transformers, (iii) meters and metering
equipment, and (iv) appurtenant equipment. The [___________ Project] shall consist of
the Generating Facility and the Interconnection Customer’s Interconnection Facilities.
2. Interconnection Customer Operational Requirements.
(a) Pursuant to Article 1.5.2 of the GIA, the Interconnection Customer shall operate the
Generating Facility and the Interconnection Customer’s Interconnection Facilities in
accordance with Rule 21; and the Applicable Reliability Council requirements; and
Applicable Reliability Standards.
(b) The Generating Facility shall be operated so as to prevent or protect against the
following adverse conditions on the Distribution Provider’s electric system:
inadvertent and unwanted re-energizing of a utility dead line or bus; interconnection
while out of synchronization; overcurrent; voltage imbalance; ground faults; generated
alternating current frequency outside permitted safe limits; power factor or reactive
power outside permitted limits; and abnormal waveforms.
(c) The Parties agree that the Interconnection Customer shall not hold the Distribution
Provider liable for damage to the Generating Facility that may be caused due to
sympathetic generation tripping associated with the Interconnection Customer’s
Generating Facility design.
(d) Neither Party’s facilities shall cause excessive voltage flicker nor introduce excessive
distortion to the sinusoidal voltage or current waves as defined by ANSI Standard
C84.1-1989, in accordance with IEEE Standard 519, or any applicable superseding
electric industry standard or any alternative Applicable Reliability Standard or other
applicable reliability council standard. In the event of a conflict among ANSI Standard
C84.1-1989, or any applicable superseding electric industry standard, or any alternative
Applicable Reliability Standard or other applicable reliability council standard, the
Exhibit D - 51
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
alternative Applicable Reliability Standard or other applicable reliability council
standard shall control.
(e) The Interconnection Customer shall control the Generating Facility’s output ramp rate
so as to prevent adverse voltage conditions on the Distribution System. Such ramp rate
control shall be in accordance with parameters, which may be modified from time to
time by the Distribution Provider, set forth by the Distribution Provider and provided to
the Interconnection Customer within 30 calendar days following the Distribution
Provider’s completion of final engineering for the Distribution Provider’s
Interconnection Facilities, Distribution Upgrades, and Network Upgrades, as
applicable.
3. Interconnection Principles:
(a) This GIA provides for interconnection of a total net capacity of [2.999 MW], resulting
from the interconnection of the [___________ Project], as described in Section 1 of this
Attachment 5. The Interconnection Customer acknowledges that if the Interconnection
Customer wishes to increase the amount of interconnection capacity provided pursuant
to this GIA, the Interconnection Customer shall be required to submit a new
Interconnection Request in accordance with the terms and conditions of applicable
tariffs.
(b) The costs associated with any mitigation measures required to third party transmission
systems, which result from interconnection of the [____________ Project] to the
Distribution Provider’s electrical system, are not reflected in this GIA. The
Distribution Provider shall have no responsibility to pay costs associated with any such
mitigation measures.
(c) In the event the Distribution Provider’s Interconnection Facilities are utilized to provide
retail service to the Interconnection Customer in addition to the interconnection service
provided under this GIA, and the Interconnection Customer fails to make payment for
such retail service in accordance with the Distribution Provider’s applicable retail
tariffs, then the Distribution Provider’s Interconnection Facilities may be removed from
service to the Interconnection Customer, subject to the notice and cure provisions of
such retail tariffs, until payment is made by the Interconnection Customer pursuant to
such retail tariffs.
(d) Review by the Distribution Provider of the electrical specifications, design,
construction, operation, or maintenance of the [____________ Project] shall not
constitute any representation as to the economic or technical feasibility, operational
capability, or reliability of such facilities. The Interconnection Customer shall in no
way represent to any third party that any such review by the Distribution Provider of
such facilities, including, but not limited to, any review of the design, construction,
operation, or maintenance of such facilities by the Distribution Provider, is a
representation by the Distribution Provider as to the economic or technical feasibility,
Exhibit D - 52
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
operational capability, or reliability of the [____________ Project].
(e) Prior to Commercial Operation, the Distribution Provider will verify that any required
low-voltage ride-through, SCADA capability, and power factor correction equipment
have been installed.
(f) Interconnection Customer shall at all times indemnify, defend and save Distribution
Provider harmless from any and all damages, losses, claims, demands, suits, recoveries,
cost and expenses, court cost, attorney fees, and all other obligations by third parties,
arising out of or resulting from the Interconnection Customer’s construction of the Civil
Construction, except in the case of gross negligence or intentional wrongdoing by
Distribution Provider.
(g) Prior to commencing construction of the Civil Construction, Distribution Provider shall
review Interconnection Customer’s construction documents and Interconnection
Customer shall obtain Distribution Provider’s approval of such documents. Such
approval shall not be unreasonably withheld.
(h) During construction of the Civil Construction, Distribution Provider shall have the right
to access the Civil Construction to conduct inspections.
(i) If at any time during construction, Distribution Provider determines that the Civil
Construction does not meet Distribution Provider’s standards and specifications,
Interconnection Customer shall remedy such deficiencies.
(j) Following completion of construction of the Civil Construction and prior to the in-
service date of the Civil Construction, Distribution Provider shall provide final
inspection and field testing of the Civil Construction, and Interconnection Customer
shall obtain an inspection release from the proper inspection authority.
(k) Following completion of the Civil Construction, the Distribution Provider may
determine that the Civil Construction, or a portion thereof, in support of the
interconnection for the [____________ Project] may need to be owned by the
Distribution Provider. Upon such determination, the Civil Construction, or a portion
thereof, will be reclassified as Distribution Provider’s Interconnection Facilities and the
Interconnection Customer shall be required to transfer ownership to the Distribution
Provider. The Interconnection Customer understands and acknowledges that upon such
transfer, it shall provide to Distribution Provider the final costs of the Civil
Construction actually transferred in a form acceptable to the Distribution Provider, and
Interconnection Customer shall be responsible for the ITCC and Interconnection
Facilities Charge for the portion of the Civil Construction transferred to Distribution
Provider. Any reclassification of the Civil Construction and the terms and conditions
related to the transfer of the reclassified portions of the Civil Construction to the
Distribution Provider shall be reflected in an amendment to the GIA.
Exhibit D - 53
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
(l) Within one hundred-twenty (120) calendar days of the Commercial Operation Date,
Interconnection Customer shall deliver to Distribution Provider “as-built” drawings,
information, and any other documents that are required by Distribution Provider to
assure that the Civil Construction is built to the standards and specifications required by
Distribution Provider.
(m) The Interconnection Customer shall complete and receive approval for all
environmental impact studies and any permitting necessary for the construction,
operation and maintenance of the [____________ Project]. The Interconnection
Customer shall include the Distribution Provider’s Interconnection Facilities,
Distribution Upgrades and Network Upgrades described in Attachments 2 and 6 of this
GIA in all such environmental impact studies, where applicable. The Interconnection
Customer shall provide the results of such studies and approvals to the Distribution
Provider for use in the Distribution Provider’s application(s) to obtain the regulatory
approvals required to be obtained by Distribution Provider for the construction,
operation and maintenance of the Distribution Provider’s Interconnection Facilities,
Distribution Upgrades and Network Upgrades described in Attachments 2 and 6 of this
GIA.
(n) The Interconnection Customer is responsible for all costs associated with any necessary
relocation of any of the Distribution Provider’s facilities as a result of the
[____________ Project] and acquiring all property rights necessary for the
Interconnection Customer’s Interconnection Facilities, including those required to cross
the Distribution Provider’s facilities and property. The relocation of the Distribution
Provider’s facilities or use of the Distribution Provider’s property rights shall only be
permitted upon written agreement between the Distribution Provider and the
Interconnection Customer. Any proposed relocation of the Distribution Provider’s
facilities or use of the Distribution Provider’s property rights may require a study
and/or evaluation, the cost of which would be borne by the Interconnection Customer,
to determine whether such use may be accommodated. The terms and conditions of
any such use of the Distribution Provider’s facilities or property rights would be the
subject of a separate agreement and any associated costs to the Interconnection
Customer would not be considered to be associated with a Network Upgrade or
Distribution Upgrade and would not be refundable to the Interconnection Customer
pursuant to Article 5.2.1 of this GIA.
(o) This GIA does not address any requirements for standby power or temporary
construction power that the Generating Facility may require prior to the Interconnection
Facilities Completion Date. Should the Generating Facility require standby power or
temporary construction power from the Distribution Provider prior to the
Interconnection Facilities Completion Date, the Interconnection Customer is
responsible to make appropriate arrangements with the Distribution Provider to receive
and pay for such retail service.
4. Not Used.
Exhibit D - 54
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
5. Interconnection Operations:
(a) The Interconnection Customer shall cause the [____________ Project] to participate in
any protection scheme required to prevent thermal overloads and unstable conditions
resulting from outages. Such participation shall be in accordance with Rule 21,
applicable CPUC regulations, FERC regulations, and CAISO Tariff provisions and
protocols. The Interconnection Customer will not be entitled to any compensation from
the Distribution Provider, pursuant to the GIA, for loss of generation output when (i)
the Generating Facility’s generation is reduced or the [____________ Project] is
tripped off-line due to implementation of a protection scheme; or (ii) such generation
output is restricted in the event any protection apparatus becomes inoperable. In
accordance with Good Utility Practice, the Distribution Provider will provide the
Interconnection Customer advance notice of any required protection scheme beyond
that which has already been identified in this GIA.
(b) The GIA governs the facilities required to interconnect the Generating Facility to
Distribution Provider's electrical system pursuant to applicable tariffs and as described
herein. Interconnection Customer shall be responsible for making all necessary
operational arrangements with the CAISO, including, without limitation, arrangements
for obtaining transmission service from the CAISO, and for scheduling delivery of
energy and other services to the CAISO Controlled Grid.
(c) The Interconnection Customer acknowledges that the Generating Facility is subject to
the CAISO congestion management procedures set forth in the CAISO Tariff. This
may result in limiting the output of the Generating Facility in the CAISO’s markets. A
Generating Facility’s deliverability status does not affect how the resource is scheduled,
dispatched, or curtailed in the CAISO’s markets.
(d) Following outages of the Interconnection Facilities or the Generating Facility, the
Interconnection Customer shall not energize the [____________ Project] for any reason
without specific permission from the Distribution Provider’s operations p` `personnel.
Such permission shall not be unreasonably withheld.
(e) The Interconnection Customer shall maintain operating communications with the
Distribution Provider’s designated switching center. The operating communications
shall include, but not be limited to, system parallel operation or separation, scheduled
and unscheduled outages, equipment clearances, protective relay operations, and levels
of operating voltage and reactive power.
(f) In accordance with Rule 21, as of the Effective Date the Generating Facility will have
Energy-Only Deliverability Status. Any change in the deliverability status of the
Generating Facility shall be made in accordance with the CAISO Tariff.
(g) The Distribution Provider may perform technical assessments reasonably related to
Exhibit D - 55
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
interconnection or operation of the [____________ Project] when requested by the
Interconnection Customer, directed by the CAISO in accordance with the CAISO
Tariff, or as deemed necessary by the Distribution Provider, at the Interconnection
Customer’s expense, with scope, timing and cost to be determined by the Distribution
Provider.
(h) Upon reasonable notice and supervision by a Party, and subject to any required or
necessary regulatory approvals, a Party (“Granting Party”) shall furnish at no cost to the
other Party (“Access Party”) any rights of use, licenses, rights of way and easements
with respect to lands owned or controlled by the Granting Party, its agents (if allowed
under the applicable agency agreement), or any affiliate, that are necessary to enable
the Access Party to obtain ingress and egress to construct, operate, maintain, repair, test
(or witness testing), inspect, replace or remove facilities and equipment to: (i)
interconnect the Generating Facility with the Distribution System; (ii) operate and
maintain the Generating Facility, the Interconnection Facilities and the Distribution
Provider’s electrical system; and (iii) disconnect or remove the Access Party’s facilities
and equipment upon termination of this GIA. In exercising such licenses, rights of way
and easements, the Access Party shall not unreasonably disrupt or interfere with normal
operation of the Granting Party’s business and shall adhere to the safety rules and
procedures established in advance, as may be changed from time to time, by the
Granting Party and provided to the Access Party. The Interconnection Customer and
Distribution Provider shall execute any necessary supplemental agreements, as
determined by the Distribution Provider, to effectuate and record such easement(s)
which provides the Distribution Provider unrestricted 24 hour access to Distribution
Provider's Interconnection Facilities, and Distribution Upgrades, and Network
Upgrades, if applicable, located on the Interconnection Customer's side of the Point of
Change of Ownership for construction, operation, and maintenance.
(i) Compliance with Applicable Reliability Standards: The Interconnection Customer
shall comply with all Applicable Reliability Standards for the Interconnection
Customer’s Interconnection Facilities and the Generating Facility. The Distribution
Provider will not assume any responsibility for complying with mandatory reliability
standards for such facilities and offers no opinion as to whether the Interconnection
Customer must register with NERC. If required to register with NERC, the
Interconnection Customer shall be responsible for complying with all Applicable
Reliability Standards for the Interconnection Customer’s Interconnection Facilities and
the Generating Facility up to the Point of Change of Ownership, as described in Section
5 of Attachment 2 of this GIA.
6. Insurance:
As indicated below, the designated Party shall, at its own expense, maintain in force
throughout the period of this GIA, and until released by the other Party, the following
minimum insurance coverages, with insurers authorized to do business in the state where the
Point of Interconnection is located:
Exhibit D - 56
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
(a) Employers’ Liability and Workers’ Compensation Insurance. The Distribution
Provider and the Interconnection Customer shall maintain such coverage from the
commencement of any construction activities providing statutory benefits for workers
compensation coverage and coverage amounts of no less than one million dollars
($1,000,000) for employer’s liability in accordance with the laws and regulations of the
state in which the Point of Interconnection is located. The Distribution Provider shall
provide the Interconnection Customer with evidence of such insurance within thirty
(30) calendar days of any request by the Interconnection Customer. The
Interconnection Customer and contractor or any other person acting on Interconnection
Customer’s behalf shall provide evidence of such insurance thirty (30) calendar days
prior to entry by any employee or contractor or other person acting on the
Interconnection Customer’s behalf onto any construction site to perform any work
related to the Interconnection Facilities or Generating Facility.
(b) Commercial General Liability Insurance. The Distribution Provider and the
Interconnection Customer shall maintain commercial general liability insurance
commencing within thirty (30) days of the Effective Date of this GIA, Commercial
General Liability Insurance including premises and operations, personal injury, broad
form property damage, broad form blanket contractual liability coverage (including
coverage for the contractual indemnification) products and completed operations
coverage, coverage for explosion, collapse and underground hazards, independent
contractors coverage, coverage for pollution to the extent normally available and
punitive damages to the extent normally available and a cross liability endorsement,
with minimum limits of one million dollars ($1,000,000) per occurrence/one million
dollars ($1,000,000) aggregate combined single limit for personal injury, bodily injury,
including death and property damage. If the activities of the Interconnection Customer
are being conducted through the actions of an affiliate, then the Interconnection
Customer may satisfy the insurance requirements of this Attachment 5 Section 6(b) by
providing evidence of insurance coverage carried by such affiliate and showing the
Distribution Provider as an additional insured, together with the Interconnection
Customer’s written representation to the Distribution Provider that the insured affiliate
is conducting all of the necessary pre-construction work. Within thirty (30) calendar
days prior to the entry of any person on behalf of the Interconnection Customer onto
any construction site to perform work related to the Interconnection Facilities or
Generating Facility, the Interconnection Customer shall replace any evidence of
affiliate insurance with evidence of such insurance carried by the Interconnection
Customer, naming the Distribution Provider as additional insured.
(c) Business Automobile Liability Insurance. Prior to the entry of any vehicles on any
construction site in connection with work done by or on behalf of the Interconnection
Customer, the Interconnection Customer shall provide evidence of coverage of owned
and non-owned and hired vehicles, trailers or semi-trailers designed for travel on public
roads, with a minimum, combined single limit of one million dollars ($1,000,000) per
occurrence for bodily injury, including death, and property damage. Upon the request
Exhibit D - 57
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
of the Distribution Provider, the Interconnection Customer shall name the Distribution
Provider as an additional insured on any such policies.
(d) Excess Liability Insurance. Commencing at the time of entry of any person on its
behalf upon any construction site for the Distribution Upgrades, Interconnection
Facilities, or Generating Facility, the Distribution Provider and the Interconnection
Customer shall maintain excess liability insurance over and above the Employers’
Liability, Commercial General Liability, and Business Automobile Liability Insurance
coverage, with a minimum limit of one million dollars per MW, of Generating Facility
capacity, rounded up to the nearest MW, per occurrence, up to a maximum of twenty
million dollars ($20,000,000) per occurrence/twenty million dollars ($20,000,000)
aggregate. Such insurance carried by the Distribution Provider shall name the
Interconnection Customer as an additional insured, and such insurance carried by the
Interconnection Customer shall name the Distribution Provider as an additional insured.
(e) The Commercial General Liability Insurance, Business Automobile Liability Insurance
and Excess Liability Insurance policies shall name the other Party identified in the
sections above, its parent, associated and affiliate companies and their respective
directors, officers, agents, servants and employees ("Other Party Group") as additional
insured. All policies shall contain provisions whereby the insurers waive all rights of
subrogation in accordance with the provisions of this GIA against the Other Party
Group and provide thirty (30) calendar days advance written notice to the Other Party
Group prior to anniversary date of cancellation or any material change in coverage or
condition. If any Party can reasonably demonstrate that coverage policies containing
provisions for insurer waiver of subrogation rights, or advance written notice are not
commercially available, then the Parties shall meet and confer and mutually determine
to (i) establish replacement or equivalent terms in lieu of subrogation or notice or (ii)
waive the requirements that coverage(s) include such subrogation provision or require
advance written notice from such insurers.
(f) The Commercial General Liability Insurance, Business Automobile Liability Insurance
and Excess Liability Insurance policies shall contain provisions that specify that the
policies are primary and shall apply to such extent without consideration for other
policies separately carried and shall state that each insured is provided coverage as
though a separate policy had been issued to each, except the insurer’s liability shall not
be increased beyond the amount for which the insurer would have been liable had only
one insured been covered. Each Party shall be responsible for its respective deductibles
or retentions.
(g) The Commercial General Liability Insurance, Business Automobile Liability Insurance
and Excess Liability Insurance policies, if written on a Claims First Made Basis, shall
be maintained in full force and effect for two (2) years after termination of this GIA,
which coverage may be in the form of extended reporting period coverage if agreed by
the Parties.
Exhibit D - 58
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
(h) The requirements contained herein as to the types and limits of all insurance to be
maintained by the Parties are not intended to and shall not in any manner, limit or
qualify the liabilities and obligations assumed by the Parties under this GIA.
(i) Within ten (10) calendar days following the Effective Date of this GIA, and as soon as
practicable after the end of each fiscal year or at the renewal of the insurance policy and
in any event within ninety (90) calendar days thereafter, each Party shall provide
certification of all insurance required in this GIA, executed by each insurer or by an
authorized representative of each insurer.
(j) Notwithstanding the foregoing, each Party may self-insure (a) to meet the insurance
requirements of Section 6(a) of this Attachment 5, to the extent that it maintains a self-
insurance program and is a qualified self-insurer within the state in which the Point of
Interconnection is located, under the laws and regulations of such state; and (b) to meet
the minimum insurance requirements of Sections 6(b) through 6(i) of this Attachment 5
to the extent it maintains a self-insurance program; provided that, such Party’s senior
secured debt is rated at investment grade or better by Standard & Poor’s and that its
self-insurance program meets the minimum insurance requirements of Sections 6(b)
through 6(i) of this Attachment 5. For any period of time that a Party’s senior secured
debt is unrated by Standard & Poor’s or is rated at less than investment grade by
Standard & Poor’s, such Party shall comply with the insurance requirements applicable
to it under Sections 6(b) through 6(i) of this Attachment 5. In the event that a Party is
permitted to self-insure pursuant to Article 8 of this GIA and Section 6(j) of this
Attachment 5, it shall notify the other Party that it meets the requirements to self-insure
and that its self-insurance program meets the minimum insurance requirements in a
manner consistent with that specified in Section 6(i) of this Attachment 5.
(k) The Parties agree to report to each other in writing as soon as practical all accidents or
occurrences resulting in injuries to any person, including death, and any property
damage arising out of this GIA.
Exhibit D - 59
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Attachment 6
Distribution Provider's Description of its Upgrades and Cost Responsibility
The Distribution Provider shall describe Upgrades and provide an itemized best estimate of the
cost, including overheads, of the Upgrades and annual operation and maintenance expenses
associated with such Upgrades. The Distribution Provider shall functionalize Upgrade costs and
annual expenses as either transmission or distribution related.
1. Network Upgrades. None.
2. Distribution Upgrades. The Distribution Provider shall: None identified.
Exhibit E - 1
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit E
Energy Delivery Point Single-Line Drawing
Note: Set forth below (or attached) is the preliminary Energy Delivery Point Single-Line
Drawing, and upon the Commercial Operation Date, such preliminary drawing shall be
replaced with a final Energy Delivery Point Single-Line Drawing.
Exhibit F - 1
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit F
Form of Lender Consent
CONSENT AND AGREEMENT
This Consent and Agreement (this “Consent”) is made and entered into as
of __________, 20__, by and among the [PURCHASER], a [type of entity] ________
(“Project Participant”), ________, as collateral agent (together with its designees(s) or
assignee(s) and its permitted successors and assigns in such capacity, “Collateral
Agent”) for the secured parties (the “Secured Parties”) under the Security Agreement
(as defined below), and [POWER PROVIDER], a [type of entity] (“Borrower”).
RECITALS
A. Borrower has entered into that certain Credit Agreement, dated as of
__________, 20__ (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”) with the financial institutions from
time to time party thereto as lenders (collectively, the “Lenders”), and ________, as
administrative agent for the Lenders (in such capacity, “Administrative Agent”) and
Collateral Agent for the Secured Parties, providing for, among other things, Lenders to
provide financing for Borrower to develop, construct, install, finance, own, operate and
maintain that certain solar energy generating facility owned by the Borrower and located
at [INSERT ADDRESS, CITY, STATE] (the “Facility”).
B. Borrower and Project Participant entered into that certain [INSERT ALL
AGREEMENTS BETWEEN BORROWER AND PROJECT PARTICIPANT AND
PLURALIZE ALL REFERENCES TO ASSIGNED AGREEMENT BELOW IF
NECESSARY] dated as of ________, 20__ (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “Assigned Agreement”).
C. As part of the consummation of the transactions contemplated by the
Credit Agreement, Borrower has entered into a security agreement with the Collateral
Agent (the “Security Agreement”), pursuant to which Borrower will assign, among other
things, as collateral security for its obligations under the Credit Agreement (the
“Secured Obligations”), all estate, right, title and interest of Borrower in, to and under
the Assigned Agreement (the “Assigned Interest”) for the benefit of the Lenders (each, a
“Secured Party” and collectively, the “Secured Parties”).
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt, adequacy and legal sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties do hereby agree
as follows:
Exhibit F - 2
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
AGREEMENT
1. Consent to Assignment; Subsequent Owner. Project Participant hereby
consents in all respects to the collateral assignment under the Security Agreement of all
of Borrower’s right, title, obligations and interest in and to the Assigned Agreement.
Project Participant agrees that, if Collateral Agent notifies Project Participant in writing
that is has elected to exercise its rights and remedies pursuant to the Security
Agreement with respect to the foreclosure of the Assigned Interest, then (i) Collateral
Agent or any assignee and/or designee of Collateral Agent (a “Subsequent Owner”)
shall be substituted for Borrower under the Assigned Agreement and shall be subject to
the rights and obligations of the Borrower under the Assigned Agreement and
(ii) Project Participant shall recognize Collateral Agent or the Subsequent Owner, as the
case may be, as its counterparty under the Assigned Agreement and continue to
perform its obligations under the Assigned Agreement in favor of Collateral Agent or the
Subsequent Owner, as the case may be.
2. Notice of Default. If Borrower defaults in the performance of any of its
obligations under the Assigned Agreement, Project Participant will give written notice of
such default to Collateral Agent and afford Collateral Agent the opportunity to cure such
default (i) with respect to payment defaults, within ten (10) business days of such notice
or the applicable cure period provided in the Assigned Agreement, whichever is greater,
and (ii) with respect to non-payment defaults, within ninety (90) days of such notice or
the applicable cure period provided in the Assigned Agreement, whichever is greater
(provided, however, that such ninety (90) day period may be extended by no more than
an additional ninety (90) day period if the Collateral Agent has commenced and is
diligently pursuing appropriate action to cure such non-monetary default and such
extension does not have a material adverse effect on Project Participant).
3. Recourse. Project Participant acknowledges and agrees that neither the
Collateral Agent nor the Secured Parties shall have any liability or obligation under the
Assigned Agreement as a result of this Consent or the Security Agreement except
during any period in which Collateral Agent is a Subsequent Owner. If Collateral Agent
becomes a Subsequent Owner, the Collateral Agent and the Secured Parties shall
remain liable to Project Participant pursuant to the Assigned Agreement, having
succeeded to the obligations of Borrower.
4. Direct Payment. Project Participant agrees that it will pay all amounts
payable by it under the Assigned Agreement in the manner and as and when required
by the Assigned Agreement directly into any account as may be specified from time to
time by Collateral Agent to Project Participant in writing upon at least ten (10) days prior
written notice.
5. No Termination, Assignment or Amendment. Project Participant will not,
without the prior written consent of Collateral Agent, enter into any cancellation or
termination of the Assigned Agreement (or suspension of performance of obligations
thereunder) or consent to any cancellation or termination of the Assigned Agreement (or
Exhibit F - 3
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
suspension of performance of obligations thereunder) by Borrower. Except as
expressly permitted in the Assigned Agreement (other than any provision permitting
transfers or assignments of the Assigned Agreement to an affiliate of Project Participant
without consent), Project Participant will not, without the prior written consent of
Collateral Agent (which consent shall not be unreasonably withheld, delayed or
conditioned), (i) assign or otherwise transfer any of its right, title, interest or obligations
under the Assigned Agreement; (ii) consent to any assignment or transfer by Borrower
of its right, title, interests, or obligations under the Assigned Agreement, or (iii) enter into
any amendment, supplement or other modification of the Assigned Agreement.
6. Representations and Warranties of Project Participant. Project Participant
hereby represents and warrants, in favor of Collateral Agent, as of the date hereof, that
(i) the execution, delivery and performance by Project Participant of this Consent and
the Assigned Agreement have been duly authorized by all necessary corporate or other
action on the part of Project Participant, (ii) each of this Consent and the Assigned
Agreement is in full force and effect and constitutes the legal, valid and binding
obligation of Project Participant, enforceable against Project Participant in accordance
with its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of creditors’
rights generally and general equitable principles, (iii) Borrower is not in default of any of
its obligations under the Assigned Agreement, nor do there presently exist any material
disputes between Project Participant and Borrower under the Assigned Agreement, and
(iv) Project Participant has no notice of, and has not consented to, any previous
assignment by Borrower of all or any part of its rights under the Assigned Agreement.
7. Replacement Agreement. In the event the Assigned Agreement is
rejected or terminated as a result of any bankruptcy, insolvency, reorganization or
similar proceeding affecting Borrower, Project Participant will, at the option of Collateral
Agent exercised within forty-five (45) days after such rejection or termination, enter into
a new agreement with Collateral Agent (or its designee or assignee) having identical
terms as the Assigned Agreement (subject to any conforming changes necessitated by
the substitution of parties and other changes as the parties may mutually agree);
provided that (i) the term under such new agreement shall be no longer than the
remaining balance of the term specified in the Assigned Agreement and (ii) Collateral
Agent (or its designee or assignee) shall be required to cure any than existing payment
or performance defaults by Borrower under the Assigned Agreement (other than any
then existing performance defaults which by their nature are incapable of being cured at
the time such new agreement is entered into).
8. Notices. All notices, requests, claims, demands and other
communications required or permitted to be given under this Consent shall be in writing
and shall be deemed effectively given (i) upon personal delivery to the party to be
notified; (ii) when received when sent by e-mail or fax by the party to be notified;
provided, however, that notices given by e-mail or fax shall not be effective unless either
(a) a duplicate copy of such e-mail or fax notice is promptly given by one of the other
Exhibit F - 4
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
methods described in this Section 7, or (b) the receiving party delivers a written
confirmation of receipt for such notice either by e-mail, fax or any other method
described in this Section 7; (iii) one (1) business day after deposit with a reputable
overnight courier, prepaid for overnight delivery and addressed as set forth in
(iv) provided that the sending party receives a confirmation of delivery from the
overnight courier service; or (iv) three (3) business days after deposit with the U.S. Post
Office, postage prepaid, registered or certified with return receipt requested and
addressed to the party to be notified at the address indicated for such party below, or at
such other address as such party may designate by ten (10) days’ advance written
notice to the other parties given in the foregoing manner:
If to Borrower:
[__________]
__________________________
__________________________
Attention: __________________
Phone: ____________________
Facsimile: __________________
Email: _____________________
If to Project Participant:
[PURCHASER ]
__________________________
__________________________
Attention: __________________
Phone: ____________________
Facsimile: __________________
Email: _____________________
If to Collateral Agent:
__________________________
__________________________
Attention: ________________
Telephone: _______________
Facsimile: ________________
Email: ___________________
9. Successors and Assigns. This Consent shall be binding upon Project
Participant and its permitted successors and assigns and shall inure to the benefit of
Collateral Agent, its designee(s) and assignee(s) and their respective successors and
assigns (including, without limitation, any entity that refinances all or any portion of the
Secured Obligations). The Project Participant hereby agrees to execute a consent to
assignment substantially in the form of this Consent and such other documents as may
Exhibit F - 5
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
be reasonably requested by Borrower in connection with any collateral assignment of
the Assigned Agreement to the lenders of Borrower from time to time at the request of
Borrower, including any refinancing or replacement of the Credit Agreement.
10. Amendment of Financing Documents. The Credit Agreement, the Security
Agreement, any related financing documents and the security interests granted
thereunder may be amended, restated, refinanced (in whole or in part), supplemented
or otherwise modified from time to time without Project Participant’s consent and without
affecting the terms or the validity or enforceability of this Consent.
11. Governing Law. This Consent will be governed by and construed in
accordance with the laws of the State of California (without giving effect to principles of
conflicts of law).
12. Severability. If any provision of this Consent or the application thereof is
determined by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions hereof, or the application of such provision to the parties hereto or
circumstances other than those as to which it has been held invalid or unenforceable,
shall remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any party
hereto.
13. Counterparts. This Consent may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this Consent and
all of which, when taken together, will be deemed to constitute one and the same
agreement. The facsimile, email or other electronically delivered signatures of the
parties hereto shall be deemed to constitute original signatures, and facsimile or
electronic copies hereof shall be deemed to constitute duplicate originals.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Exhibit F - 6
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
IN WITNESS WHEREOF, the parties hereto have caused this Consent to
be duly executed and delivered by their duly authorized officers as of the date first
above written.
[PURCHASER],
a _______________________
By: ______________________
Name: ___________________
Title: ____________________
Accepted and Agreed to:
_____________________
not individually but solely in its capacity as Collateral Agent
By: __________________
Name: _______________
Title: _________________
[POWER PROVIDER]
a _________________________
By: ____________________,
a __________________,
its [managing member/general partner]
By: __________________
Name: _______________
Title: ________________
Exhibit G - 1
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit G
Form of Estoppel
POWER PURCHASER ESTOPPEL CERTIFICATE
Reference is made to that certain Solar Power Purchase Agreement dated
____________ __, 20__ (as amended from time to time as of the date hereof, the
“Agreement”) between [name of project entity, a [type of legal entity]] (the “Project
Company”), and [name of purchaser], a [type of legal entity] (“Power Purchaser”) for the
[name/type of facility] located at [address] (the “Project”).
Power Purchaser acknowledges that (i) [ ] a Delaware limited liability
company (the “Solar Fund”), has proposed to acquire an indirect [membership] interest
of the Project Company and (ii) [____________], a Delaware limited liability company
(together with the Solar Fund, the “Acquirors”) has proposed to acquire a direct [sole
membership] interest of the Project Company. In connection with the Acquirors’
proposed acquisition, the Acquirors have required that the Project Company obtain the
confirmation and agreement of the Power Purchaser as to certain matters related to the
Agreement. Based on the foregoing, and recognizing that the Acquirors will rely hereon
in connection with the proposed acquisition, Power Purchaser hereby confirms and
agrees as follows:
1. The copy of the Agreement, attached hereto as Exhibit A, constitutes a
true and complete copy of the Agreement.
2. The Agreement is in full force and effect and has not been modified or
amended in any way except as shown on the instruments attached hereto as Exhibit A,
and constitutes the entire agreement between Power Purchaser and the Project
Company relating to the Project.
3. Power Purchaser has not transferred or assigned any interest in the
Agreement.
4. Neither party to the Agreement is in default thereunder or has breached
the Agreement and, to the best of Power Purchaser’s knowledge, no facts or
circumstances exist which, with the passage of time or the giving of notice or both,
would constitute a default or breach by either such party thereunder.
5. All representations made by Power Purchaser in the Agreement are true
and correct and all warranties under the Agreement are absolutely, irrevocably and
unconditionally in effect.
6. There are no actions pending against Power Purchaser under the
bankruptcy or any similar laws of the United States or any state.
Exhibit G - 2
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
7. Power Purchaser has not provided written notice to Power Provider of any
event, act, circumstance or condition constituting an event of force majeure under the
Agreement.
8. Project Company has not received or claimed any amounts under the
limited indemnification obligation of Power Purchaser set forth in Section 13 of the
Agreement.
9. Project Company does not owe any indemnity payments to Power
Purchaser and Power Purchaser has no existing counterclaims, offsets or defenses
against Project Company under the Agreement.
10. There are no proceedings pending or, to Power Purchaser’s knowledge
without inquiry, threatened by written letter or claim against or affecting Power
Purchaser in any court or by or before any court governmental authority or arbitration
board or tribunal which could reasonably be expected to have a material adverse effect
on the ability of Power Purchaser to perform its obligations under the Agreement.
11. Power Purchaser has no objection to and hereby consents to (i) Project
Company’s pledging its rights under the Agreement to ____________ in connection
with the debt financing for the Project and (ii) Acquirors’ acquisition of their respective
interests in the Project Company, provided Acquiror agrees in writing to be bound by
Project Company’s obligations under the Agreement.
12. All payments due under the Agreement have been paid in full through the
period ending ___________ __, 20__.
13. There are no disputes or proceedings between Power Purchaser on the
one hand and the Project Company on the other.
14. Power Purchaser understands and acknowledges that the Acquirors will
be relying on this certificate in connection with the debt and equity financings for the
Project and, accordingly, that this certificate binds Power Purchaser and its successors
and assigns.
WITNESS the execution hereof under seal this ___ day of ___________, 20__.
POWER PURCHASER:
By:
Name:
Title:
Exhibit H - 1
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H
Land Use Agreement
Sublease Agreement (Area 2)
This Sublease Agreement (this “Sublease”) dated as of ____________, 2017
(“Effective Date”), is by and between SMER Research 1, LLC, a California limited
liability company (“Sublandlord”), and Southwest Riverside County Energy Authority, a
California Joint Powers Authority (“Subtenant”).
Recitals
A. The Trustees of the California State University, acting by and through San
Diego State University (“Master Landlord”), as landlord, and Sublandlord, as tenant,
entered into that certain Ground Lease Agreement dated October 21, 2014, as
amended, a copy of which is attached hereto as Exhibit A (“Master Lease”).
B. Subtenant desires to sublet from Sublandlord the Subleased Property
(defined in Exhibit B, attached hereto), and all of Sublandlord’s right, title and interest in
and to the Landlord’s Other Property within the Subleased Property (defined in the
Master Lease) (collectively, the “Premises”), on the terms and conditions contained in
this Sublease.
Agreement
1. Master Lease Agreement. All of the provisions of the Master Lease that
are not in conflict with this Sublease are incorporated into this Sublease as if fully set
forth herein. If any provisions of this Sublease conflict with any portion of the Master
Lease as incorporated herein, the terms of this Sublease shall govern.
1.1 With respect to the performance of any obligations required of
Master Landlord under the Master Lease, Sublandlord’s sole obligation shall be to
request the same, and to use reasonable efforts to obtain the same from Master
Landlord. Subtenant shall cooperate with Sublandlord as may be required to obtain
from Master Landlord any performance of Master Landlord’s other obligations under the
Master Lease.
1.2 Sublandlord shall perform all obligations of the Tenant under the
Master Lease at its sole cost and expense. Sublandlord shall procure and maintain for
the duration of the term of this Sublease the type and amount of insurance required of
the Tenant pursuant to Paragraph 9 of the Master Lease, subject to the insurance
requirements of Section 9 of the Master Lease and naming the Subtenant, its member
agencies, their elected officials, officers and employees as additional insureds. In the
event that Subtenant incurs any costs or expenses to fulfill an obligation of the Tenant
under the Master Lease pursuant to Subtenant’s obligations under this Sublease,
Exhibit H - 2
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Sublandlord shall reimburse Subtenant for such costs or expenses within thirty days of
notice from Subtenant.
1.3 Subtenant shall not do or permit to be done anything which would
constitute a violation or breach of any of the terms, conditions or provisions of the
Master Lease or which would cause the Master Lease to be terminated or forfeited by
virtue of any risks of termination or forfeiture reserved by or vested in Master Landlord.
1.4 If the Master Lease terminates, this Sublease shall terminate and
the parties shall be relieved from all liabilities and obligations under this Sublease.
1.5 Sublandlord represents that the Master Lease is in full force and
effect and that there are no defaults on Sublandlord’s part under the Master Lease.
Sublandlord represents that if Subtenant performs all the provisions in this Sublease to
be performed by Subtenant, Subtenant shall have and enjoy throughout the term of this
Sublease the quiet and undisturbed possession of the Premises to the extent provided
in the Master Lease, and non-exclusive access to the Common Area.
2. Term. The term of this Sublease shall commence on ______________,
2017 (“Effective Date”) and shall continue for twenty (20) years from the Operations
Date, as that Term is defined in the Master Lease, and may be extended by Subtenant
for two (2) successive five (5) year periods.
3. Rent. For each one (1) year of Term, beginning on the Effective Date, and
during each year of the Term thereafter, Subtenant shall pay Rent for the Premises, in
advance, in the sum of One Dollar ($1.00).
4. License Right. During the term of this Sublease, Sublandlord shall be
entitled to enter onto the Premises in accordance with the License Agreement attached
as Exhibit C, and incorporated herein by this reference.
5. Master Landlord Default. Notwithstanding any provision of this Sublease
to the contrary, Sublandlord shall not be liable or responsible in any way for any loss,
damage, cost, expense, obligation or liability suffered by Subtenant by reason or as the
result of any breach, default or failure to perform by the Master Landlord under the
Master Lease.
6. Attorneys’ Fees. If there is any legal or arbitration action or proceeding
between Sublandlord and Subtenant to enforce any provision of this Sublease or to
protect or establish any right or remedy of either Sublandlord or Subtenant hereunder,
the unsuccessful party to such action or proceeding will pay to the prevailing party all
costs and expenses, including reasonable attorneys’ fees incurred by such prevailing
party, and if such prevailing party recovers a judgment in any such action, proceeding or
appeal, such costs, expenses and attorney’s fees will be determined by the court or
arbitration panel handling the proceeding and will be included in and as a part of such
judgment.
Exhibit H - 3
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
7. Notices. All notices given under this Sublease must be in writing and shall
be effectively served upon delivery, or if mailed, upon the first to occur of receipt or the
expiration of forty-eight hours after deposit in certified United States mail, postage
prepaid, sent to the party at its address set forth on the last page of this Sublease.
Those addresses may be changed by either party by notice to the other party.
8. Assignment. There shall be no sub-subletting or assignment of this
Sublease.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this
Sublease as of the day and year first above written.
SUBLANDLORD:
SMER Research 1, LLC
By:
William P. Love
Managing Member
SUBTENANT:
Southwest Riverside County Energy
Authority
By:
Name:
Title:
Attest:
Name:
Title:
Approved as to Form:
Name:
Title:
Exhibit H - 4
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
EXHIBIT A TO SUBLEASE
MASTER LEASE AND AMENDMENT
Exhibit H - 5
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 6
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 7
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
EXHIBIT 1 TO AMENDMENT
MASTER LEASE
Exhibit H - 8
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 9
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 10
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 11
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 12
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 13
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 14
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 15
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 16
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 17
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 18
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 19
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 20
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 21
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 22
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 23
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 24
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 25
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 26
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 27
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 28
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 29
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 30
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 31
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 32
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
EXHIBIT B
TO AMENDMENT TO GROUND LEASE
Exhibit H - 33
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 34
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 35
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 36
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
EXHIBIT B TO SUBLEASE AGREEMENT
DESCRIPTION OF SUBLEASED PROPERTY – AREA 2
SMER Research 1 shall make available the following:
The leased property is located within 2 adjoining parcels of land. The 2 parcels in question are:
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF RIVERSIDE,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 9 OF FRACTIONAL SECTION 22, TOWNSHIP 8 SOUTH, RANGE 3 WEST, SAN
BERNARDINO BASE AND MERIDIAN.
PARCEL 2:
LOT 8 OF FRACTIONAL SECTION 23, TOWNSHIP 8 SOUTH, RANGE 3 WEST SAN
BERNARDINO BASE AND MERIDIAN.
APN: , 918-050-009-2-2, 918-080-001-7
The site boundaries consist of a section of land with corners at the following GPS Coordinates:
1. -117.1729481609586, 33.46072841378041
2. -117.17312913668, 33.45995565131902
3. -117.1735695461214, 33.45995442608185
4. -117.1736674253565, 33.45927559927859
5. -117.1730375940526, 33.4592668205915
6. -117.1714643292678, 33.45978718232443
7. -117.1712482179586, 33.45985568859838
8. -117.1711204927345, 33.4607267286513
9. -117.1729481609586, 33.46072841378041
The site contains approximately 6.4 Acres.
The site boundaries are based off current information and may need to be revised based off of
Utility requirements.
Exhibit H - 37
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Sublease Area 2
Exhibit H - 38
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
EXHIBIT C
LICENSE AGREEMENT
LICENSE AGREEMENT
BY AND BETWEEN
SMER 1 RESEARCH, LLC
AND
SOUTHWEST RIVERSIDE COUNTY ENERGY AUTHORITY (SRCEA)
ON SRCEA CONTROLLED REAL PROPERTY, LOCATED AT THE
SANTA MARGARITA ECOLOGICAL RESEARCH RESERVE
SOLAR INITIATIVE RESEARCH SITE
RIVERSIDE COUNTY, CALIFORNIA
Exhibit H - 39
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
LICENSE USE AGREEMENT
(FORM)
THIS LICENSE USE AGREEMENT, hereinafter called “Agreement”, is executed
between the Southwest Riverside County Energy Authority, a California joint powers authority,
hereinafter called “SRCEA”, and SMER Research 1, LLC, a California limited liability
company, hereinafter called “Licensee” (SRCEA and Licensee are collectively referred to as
“Parties”).
R E C I T A L S
WHEREAS, SRCEA is sublessee and controller of the real property located at the Santa
Margarita Ecological Research Reserve Solar Initiative Research Site designated for SMER
Research 1 solar energy collection and related research purposes, commonly known as the
“SMER Solar Site – Area 2” and defined in Exhibit A attached hereto; and
WHEREAS, SRCEA is desirous of having a solar collection conversion and transmission
facility built and operated on the “SMER Solar Site – Area 2,” located at the Santa Margarita
Ecological Research Reserve in order to collect electric power for SRCEA’s use; and
WHEREAS, Licensee is prepared to purchase, install, own and operate a solar generating
facility on the SMER Solar Site – Area 2 to provide energy for use by the SRCEA, consistent
with that certain Power Purchase Agreement dated _____________, 2017; and
WHEREAS, SRCEA is willing to allow the Licensee to use the Premises for the purposes
set forth above under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the above recitals, which are incorporated
herein, and for valuable consideration the sufficiency of which is hereby acknowledged, in
accordance with the covenants, conditions and provisions contained herein below, the parties
hereto do hereby mutually agree as follows:
A G R E E M E N T
SECTION 1: PREMISES
1.1 Property. SRCEA hereby licenses to Licensee, in accordance with the terms, conditions,
covenants, and provisions of this Agreement, all portions of that certain real property situated in
the County of Riverside, State of California, commonly known as the SMER Solar Site
consisting of approximately a 6.4-acre parcel of land more particularly described in Exhibit “A”
attached hereto and subject to a Ground Lease dated October 21, 2014, as amended, between
California State University, San Diego State University and SMER Research 1 (identified as
SDSU Agreement 40096313) and same land being subject to the SRCEA’s Sublease – Area 2
Agreement with SMER Research I dated ____________, 2017 (“Premises”). In return for this
permission, Licensee accepts the Premises in an “AS IS” “WHERE IS” condition and hereby
agrees to act in accordance with and abide by the terms, covenants, conditions and provisions of
this License.
Exhibit H - 40
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
1.2 Uses. It is expressly agreed that the Premises shall be used by Licensee solely and
exclusively for the purpose of planning, developing, installing and operating a solar collection
and conversion transmission facility for the development of electrical power for SRCEA’s use
and for related research and incidental purposes (solar operations), as more completely described
in the Power Purchase Agreement dated _____________, 2017, by and between the parties
(“Power Purchase Agreement”), and for such other related or incidental purposes as may be first
approved in writing by SRCEA, and for no other purpose whatsoever.
Licensee covenants and agrees to use the Premises for the above specified purposes and
to diligently pursue said purposes throughout the term hereof. In the event that Licensee fails to
continuously use the Premises for said purposes, or uses the Premises for purposes not expressly
authorized herein, the Licensee shall be deemed in default under this Agreement.
1.3 Parking. Licensee acknowledges that there are no specific parking spaces assigned to
and/or designated for the Premises.
1.4 Licensee Obligations. Licensee shall perform all obligations of the Tenant under the
Master Lease at its sole cost and expense. In the event that SRCEA incurs any costs or expenses
to fulfill an obligation of the Tenant under the Master Lease pursuant to Licensee’s obligations
under this License Agreement, Licensee shall reimburse SRCEA for such costs or expenses
within thirty days of notice from SRCEA provided it is consistent with paragraph 5.5 herein.
SECTION 2: TERM
2.1 Commencement. The term of this Agreement shall commence on ____________, 2017
(“Effective Date”) and shall continue for twenty (20) years from the Operation Date, as that term
is defined in that certain Master Ground Lease entered into by and between California State
University, San Diego State University and SMER Research 1, LLC dated October 21, 2014, as
amended.
2.2 Extension of Term. Licensee may request an extension of the term of this Agreement for
the Premises for two (2) additional five (5) year periods under the terms and conditions of this
Agreement, provided that the Licensee is not in default or breach of any term, condition, or
covenant of this Agreement.
The SRCEA Manager or SRCEA Manager’s designee shall notify the Licensee not later
than thirty (30) days after receipt of such request for an extension whether such request will be
approved. The SRCEA Manager in his capacity as the SRCEA’s authorized representative,
shall, in his sole discretion, have the authority to deny any such request. Any such denial shall be
sent to Licensee not later than thirty (30) days from receipt of the request for extension.
2.3 Termination Provisions. Notwithstanding any other provisions contained in this
License, five (5) years after the Operation Date, either party may terminate this License for any
reason by giving the other party at least ninety (90) days prior written notice of such termination.
In the event of termination pursuant to this section, Licensee shall be provided the reasonable
opportunity to identify a substitute Licensor and off-taker for the solar facility to take the place
of SRCEA in the License, the Sublease, the Power Purchase Agreement and all other relevant
agreements related to the SMER Solar Site – Area 2.
Exhibit H - 41
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
2.4 Surrender of Property. At the expiration of this Agreement, Licensee shall surrender
the Premises to SRCEA free and clear of all liens and encumbrances created by Licensee, except
those liens and encumbrances which existed on the date of the execution of this Agreement by
SRCEA. The Premises, when surrendered by Licensee, shall be in a safe and sanitary condition
and shall be in as good or better condition as the condition at commencement of this Agreement,
absent normal wear and tear.
2.5 Time is of Essence. Time is of the essence of all of the terms, covenants, conditions and
provisions of this Agreement.
SECTION 3: CONSIDERATION
3.1 Consideration. Consideration for this License Agreement shall be effectuated by the
value received by SRCEA as a result of Licensee’s installation and operation of the Solar
Facility in order to provide SRCEA those electrical rate benefits arising from the Power Purchase
Agreement. No additional consideration is required from Licensee or any other source.
SECTION 4: INSURANCE RISKS/SECURITY
4.1 Indemnity. Licensee shall indemnify and hold harmless the SRCEA and its member
agencies, and their officers, agents and employees against all claims for damages to persons or
property arising out of the conduct of the Licensee or its employees, agents, or others in
connection with its use and occupation of the Premises under this Agreement, except only for
those claims arising from the sole negligence or sole willful misconduct of the SRCEA, its
member agencies, and their officers, agents, or employees. Licensee’s indemnification shall
include any and all costs, expenses, attorneys’ fees and liability incurred by the SRCEA, its
officers, agents, or employees in defending against such claims, whether the same proceed to
judgment or not. Further, Licensee at its own expense shall, upon written request by the SRCEA,
defend any such suit or action brought against the SRCEA, its member agencies, and their
officers, agents, or employees as a result of Licensee’s actions.
4.2 Insurance. Licensee shall procure and maintain for the duration of the term of this
License Agreement the type and amount of insurance required of the Tenant pursuant to
Paragraph 9 of the Master Lease, subject to the insurance requirements of Section 9 of the
Master Lease and naming SRCEA, its member agencies, and their elected officials, officers and
employees as additional insureds.
4.3 Accident Reports. Licensee shall, within twenty-four (24) hours after occurrence, report
to SRCEA any accident causing property damage or any serious injury to persons on the
Premises. This report shall contain the names and addresses of the parties involved; a statement
of the circumstances; the date and hour, the names; and addresses of any witnesses and other
pertinent information.
SECTION 5: GENERAL PROVISIONS
5.1 Acceptance of Premises. Licensee accepts the Premises in an “AS IS”, “WHERE IS”
conditions, subject to all faults and conditions without warranty as to quality, character,
performance or condition and with full knowledge of the physical condition of the Premises.
Exhibit H - 42
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
5.2 Maintenance by Licensee. With respect to Licensee’s use and/or operations at or on the
Premises, Licensee shall make any and all repairs and replacements necessary to maintain and
preserve the Premises for the purpose stated herein.
5.3 Permits and Improvements. Licensee must obtain from all appropriate governmental
entities, in advance and in writing, approval for any planned improvements and shall obtain any
and all necessary environmental or regulatory permits, building permits and approvals for any
desired improvements or alterations to the Premises and shall deliver to the SRCEA a copy of the
same prior to commencement of improvements to the Premises.
5.4 Taxes. Licensee shall pay, before delinquency, all taxes, assessments, and fees assessed
or levied upon Licensee or the Premises, including, any applicable possessory interest as defined
in Revenue and Taxation Code Section 107, any buildings, structures, machines, equipment,
appliances, or other improvements or property of any nature whatsoever erected, installed, or
maintained by Licensee or levied by reason of the business or other Licensee activities related to
the Premises, including any licenses or permits.
5.5 Notices. All notices, demands, requests, consents or other communications which this
Agreement contemplates or authorizes, or requires or permits either party to give to the other,
shall be in writing and shall be personally delivered or mailed to the respective party as follows:
To SRCEA:
Southwest Riverside County Energy Authority
c/o City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attn: City Manager
With a copy to:
City of Temecula
41000 Main Street
Temecula, CA 92590
Attn: City Manager
To LICENSEE:
SMER Research 1, LLC
c/o 10013 Winkle Circle
Elk Grove, CA 95757
Attn: William P. Love, Managing Member
Either party may change its address by notice to the other party as provided herein.
Communications shall be deemed to have been given and received on the first to occur of
(i) actual receipt at the offices of the party to whom the communication is to be sent, as
Exhibit H - 43
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
designated above, or (ii) three working days following the deposit in the United States Mail of
registered or certified mail, postage prepaid, return receipt requested, addressed to the offices of
the party to whom the communication is to be sent, as designated above.
5.6 SRCEA Approval. The SRCEA Manager shall be the SRCEA’s authorized
representative in the interpretation and enforcement of all services performed in connection with
this Agreement. The SRCEA Manager may delegate authority in connection with this Agreement
to the SRCEA Manager’s designee(s). For the purposes of directing Licensee in accordance with
this Agreement, which does not result in a change to this Agreement, the SRCEA Manager
delegates authority to the Real Estate Manager of the SRCEA Manager’s Office, if any.
5.7 Entire Agreement. This Agreement comprises the entire integrated understanding
between SRCEA and Licensee concerning the use and occupation of the Premises and
supersedes all prior negotiations, representations, or agreements. Each party has relied on its own
examination of the Premises, advice from its own attorneys, and the warranties, representations,
and covenants of the Agreement itself.
The interpretation, validity and enforcement of the Agreement shall be governed by and
construed under the laws of the State of California. The Agreement does not limit any other
rights or remedies available to SRCEA.
The Licensee shall be responsible for complying with all Local, State, and Federal laws
whether or not said laws are expressly stated or referred to herein.
Should any provision herein be found or deemed to be invalid, the Agreement shall be
construed as not containing such provision, and all other provisions which are otherwise lawful
shall remain in full force and effect, and to this end the provisions of this Agreement are
severable.
This Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns.
5.8 Agreement Modification. This Agreement may not be modified orally or in any manner
other than by an Agreement in writing signed by the parties hereto.
5.9 Assignment and Subletting-No Encumbrance. This Agreement and any portion thereof
shall not be assigned, transferred, or sublet, nor shall any of the Licensee’s duties be delegated,
without the express written consent of SRCEA. Any attempt to assign or delegate this
Agreement without the express written consent of SRCEA shall be void and of no force or effect.
The consent by SRCEA to one assignment, transfer, sublease, or delegation shall not be deemed
to be consent to any subsequent assignment, transfer, sublease, or delegation.
5.10 Other Regulations. All use of the Premises under this Agreement shall be in accordance
with the laws of the United States of America, the State of California and in accordance with all
applicative rules and regulations and ordinances of the SRCEA now in force, or hereinafter
prescribed or promulgated by resolution or ordinance or by State or Federal law.
Exhibit H - 44
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
SECTION 6: SPECIAL PROVISIONS
6.1 Standards of Operation. Licensee agrees that it shall operate and manage the services
and facilities offered upon or from the Premises in a first class manner and comparable to other
similar facilities within Riverside County and Southern California areas which provide like
products and services.
6.2 Licensee’s Employees. Licensee shall provide an experienced and well qualified
“on-site” supervisor to oversee all operations conducted by Licensee on the Premises. Licensee
shall ensure that its employees shall at all times conduct themselves in a creditable manner and
they shall conform to all rules, regulations and requirements, as well as all rules and regulations
pertaining to the SMER Solar Site.
6.3 Hazardous Substances. No goods, merchandise or material shall be kept, stored or sold
in or on the Premises which are in any way explosive or hazardous, except that ordinary business
materials that may be classified as hazardous may be kept in or on the Premises if such materials
are stored and disposed of in accordance with all applicable laws; and no offensive or dangerous
trade, business or occupation shall be carried on therein or thereon, and nothing shall be done on
said Premises, which will cause an increase in the rate of or cause a suspension or cancellation of
the insurance upon the demised Premises or other premises and the improvements thereon;
provided, however, that if anything done by Licensee causes an increase in the rate of insurance
on the Premises, Licensee may, at its option, pay such increase and Licensee shall not thereafter
be considered in default under this Agreement.
No machinery or apparatus shall be used or operated on or about the Premises which will
in any way injure the Premises or improvements thereon, or adjacent or other Premises, or
improvements thereon, or to persons; provided, however, that nothing contained in this section
shall preclude Licensee from bringing, keeping or using on or about the Premises such materials,
supplies, equipment and machinery as are appropriate or customary in carrying on its said
business, or from carrying on its business in all usual respects.
REMAINDER OF PAGE BLANK
Exhibit H - 45
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
SECTION 7: SIGNATURES
7.1 Signature Page. The individuals executing this Agreement represent and warrant that
they have the right, power, legal capacity and authority to enter into and to execute this
Agreement on behalf of the respective legal entities of the Licensee and the SRCEA.
IN WITNESS WHEREOF, the parties hereto for themselves, their heirs, executors,
administrators, successors, and assigns do hereby agree to the full performance of the covenants
herein contained and have caused this Use Agreement to be executed by setting hereunto their
signatures on the day and year respectively written herein below.
SRCEA
SOUTHWEST RIVERSIDE COUNTY
ENERGY AUTHORITY
By:
Name:
Title:
Date:
ATTEST
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Name:
Title:
LICENSEE
SMER RESEARCH 1, LLC
By:
William P. Love
Managing Member
Date:
NOTARY ACKNOWLEDGEMENTS OF LICENSEE’S SIGNATURE(S)
MUST BE ATTACHED
Exhibit H - 46
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 47
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Exhibit H - 48
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
EXHIBIT A
DESCRIPTION OF SUBLEASED PROPERTY – AREA 2
SMER Research 1 shall make available the following:
The leased property is located within 2 adjoining parcels of land. The 2 parcels in question are:
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF RIVERSIDE,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 9 OF FRACTIONAL SECTION 22, TOWNSHIP 8 SOUTH, RANGE 3 WEST, SAN
BERNARDINO BASE AND MERIDIAN.
PARCEL 2:
LOT 8 OF FRACTIONAL SECTION 23, TOWNSHIP 8 SOUTH, RANGE 3 WEST SAN
BERNARDINO BASE AND MERIDIAN.
APN: , 918-050-009-2-2, 918-080-001-7
The site boundaries consist of a section of land with corners at the following GPS Coordinates:
10. -117.1729481609586, 33.46072841378041
11. -117.17312913668, 33.45995565131902
12. -117.1735695461214, 33.45995442608185
13. -117.1736674253565, 33.45927559927859
14. -117.1730375940526, 33.4592668205915
15. -117.1714643292678, 33.45978718232443
16. -117.1712482179586, 33.45985568859838
17. -117.1711204927345, 33.4607267286513
18. -117.1729481609586, 33.46072841378041
The site contains approximately 6.4 Acres.
The site boundaries are based off current information and may need to be revised based off of
Utility requirements.
Exhibit H - 49
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.9
Sublease Area 2
Exhibit i
City of Lake Elsinore Guaranty
GUARANTY OF POWER PURCHASE AGREEMENT
THIS GUARANTY OF POWER PURCHASE AGREEMENT (“Guaranty ”) dated
as of______________, 20__ is executed by the City of Lake Elsinore, a California
municipal corporation (“Guarantor”) in favor of the SMER Research 1, LLC, a California
limited liability company (“Power Provider”), with reference to the following:
A. Power Provider and the Southwest Riverside County Energy Authority
(“SRCEA”), a California joint powers authority (as “Purchaser”) have entered into that
certain Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
dated as of____________, 20_ (the “PPA”).
B. As a condition to entering into the PPA, Power Provider has required that
Guarantor execute and deliver to Power Provider this Guaranty, which Guaranty shall
be effective as of the Initial PPA Term (as defined in the PPA) and shall terminate upon
the expiration of the Initial PPA Term or, if exercised, the termination of the Extension
PPA Term (the “Guaranty Termination Date”), with such period to constitute the
“Guaranty Period”.
NOW THEREFORE, in consideration of Power Provider entering into the PPA
with SRCEA, Guarantor covenants and agrees as follows;
Section 1. Guaranty. During the Guaranty Period, Guarantor absolutely and
unconditionally guarantees to Power Provider the timely payment of all amounts that
SRCEA may owe under the PPA, or any extensions, renewals, or modifications of the
PPA. During the Guaranty Period, Guarantor further guarantees to Power Provider the
full, faithful, and timely performance by SRCEA of the PPA, or any extensions,
renewals, or modifications of the PPA. If SRCEA shall default at in the payment of any
sums, costs, or charges, or in the performance of any covenant or obligation under the
PPA during the Guaranty Period, then Guarantor, at Guarantor’s expense, shall on
demand by Power Provider fully and promptly pay all sums, costs, and charges to be
paid and perform all other covenants and obligations to be performed by SRCEA
pursuant to the PPA. In addition. Guarantor shall on demand by Power Provider pay to
Power Provider all sums due to Power Provider, including, without limitation, all interest
on past due obligations of SRCEA, costs advanced by Power Provider, damages, and
all expenses (including, without limitation, court costs and reasonable attorneys’ fees)
that may arise in consequence of SRCEA’s default.
Section 2. Waivers. Guarantor authorizes Power Provider, without notice or
demand and without affecting Guarantor's liability under this Guaranty, to;
(a) consent to any extensions, accelerations, or other changes in the time
for any payment provided for in the PPA, or consent to any other alteration of any
Exhibit 1 - 1
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.10
covenant, term, or condition of the PPA in any respect, and to consent to any
assignment, subletting, or reassignment of the PPA;
(b) take and hold security for any payment provided for in the PPA or for
the performance of any covenant, term, or condition of the PPA, or exchange,
waive, or release any security; and
(c) apply this security and direct the order or manner of its sale as Power
Provider may determine.
Section 3. Independent Obligations. The obligations of Guarantor under this
Guaranty are independent of, and may exceed, the obligations of SRCEA, A separate
action may, at Power Provider's option, be brought and prosecuted against Guarantor,
whether or not any action is first or subsequently brought against SRCEA, or whether or
not SRCEA is joined in any action, and Guarantor may be joined in any action or
proceeding commenced by Power Provider against SRCEA arising out of, in connection
with, or based upon the PPA. Guarantor waives any right to;
(a) require Power Provider to proceed against SRCEA or any other
person or entity or pursue any other remedy in Power Provider's power;
(b) complain of delay in the enforcement of Power Provider's rights under
the PPA; and
(c) require Power Provider to proceed against or exhaust any security
held from SRCEA or Guarantor. Guarantor waives any defense arising by reason
of any disability or other defense of SRCEA or by reason of the cessation from
any cause of the liability of SRCEA. Guarantor waives all demands upon and
notices to SRCEA and to Guarantor, including, without limitation, demands for
performance, notices of nonperformance, notices of non-payment, and notices of
acceptance of this Guaranty of PPA.
Section 4. No Reporting Duty. Guarantor assumes full responsibility for
keeping fully informed of the financial condition of SRCEA and all other circumstances
affecting SRCEA's ability to perform SRCEA's obligations under the PPA, and agrees
that Power Provider will have no duty to report to Guarantor any information that Power
Provider receives about SRCEA's financial condition or any circumstances bearing on
SRCEA's ability to perform such obligations.
Section 5. Continuing Guaranty. During the Guaranty Period, this Guaranty
shall remain in full force notwithstanding the appointment of a receiver to take
possession of all or substantially all of the assets of SRCEA, or an assignment by
SRCEA for the benefit of creditors, or any action taken or suffered by SRCEA under any
insolvency, bankruptcy, reorganization, moratorium, or other debtor relief act or statute,
whether now existing or later amended or enacted, or the disaffirmance of the PPA in
any action or otherwise.
Exhibit I - 2
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.10
Section 8. Joint and Several Obiigations. if this Guaranty of PPA is signed, or
if the obiigations of SRCEA are otherwise guaranteed, by more than one party, their
obligations shall be joint and several, and the release or limitation of liability of any one
or more of the guarantors shall not release or limit the liability of any other guarantors.
Section 7. Successors and Assigns. This Guaranty of PPA shall be binding
upon Guarantor and Guarantor’s heirs, administrators, personal and legal
representatives, successors, and assigns, and shall inure to the benefit of Power
Provider and Power Provider’s successors and assigns. Power Provider may, without
notice, assign this Guaranty of PPA, the PPA, or the sums payable under the PPA, in
whole or in part.
Section 8. Guaranty of Costs and Fees. in addition to the amounts
guaranteed. Guarantor agrees to pay reasonable attorney's fees and all other costs and
expenses incurred by Power Provider in enforcing this Guaranty of PPA or in any action
or proceeding arising out of, or relating to, this Guaranty of PPA.
Section 9. Governing Law. This Guaranty of PPA shall be deemed to be made
under and shall be governed by California law in all respects, including matters of
construction, validity, and performance, and the terms and provisions of this Guaranty
may not be waived, altered, modified, or amended except in a writing signed by an
authorized officer of Power Provider and by Guarantor.
Section 10. Severance, if any of the provisions of this Guaranty of PPA shaii
contravene or be held invalid under the laws of any jurisdiction, this Guaranty of PPA
shall be construed as if it did not contain those provisions, and the rights and obiigations
of the parties shall be construed and enforced accordingly.
Eixhibit I - 3
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.10
Section 11. Counterparts. This Guaranty of PPA may be executed in any
number of counterparts, each of which shall be a valid and binding original, but all of
which together shall constitute one and the same instrument.
Guarantor has executed this Guaranty as of the date first witten above.
“GUARANTOR”
CITY OF LAKE ELSINORE, a municipal
corporation
Grant Yates, City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Exhibit I - 4
Solar Power Purchase Agreement (Sublease Area 2 (City of Lake Elsinore))
DOCS 124394-000004/2789584.10