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HomeMy WebLinkAboutSolarCity-Tesla AgreementSolarGity M, 3ZE� � This Solar Power Purchase Agreement (this "Agreement") is entered into by the parties listed below (each a "Party" and collectively the "Parties") as of the date signed by Seller below (the "Effective Date"). Exh ib it 2 Purchaser: E)di ib it 3 Seller: ENh ib it 4 Name and Address Central Point City Name and Address SolarCity Corporation Reserved 140 South it Street Reserved 3055 Clearview Way City of Central Point, OR 97502 San Mateo, CA 94402 Attention: Chris Clayton, Assistant City Attention: Legal Department as er Phone 541-664-3321 Phone (650) 638-1028 Fax Fax (650) 560-6182 E-mail Chris.Clayton@centralpointoregon.gov E-mail Contracts@solarcity.com Facility Ownership Purchaser owns the Facility Contractor's Ucense Numbers :C 180498 Project Name Reservoir This Agreement sets forth the to and conditions of the purchase and sale of solar generated electric energy from the solar panel system described in Exhibit 2 (the "System") and installed at the Purchaser's facility described in Exhibit 3 (the "Facility"). Thee ibits listed below are incorporated by reference and made part of this Agreement. Exhibit I Pricing Attachment Exh ib it 2 System Description, Delivery Point and License Area E)di ib it 3 Memorandum of License ENh ib it 4 Credit Information Ddi ib it 5 General Terms and Conditions (Revised December 11, 2009) Exh ib it 6 Reserved Exh ib it 7 Reserved Purchaser: Central Point City Signature: 0=1111=TWITM Title: Assistant City Manager Date: Solar City Car Signature: — Printed Name: D —AIV DILIA1 Title: Date: 11-11) LEGAL P VED INMAL DATE r�`J dl MAnufacturer/Model antit Yingli Green Energy: YL235P-29b 336 6. Exnected Inverter(s): Manufacturer/ Model 91MIX Fronius USA:IGPIus 12.0 -3 277 6 7. Includes: SolarCity Limited Warranty, installation of a solar energy system (includes: design, engineering, permitting, installation, monitoring, rebate application and paperwork processing for solar energy system), prevailing wage construction. a .:� ..� � Fea � ♦ ". 1 1. ,. A. Licensor is the owner of certain real property ("Premises"), located in the County of Jackson, State of Oregon, attached to this License as Exhibit A and incorporated herein by reference. W. Licensor and Licensee have entered into a Solar Power Purchase Agreement dated on or about the Effective Datr;�. (the "Agreement") under which Licensee is selling energy generated by a photovoltaic electric generating system (the "System") to Licensor. The Agreement is for a term of fifteen (15) years, beginning on the Effective Date and ending on the fifteen (15) year anniversary of the Commercial Operation Date with an option to extend the Agreement for up to three (3) extended terms of five (5) years each. Pursuant to the Agreement, Licensor has granted Licensee an irrevocable, non-exclusive license ("License") over the Premises for the purposes and on thl: terms set forth in the Agreement. 1. Licensor hereby grants to Licensee the License over the Premises on and subject to'the terms and conditions set forth in the Agreement which is incorporated herein by reference. 2. The to of the License begins on the Effective Date and continues until one hundred and twenty (120) da} s after the termination ofthe Agreement. Name: Chris Clayton Title: Assistant City Manager State of Q'T Countyof On NTJ . CI Qb L I before me, %-Z>��CaSWn.4 Notary Public, personally appeared wh I certify under PENALTY OF PERJURY under the is of the State of OVe IN bN that the foregoing paragraph is true and correct. 1 KIN M w- M Solar Powerl'urchase Agreement — Exhibit 3 (Commercial OR) 20110413 (CE) Exhibit A To Memorandum of License LIV RVISS"WOREALIJ AN R moo v IV&SWITABIRIWASI CIL' I SAM 0 Mell ON WON WAIM 2 1 1 " I EM3712EM Name: Central Point City Corporate Address: 140 South Third Street City, State, Zip CkyofCentialPoint, Oregon 97502 Entity Type Check On Property Address for Solar Installation: 137 West Vilas Road, City of Central Point RMM111 Cre(fit Informalfion Parta ership Sole Prop State: Zipcode: Oregon 97502 am ■ Copy of Articles of Incorporation, Partnership Agreement, Fictitious Name Statement or Organizational formation Documents (If applicable). Financial Statements 4 . . I M SolarCity may request you provide additional documentation to complete the credit evaluation process. SolarCity will notify you !,nddonal information is required. My apply or credit you may guarantea You acknowiedge and understand that the Lender is relying on this inRinnation in deciding to grantor continue credit or to accept a guarantee of credit. You represent, marranty and certify that the inbrmation provided herein is true, correct and completeL The Lender is aithorizedto make all inquires deemed necessary to verily the accuracy of the informatim contained herein and to determine your credkvmnhiftess. You authorize any person or cansumer-reportinj� agency to give the Lender any inf4 7 ion it may have about yo u. You authorize the Lender to ansxwr questions about is credit experience mith you. Subjectloany non-disclosure agreement betvcen you and Lender, this form and any other information given to the Lender shall be the Lender' a pmperty. SolarCity2t(650)638-1028, San MatcoCA94402. You must contact us mithin 60 days from date you are notified of our decision. We will sendyou avvri statement of reasons for the denial within 30 days of receiving your request. I _7 . .0 WWI 11 1 . ;4 .1I 4 "*.Jig 111 1 -N "CMIM1411TU jW411i -Cixwk UJIVI fjdlt U1 lerives norn any puDuc y=1y' 16W ULS %41w4lyq'�AL'k 11101 assistance programs; or because the applicant has in good faith exercised my right under the Consumer Credit Protection Act. The federal agency that administers compliance Aith this law concerning this creditor is the Office of the Gomptroller ofthe Currency, Customer Assistance Unk 1301 �&Kinncy Street, Suite 3450, Houston, Texas 77010-9050. SolarCity is an equal opportunity lender. Signature Title Date I . Solar Povmr Purchase Agreement General Terms and Conditions Revised December 11, 2009 2. Purchase and Sale of Eleckicity. Purchaser shall purchase from Seller, and Seller shall sell to Purchaser, all of the electric energy generated by the System during the Initial Term and any Additional Term (as defined in Exhibit 1, and collectively the "Ternf'). Electric energy generated by the System will be delivered to Purchaser at the delivery point identified on Exhibit 3 (the "Delivery Point"). Purchaser shall take title to the electric energy generated by the System at the DelivM Point, and risk of loss will pass from Seller to Purchaser at the Delivery Point. Purchaser may purchase electric energy for the Facility from other sources if the Purchaser's electric requirements at the Facility exceed the output of the System. 3. Tsrm and T Arminafign. ® Billi . wmd P-a ment a. MonthlyCha o rges. Purchaser shall pay Seller mnthly for the electric energy generated by the System and delivered to the Delivery Point at the $/kWh rate shown in Exhibit I (the "Contract Price"). The monthly payment for such energy lAillbe equal to the applicable $/kWh rate multiplied by the number of kWh of energy generated during the applicable month, as measured by the System meter. b. Monthly Invoices. Seller shall invoice Purchaser monthly, either manually or through ACH. Such monthly invoices shall state (i) the amount of electric energy produced by the System and delivered to the Delivery Point, (ii) the rates applicable to, and charges incurred by, Purchaser under this Agreement and (iii) the total amount due from Purchaser. Solar PowerPuTchase Agreement — Exhibit 5 (Commercial OR) 20110413 (CE) d. Pqyment Terms. All amounts due under this Agreement shall be due and pa� able net twenty (20) days from receipt L of invoice. Any undisputed portion of the invoice amount not paid within the twenty (20) day period shall accrue interest at the anmral rate of two and one-half percent o the Prime Rate (but not to e)ceed the maximum rate permitted by law). M, F TIA JOYMM X, M I T�WNI 7 2 Tj I =11 TIM n Seller's obligations under this Agreement are conditioned on the completion of the following conditions to Seller's reasonable satisfaction on or before the Condition Satisfaction Date: Completion of a physical inspection of the Facility and the property upon which the Facility is located (the "Premises") including, if applicable, geotechnical work, and real estate due diligence to confirm the suitability of the Facility and the Premises forthe System; b. Conditions to P urch as er's Obligagmi. C. Failure of Conditions. if any of the conditions listed in subsections a or b above are not satisfied by the applicable dates specified in those subsections, the Parties will attempt in good faith to negotiate new dates for the satisfaction of the failed conditions. If the parties are unable to negotiate new dates then the Party that has not failed to meet an obligation may terminate this L �-4NWWWik;w* under this Agreement. 7. Seller's Bights and Obligations. Permits and ARprovals. Seller, with Purchaser's reasonable cooperation, shall use commercially reasonable efforts to obtain, at its sole cost and expense: any agreements and approvals from the Utility necessary in orderto interconnect the Systernto the Utility's electric distribution systern. .� � F �; &Luft. Purchaser shall be responsible for maintaining the physical security of the Facility and the System. . Purchaser will not conduct activities on, in or about the License Area or the Facility that have a reasonable like Rhood of causing damage, impairment or otherwise adversely affecting the System . 9. Change in Law. in Law, meet and attempt in good faith to negotiate amendments to this Agreement as are reasonably necessary to preserve the economic value of this Agreement to both Parties. If the Parties are unable to agree upon such amendments Aithin such thirty (30) day period, then Seller shall have the right to terminate this Agreement without further liability to either Party c)cept with respect to payment of amounts accrued prior to termination. 10. Relocation of Sutem, 11. Rtmoval of System at Ex&afion. the Facility to its original condition (other than ordinary wear and tear) at Seller's cost. Purchaser shall provide sufficient space for the temporary storage and staging of tools, materials and equipment and for the parking of construction crew vehicles and temporary constniction trailers and facilities reasonably necessary during System removal. 12. M AUREL]II IgIll 13. J2efault, medies and DaMM_es, a. Default. Any Party that fails to perform its responsibilities as listed below or experiences any of the circumstances fisted belowshall be deemed a "Defaulting Party" and each event of default shall be a "Default Event": (3) if any representation or wananty of a Party proves at any time to have been incorrect in any material respect when made and is material to the transactions contemplated hereby, if the effect of such incorrectness is not cured within thirty (30) days following receipt of written notice from the Non-Defaulting Party demanding such cure; (5) a Party, or its guarantor, becomes insolvent or is a party to a bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtor., or any general assignment for the benefit of creditors or other similar arrangement or any event occurs or proceedings are taken in any jurisdiction with respect to the Party which has a similar effect; or (6) Purchaser prevents Seller from installing the System or otherwise failing to perform in a way that prevents the delivery of electric energy from the System. Such Default Event shall not excuse Purchaser's obligations to make payments that otherwise would have been due under this Agreement. b. Remedies. (1) Remedies for 1!ayment Defituh. If a Payment Default occurs, the Non-Defaulting Party may suspend performance of its obligations under this Agreement. Further, the Non-Defaulting Party may pursue any remedy under this Agreement, at law or in equity, including an action. for damages and termination of this Agreement, upon five (5) days prior written notice to the Defaulting Party following the Payment Default. ,Zolar PowerPurchase Agreement — Exhibit 5 (Commercial OR) 20110413 (CE) (3) Damages Unon_ Termination by- Default. Upon a termination r ` Party as a result of a Default Event by the Defaulting Party, the Defaulting Party shall pay a Termination Payment M' Non-►efaulting Party determined as follows (the "Termination Paymenf'): C. Oblizations Followine Termination. If a Non-Defaulting Party terminates this Agreement pursuant to this Section 13(b), then following such termination, Seller shall, at the sole cost and expense of the Defaulting Party, remove the equipment (except for mounting pads and support structures) constituting the Systern. The Non-Defaulting Party shall take all commercially reasonable efforts to mitigate its damages as the result of a Default Event. 14. Re ores entations and Warranties. a. General Renresentations andWarranties, Each Pa represents and wan-ants to the otherthe following: 1 ,2) Such Party has obtained all licenses, authorizations, consents and approvals required by any Governmental Authority or other third party and necessary for such Party to own its assets, carry on its business and to execute and deliverthis Agreement; and such Party is in compliance with all laws that relate to this Agreement in all material respects. (1) License. Purchaser has the full right, power and authority to grant the License contained in Section 8(a). Such grant of the License does not violate any law, ordinance, rule or other governmental restriction applicable to Purchaser or the Facility and is not inconsistent with and will not result in a breach or default under any agreement by which Purchaser is bound or that affects the Facility. (2) Other Agreements. Neither the execution and delivery of this Agreement by Purchaser nor the performance by Purchaser of any of its obligations under this Agreement conflicts with or will I - !!! I which Purchaser or the Facility is bound. 2. Sfflem and Facility Damage. Mlin10 .1 1 i and $2,000,000 annual aggregate, (iii) employer's liability insurance with coverage of at least $1,000,000 and (iv) worker's compensation insurance as required by law. W d. CLr—ti—Ii-CAtu. Within thirty (30) days after wocution of this Agreement and upon the other Party's request and annually thereafter, each Party shall deliver the other Party certificates of insurance evidencing the above required coverage. A Party's receipt, review or acceptance of such certificate shall in no way limit or relieve the other Party of the duties and responses to maintain insurance as set forth in this Agreement. e. Dedactibles. Unless and to the e)dent that a claim is covered by an indemnity set forLh in this Agreement, each Party shall be responsible for the payment of its own deductibles. 17. Indemnification and Limitations of Liability. d. I[Agnitations on LI&bLHAy. No Conseguential Damages. Neither Party nor its directors, officers, shareholders, partners, mernbe agents and employees subcontractors or suppliers shall be liable for any indirect, special, incident exemplary, or consequential loss or damage of any nature arising out of their performance or no performance hereunder even if advised of such. is. Force Maieure. C. --�Iotwithstanding anything herein to the contrary, the obligation to make any payment due under this Agreement shall not be excused by a Force Majeure event. d. If a Force Majeure event continues for a period of one hundred (180) days or more within a twelve (12) month period and prevents a material part of the performance by a Parq hereunder, the Party not claiming the Force Majeure shall have the right to terminate this Agreement without fault or further liability to either Party (except for amounts accrued but unpaid). 19. Assignment and Financing. Solar PowerPurchase Agreement — Exhibit 5 (Connnercial OR) 20110413 (CE) WWJT# I TA -1 U T M I -9M -1 V, 1 22. Ggneral Provisions a. Choice of Law. The law of the state where the System is located shall govern this Agreement without giving effect to conflict of laws principles. b. Arbitration and Attorneys' Feei. Any dispute arising from or relating to this Agreement shall be arbitrated in Portland, Oregon. The arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award may be entered in any court of competent jurisdiction. If the Parties agree, a mediator may be consulted prior to arbitration. The prevailing party in any dispute arising out of this Agreement shall be entitled to reasonable attorneys' fees and costs. Polar PowerPurchase Agreermnt —Exhibit 5 (Commer&d OR) 20110413 (CE) e. Further Assurances ' Each of the Parties hereto agree to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent ofthis Agreement. I I , !Wtj a uxur-irwir-joulive mill onm I Ina vgw 1 *1 1 t" g1r. I ag 11*1111 wol-ItL41 a raol 4M,*1011 1IF411 woff"M I ty-AIWI-d N I I I ANI a- Service Contract. The Parties intend this Agreement to be a "service contract" within the meaning of Section 7701(e)(3) of the Internal Revenue Code of 1986. Purchaser will not take the position on any tax return or in any otherfilings suggestingthat it is anything otherthan apurchase ofelectricity fromthe System. III$ t;q a w4plL.1 oule aim U-jr-itm I I r-julm I I qui a I$ U�mu I M Forward Contract. The transaction contemplated under this Agreement constitutes a "forward contract" within the meaning of the United States Bankruptcy Code, and the Parties ftirther acknowledge and agree that each Party is a "forward contract merchant" within the meaning of the United States Bankruptcy Code. n. No Third Party `1' 1. Except as otherwise expressly provided herein, this Agreement and all rights hereunder are intended for the sole benefit of the Parties hereto and shall not imply or create any rights on the part of, or obligations to, any other Person. Wf t„ Solar Powul'urchase Agreement — Exhibit 5 (Commercial OR) 20110413 (CE) (als-AIXAM M�a ,� Solar PowerPurchase Agreement — Exhibit 6 (Commercial OR) 20110413 (CE) SolaT PawerPumhasc Agreement — Exhibit 7 (Commercial OR) 20110413 (CE)