HomeMy WebLinkAbout9.c. Solar Farm Subscription Agreement
EXECUTIVE SUMMARY
City Council Regular Meeting: November 17, 2015
AGENDA ITEM: Solar Farm Subscription Agreement AGENDA SECTION:
New Business
PREPARED BY: Kim Lindquist, Community Development
Director AGENDA NO. 9.c.
ATTACHMENTS: Subscription Agreement, Financial Model
APPROVED BY: ddj
RECOMMENDED ACTION: Motion to Approve Subscription Agreement and Authorize
Mayor and Clerk to enter into the Agreement
SUMMARY
Staff has been investigating solar energy options for some time. Recently the City was approached by the
Metropolitan Council who is proposing to install a solar farm at their two nearby wastewater treatment
plants, Seneca and Empire. They are looking for governmental agencies to participate in the solar program
by being a subscriber. It was indicated that we would be one of 4 organizations who could participate in the
Empire farm, receiving 6.7% of the value associated with the solar farm.
At the work session on November 9th, the Council briefly discussed the opportunity to be a subscriber for
the project. They indicated interest in the project. The City Attorney has reviewed the subscriber agreement
and finds that it is generally favorable to the subscriber. He is comfortable with the agreement as submitted
and is before the Council tonight for action. The term of the subscription is 25 years and the estimated net
present value of savings is $405,680 over that time period.
RECOMMENDATION
Motion to approve the subscription agreement and authorize the Mayor to enter into the Agreement.
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COMMUNITY SOLAR GARDEN SUBSCRIPTION AGREEMENT
This Community Solar Garden Subscription Agreement (“Agreement”) is made and entered into
by and between Oak Leaf Energy Partners Ohio LLC ("Operator"), or its successors and assigns
and the City of Rosemount, ("Subscriber"), a public corporation and political subdivision of the
State of Minnesota, jointly referred to as the “Parties.”
Recitals
WHEREAS, Operator intends to construct, install, own, operate, and maintain a solar
photovoltaic System at the Premises described on Exhibit C;
WHEREAS, the Parties intend that, pursuant to the Tariff and the Power Purchase
Agreement (“PPA”), the System will qualify as a Community Solar Garden and will generate
Bill Credits to be applied to Subscriber’s monthly invoices from Northern States Power for
retail electric service for Subscriber Meters;
WHEREAS, Subscriber is willing to purchase, or pay to be allocated, Subscriber’s
Allocated Percentage as described in Exhibit C of the Delivered Energy to be generated by the
System commencing on the Commercial Operation Date and continuing through the Term, and
Operator is willing to sell, or cause to be allocated, Subscriber’s Allocated Percentage of the
Delivered Energy to be generated by the System to Subscriber commencing on the Commercial
Operation Date and continuing through the Term, as provided under the terms of this
Agreement;
WHEREAS, this Agreement is for Community Solar Garden SRC042538 located in
Dakota County next to the Metropolitan Council’s Empire Wastewater Treatment Plant, located
at 2540 West 19th Street, Farmington, Minnesota.
NOW THEREFORE, in consideration of the foregoing recitals, mutual promises set
forth below, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:
1. DEFINITIONS.
Capitalized terms are defined as follows:
“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly
controlling, controlled by or under common control with such specified Person.
“Agreement” or “Contract” means the Community Solar Garden Subscription Agreement which
consists of this agreement and all exhibits.
“Applicable Law” means, with respect to any Person, any constitutional provision, law, statute,
rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding,
injunction, registration, permit, authorization, guideline, Governmental Approval, consent or
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requirement of the federal government or the state of Minnesota, enforceable at law or in equity,
including the interpretation and administration thereof by such authority.
“Bankruptcy Event” means with respect to a Party, that either: (i) such Party has (A) applied for or
consented to the appointment of, or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its property; (B) admitted in writing its inability,
or be generally unable, to pay its debts as such debts become due; (C) made a general assignment
for the benefit of its creditors; (D) commenced a voluntary case under any bankruptcy law; (E)
filed a petition seeking to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding up, or composition or readjustment of debts; (F) failed to controvert in a
timely and appropriate manner, or acquiesced in writing to, any petition filed against such Party in
an involuntary case under any bankruptcy law; or (G) taken any corporate or other action for the
purpose of effecting any of the foregoing; or (ii) a proceeding or case has been commenced
without the application or consent of such Party in any court of competent jurisdiction seeking (A)
its liquidation, reorganization, dissolution or winding-up or the composition or readjustment of
debts or, (B) the appointment of a trustee, receiver, custodian, liquidator or the like of such Party
under any bankruptcy law, and such proceeding or case has continued undefended, or any order,
judgment or decree approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect for a period of 60 days.
“Bill Credit” means the monetary value of the electricity generated by the Solar System
commensurate with Subscriber’s Allocated Percentage, as calculated pursuant to the PPA and the
Tariff, and credited to Subscriber by Northern States Power Company (“NSP”) on its monthly
invoice for electric service for the Subscriber Meters in accordance with the PPA.
“Bill Credit Rate” If Operator transfers the solar RECs to NSP under the PPA, the Bill Credit
Rates will be the Enhanced Bill Credit in the PPA. If the Operator does not transfer the Solar
RECs to NSP, the Bill Credit Rate will be the Standard Bill Credit in the PPA.
“Billing Cycle” means the monthly billing cycle established by NSP.
“Business Day” means any day other than Saturday, Sunday, or a legal holiday.
“Community Solar Garden” means a community solar garden that qualifies for the Solar*Rewards
Community Program as set forth in Minnesota Statutes section 216B.1641, related PUC orders and
the Tariff.
“Construction Commencement” means the date on which the Operator issues a notice to proceed
under the applicable construction contract for the System.
“Date of Commercial Operation” means the first day of the first full calendar month upon which
commercial operation is achieved following completion of all Interconnection Agreement
requirements and processes, as defined by the PPA executed by the Operator and NSP.
“Delivered Energy” means the amount of alternating current (AC) energy generated by the System
as inverted to AC and delivered to NSP at the Production Meter (as defined in the PPA).
“Early Termination Date” means any date the Agreement terminates other than for expiration of
the Term.
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“Effective Date” means the date on which the Agreement is signed by authorized representatives of
both Parties in accordance with Section 2.1.
“Environmental Attributes” means, without limitation, carbon trading credits, Renewable Energy
Credits or certificates, emissions reduction credits, emissions allowances, green tags, tradable
renewable credits, or Green-e® products.
“Estimated Remaining Payments” means as of any date, the estimated remaining Payments to be
made through the end of the Term, as reasonably determined and supported by Operator.
“Expiration Date” means the date the Agreement terminates by reason of expiration of the Term.
“Financing Party” or “Lender” means, as applicable (i) any Person (or its agent) from whom
Operator (or an Affiliate of Operator) leases the System, or (ii) any Person (or its agent) who has
made or will make a loan to or otherwise provide financing to Operator (or an Affiliate of
Operator) with respect to the System.
“Governmental Approval” means any approval, consent, franchise, permit, certificate, resolution,
concession, license, or authorization issued by or on behalf of any applicable Governmental
Authority.
“Governmental Authority” means any federal, state, regional, county, town, city, watershed
district, park authority, or municipal government, whether domestic or foreign, or any department,
agency, bureau, or other administrative, regulatory or judicial body of any such government.
“Installation Work” means the construction and installation of the System and the start-up, testing
and acceptance (but not the operation and maintenance) thereof, all performed by or for Operator
at the Premises.
“Interconnection Agreement” means the Interconnection Agreement entered into or to be entered
into between Operator and NSP as required by the PPA.
“Land Lease Agreement” means the lease agreement between Operator and Subscriber, attached
hereto as Exhibit E.
“NSP” means Northern States Power Company, a Minnesota Corporation and any successor
thereto and Xcel Energy Inc., to the extent it has control over NSP’s business.
“Person” means an individual, partnership, corporation, limited liability company, business trust,
joint stock company, trust, unincorporated association, joint venture, firm, or other entity, or a
Governmental Authority.
“PPA” means the standard Power Purchase Agreement for Solar*Rewards Community to be
entered into by and between Operator and NSP whereby NSP agrees to purchase all of the energy
produced by the photovoltaic Solar System and to pay for such energy by providing Bill Credits to
Subscriber (and other Subscribers). A copy of the PPA will be attached to this Agreement as
Exhibit G.
“Premises” means the premises described in Exhibit C.
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“PUC” means the Minnesota Public Utilities Commission
“Solar Incentives” means any accelerated depreciation, installation or production-based
incentives, investment tax credits and subsidies and all other solar or renewable energy subsidies
and incentives.
“Subscriber’s Allocated Percentage” means Subscriber’s allocated portion, stated as a percentage,
of the Delivered Energy in a given month, as described in Exhibit C.
“Subscriber Meters” means the meters associated with specific subscriber NSP accounts/premises
listed in Exhibit I as updated from time to time by the Parties.
“Stated Rate” means a rate per annum equal to one and one-half percent per month or as otherwise
established by Minnesota Statute Section 471.425 Subd. 4(a).
“System” or “Solar System” means the integrated assembly of photovoltaic panels, mounting
assemblies, inverters, converters, metering, lighting fixtures, transformers, ballasts, disconnects,
combiners, switches, wiring devices and wiring, more specifically described in Exhibit C.
“System Operations” means Operator’s operation, maintenance and repair of the System
performed in accordance with the requirements of this Agreement.
“Tariff” means the Solar*Rewards Community Program tariff in NSP’s rate book.
2. TERM AND TERMINATION.
2.1 Effective Date. This agreement is effective upon signature by authorized
representatives of both Parties to the agreement.
2.2 Term. The term of the Agreement begins on the Effective Date and continues for
25 years from the Commercial Operation Date (or such other time period as specified in writing by
the Parties), unless terminated earlier under the provisions of this Agreement. Without limiting
either Party’s termination rights elsewhere in this Agreement, this Agreement will terminate if (i)
Subscriber has moved out of or relocated from the county in which the Solar System is located or a
contiguous county or relocated from the NSP service territory, and has not, within 90 days after
such move or relocation, assigned this Agreement in accordance with the provisions of Secti on
12.3, or (ii) the PPA is otherwise terminated.
2.3 Operator Termination Before Commercial Operation. If any of the following
events or circumstances occur before Construction Commencement, the Operator may terminate
the Agreement immediately upon written notice, in which case neither Party will have any liability
to the other except for any liabilities that accrued before termination:
(a) After the performance of due diligence using industry standard methods and
techniques, if there exist site conditions (including environmental conditions and ecological
concerns such as presence of wildlife species) at the Premises or construction requirements that
could not have been reasonably known or discovered through due diligence as of the date of this
Agreement and that could reasonably be expected to materially increase the cost of Installation
Work or would adversely affect the electricity production from the System as designed;
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(b) There has been a material adverse change in the (i) rights of Operator to
construct the System on the Premises, or (ii) financial prospects or viability of the Solar System,
whether due to market conditions, cost of equipment or any other reason;
(c) After timely application to NSP and best efforts to secure interconnection
services, Operator has not received evidence that interconnection services will be available with
respect to energy generated by the System;
(d) After the performance of due diligence using industry standard methods and
techniques, Operator has determined and did not previously know that there are easements, other
liens or encumbrances, or other facts, circumstances or developments that would materially impair
or prevent, or have a material adverse effect on, the installation, operation, maintenance or removal
of the System; or
(e) Subscriber’s representation and warranty contained in Section 8.2(f) is no longer
true and correct.
2.4 Subscriber Termination Prior to Installation. If any of the following events or
circumstances occur before Construction Commencement, Subscriber may terminate the
Agreement immediately upon written notice, in which case neither Party will have any liability to
the other except for any liabilities that accrued before termination:
(a) If NSP or another party with the authority to do so, disqualifies the Operator of the facility
from treatment as Operator of the Community Solar Garden under Minnesota Statutes or Minnesota
Public Utilities Commission order; or
(b) If the legislature, PUC, NSP, or any other entity reduces the Bill Credit Rate, or basis
for escalation of that rate as of March 1, 2015.
2.5 Force Majeure. Upon the occurrence of a force majeure event, the Agreement may
be terminated consistent with the provisions of Section 10.3 of this Agreement.
2.6 Termination for Default. If either Party defaults on their responsibilities under this
Agreement, the Agreement may be terminated under Section 11.
2.7 Termination upon Mutual Agreement. This Agreement may be terminated at any
time, for any reason, by mutual agreement of the Parties in writing.
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3. CONSTRUCTION, INSTALLATION AND TESTING OF SYSTEM.
3.1 System Acceptance Testing.
(a) Operator must test the System in accordance with such methods, acts, guidelines,
standards and criteria reasonably accepted or followed by photovoltaic solar system integrators in
the United States and as otherwise required by the PPA and the NSP Tariff.
(b) Commercial Operation occurs when the “Date of Commercial Operation” occurs
under the PPA. At least a week before the Date of Commercial Operation, Operator will send a
written notice to Subscriber providing the Date of Commercial Operation and the provided date
will be the Commercial Operation Date for the purposes of this Agreement. Operator has the sole
responsibility to notify NSP of this date and get any necessary approvals from NSP.
(c) A copy of the warranty for the solar panels is attached to this Agreement as Exhibit
B.
4. SYSTEM OPERATIONS.
4.1 Operator as Owner and Operator. The System will be owned by Operator or
Operator’s Financing Party and will be operated and maintained in accordance with the PPA and
the NSP Tariff and, as necessary, maintained and repaired by Operator at its sole cost and expense.
Installation of the System, upgrades and repairs will be under the direct supervision of an
NABCEP-certified solar professional. Maintenance will be performed according to industry
standards, including the recommendations of the manufacturers of solar panels and other
operational components.
4.2 Metering. There will be two meters installed and maintained by NSP, which will
measure the amount of electrical energy flowing to and from the Premises as further described in
the PPA. The Production Meter (as defined in the PPA) will record the amount of Delivered
Energy. Operator will make the raw meter data available to Subscriber upon Subscriber’s request.
4.3 Maintenance Plan. Operator will maintain the System in accordance with the long-
term maintenance plan in Exhibit E.
5. DELIVERY OF ENERGY.
5.1 Purchase Requirement. Subscriber agrees to make payments calculated as
Subscriber’s Allocated Percentage multiplied by Delivered Energy generated by the System
beginning on the Commercial Operation Date and continuing for each applicable month of the
Term. If there is a difference between the Bill Credit by NSP to the Subscriber on the Subscriber
Meter bills, and the Delivered Energy, for any reason not the fault of the Subscriber, the
Subscriber’s payments will be based on the number of kWhs credited by NSP on the Subscriber
Meter bills.
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5.2 Estimated Annual Delivered Energy. The total annual estimate of Delivered Energy
for any given year is the “Estimated Annual Delivered Energy.” The Estimated Annual Delivered
Energy and the estimated amount of electricity to be allocated to Subscriber for each year of the
Term starting on the Commercial Operation Date are identified in Exhibit D. The estimated
amount of electricity allocated to Subscriber is Subscriber’s Allocated Percentage of the Estimated
Annual Delivered Energy.
5.3 Environmental Attributes and Solar Incentives.
(a) Subscriber’s purchase does not include Environmental Attributes or Solar Incentives;
(b) Subscriber disclaims any right to Solar Incentives or Environmental Attributes based
upon the installation of the System, and to avoid any conflicts with fair trade rules regarding claims
of solar or renewable energy use and to help ensure that Environmental Attributes will be certified
by Green-e® or a similar organization Subscriber will, at the request of Operator, execute
documents or agreements reasonably necessary to fulfill the intent of this Section;
(c) When reasonably possible, Subscriber and Operator will consult with each other about
press releases or public communications to help ensure that the Operator’s rights to claim
Environmental Attributes are not compromised while allowing both Parties to claim as much
publicity as possible without compromising Operator’s rights; and
(d) Without limiting the foregoing, Subscriber agrees that NSP will acquire from Operator
under the PPA all energy generated by the Solar System and all Renewable Energy Credits (as
defined in the PPA) associated with the Solar System. Operator and Subscriber agree not to make
any statement contrary to NSP’s ownership.
5.4 Title to System. Throughout the Term, Operator or Operator’s Financing Party is
the legal and beneficial owner of the System at all times, and the System will remain the personal
property of Operator or Operator’s Financing Party.
5.5 Obligations of Parties. The Parties will work cooperatively and in good faith to
meet all Community Solar Garden program requirements under Applicable Law, the PPA and the
Tariff, including applicable interconnection and metering requirements. The Parties agree that
beginning on the Commercial Operation Date (a) Operator will transmit all of the Delivered
Energy into the NSP system for the benefit of Subscriber, and (b) Subscriber (or its designee) shall
be entitled to any and all Bill Credits issued by NSP resulting from such transmission and
corresponding with Subscriber’s Allocated Percentage.
6. PRICE AND PAYMENT.
6.1 Consideration. Subscriber shall pay to Operator a monthly payment (“Payment”)
for Subscriber’s Allocated Percentage of Delivered Energy beginning on the Commercial
Operation Date and continuing through the Term. The Subscriber will pay a price of $.089 per
Kilowatt Hour (“kWh Rate”) for its Allocated Percentage of the Delivered Energy up to but limited
to the amount of kWh’s for which the Subscriber receives Bill Credits. The kWh Rate shall not
change if the value of the Environmental Attributes change for the Operator.
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To the extent Subscriber is paid by NSP for RECs related to this Community Solar Garden,
Subscriber shall pay to Operator a monthly Renewable Energy Credit (REC) payment for
Subscriber’s Allocated Percentage of Delivered Energy (as defined in Exhibit C) beginning on the
Commercial Operation Date and continuing through the Term of this Agreement. The REC
payment shall be the actual amount per Kilowatt Hour credited by NSP to Subscriber’s bill for the
REC (“REC rate”), multiplied by the actual amount of Kilowatt Hours for which Subscriber
receives Bill Credits:
REC rate x Kilowatt Hours = REC payment
The Parties agree that the REC rate effective at the time of execution of this Agreement is $0.02
per Kilowatt Hour.
6.2 Invoices. Operator shall invoice Subscriber within 30 days of the last Business Day
of each calendar month (each such date on which an invoice is issued by Operator to Subscriber, an
“Invoice Date”) for the Payment in respect of Subscriber’s Allocated Percentage of Delivered
Energy and REC payment during the immediately preceding calendar month. Subscriber’s first
invoice under this Agreement shall be for the first full calendar month after the Commercial
Operation Date. For the avoidance of doubt, Subscriber shall (i) neither receive nor be entitled to
any Bill Credits associated with Delivered Energy prior to the Commercial Operation Date, and (ii)
have no obligation to make or any liability for Payments for Delivered Energy or REC Payments
prior to the Commercial Operation Date. If the first month of commercial operation is less than a
full calendar month, the Operator will bill Subscriber for any Delivered Energy on the invoice for
the first full calendar month of operation.
6.3 Time of Payment. Subscriber will pay all undisputed amounts due hereunder within
35 days of the Invoice Date.
6.4 Method of Payment. Subscriber will make all payments under the Agreement by
electronic funds transfer in immediately available funds to the account designated by Operator
from time to time. If Subscriber does not have electronic funds transfer capability, or does not
desire to use electronic funds transfer, the Parties shall agree to an alternative method of payment.
All payments that are not paid when due shall bear interest accruing from the date becoming past
due until paid in full at a rate equal to the Stated Rate. Except for billing errors or as provided in
Section 6.5 below, all payments made hereunder shall be non-refundable, be made free and clear of
any tax, levy, assessment, duties or other charges and not subject to reduction, withholding, set-off,
or adjustment of any kind.
6.5 Disputed Payments. If a bona fide dispute arises with respect to any invoice,
Subscriber shall not be deemed in default under the Agreement and the Parties shall not suspend
the performance of their respective obligations hereunder, including payment of undisputed
amounts owed hereunder. If an amount disputed by Subscriber is subsequently deemed to have
been due pursuant to the applicable invoice, interest shall accrue at the Stated Rate on such amount
from the date becoming past due under such invoice until the date paid.
6.6 Billing Adjustments Following NSP Billing Adjustments. If, as a result of an NSP
billing adjustment, the quantity of Delivered Energy is decreased (the “Electricity Deficiency
Quantity”) and NSP reduces the amount of Bill Credits or Renewable Energy Credits allocated to
Subscriber for such period, Operator will reimburse Subscriber for the amount paid by Subscriber
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in consideration for the Electricity Deficiency Quantity. If as a result of such adjustment the
quantity of Delivered Energy allocated to Subscriber is increased (the “Electricity Surplus
Quantity”) and NSP increases the amount of Bill Credits allocated to Subscriber for such period,
Subscriber will pay for the Electricity Surplus Quantity at the kWh Rate applicable during such
period.
7. GENERAL COVENANTS.
7.1 Operator Covenants. Operator covenants and agrees to the following:
(a) Notice of Damage or Emergency. Operator will within 3 business days notify
Subscriber if it becomes aware of any significant damage to or loss of the use of the System or that
could reasonably be expected to adversely affect the System.
(b) System Condition. Operator shall make commercially reasonable efforts to ensure
that the System is capable of operating at a commercially reasonable continuous rate.
(c) Governmental Approvals. While providing the Installation Work and System
Operations, Operator shall obtain and maintain and secure all Governmental Approvals required to
be obtained and maintained and secured by Operator and to enable Operator to perform such
obligations.
(d) Interconnection Fees. Operator is responsible for all costs, fees, charges and
obligations required to connect the System to the NSP distribution system, including fees
associated with system upgrades, production, and operation and maintenance carrying charges, as
provided in the Interconnection Agreement (“Interconnection Obligations”). In no event shall
Subscriber be responsible for any Interconnection Obligations.
(e) Compliance with PPA, Tariff and Interconnection Agreement. Operator shall cause
the System to be designed, installed and operated in compliance with the PPA, the Tariff and the
Interconnection Agreement.
(f) The PPA requires that Operator (as opposed to NSP) is responsible for answering
all questions from Subscriber regarding its participation in the Solar System. Operator is solely
responsible for resolving disputes with NSP or Subscriber regarding the accuracy of Subscriber’s
Allocated Percentage and the Delivered Energy allocated to Subscriber in connection therewith.
Notwithstanding the foregoing, Subscriber acknowledges that NSP is responsible for resolving
disputes with Subscriber regarding the applicable rate used to determine the Bill Credit.
(g) The representations Operator made in its proposal in response to the RFP issued by
Subscriber, including representations as to Operator’s financial ability to operate and maintai n the
System are true and correct as of the date of this Agreement.
(h) The Operator is duly organized and validly existing and in good standing in the
jurisdiction of its organization, and authorized to do business in the State of Minnesota.
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7.2 Subscriber’s Covenants. Subscriber covenants and agrees as follows:
(a) Consents and Approvals. Subscriber will ensure that any authorizations required of
Subscriber under this Agreement are provided in a timely manner. To the extent that only
Subscriber is authorized to request, obtain or issue any necessary approvals, permits, rebates or
other financial incentives, Subscriber will cooperate with Operator to obtain such approvals,
permits, rebates or other financial incentives.
(b) Subscriber Agency and Consent Form. On the Effective Date, Subscriber will
execute and deliver to Operator a Subscriber Agency Agreement and Consent Form in the form
attached hereto as Exhibit A. Subscriber acknowledges that such agreement is required of
Subscriber pursuant to the PPA.
8. REPRESENTATIONS & WARRANTIES.
8.1 Representations and Warranties Relating to Agreement Validity. In addition to any
other representations and warranties contained in the Agreement, each Party represents and
warrants to the other as of the date of this Agreement and on the Effective Date that:
(a) it is duly organized and validly existing and in good standing in the jurisdiction of
its organization;
(b) it has the full right and authority to enter into, execute, deliver, and perform its
obligations under the Agreement;
(c) it has taken all requisite corporate or other action to approve the execution, delivery,
and performance of the Agreement;
(d) the Agreement constitutes its legal, valid and binding obligation enforceable against
such Party in accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other similar laws now or hereafter in effect relating
to creditors’ rights generally;
(e) there is no litigation, action, proceeding or investigation pending or, to the best of
its knowledge, threatened before any court or other Governmental Authority by, against, affecting
or involving any of its business or assets that could reasonably be expected to adversely affect its
ability to carry out the transactions contemplated herein; and
(f) its execution and performance of the Agreement and the transactions contemplated
hereby do not constitute a breach of any term or provision of, or a default under, (i) any contract or
agreement to which it or any of its Affiliates is a party or by which it or any of its Affiliates or its
or their property is bound, (ii) its organizational documents, or (iii) any Applicable Laws.
8.2 Specific Representations and Warranties of Subscriber. Subscriber represents and
warrants to Operator as of the date of this Agreement and on the Effective Date that:
(a) Subscriber is the sole party in interest agreeing to purchase Subscriber’s Allocated
Percentage and is acquiring Subscriber’s Allocated Percentage for its own account, and not with a
view to the resale or other distribution thereof, in whole or in part, and agrees that it will not
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transfer, sell or otherwise dispose of Subscriber’s Allocated Percentage in any manner in violation
of applicable securities laws;
(b) Subscriber is not relying on (i) Operator, or (ii) other subscribers, or any of the
employees, members of boards of directors (or equivalent body) or officers, of those parties, or this
Agreement with respect to tax and other economic considerations involved in the Agreement
(c) Subscriber’s Allocated Percentage, combined with any other distributed resources
serving the Subscriber Meters, represents no more than 120 percent of Subscriber’s average annual
consumption at the Subscriber Meters over the last twenty-four (24) months;
(d) Subscriber is a retail electric service customer of NSP and the Subscriber Meters are
within the same county or contiguous county as the Solar System; and
(e) Subscriber is not exempt from the Solar Energ y Standard under Minnesota Statutes
§ 216B.1691, subd. 2(f)d.
(f) Subscriber is an organization described in section 501(c)(25) of the Internal
Revenue Code, a political subdivision with total assets in excess of $5,000,000.
8.3 Exclusion of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS
3.1, 4.1, 7.1, THIS SECTION 8, AND THE LAND LEASE AGREEMENT, THE
INSTALLATION WORK, SYSTEM OPERATIONS AND PERFORMANCE PROVIDED BY
OPERATOR TO SUBSCRIBER UNDER THIS AGREEMENT SHALL BE “AS-IS WHERE-IS.”
NO OTHER WARRANTY TO SUBSCRIBER OR ANY OTHER PERSON, WHETHER
EXPRESS, IMPLIED OR STATUTORY, IS MADE AS TO THE INSTALLATION, DESIGN,
DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, USEFUL LIFE,
FUTURE ECONOMIC VIABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OF
THE SYSTEM OR ANY OTHER SERVICE PROVIDED HEREUNDER OR DESCRIBED
HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH ARE EXPRESSLY
DISCLAIMED BY OPERATOR.
9. TAXES AND GOVERNMENTAL FEES. Operator is responsible for all income, gross
receipts, ad valorem, personal property or real property or other similar taxes and any and all
franchise fees or similar fees assessed against it due to its ownership of the System. Operator is
not obligated for any taxes payable by or assessed against Subscriber based on or related to
Subscriber’s overall income or revenues.
10. FORCE MAJEURE.
10.1 Definition. “Force Majeure Event” means any act or event that prevents the
affected Party from performing its obligations in accordance with the Agreement, if such act or
event is beyond the reasonable control, and not the result of the fault or negligence, of the affected
Party and such Party had been unable to overcome such act or event with the exercise of due
diligence (including the expenditure of reasonable sums). Subject to the foregoing conditions,
“Force Majeure Event” shall include the following acts or events: (i) natural phenomena, such as
storms, hurricanes, floods, lightning, volcanic eruptions and earthquakes; (ii) explosions or fires
arising from lightning or other causes unrelated to the acts or omissions of the Party seeking to be
excused from performance; (iii) acts of war or public disorders, civil disturbances, riots,
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insurrection, sabotage, epidemic, terrorist acts, or rebellion; (iv) strikes or labor disputes (except
strikes or labor disputes caused solely by employees of Operator or as a result of such Party’s
failure to comply with a collective bargaining agreement); (v) action or inaction by a
Governmental Authority (unless Subscriber is a Governmental Authority and Subscriber is the
Party whose performance is affected by such action nor inaction); and (vi) any event of force
majeure under the PPA. A Force Majeure Event shall not be based on the economic hardship of
either Party.
10.2 Excused Performance. Except as otherwise specifically provided in the Agreement,
neither Party shall be considered in breach of the Agreement or liable for any delay or failure to
comply with the Agreement (other than the failure to pay amounts due hereunder), if and to the
extent that such delay or failure is attributable to the occurrence of a Force Majeure Event;
provided that the Party claiming relief under this Article 10 shall immediately (i) notify the other
Party in writing of the existence of the Force Majeure Event, (ii) ex ercise all reasonable efforts
necessary to minimize delay caused by such Force Majeure Event, (iii) notify the other Party in
writing of the cessation or termination of said Force Majeure Event and (iv) resume performance
of its obligations hereunder as soon as practicable thereafter; provided, however, that Subscriber
shall not be excused from making any payments and paying any unpaid amounts due in respect of
Subscriber’s Allocated Percentage of Delivered Energy prior to any performance interruption due
to a Force Majeure Event.
10.3 Termination for Force Majeure. Either Party may terminate this Agreement upon 15
days written notice to the other Party if any Force Majeure Event affecting such other Party has
been in existence for a period of 180 consecutive days or longer, unless such Force Majeure Event
expires before the end of the 15 day notice period.
11. DEFAULT.
11.1 Operator Defaults and Subscriber Remedies.
(a) Operator Defaults. The following events are defaults with respect to Operator
(each, an “Operator Default”):
(i) A Bankruptcy Event occurs with respect to Operator;
(ii) Operator fails to pay Subscriber any undisputed amount owed under the
Agreement within 30 days from receipt of notice from Subscriber of such past due amount;
(iii) Operator breaches any material term of this Agreement or of the Land Lease
Agreement and (A) if operator can cure the breach within 30 days after Subscriber’s written notice
of such breach and Operator fails to so cure, or (B) Operator fails to commence and pu rsue a cure
within such 30 day period if a longer cure period is needed;
(iv) The PPA is terminated for any reason; or
(v) Operator fails to produce at least 85% of the electric production estimated for a
calendar year, when the solar irradiance available to the site is at least 90% as predicted by System
Advisor Model (SAM) or National Renewable Energy Laboratory (NREL) and Operator does not
cure within the allotted cure period. In the event of a Section 11.1(a)(v) default, Operator may cure
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the default by compensating Subscriber for Lost Savings, as defined herein, within 90 days after
Subscriber’s written notice of such breach. Lost Savings shall equal Guaranteed Production less
the product of the Subscriber’s Allocated Percentage and the Delivered Energy multiplied by the
difference in the kWh Rate and the Bill Credit Rate for that year. Guaranteed Production shall
equal the product of Estimated Energy Allocated to Subscriber for that year as shown in Exhibit D
and 85 percent.
(Guaranteed Production – (Subscriber’s Allocated Percentage X Delivered Energy))
X
(Bill Credit Rate – kWh Rate)
(b) Subscriber’s Remedies. If an Operator Default described in Section 11.1(a) has
occurred and is continuing, in addition to other remedies expressly provided herein, Subscriber
may terminate the Agreement and exercise any other remedy it may have at law or equity or under
the Agreement. In the event of such termination, Subscriber shall use reasonable efforts to
mitigate its damages.
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11.2 Subscriber Defaults and Operator’s Remedies.
(a) Subscriber Default. The following events shall be defaults with respect to
Subscriber (each, a “Subscriber Default”):
(i) A Bankruptcy Event occurs with respect to Subscriber;
(ii) Subscriber fails to pay Operator any undisputed amount due Operator under
the Agreement within 30 days from receipt of notice from Operator of such past due amount; and
(iii) Subscriber breaches any material term of this Agreement or the Land Lease
Agreement and (A) if such breach can be cured within 30 days after Operator’s written notice of
such breach and Subscriber fails to so cure, or (B) Subscriber fails to commence and pursu e said
cure within such 30 day period if a longer cure period is needed.
(b) Operator’s Remedies. If a Subscriber Default described in Section 11.2(a) has
occurred and is continuing, in addition to other remedies expressly provided herein, Operator may
terminate this Agreement, sell Subscriber’s Allocated Percentage to one or more persons other than
Subscriber, recover from Subscriber the actual, reasonable and verifiable damages related to lost
Community Solar Garden subscription and REC revenues, recapture of the Federal investment tax
credit and removal of the system, not to exceed the values shown in Exhibit J , and Operator may
exercise any other remedy it may have at law or equity or under the Agreement. In the event of
such termination, Operator shall use reasonable efforts to mitigate its damages.
12. ASSIGNMENT.
12.1 Assignment by Operator. Operator may not assign this Agreement or any interest
therein, without the prior written consent of Subscriber, except as part of a Permitted Assignment
as defined in Section 12.1(a). Operator shall provide Subscriber with such information concerning
the proposed transferee (including any person or entity liable for the performance of the terms and
conditions of this Agreement) as may be reasonably required to ascertain whether the conditions
upon Subscriber’s approval to such proposed assignment have been met.
(a) Permitted Assignment. Operator may, without the consent of Subscriber, (1) transfer,
pledge or assign all or substantially all of its rights and obligations hereunder as security for any
financing and/or sale-leaseback transaction or to an affiliated special purpose entity created for the
financing or tax credit purposes related to System, (2) transfer or assign this Agreement to any
person or entity succeeding to all or substantially all of the assets of Operator; provided, however,
that any such assignee shall agree to be bound by the terms and conditions hereof, (3) assign this
Agreement to one or more affiliates; provided, however, that any such assignee shall agree to be
bound by the terms and conditions hereof or (4) assign its rights under this Agreement to a
successor entity in a merger or acquisition transaction; provided, however, that any such assignee
shall agree to be bound by the terms and conditions hereof. Subscriber agrees to provide
acknowledgments, consents or certifications reasonably requested by any Lender in conjunction
with any financing of the System.
(b) In the event of a Permitted Assignment by Operator of its interest in this
Agreement to a person who has assumed, in writing, all of Operator’s obligations under this
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Agreement, Operator, without the necessity of any further document signed or actions taken
by any party, shall be released from any and all further obligations hereunder, and
Subscriber agrees to look solely to such successor-in-interest of the Operator for
performance of such obligations. Notwithstanding the foregoing, Operator must present to
Subscriber audited financial statements showing that the assignee has equal or greater
unencumbered financial resources than Operator prior to the Permitted Assignment.
Any Financing Party is an intended third-party beneficiary of this Section 12.1.
12.2 Assignment by Subscriber.
(a) Subscriber will not assign this Agreement or any interest herein, without the prior
written consent of Operator; provided however that Operator shall not unreasonably withhold,
condition or delay its consent; and provided, further, that Operator’s consent shall not be required
to the assignment by Subscriber to another governmental entity in the event the State of Minnesota
reassigns responsibility to such other governmental entity for providing the services currently
undertaken by Subscriber at the facilities associated with the Subscriber Meters.
(b) Subscriber does not need Operator’s consent to change the Subscriber Meters for the
same amount of subscription as long as all the Subscriber Meters are owned by the Subscriber and
meet the requirements of the Community Solar Garden program. For such changes, Subscriber will
notify Operator in writing and Operator will inform NSP of the change as soon as practicable.
(c) Subscriber’s request for Operator’s consent to any proposed change or assignment
as contemplated in Section 12.2 (a) must be in writing and provided to Operator at least 30 days
before the proposed effective date of such change or assignment, which request must include: (i)
Subscriber's name and mailing address; (ii) the current Subscriber Meter(s); (iii) the assignee’s
meters; (iv) the name of the individual or entity to whom Subscriber is requesting to assign this
Agreement (if applicable) and the consideration (if any) proposed to be provided to Subscriber for
such assignment; and (v) the proposed effective date of such proposed change or assignment. In
the case of any assignment of this Agreement in whole or in part to another individual or entity, (i)
such assignee's meters shall be located within NSP’s service territory and within the same county
as the Solar System or a contiguous county, (ii) such assignee shall execute a new Minnesota
Community Solar Program Subscription Agreement substantially in the same form as this
Agreement, specifically including the representations and warranties in Section 8.2; and (iii) the
value of any consideration to be provided to Subscriber for assignment of this Agreement may not
exceed the aggregate amount of Bill Credits that have accrued to Subscriber, but have not yet been
applied to Subscriber’s monthly invoice(s) from NSP.
(d) Upon any assignment of this Agreement pursuant to this Section 12.2, Subscriber
will surrender all right, title and interest in and to this Agreement. Any purported assignment in
contravention of this Section 12.2 shall be of no force and effect and null and void ab initio. No
assignment will extend the Term of this Agreement.
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13. NOTICES.
13.1 Notice Addresses. Unless otherwise provided in the Agreement, all notices and
communications concerning the Agreement shall be in writing and addressed to the other Party (or
Financing Party, as the case may be) at the addresses below, or at such other address as may be
designated in writing to the other Party from time to time.
Subscriber:
City of Rosemount
2875 145th St W
Rosemount, MN 55068
Attn: Dwight Johnson
Email:
Dwight.johnson@ci.rosemount.mn.us
Operator:
Oak Leaf Energy Partners Ohio
LLC
2645 E. 2nd Avenue, Suite 206
Denver, CO 80206
Attn: Counsel
Email:
With a copy to
Lender:
13.2 Notice. Unless otherwise provided herein, any notice provided for in the
Agreement shall be hand delivered, sent by registered or certified U.S. Mail, postage prepaid, or by
commercial overnight delivery service, or transmitted by email and shall be deemed delivered to
the addressee or its office when received at the address for notice specified above when hand
delivered, upon confirmation of sending when sent by email (if sent during normal business hours
or the next Business Day if sent at any other time), on the Business Day after being sent when sent
by overnight delivery service, or 5 Business Days after deposit in the mail when sent by U.S. mail.
13.3 Address for Invoices. All invoices under the Agreement shall be sent to the address
provided by Subscriber. Invoices shall be sent by regular first class mail postage prepaid.
14. DATA PRACTICES AND DATA SHARING.
14.1 Data Practices. (a) Consistent with Minnesota Statutes, section 13.05, subdivision 6, if
any data on individuals is made available to the Operator by the Subscriber under this Agreement,
the Operator will administer and maintain any such data in accordance with Minnesota Statutes,
Chapter 13 (the “Minnesota Government Data Practices Act”), and any other statutory provisions
applicable to the data. If and to the extent that Minnesota Statutes, section 13.05, subdivision 11, is
applicable to this Contract, then: i) all of the data created, collected, received, stored, used,
maintained, or disseminated by the Operator in performing this Agreement are subject to the
requirements of the Minnesota Government Data Practices Act; ii) the Operator must comply with
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those requirements as if it were a government entity; and iii) the remedies in Minnesota Statutes,
section 13.08 apply to the Operator.
(b) Consistent with Minnesota Statutes, section 13.055, if “private data on individuals,”
“confidential data on individuals” or other “not public data” are provided to or made accessible to
the Operator by the Subscriber, the Operator must: i) have safeguards to ensure private or
confidential data on individuals or other not public data are only accessible or viewable by
Operator employees and agents whose work assignments in connection with the performance of
this Agreement reasonably require them to have access to the data; ii) immediately notify the
Subscriber of any unauthorized access by Operator employees and agents, and unauthorized access
by third parties; iii) fully cooperate with Subscriber investigations into any breach in the security of
private or confidential data on individuals or other not public data that may have occurred in
connection with the Operator’s access to or use of the data; and iv) fully cooperate with the
Subscriber in fulfilling the notice and reporting requirements of Minnesota Statutes, section
13.055. The penalties in Minnesota Statutes, section 13.09 governing unauthorized acquisition of
not public data apply to the Operator and Operator employees and agents. If the Operator is
permitted to use a subcontractor to perform its duties under this Agreement, the Operator shall
incorporate these data practices provisions into the subcontract.
If the Operator receives a request to release data referred to in this section, the Operator must
immediately notify the Subscriber. The Subscriber will give the Operator instructions concerning
the release of the data to the requesting party before the data is released.
(c) Data Sharing. Operator may share data with NSP in accordance with the terms set forth
in the attached Subscriber Agency Agreement and Consent Form.
15. INDEMNIFICATION, LIABILITY AND INSURANCE
15.01 Indemnification. Operator shall defend, indemnify, and hold harmless Subscriber, its
present and former council members, officials, officers, agents, volunteers and employees from any
liability, claims, causes of action, judgments, damages, losses, costs, or expenses, including
reasonable attorney’s fees, resulting from any act or omission of Operator, a subcontractor, anyone
directly or indirectly employed by them, and/or anyone for whose acts and/or omissions they may
be liable in the performance of the services required by this Agreement, and against all loss by
reason of the failure of Operator to perform any obligation under this Agreement.
15.02 Insurance. With respect to the services provided pursuant to this Agreement, Operator
shall at all times during the term of this Agreement and beyond such term when so required have
and keep in force the following insurance coverages:
Limits
1. Commercial General Liability on an
occurrence basis with contractual liability
coverage:
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General Aggregate $2,000,000
Products—Completed Operations Aggregate 2,000,000
Personal and Advertising Injury 1,500,000
Each Occurrence—Combined
Bodily Injury and Property Damage 1,500,000
2. Workers’ Compensation and Employer’s Liability:
Workers’ Compensation Statutory
If Operator is based outside the state of Minnesota,
coverage must comply with Minnesota law.
Employer’s Liability. Bodily injury by:
Accident—Each Accident 500,000
Disease—Policy Limit 500,000
Disease—Each Employee 500,000
An umbrella or excess policy over primary liability insurance coverages is an
acceptable method to provide the required insurance limits.
The above establishes minimum insurance requirements. It is the sole
responsibility of Operator to determine the need for and to procure additional
insurance which may be needed in connection with this Agreement. Upon
written request, Operator shall promptly submit copies of insurance policies to
Subscriber.
Operator shall not commence work until it has obtained required insurance and
filed with Subscriber a properly executed Certificate of Insurance establishing
compliance. The certificate(s) must name Subscriber as the certificate holder
and as an additional insured for the liability coverage(s) for all operations
covered under the Agreement. Operator shall furnish to Subscriber updated
certificates during the term of this Agreement as insurance policies expire.
15.03 Liability. Without Subscriber waiving any statutory immunities and specifically
subject to the liability limits contained in Minn. Stat. Section 466.04, each Party agrees that it
will be responsible for its own acts and omissions and the results thereof, to the extent authorized
by the law, and shall not be responsible for the acts and omissions of another Party and the
results thereof. Subscriber warrants that it has an insurance or self-insurance program with
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minimum coverage consistent with the liability limits in Minnesota Statutes Chapter 466.
Operator agrees that the insurance, indemnification, and bonding requirement of Articles 7 and 8
in the Land Lease shall also apply to this Subscription Agreement.
16. COMPLIANCE
16.01 The Operator must comply with all applicable federal, state, and local laws, rules,
and regulations, including any ruling of the Minnesota Public Utilities Commission (PUC).
16.02 Under the PUC Order in Docket Number E002/M-13-867, dated August 6, 2015,
the Operator will, at the request of the Council, provide documentation of continuing viability of
the System, including but not limited to providing proof of sufficient financing; possession of
required permits; certification of compliance with Federal Energy Regulatory Commission Form
556; or proof that the Operator has sufficient insurance to cover the ongoing installation,
operation, or maintenance of the System.
17. DISCONTINUATION OF COMMUNITY SOLAR GARDEN PROGRAM.
Notwithstanding anything herein to the contrary, this Agreement shall terminate immediately,
without notice, if the Community Solar Garden program is discontinued, limited or materially
adversely changed prior to Operator executing a PPA with NSP, so long as the Operator has used
its best efforts to secure the PPA up to the point of program change.
18. MISCELLANEOUS.
18.1 Integration; Exhibits. This Agreement, together with the attached Exhibits,
constitute the entire agreement and understanding between Operator and Subscriber with respect
to the subject matter thereof and supersedes all prior agreements relating to the subject matter
hereof. The Exhibits attached hereto are integral parts of the Agreement and are made a part of
the Agreement by reference.
18.2 Amendments. This Agreement may only be amended, modified or supplemented
by an instrument in writing executed by duly authorized representatives of Operator and
Subscriber. To the extent any amendment changes Subscriber’s Allocated Percentage, such
amendment shall include the representation by Subscriber set forth in Section 8.2(c).
18.3 Cumulative Remedies. Except as set forth to the contrary herein, any right or
remedy of Operator or Subscriber shall be cumulative and without prejudice to any other right or
remedy, whether contained herein or not.
18.4 Limited Effect of Waiver. The failure of Operator or Subscriber to enforce any of
the provisions of the Agreement, or the waiver thereof, shall not be construed as a general waiver
or relinquishment on its part of any such provision, in any other instance or of any other
provision in any instance.
18.5 Survival. The obligations under Section 8.3 (Exclusion of Warranties), Section 9
(Taxes and Governmental Fees), Section 13 (Notices), Section 14 (Data Practices), Section 15
(Indemnification, Liability and Insurance), Section 17 (Miscellaneous), or pursuant to other
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provisions of this Agreement that, by their sense and context, are intended to survive termination
of this Agreement, shall survive the expiration or termination of this Agreement for any reason.
18.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota without reference to any choice of law
principles. The Parties agree that the courts of Minnesota and the federal Courts sitting therein
shall have jurisdiction over any action or proceeding arising under the Agreement to the fullest
extent permitted by Applicable Law.
18.7 Severability. If any term, covenant or condition in the Agreement shall, to any
extent, be invalid or unenforceable in any respect under Applicable Law, the remainder of the
Agreement shall not be affected thereby, and each term, covenant or condition of the Agreement
shall be valid and enforceable to the fullest extent permitted by Applicable Law and, if
appropriate, such invalid or unenforceable provision shall be modified or replaced to give effect
to the underlying intent of the Parties and to the intended economic benefits of the Parties.
18.8 Relation of the Parties. The relationship between Operator and Subscriber shall
not be that of partners, agents, or joint ventures for one another, and nothing contained in the
Agreement shall be deemed to constitute a partnership or agency agreement between them for
any purposes, including federal income tax purposes. Operator and Subscriber, in performing
any of their obligations hereunder, shall be independent contractors or independent parties and
shall discharge their contractual obligations at their own risk.
18.9 Successors and Assigns. This Agreement and the rights and obligations under the
Agreement are binding upon and shall inure to the benefit of Operator and Subscriber and their
respective successors and permitted assigns.
18.10 Counterparts. This Agreement may be executed in one or more counterparts, all
of which taken together shall constitute one and the same instrument
18.11 Access. Subscriber has access to the Solar System in accordance with the terms
of the Land Lease Agreement. Subscriber will have no ownership, possession right or control of
the Solar System, and will have no rights or obligations with respect to the maintenance or
operation of the Solar System. Operator will have no ownership, possession right, or control of
the land other than the interest conveyed in the Land Lease Agreement. Except as provided in
the land Land Lease Agreement, this Agreement does not convey to Subscriber any right, title or
interest in or to any portion of any property (tangible or intangible, real or personal) under lying
or comprising any portion of the Solar System.
18.12 No Reliance. Subscriber is not relying on any representation, warranty or promise
with respect to the Solar*Rewards Community Solar Program or the Solar System made by or on
behalf of NSP or Operator, except to the extent specifically stated in this Agreement.
18.13 Record Keeping. Operator will maintain books, records, documents and other
evidence directly pertinent to performance of the work under this Agreem ent in accordance with
generally accepted accounting and utility metering principles and practices, including all meter
production records and adjustments thereto. Operator will also maintain the financial information
and data used in preparation or support of the cost submission for any negotiated Agreement
Page 4
amendment and provide electronic, printed or copied documentation to the Subscriber as
requested. These books, records, documents, and data must be retained for at least 6 years after
the term of the Agreement, except in the event of litigation or settlement of claims arising from
the performance of this Agreement, in which case the Operator agrees to maintain them until the
Subscriber and any of its duly authorized representatives have disposed of the litigation or
claims.
18.14 Audit. As required by Minnesota Statutes, section 16C.05, subdivision 5, the
records, books, documents, and accounting procedures and practices of the Operator and of any
subcontractor relating to work performed pursuant to this Agreement shall be subject to audit and
examination by the Subscriber and the Legislative Auditor or State Auditor. The Operator and
any subcontractor shall permit the Subscriber or its designee to inspect, copy, and audit its
accounts, records, and business documents at any time during regular business hours, as they
may relate to the performance under this Agreement. Audits conducted by the Subscriber under
this provision shall be in accordance with generally accepted auditing standards. Financial
adjustments resulting from any audit by the Subscriber shall be paid in full within thirty (30)
days of the Operator's receipt of audit.
18.15 Dispute Resolution. Operator must submit in writing to the General Manager-
Environmental Services of Subscriber any dispute regarding the meaning and intent of this
Agreement or arising from performance of this Agreement r within 60 days after the dispute
arises. The General Manager-Environmental Services or his/her designee must respond to the
Operator in writing with a decision within 60 calendar days following receipt of the Operator’s
dispute. Submission of a dispute to Dispute Resolution is a condition precedent to the Operator
initiating any litigation relating to this Agreement.
Pending final decision of a dispute, the Parties will proceed diligently with the
performance of the Agreement. Failure by the Operator comply precisely with the time
deadlines under this paragraph as to any claim shall operate as a release of that claim and a
presumption of prejudice to the Subscriber.
19. LENDER PROVISIONS
19.1 Notice of Lender. Operator shall notify Subscriber of the identity of any Lender
within thirty (30) days of such party becoming a Lender.
19.2 Lender Collateral Assignment. In the event that Operator identifies a Lender
pursuant to Section 19.1, then Subscriber hereby:
(a) Acknowledges and consents to the sale, assignment or conveyance or pledge or the
collateral assignment by Operator to the Lender, of Operator’s right, title and interest in, to and
under this Agreement, as consented to under Section 12.1 of this Agreement;
(b) Acknowledges that any Lender as such collateral assignee shall be entitled to exercise
any and all rights of lenders generally with respect to Operator’s interests in this Agreement;
Page 5
(c) Acknowledges that it has been advised that Operator has granted a security interest in
the System to the Lender and that the Lender has relied upon the characterization of the System
as personal property, as agreed in this Agreement, in accepting such security interest as collateral
for its financing of the System; and
(d) Acknowledges that any Lender shall be an intended third-party beneficiary of this
Section 19.2.
19.3 Lender Cure Rights Upon System Owner Default . Upon any Event of Default by
Operator, a copy of any notice delivered under Article 11 shall be delivered concurrently by
Subscriber to any Lender at the addresses provided in writing by Operator to Subscriber.
Following receipt by any Lender of any notice that Operator is in default in its obligations under
this Agreement, such Lender shall have the right but not the obligation to cure any such default,
and Subscriber agrees to accept any cure tendered by the Lenders on behalf of Operator in
accordance with the following: (a) a Lender shall have the same period after receipt of a notice
of default to remedy an Event of Default by Operator, or cause the same to be remedied, as is
given to Operator after Operator’s receipt of a notice of default hereunder; provided, however,
that any such cure periods shall be extended for the time reasonably required by the Lender to
complete such cure, including the time required for the Lender to obtain possession of the
System (including possession by a receiver), institute foreclosure proceedings or otherwise
perfect its right to effect such cure, but in no event longer than 180 days; and (b) the Lender shall
not be required to cure those Events of Default that are not reasonably susceptible of being cured
or performed by Lender. The Lender shall have the absolute right to substitute itself or an
Affiliate for Operator and perform the duties of Operator hereunder for purposes of curing such
Event of Default. Subscriber expressly consents to such substitution, and authorizes the Lender,
its affiliates (or either of their employees, agents, representatives or contractors) to enter upon the
Premises to complete such performance with all of the rights and privileges of Operator, but
subject to the terms and conditions of this Agreement and the Lease, .
19.4 Upon any rejection or other termination of this Agreement pursuant to any
process undertaken with respect to Operator under the United States Bankruptcy Code, at the
request of the Lender made within ninety (90) days of such termination or rejection, Subscriber
shall enter into a new agreement with the Lender or its assignee having the sa me terms and
conditions as this Agreement and the Land Lease.
19.5 Except as otherwise set forth in this Article 19, the Parties’ respective obligations
will remain in effect during any cure period.
19.6 If the Lender (including any purchaser or transferee), pursuant to an exercise of
remedies by the Lender, shall acquire title to or control of Operator’s assets and shall, within the
time periods described in Section 19.3 above, cure all defaults under this Agreement existing as
of the date of such change in title or control in the manner required by this Agreement and which
are capable of cure by a third person or entity, then such person or entity shall no longer be in
default under this Agreement and this Agreement shall continue in full force and effect.
The remainder of this page is intentionally blank.
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19.7 The Lender rights in this Agreement shall also apply to the Land Lease
Agreement.
IN WITNESS WHEREOF, the Parties have caused this Contract to be executed by their duly
authorized officers on the dates below:
METROPOLITAN COUNCIL
ENVIRONMENTAL SERVICES
Dated: _________________________ By: __________________________________
Weston W. Kooistra
Regional Administrator
OAK LEAF ENERGY PARTNERS OHIO LLC
Dated: _________________________ By: __________________________________
Michael McCabe
President
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Exhibit A
[Insert form of Subscriber Agency Agreement and Consent Form as required by PPA]
Solar*Rewards Community
Subscriber Agency Agreement and Consent Form
The undersigned (“Subscriber”) has a Subscription to the following Community Solar Garden:
Community Solar Garden Name: Community Solar Garden Address:
Community Solar Garden Operator:
Community Solar Garden contact
information for Subscriber questions and
complaints:
Address (if different from above);
Telephone number:
Email address:
Web Site URL:
Subscriber Name:
Subscriber Service Address where
receiving electrical service from Northern
States Power Company:
Subscriber’s Account Number with
Northern States Power Company:
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By signing this Solar*Rewards Community Subscriber Agency Agreement and Consent Form, the
Subscriber agrees to all of the following:
1. Assignment of Renewable Energy Credits (“RECs”), Energy and Capacity to Northern
States Power Company, a Minnesota corporation. The Subscriber agrees that the Community
Solar Garden Operator has authority to assign all energy produced and capacity associated with
the photovoltaic energy system at the Community Solar Garden to Northern States Power
Company, and the Subscriber agrees that all energy produced, and capacity associated with the
Subscriber’s share of the photovoltaic energy system at the Community Solar Garden shall
belong to Northern States Power Company. The Subscriber also agrees that the Community
Solar Garden Operator has authority to assign all RECs associated with the photovoltaic energy
system at the Community Solar Garden to Northern States Power Company, and that if the
Community Solar Garden or a person or entity on its behalf has assigned the RECs to Northern
States Power Company, then all RECs associated with the Subscriber’s share of the
photovoltaic energy system at the Community Solar Garden shall belong to Northern States
Power Company.
2. Tax Implications. The Community Solar Garden Operator has provided the Subscriber
with a statement that Northern States Power Company makes no representations concerning the
taxable consequences to the Subscriber with respect to its Bill Credits to the Subscriber or other
tax issues relating to participation in the Community Solar Garden.
3. Northern States Power Company hereby discloses to the Subscriber that it
recognizes that not all production risk factors, such as grid-failure events or atypically cloudy
weather, are within the Community Solar Garden Operator’s control.
4. Information Sharing. Participating in the Solar*Rewards Community Program will
require sharing Subscriber’s Account Information (name, account number, service address,
telephone number, email address, web site URL, information on Subscriber participation in
other distributed generation serving the premises of the Subscriber, Subscriber specific Bill
Credit(s)) and Subscriber’s Energy Use Data (the past, present and future electricity usage
attributable to the Subscriber for the service address and account number identified for
participation in the Community Solar Garden). The following outlines the type of information
that will be shared, and how that information will be used.
a. Subscriber’s Account Information and Subscriber Energy Usage Data. The Subscriber
authorizes Northern States Power Company to provide the Community Solar Garden Operator
(and the Community Solar Garden Operator’s designated subcontractors and agents) with the
Subscriber’s Account Information and Subscriber’s Energy Usage Data as described in Section
4 above. This information is needed to allow the Community Solar Garden Operator determine
the extent to which the Subscriber is entitled to participate in the Community Solar Garden, and
to validate the amount of the Bill Credits to be provided by Northern States Power Company to
the Subscriber. The current data privacy policies of Northern States Power Company applicable
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to its Solar*Rewards Community Program provided to the Subscriber by the Community Solar
Garden Operator pursuant Section 3 above are attached as Exhibit 1 of this Solar*Rewards
Community Subscriber Agency Agreement and Consent Form. These privacy policies
include definitions of “Subscriber’s Account Information” and “Subscriber’s Energy Usage
Data.”
b. Subscriber’s Subscription Information: The Subscriber authorizes the Community
Solar Garden Operator to provide information to Northern States Power Company identifying
the Subscriber (with the Subscriber’s name, service address, and account number) and detailing
the Subscriber’s proportional share in kilowatts of the Community Solar Garden and to provide
additional updates of this information to Northern States Power Company as circumstances
change. This information is needed to allow Northern States Power Company to properly apply
Bill Credits for the photovoltaic energy generated by the Community Solar Garden. Also, this
information is needed to allow Northern States Power Company to send to the Subscriber notices
or other mailings pertaining to their involvement in the Solar*Rewards Community Program.
The Community Solar Garden Operator shall not disclose Subscriber information in annual
reports or other public documents absent explicit, informed consent from the Subscriber. The
Community Solar Garden Operator will not release any Subscriber data to third parties except to
fulfill the regulated purposes of the Solar*Rewards Community Program, to comply with a
legal or regulatory requirement, or upon explicit, informed consent from the Subscriber.
c. Aggregated Information. Aggregated information concerning production at the
Community Solar Garden may be publicly disclosed to support regulatory oversight of the
Solar*Rewards Community Program. This includes annual reports available to the public
related to specific Community Solar Gardens, including but not limited to production from the
Community Solar Gardens; size, location and the type of Community Solar Garden subscriber
groups; reporting on known complaints and the resolution of these complaints; lessons learned
and any potential changes to the Solar*Rewards Community Program; reporting on Bill Credits
earned and paid; and reporting on the application process. Aggregated information will not
identify individual Subscribers or provide Subscriber-Specific Account Information, Subscriber-
Specific Energy Usage Data or Subscriber-specific Bill Credits unless a Subscriber provides
explicit informed consent. Depending on the nature of the aggregated information, however, it
may still be possible to infer the amount of production attributed to individual Subscribers to the
Community Solar Garden. The Subscriber agrees to the inclusion of its production information
in the creation of the aggregated information. The
Page 10
Community Solar Garden Operator will not use aggregated information for purposes unrelated
to the Solar*Rewards Community Program without first providing notice and obtaining
further consent, unless the aggregated information is otherwise available as public
information. The policies of Northern States Power Company related to sharing aggregated
information are part of the data privacy policies contained in the attached Exhibit 1 of this
Solar*Rewards Community Subscriber Agency Agreement and Consent Form and
should be provided to the Subscriber by the Community Solar Garden Operator pursuant
Section 3 above.
d. Information Requests from the MPUC or the Department of Commerce. The
Subscriber agrees that the Community Solar Garden Operator and Northern States Power
Company are authorized to provide any information they possess related to the Subscriber or
the Subscriber’s participation in the Community Solar Garden to the Minnesota Public
Utilities Commission (MPUC), the Minnesota Department of Commerce, or the Minnesota
Office of Attorney General. This information is needed to allow proper regulatory oversight
of Northern States Power Company and of the Solar*Rewards Community Program.
e. Liability Release. Northern States Power Company shall not be responsible for
monitoring or taking any steps to ensure that the Community Solar Garden Operator
maintains the confidentiality of the Subscriber’s Account Information, the Subscriber’s
Energy Usage or the Bill Credits received pertaining to the Subscriber’s participation in the
Community Solar Garden. However, Northern States Power Company shall remain liable for
its own inappropriate release of Subscriber’s Account Information and Subscriber’s Energy
Use Data.
f. Duration of Consent. The Subscriber’s consent to this information sharing shall be
ongoing for the Term of the Contract between the Community Solar Garden Operator and
Northern States Power Company, or until the Subscriber no longer has a Subscription to the
Community Solar Garden and the Community Solar Garden Operator notifies Northern States
Power Company of this fact through the CSG Application System. Provided, however, the
Subscriber’s consent shall also apply thereafter to all such information of the Subscriber
pertaining to that period of time during which the Subscriber had a Subscription to the
Community Solar Garden.
g. Modification. The above provisions addressing data privacy and in Exhibit 1 shall
remain in place until and unless other requirements are adopted by the MPUC in its generic
privacy proceeding, Docket No. E,G999/CI- 12 1344, or other MPUC Order. Northern States
Power Company shall file necessary revisions to its tariffs and contracts within thirty (30)
days of such Order.
Page 11
Subscriber’s Name: City of Rosemount
Subscriber’s Signature:
Date:
Page 12
Exhibit B – Solar Panel Warranty
[Insert Copy of Warranty for Solar Panels]
To be inserted once solar panels have been purchased and warranty issued.
Page 13
Exhibit C Description of Premises and System
Solar System County:
Premises Ownership and
Control:
Scott County
Operator leases the Premises from Subscriber.
Solar System Size:
Up to 1,000 kW (AC) (representing an initial estimate,
which may vary depending on the final design of the
System)
Subscriber’s Allocated
Percentage:
Allocated Percentage: 40%
Scope:
Design and supply grid-interconnected, ground mounted
solar electric (PV) system.
Module(s):
To be inserted once panels purchased (must be on CEC list)
Inverter: To be inserted once inverters purchased (must be IEEE 1547
qualified)
Anticipated Commercial
Operation Date:
[ To be inserted once NSP completes its interconnection
study. ]
NSP Unique Garden
Identifier:
SRC042538
Page 14
Exhibit D Estimate Annual Energy.
Estimated Annual Delivered Energy commencing on the Commercial Operation Date, and
continuing through the Term, with respect to System under the Agreement shall be as
follows:
Year of
System
Term
Estimated
Annual
Delivered
Energy
Subscriber’s
Allocated
Percentage
Estimated
Electricity
Allocated to
Subscriber
1* 1,613,920 40% 645,568
2 1,605,850 40% 642,340
3 1,597,821 40% 639,128
4 1,589,832 40% 635,933
5 1,581,883 40% 632,753
6 1,573,973 40% 629,589
7 1,566,104 40% 626,441
8 1,558,273 40% 623,309
9 1,550,482 40% 620,193
10 1,542,729 40% 617,092
11 1,535,016 40% 614,006
12 1,527,341 40% 610,936
13 1,519,704 40% 607,882
14 1,512,105 40% 604,842
15 1,504,545 40% 601,818
16 1,497,022 40% 598,809
17 1,489,537 40% 595,815
18 1,482,089 40% 592,836
19 1,474,679 40% 589,872
20 1,467,305 40% 586,922
21 1,459,969 40% 583,988
22 1,452,669 40% 581,068
23 1,445,406 40% 578,162
24 1,438,179 40% 575,271
25 1,430,988 40% 572,395
* For the purposes of the table Term year 1 begins on the Commercial Operation Date
Page 15
The values in the table above are estimates of (i) the kWhs of Delivered Energy expected
to be generated annually by the System and (ii) the portion of the Delivered Energy
generated annually that is to be allocated to Subscriber pursuant to Subscriber’s Allocated
Percentage, which amount is derived by multiplying the estimated Delivered Energy by the
Subscriber’s Allocated Percentage in each year. The table will be updated upon final
design of the System; provided, however, any such updated values are also estimates.
Estimated Delivered Energy may be reduced if the system size is reduced due to square
footage limitations on the leased land.
Operators used the following methodology to develop the above production projections:
National Renewable Energy Laboratory’s PVWatts and SAM software tools.
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK.
Page 16
Exhibit E Land Lease Agreement
To be inserted after execution of Land Lease Agreement
Page 17
Exhibit F Operator’s Long Term Maintenance Plan
Operator to Provide
Page 18
Exhibit G PPA between Operator and NSP
To be inserted prior to Commercial Operation Date
Page 19
Exhibit H – Commercial Operation Date Notification
[To be added when the Commercial Operation Date is Finalized]
Page 20
Exhibit I – Subscriber Meters
Subscriber will provide Operator with the Subscriber Meters and the relevant detail below prior
to Construction Commencement.
Subscriber Meter
Name
NSP Account
Number
NSP Premise
Number
NSP Meter
Number
Share of
Subscriber’s
Allocated
Percentage
Total 100%
Page 21
AC capacity 5,000 kw Subscriber's NPV 405,610$ Demand Metered 0.09914$
Annual Energy - All Subscribers 8,499,200 kwh Small General Service 0.12431$
Bill credit escalation 3%Residential Service 0.12743$
Discount rate 4%Combination Not Applicable
Annual Degredation 0.50%
Subscription Percentage 6.70%REC*$0.02
Bill Credit Type Demand Metered
If Combination, % of Demand Metered 100%
Xcel FAQ regarding CSG: http://www.xcelenergy.com/staticfiles/xe-responsive/Admin/Managed%20Documents%20&%20PDFs/MN-SRC-Subscriber-FAQs.pdf
Xcel Bill Rate Codes http://xcelenergy.com/staticfiles/xe-responsive/Admin/Managed%20Documents%20&%20PDFs/MN-SRC-Eligible-Billing-Rates.pdf
Year
Projected kWh
- Entire
Garden
Subscriber'
s kWh
Payment
to Garden
Operator
($/kWh)
Bill Credit
Rate ($/kWh)
Subscriber's
Payment to
Garden
Operator
Subscriber
Bill Credit
from Xcel
Subscriber's
Savings
NPV of
Subscriber's
Savings
2016 8,499,200 569,446 $0.0890 0.09914$ $50,681 $56,455 $5,774 $5,774
2017 8,456,704 566,599 $0.0890 0.10211$ $50,427 $57,858 $7,430 $7,145
2018 8,414,420 563,766 $0.0890 0.10518$ $50,175 $59,296 $9,120 $8,432
2019 8,372,348 560,947 $0.0890 0.10833$ $49,924 $60,769 $10,845 $9,641
2020 8,330,487 558,143 $0.0890 0.11158$ $49,675 $62,279 $12,605 $10,774
2021 8,288,834 555,352 $0.0890 0.11493$ $49,426 $63,827 $14,401 $11,836
2022 8,247,390 552,575 $0.0890 0.11838$ $49,179 $65,413 $16,234 $12,830
2023 8,206,153 549,812 $0.0890 0.12193$ $48,933 $67,038 $18,105 $13,758
2024 8,165,122 547,063 $0.0890 0.12559$ $48,689 $68,704 $20,016 $14,625
2025 8,124,297 544,328 $0.0890 0.12936$ $48,445 $70,412 $21,966 $15,433
2026 8,083,675 541,606 $0.0890 0.13324$ $48,203 $72,161 $23,958 $16,185
2027 8,043,257 538,898 $0.0890 0.13723$ $47,962 $73,955 $25,993 $16,884
2028 8,003,041 536,204 $0.0890 0.14135$ $47,722 $75,792 $28,070 $17,533
2029 7,963,025 533,523 $0.0890 0.14559$ $47,484 $77,676 $30,192 $18,133
2030 7,923,210 530,855 $0.0890 0.14996$ $47,246 $79,606 $32,360 $18,687
2031 7,883,594 528,201 $0.0890 0.15446$ $47,010 $81,584 $34,574 $19,198
2032 7,844,176 525,560 $0.0890 0.15909$ $46,775 $83,612 $36,837 $19,667
2033 7,804,955 522,932 $0.0890 0.16386$ $46,541 $85,689 $39,148 $20,098
2034 7,765,931 520,317 $0.0890 0.16878$ $46,308 $87,819 $41,511 $20,491
2035 7,727,101 517,716 $0.0890 0.17384$ $46,077 $90,001 $43,924 $20,848
2036 7,688,465 515,127 $0.0890 0.17906$ $45,846 $92,238 $46,391 $21,172
2037 7,650,023 512,552 $0.0890 0.18443$ $45,617 $94,530 $48,913 $21,464
2038 7,611,773 509,989 $0.0890 0.18996$ $45,389 $96,879 $51,490 $21,726
2039 7,573,714 507,439 $0.0890 0.19566$ $45,162 $99,286 $54,124 $21,960
2040 7,535,846 504,902 $0.0890 0.20153$ $44,936 $101,753 $56,817 $21,313
Total 13,413,852 $1,193,833 $1,924,632 $730,799 $405,610
Met Council & Oak Leaf Community Solar Garden Financial Model (Empire Site)
Inputs (Items in Yellow are inputs)Outputs Bill Credit Types & Rates
*All RECs for these solar gardens are sold
to Xcel. Xcel does not allow partial
REC sales.