HomeMy WebLinkAbout9.a.2. Motion to Approve Solar Garden Subscription Agreements and Authorize Mayor and Clerk to Enter into Agreement - Solarstone and Geronimo
EXECUTIVE SUMMARY
City Council Meeting: March 15, 2016
AGENDA ITEM: Motion to Approve Solar Garden
Subscription Agreements and Authorize
Mayor and Clerk to Enter into Agreement
AGENDA SECTION:
New Business
PREPARED BY: Anthony Nemcek, Planner AGENDA NO. 9.a.2.
ATTACHMENTS: SolarStone Subscriber Agreements;
Geronimo Energy Subscriber Agreement;
Financial Models
APPROVED BY: ddj
RECOMMENDED ACTION:
Motion to approve the subscription agreement with SolarStone for 800kW and Geronimo
Energy for 167 kW and authorize Mayor and Clerk to enter into the agreements.
SUMMARY
The Metropolitan Council has led a competitive bidding process for solar from five energy companies.
Rosemount participated in a lottery for subscriptions to the solar gardens and was awarded over 2500kW
worth of subscriptions from three different companies. Staff is recommending signing contracts for
subscriptions with two of the companies in the amount of 967kw. This is broken down into four 200kW
subscriptions to solar gardens operated by SolarStone and one 167kW subscription to a solar garden
operated by Geronimo Energy.
The City’s overall energy load is approximately 3400kW, of which these subscriptions, along with the two
from Oak Leaf, will account for approximately 37% of our total energy use. While there were additional
subscriptions available, staff would like to wait and see how the solar market evolves. These agreements
are for 25 years and therefore, staff is interested in seeing if additional, perhaps more beneficial
opportunities occur in the future. Maintaining some diversification also provides a buffer for the City if
electricity costs do not rise as quickly as they have in the recent past, which would affect the financial
benefits of the solar subscriptions.
The contracts have been negotiated approved by the Metropolitan Council, and they have also been
reviewed by the City Attorney’s office. In general our legal counsel is comfortable with the documents,
and there is no room to negotiate at any rate since the Metropolitan Council has already agreed to the
terms.
The contract terms are different for each energy company. In the contract with SolarStone, the City pays a
rate per kW/hr of $0.1220 that escalates by 1% each year. The contract with Geronimo offers a discount
of $0.01 per kW/hr.
The net present value of the savings over 25 years for the subscriptions with SolarStone and Geronimo
amount to $319,490 and $42,482, respectively. There is a risk that the city would not achieve the assumed
savings with SolarStone if the price of energy increases at a rate lower than the assumed 2.6% that has
been the average over the past 15 years. The savings with Geronimo are the same regardless of energy
2
costs as their price is indexed with the amount of the bill credit Xcel Energy will pay the City.
RECOMMENDATION
Motion to approve four 200 kW subscription agreements with SolarStone totaling 800 kW and one 167 kW
subscription agreement with Geronimo Energy and authorize the Mayor and Clerk to enter into the
Agreements.
Name: Geronimo
Subscription Terms Notes
Subscription Size (kW)* 167
Production Factor (kWh/kW Annually) 1,649 Met Council's assumption for kWh AC per kW AC
Expected Annual Production from Subscrip-
tion in Year 1 (kWh) 275,383 Row 3 x Row 4
Starting rate paid to developer ($/kWh) $0.0000 Find in subscription agreement
Starting Bill Credit rate ($/kWh) $ 0.12431 Determined by premise type (see footnotes on Welcome tab)
REC Payment ($/kWh) $0.02 See footnotes on Welcome tab
Subscription payment escalator NA
Panel degradation factor 1.000% Industry Standard is .5%
Expected annual electricity price increase 1.000% This affects the bill credit rate
Bill Credit Discount for Sub. Rate ($) $ 0.0100 Subscription rate is Bill Credit less this amount
Sub. Rate Floor $0.000 Only applies if indicated in subscription agreement, otherwise keep at 0
Discount Rate 4.000% Ask your Finance Director what rate to use here (Met Council uses 4%)
Year
Expected An-
nual Produc-
tion (kWh)
Subscription Rate
NO FLOOR ($/kWh)
Subscription
Rate WITH
FLOOR
Paid to Devel-
oper Annually Bill Credit Rate Bill Credit Rate
w/ RECs
Received in
Bill Credits
Annually
Annual Savings
(Simple)
Cumulative
Savings
(Simple)
Annual Savings
(NPV)
Cumulative Savings
(NPV)
1 275383 $0.134 0.134 -$36,987 $0.12431 $0.14431 $39,741 $2,754 $2,754 $2,754 $2,754
2 272629 $0.136 0.136 -$36,956 $0.12555 $0.14555 $39,682 $2,726 $5,480 $2,621 $5,375
3 269903 $0.137 0.137 -$36,925 $0.12681 $0.14681 $39,624 $2,699 $8,179 $2,495 $7,871
4 267204 $0.138 0.138 -$36,895 $0.12808 $0.14808 $39,567 $2,672 $10,851 $2,375 $10,246
5 264532 $0.139 0.139 -$36,864 $0.12936 $0.14936 $39,510 $2,645 $13,497 $2,261 $12,507
6 261886 $0.141 0.141 -$36,835 $0.13065 $0.15065 $39,453 $2,619 $16,115 $2,153 $14,660
7 259268 $0.142 0.142 -$36,805 $0.13196 $0.15196 $39,398 $2,593 $18,708 $2,049 $16,709
8 256675 $0.143 0.143 -$36,776 $0.13328 $0.15328 $39,342 $2,567 $21,275 $1,951 $18,659
9 254108 $0.145 0.145 -$36,747 $0.13461 $0.15461 $39,288 $2,541 $23,816 $1,857 $20,516
10 251567 $0.146 0.146 -$36,718 $0.13596 $0.15596 $39,233 $2,516 $26,332 $1,767 $22,284
11 249051 $0.147 0.147 -$36,689 $0.13732 $0.15732 $39,180 $2,491 $28,822 $1,683 $23,966
12 246561 $0.149 0.149 -$36,661 $0.13869 $0.15869 $39,126 $2,466 $31,288 $1,602 $25,568
13 244095 $0.150 0.150 -$36,633 $0.14008 $0.16008 $39,074 $2,441 $33,729 $1,525 $27,092
14 241654 $0.151 0.151 -$36,605 $0.14148 $0.16148 $39,021 $2,417 $36,145 $1,451 $28,544
15 239238 $0.153 0.153 -$36,577 $0.14289 $0.16289 $38,970 $2,392 $38,538 $1,382 $29,925
16 236845 $0.154 0.154 -$36,550 $0.14432 $0.16432 $38,918 $2,368 $40,906 $1,315 $31,240
17 234477 $0.156 0.156 -$36,523 $0.14576 $0.16576 $38,868 $2,345 $43,251 $1,252 $32,492
18 232132 $0.157 0.157 -$36,496 $0.14722 $0.16722 $38,817 $2,321 $45,572 $1,192 $33,684
19 229811 $0.159 0.159 -$36,469 $0.14869 $0.16869 $38,768 $2,298 $47,870 $1,134 $34,818
20 227513 $0.160 0.160 -$36,443 $0.15018 $0.17018 $38,718 $2,275 $50,145 $1,080 $35,898
21 225238 $0.162 0.162 -$36,417 $0.15168 $0.17168 $38,669 $2,252 $52,398 $1,028 $36,926
22 222985 $0.163 0.163 -$36,391 $0.15320 $0.17320 $38,621 $2,230 $54,628 $979 $37,905
23 220755 $0.165 0.165 -$36,365 $0.15473 $0.17473 $38,573 $2,208 $56,835 $931 $38,836
24 218548 $0.166 0.166 -$36,340 $0.15628 $0.17628 $38,525 $2,185 $59,021 $887 $39,723
25 216362 $0.168 0.168 -$36,314 $0.15784 $0.17784 $38,478 $2,164 $61,184 $844 $40,567
Name: Solar Stone
Subscription Terms Notes
Subscription Size (kW)* 776
Production Factor (kWh/kW Annually) 1,649 Met Council's assumption for kWh AC per kW AC
Expected Annual Production from Subscription in Year 1
(kWh) 1,279,624 Row 3 x Row 4
Starting rate paid to developer ($/kWh) $0.1220 Find in subscription agreement
Starting Bill Credit rate ($/kWh) $ 0.09914 Determined by premise type (see footnotes on Welcome tab)
REC Payment ($/kWh) $0.02 See footnotes on Welcome tab
Subscription payment escalator 1.00% Annual increase of what you pay to developer
Panel degradation factor 0.500% Industry Standard is .5%
Expected annual electricity price increase 2.600% This affects the bill credit rate
Discount Rate 4.000% Ask your Finance Director what rate to use here (Met Council uses 4%)
Year
Expected Annual
Production
(kWh)
Subscription Rate ($/
kWh)
Paid to Developer
Annually Bill Credit Rate Bill Credit Rate w/
RECs
Received in Bill Cred-
its Annually
Annual Savings
(Simple)
Cumulative Savings
(Simple)
Annual Savings
(NPV)
Cumulative Savings
(NPV)
1 1279624 $0.122 -$156,114 $0.09914 $0.11914 $152,454 -$3,660 -$3,660 -$3,660 -$3,660
2 1273226 $0.123 -$156,887 $0.10172 $0.12172 $154,974 -$1,913 -$5,573 -$1,839 -$5,499
3 1266860 $0.124 -$157,663 $0.10436 $0.12436 $157,550 -$114 -$5,686 -$105 -$5,604
4 1260525 $0.126 -$158,444 $0.10708 $0.12708 $160,182 $1,738 -$3,948 $1,545 -$4,059
5 1254223 $0.127 -$159,228 $0.10986 $0.12986 $162,873 $3,645 -$303 $3,116 -$943
6 1247952 $0.128 -$160,016 $0.11272 $0.13272 $165,623 $5,607 $5,303 $4,608 $3,665
7 1241712 $0.130 -$160,808 $0.11565 $0.13565 $168,434 $7,626 $12,929 $6,027 $9,692
8 1235503 $0.131 -$161,604 $0.11865 $0.13865 $171,307 $9,702 $22,631 $7,373 $17,065
9 1229326 $0.132 -$162,404 $0.12174 $0.14174 $174,243 $11,838 $34,470 $8,650 $25,715
10 1223179 $0.133 -$163,208 $0.12490 $0.14490 $177,243 $14,035 $48,504 $9,861 $35,575
11 1217063 $0.135 -$164,016 $0.12815 $0.14815 $180,309 $16,293 $64,798 $11,007 $46,582
12 1210978 $0.136 -$164,828 $0.13148 $0.15148 $183,443 $18,615 $83,412 $12,092 $58,674
13 1204923 $0.137 -$165,644 $0.13490 $0.15490 $186,645 $21,001 $104,413 $13,117 $71,791
14 1198899 $0.139 -$166,464 $0.13841 $0.15841 $189,916 $23,453 $127,865 $14,085 $85,876
15 1192904 $0.140 -$167,288 $0.14201 $0.16201 $193,260 $25,972 $153,837 $14,998 $100,874
16 1186940 $0.142 -$168,116 $0.14570 $0.16570 $196,676 $28,560 $182,397 $15,858 $116,732
17 1181005 $0.143 -$168,948 $0.14949 $0.16949 $200,166 $31,218 $213,615 $16,668 $133,400
18 1175100 $0.144 -$169,784 $0.15337 $0.17337 $203,733 $33,948 $247,563 $17,428 $150,828
19 1169224 $0.146 -$170,625 $0.15736 $0.17736 $207,377 $36,752 $284,315 $18,142 $168,970
20 1163378 $0.147 -$171,469 $0.16145 $0.18145 $211,100 $39,630 $323,945 $18,810 $187,780
21 1157561 $0.149 -$172,318 $0.16565 $0.18565 $214,903 $42,585 $366,530 $19,435 $207,215
22 1151773 $0.150 -$173,171 $0.16996 $0.18996 $218,789 $45,618 $412,148 $20,019 $227,234
23 1146015 $0.152 -$174,028 $0.17438 $0.19438 $222,760 $48,731 $460,880 $20,562 $247,796
24 1140285 $0.153 -$174,890 $0.17891 $0.19891 $226,816 $51,926 $512,805 $21,068 $268,864
25 1134583 $0.155 -$175,756 $0.18356 $0.20356 $230,959 $55,204 $568,009 $21,536 $290,400
Name: Solar Stone
Subscription Terms Notes
Subscription Size (kW)* 24
Production Factor (kWh/kW Annually) 1,649 Met Council's assumption for kWh AC per kW AC
Expected Annual Production from Subscription in
Year 1 (kWh) 39,576 Row 3 x Row 4
Starting rate paid to developer ($/kWh) $0.1220 Find in subscription agreement
Starting Bill Credit rate ($/kWh) $ 0.12431 Determined by premise type (see footnotes on Welcome tab)
REC Payment ($/kWh) $0.02 See footnotes on Welcome tab
Subscription payment escalator 1.00% Annual increase of what you pay to developer
Panel degradation factor 0.500% Industry Standard is .5%
Expected annual electricity price increase 2.600% This affects the bill credit rate
Discount Rate 4.000% Ask your Finance Director what rate to use here (Met Council uses 4%)
Year
Expected Annu-
al Production
(kWh)
Subscription Rate ($/
kWh)
Paid to Developer
Annually Bill Credit Rate Bill Credit Rate w/
RECs
Received in Bill
Credits Annually
Annual Savings
(Simple)
Cumulative Sav-
ings (Simple)
Annual Savings
(NPV)
Cumulative Savings
(NPV)
1 39576 $0.122 -$4,828 $0.12431 $0.14431 $5,711 $883 $883 $883 $883
2 39378 $0.123 -$4,852 $0.12754 $0.14754 $5,810 $958 $1,841 $921 $1,804
3 39181 $0.124 -$4,876 $0.13086 $0.15086 $5,911 $1,035 $2,875 $957 $2,760
4 38985 $0.126 -$4,900 $0.13426 $0.15426 $6,014 $1,114 $3,989 $990 $3,750
5 38790 $0.127 -$4,925 $0.13775 $0.15775 $6,119 $1,195 $5,184 $1,021 $4,772
6 38596 $0.128 -$4,949 $0.14133 $0.16133 $6,227 $1,278 $6,461 $1,050 $5,822
7 38403 $0.130 -$4,973 $0.14501 $0.16501 $6,337 $1,363 $7,825 $1,078 $6,899
8 38211 $0.131 -$4,998 $0.14878 $0.16878 $6,449 $1,451 $9,276 $1,103 $8,002
9 38020 $0.132 -$5,023 $0.15265 $0.17265 $6,564 $1,541 $10,817 $1,126 $9,128
10 37830 $0.133 -$5,048 $0.15661 $0.17661 $6,681 $1,634 $12,451 $1,148 $10,276
11 37641 $0.135 -$5,073 $0.16069 $0.18069 $6,801 $1,729 $14,180 $1,168 $11,444
12 37453 $0.136 -$5,098 $0.16486 $0.18486 $6,924 $1,826 $16,005 $1,186 $12,630
13 37266 $0.137 -$5,123 $0.16915 $0.18915 $7,049 $1,926 $17,931 $1,203 $13,833
14 37079 $0.139 -$5,148 $0.17355 $0.19355 $7,177 $2,028 $19,960 $1,218 $15,051
15 36894 $0.140 -$5,174 $0.17806 $0.19806 $7,307 $2,133 $22,093 $1,232 $16,283
16 36709 $0.142 -$5,199 $0.18269 $0.20269 $7,441 $2,241 $24,334 $1,244 $17,528
17 36526 $0.143 -$5,225 $0.18744 $0.20744 $7,577 $2,352 $26,686 $1,256 $18,783
18 36343 $0.144 -$5,251 $0.19231 $0.21231 $7,716 $2,465 $29,151 $1,266 $20,049
19 36162 $0.146 -$5,277 $0.19731 $0.21731 $7,858 $2,581 $31,732 $1,274 $21,323
20 35981 $0.147 -$5,303 $0.20244 $0.22244 $8,004 $2,701 $34,433 $1,282 $22,605
21 35801 $0.149 -$5,329 $0.20771 $0.22771 $8,152 $2,823 $37,256 $1,288 $23,893
22 35622 $0.150 -$5,356 $0.21311 $0.23311 $8,304 $2,948 $40,204 $1,294 $25,187
23 35444 $0.152 -$5,382 $0.21865 $0.23865 $8,459 $3,076 $43,280 $1,298 $26,485
24 35267 $0.153 -$5,409 $0.22433 $0.24433 $8,617 $3,208 $46,488 $1,302 $27,786
25 35090 $0.155 -$5,436 $0.23017 $0.25017 $8,778 $3,343 $49,830 $1,304 $29,090
1
SOLAR GARDEN SUBSCRIPTION AGREEMENT
This Solar Garden Subscription Agreement (“Agreement”) is entered into as of the 15th
day of March, 2016 (the “Effective Date”) by and between Pollux CSG2, LLC, a Minnesota
limited liability company (“Owner”), and the City of Rosemount, a Minnesota municipal
corporation (the “Subscriber”). In this Agreement, Owner and Subscriber are sometimes
referred to individually as a “Party” and collectively as the “Parties.”
RECITALS
A. Owner intends to develop, own, operate and maintain a photovoltaic generation
facility qualified as a “Community Solar Garden” pursuant to Minn. Stat. 216B.1641 (“CSG
Program”) to be located at 21205 St. Croix Trail N, Scandia, MN 55073 (the “Facility”) and has
entered or will enter into a Standard Contract for Solar Rewards Community (“CSG Contract”)
with the local electric distribution company (the “LDC”). The designed capacity of the Facility
shall be approximately 1000 kWAC (subject to adjustment as described herein, the “Facility
Capacity”);
B. The energy produced by the Facility will be delivered by Owner to the LDC via
interconnection of the Facility to the electric grid, and the LDC will calculate the monetary value
of the energy received from the Facility per the applicable utility tariff and convert that amount
into credits per kilowatt hour (the “Bill Credit Rate” as defined in the CSG Contract) on the bills
from LDC to the subscribers to the Facility (“Credits”);
C. Owner will, in accordance with the terms hereof, and through the administrative
process established by the LDC as approved by the Minnesota Public Utilities Commission
(“MPUC”), allocate and sell the right to receive Credits to its subscribers according to their
respective Allocations (as defined below);
D. Subscriber is an LDC customer (Northern States Power Co. Premise. No.
303856509) and desires to purchase Credits from Owner in proportion to its expected
consumption of electricity at 15260 Shannon Parkway, Rosemount, Minnesota 55068
(“Customer Site”).
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual premises,
representations, warranties, covenants, conditions herein contained, and the Exhibits attached
hereto, Subscriber and Owner agree as follows.
1. Term. The term of this Agreement shall commence on the Effective Date and,
unless terminated earlier pursuant to the provisions hereof, shall terminate on the 25th
anniversary of the Commercial Operation Date (as defined below) (the “Term”). The Term shall
not be extended by virtue of any period of disconnection or event of Force Majeure experienced
by the Facility.
2. Operation of the Facility.
a. Owner shall operate the Facility during the Term so as to deliver all
energy generated by the Facility to LDC in accordance with the CSG Contract and applicable
LDC tariffs.
2
b. Owner shall maintain the Facility in good working order at all times
during the Term, and shall operate the Facility in a manner reasonably intended to maximize the
amount of Credits allocable to Subscriber, consistent with good custom and practice for
operation of utility generating facilities.
3. Sale and Purchase of Credits; Allocation.
a. Owner shall promptly notify Subscriber of the date commercial operation
of the Facility commences as established pursuant to the CSG Contract (“Commercial Operation
Date”). In the event that the Commercial Operation Date is not achieved by December 31, 2017,
and any of the following events or circumstances occur, either Party may terminate this
Agreement, without liability, upon delivery of notice of termination to the other Party:
i. after timely application to the LDC (or other applicable distribution
service provider whose system the Facility connects to deliver energy (the “Distribution
Provider”) and commercially reasonable efforts to secure interconnection services, Owner has
not received written confirmation and evidence that interconnection services will be available for
the energy generated by the Facility at the Facility Capacity; or
ii. the LDC or another party with the authority to do so disqualifies
Owner or the Facility from participating in the CSG Program.
b. Owner shall allocate a portion of Facility Capacity to Subscriber equal to
fourteen percent (14.0 %) of Facility Capacity (the “Allocation”). Owner shall provide to LDC
the Allocation along with Subscriber’s name, LDC account number(s), and service address(es)
(“Subscriber Data”).
c. Owner shall sell to Subscriber and Subscriber shall purchase from Owner,
the right to receive an amount of Credits calculated on the basis of that portion of the total
kilowattac hours delivered by the Facility to LDC which corresponds to the Allocation. The
Allocation shall be effective for each and every LDC Production Month (as defined in the CSG
Contract) during the Term. Owner shall post Credits to Subscriber’s account monthly for
invoicing pursuant to Section 4 of this Agreement (“Subscriber’s Monthly Credits”). Thus,
where x = number of Subscriber’s Monthly Credits, y = kilowattac hours delivered in an LDC
Production Month, and a = Allocation, x = y * a.
4. Price and Payment.
a. For the right to receive Subscriber’s Monthly Credits generated by the
Facility each month, Subscriber shall pay to Owner an amount equal to the product of (i) the
corresponding Subscriber’s Monthly Credits, and (ii) the Bill Credit Rate then applicable to the
LDC’s Solar Rewards Community Program minus one cent ($.01) (the “Monthly Allocation
Payment”).
b. Beginning with the second calendar month following the Commercial
Operation Date, Owner shall invoice Subscriber for the Monthly Allocation Payment for the
Credits posted to Subscriber’s account since the prior invoice date. Subscriber shall make its
payments to Owner no later than thirty (30) days following receipt of the applicable invoice.
3
Owner shall include with each invoice, a copy of the LDC statement delivered to Owner that
indicates the kWhAC upon which the LDC calculates the Credit to Subscriber.
5. Records and Audits.
a. Upon request by Subscriber, Owner shall provide (i) reasonable evidence
of the accuracy of its metering equipment for the Facility and/or (ii) such other information and
records reasonably requested by Subscriber to enable Subscriber to verify the accuracy of the
Credits awarded by the LDC and any other calculation and/or measurements described in this
Agreement.
b. Owner shall provide reports to Subscriber (i) monthly, containing the
energy produced by the Facility, and (ii) annually, containing an audited financial statement of
Owner, and a current statement of management, financing parties, and operatorship of Owner.
Subscriber may provide comments to Owner on the accuracy and completeness of the annual
reports, and shall provide a copy of any such comments to LDC.
c. As required by Minnesota Statutes, section 16C.05, subdivision 5, the
records, books, documents, and accounting procedures and practices of CSGI and of any
subcontractor of CSGI 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 as
described in such subdivision. CSGI and any subcontractor of CSGI shall permit, upon
reasonable advance written notice, the Subscriber or its designee to inspect, copy, and audit its
accounts, records, and business documents at any reasonable 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.
6. Taxes.
a. Subscriber shall be solely liable for sales or similar taxes imposed by a
governmental entity, if any, attributable to the sale of Credits allocated to the Subscriber.
b. Subscriber shall have no interest in and have no entitlement to claim any
investment tax credit or other tax benefits related to the construction, ownership, operation or
maintenance of the Facility.
7. Representations, Warranties and Covenants.
a. Each Party represents and warrants to the other Party:
i. The Party is duly organized, validly existing, and in good standing
in the jurisdiction of its organization and is qualified to do business in the State of Minnesota;
ii. The Party has full legal capacity to enter into and perform this
Agreement;
4
iii. The execution of the Agreement has been duly authorized, and
each person executing the Agreement on behalf of the Party has full authority to do so and to
fully bind the Party; and
iv. To the best of its knowledge, there is no litigation, action,
proceeding or investigation pending before any court or other Governmental Authority by,
against, affecting or involving its ability to carry out the transactions contemplated herein.
b. Owner represents, warrants, and covenants to Subscriber:
i. Owner has, or in the ordinary course will obtain, all licenses,
permits and any other required documents to construct and operate the Facility;
ii. Owner shall perform its obligations under the CSG Contract and
otherwise comply with all provisions of the CSG Program and other applicable tariffs.
iii. Except as specifically provided for in this Agreement and may be
required by law or regulation, or with Subscriber’s consent, Owner will not publicly disclose
Subscriber’s LDC account information, energy usage data, or Credits.
c. Subscriber represents, warrants, and covenants to Owner:
i. Subscriber’s average annual energy consumption for its
subscribing account(s) over the two year period prior to the Effective Date is 235,580 kWhac;
ii. Subscriber shall not install or procure any other distributed
generation resource(s) serving Subscriber’s premises to which energy is delivered by LDC under
Account No. 51-6870491-2, which resource(s), when combined with the Allocation, may
generate energy (including energy upon which the Credits are based) exceeding one hundred
twenty percent (120%) of Subscriber’s average annual energy consumption over the twenty-four
(24) months prior to such installment or procurement.
iii. Within thirty (30) days of request by Owner, Subscriber shall
complete, execute, and deliver to Owner the Subscriber Agency Agreement in the form attached
hereto as Exhibit A. Upon execution, all of the information and statements of Subscriber
provided therein shall be accurate.
iv. Subscriber understands and agrees it will have no interest in or
entitlement to (a) benefits or derivatives of “Unsubscribed Energy” or “RECs” associated with
the Facility as each is defined in the CSG Contract; and (b) incentives under the MN Department
of Commerce’s Made in Minnesota program and LDC’s Solar Rewards program associated with
the Facility.
8. Performance Guarantee. Owner hereby guarantees that in every period of two
consecutive calendar years during the Term, beginning with the first full calendar year, Owner
will provide Credits from operation of the Facility in an amount not less than ninety percent
(90%) of Expected Deliveries (weather adjusted) which will be set forth on Exhibit B hereto (the
“Guaranteed Performance”) not later than the date of commencement of construction of the
5
Facility. Owner shall pay Subscriber one cent ($.01) per Credit to the extent the actual number
of Credits purchased by Subscriber during any such two year period (the “Measurement
Period”) is less than the Guaranteed Performance for the entire Measurement Period (combining
the Expected Deliveries for both calendar years). Such payment shall be Subscriber’s sole
remedy for default by Owner under this Section 8. Owner shall have no liability under this
Section 8 if the Facility’s failure to achieve Guaranteed Performance is due to an event of Force
Majeure.
9. Default and Force Majeure.
a. Events of Default. The following shall each constitute an Event of Default
by a Party:
i. The Party fails to make any payment due under this Agreement
within thirty (30) days after delivery of notice from the other Party that such payment is overdue.
ii. The Party materially fails to perform or comply with any material
representation, warranty, obligation, covenant or agreement set forth in this Agreement and such
failure continues for a period of thirty (30) days after delivery of notice thereof from the other
Party.
iii. The Party is subject to a petition for dissolution or reorganization,
voluntary or involuntary, under the U.S. Bankruptcy Code or any state law (including
appointment of a receiver or assignment for the benefit of creditors), which is not terminated
within sixty (60) days of commencement.
b. Force Majeure. Except as specifically provided herein, if by reason of
Force Majeure, a Party is unable to carry out, either in whole or in part, any of its obligations
herein contained, such Party shall not be deemed to be in default during the continuation of such
inability, provided that: (i) the non-performing Party, within a reasonable time after the
occurrence of the Force Majeure event, gives the other Party notice describing the particulars of
the occurrence and the anticipated period of delay; (ii) the suspension of performance be of no
greater scope and of no longer duration than is required by the Force Majeure event; (iii) no
obligations of the non-performing Party which were to be performed prior to the occurrence
causing the suspension of performance shall be excused as a result of the occurrence; and (iv) the
non-performing Party shall use reasonable efforts to remedy the cause(s) preventing it from
carrying out its obligations. “Force Majeure” as used in this Agreement shall mean an event or
circumstances beyond the reasonable control of a Party, which was not reasonably foreseeable
and not resulting from the Party’s negligence, gross negligence or intentional acts, including, but
not limited to fire, acts of God, earthquake, flood or other casualty or accident; break down or
failure of the Distribution Provider’s electric distribution system; serial equipment defect; strikes
or labor disputes; war, civil strife or other violence; and any law, order, proclamation, regulation,
ordinance, action, demand or requirement of any government agency or utility. Force Majeure
does not include the lack of funds, inability to make a payment or general change in the economy
or particular markets.
6
10. Remedies; Limitation of Liability; Waiver.
a. Remedies. Subject to the limitations set forth in this Agreement, the
Parties each reserve and shall have all rights and remedies available to it at law or in equity with
respect to the performance or non-performance of the other Parties hereto under this Agreement.
Under no circumstances shall Owner’s liability under this Agreement exceed, in any one
calendar year, an amount equal to (i) the Allocation percentage times (ii) $15,000; provided,
however that such limitation shall not apply to damages arising out of the sale or allocation by
Owner to a third party of the Credits allocated and committed to Subscriber hereunder. For
example, if the Allocation is 40%, then the limit described in the preceding sentence shall equal
40% x $15,000 or $6,000 total.
b. Owner Damages. In the event of Subscriber’s breach, repudiation, or
termination of this Agreement in violation of the provisions hereof, Owner shall be entitled to
recover from Subscriber (subject to Owner’s duty to mitigate damages including its duty to try
and find a replacement subscriber): (i) the unpaid Monthly Allocation Payments due at the time
of termination; and (ii) Owner’s actual, reasonable, and verifiable damages resulting from
Subscriber’s breach. Any post-termination Monthly Allocation Payments that may qualify as
damages under this section, will be calculated based upon the Schedule of Expected Deliveries
of Credits (Exhibit B, hereto), and the Bill Credit Rate at the time of Subscriber’s breach of this
Agreement.
c. Limitation of Liability. EXCEPT AS EXPRESSLY ALLOWED
HEREIN, NO PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL,
INDIRECT OR PUNITIVE DAMAGES OF ANY CHARACTER, RESULTING FROM,
ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY INCIDENT TO ANY ACT
OR OMISSION OF A PARTY RELATED TO THE PROVISIONS OF THIS AGREEMENT,
IRRESPECTIVE OF WHETHER CLAIMS OR ACTIONS FOR SUCH DAMAGES ARE
BASED UPON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY
OTHER THEORY AT LAW OR EQUITY.
d. Exclusions. NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN THIS SECTION 10, THE LIMITATIONS OF THIS SECTION 10 DO NOT APPLY TO A
CLAIMS FOR (i) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (ii) FAILURE TO
COMPLY WITH LAWS, (iii) INDEMNIFICATION, (iv) BREACH OF CONFIDENTIALITY
OR (v) INTELLECTUAL PROPERTY INFRINGEMENT.
11. Early Termination.
a. Owner may terminate this Agreement on notice thereof to Subscriber in
the event that Owner is unable to obtain financing or adequate subscriptions for the Facility on
commercially reasonable terms on or before December 31, 2017.
b. If Owner fails to perform under this Agreement due to an event of Force
Majeure that lasts more than twelve (12) months or fails to restore the Facility to full operation at
Capacity within twelve (12) months following an event of Force Majeure causing damage to the
Facility, Subscriber shall have the right to terminate this Agreement by giving Owner at least
7
sixty (60) days prior written notice of its intent to terminate based on such failure(s). Any such
notice of termination shall be given within three (3) months of such failure(s). In the event of
termination pursuant to this Section 11(b), Owner shall pay to Subscriber, as liquidated damages,
one cent ($.01) for each Credit expected to have been allocated to Subscriber for the six month
period following the expiration of such twelve (12) month period.
c. In the event (i) the CSG Contract is terminated based on Owner’s breach
thereof or (ii) Owner materially breaches its obligations of performance in this Agreement and
such breach is not cured within thirty (30) days after Owner receives written notice of such
breach from Subscriber (provided, however, that if such breach is not capable of being cured
within such thirty-day period and Owner has commenced and diligently continued actions to
cure such breach within such thirty-day period, the cure period shall be extended to 180 days, so
long as Owner is making diligent efforts to do so), then Subscriber may terminate this
Agreement as provided in this Section 11. In the event of a termination by Subscriber described
in the preceding sentence, Owner shall pay to Subscriber, as liquidated damages, one cent ($.01)
for each Credit expected to have been allocated to Subscriber for the calendar year following
termination according to the Schedule of Expected Deliveries, Exhibit B.
d. The Parties agree that actual damages in the event of termination of this
Agreement as specified in Sections 11(b) and 11(c), would be difficult to calculate and that the
liquidated damages specified herein are a reasonable approximation of such actual damages.
12. Assignment. No Party shall assign or in any manner transfer this Agreement or
any part thereof except in connection with (a) Subscriber’s assignment to a party approved in
advance by Owner, with such approval not unreasonably withheld, on the bases of (i)
creditworthiness, (ii) the party’s eligibility under the Solar Rewards Community Program, (iii)
Subscriber’s payment to Owner of seven hundred fifty dollars ($750) to cover Owner’s
administrative expenses associated with the transfer (the “Transfer Fee”) and (iv) other factors
evidencing an increase in a material risk of a breach of this Agreement, (b) Owner’s assignment
of this Agreement to any Affiliate that owns or, by long-term lease, controls the Facility,
provided that such Affiliate has the same or better credit strength and has agreed in writing to
recognize Subscriber’s rights under this Agreement and to comply with the terms of this
Agreement; (c) Owner’s collateral assignment of this Agreement to any financial institution that
provides financing for the Facility (including a financial institution that enters into a
sale/leaseback transaction with respect to the Facility) that has agreed in writing to recognize
Subscriber’s rights under this Agreement and to comply with the terms of this Agreement upon
the foreclosure or conveyance in lieu thereof, and, in connection with any collateral assignment
of this Agreement, Subscriber agrees to comply with the lender accommodations set forth in
Exhibit C to this Agreement; (d) Owner’s assignment of this Agreement, prior to the
Commencement of Operations Date, to another operator/owner of a community garden facility,
in the same County and qualified under the Solar Rewards Community Program which has
sufficient capacity to accept Subscriber’s Allocation, has the same or better credit strength, and
agrees in writing to recognize Subscriber’s rights under this Agreement and to comply with the
terms of this Agreement; or (e) Subscriber’s assignment of this Agreement to any of its Affiliates
or successor entity if the Minnesota legislature reassigns responsibility for the services provided
by Subscriber(without change of service address) provided that such Affiliate or successor entity
has the same or better credit strength and pays the Transfer Fee.
8
13. Miscellaneous.
a. LDC Disputes. Owner shall be solely responsible for resolving any
dispute with LDC regarding the production of energy by the Facility. Subscriber shall be solely
responsible for resolving any dispute with LDC regarding the calculation of the Bill Credit Rate.
b. Notices.
i. All notices and other formal communications which any Party may
give to another under or in connection with this Agreement shall be in writing (except where
expressly provided for otherwise), shall be deemed delivered upon mailing, deposit with a
courier for hand delivery, or electronic transmission, and shall be sent by any of the following
methods: hand delivery; reputable overnight courier; certified mail, return receipt requested; or
email transmission.
ii. Subscriber shall promptly notify Owner of any changes in
Subscriber Data.
The notices and communications shall be sent to the following addresses:
If to Owner:
Owner
c/o BHE Renewables, LLC
Program Manager – MN Community Solar Gardens
1850 N. Central Ave. Suite 1025
Phoenix, AZ 85004
Phone: 515-252-6677
Email: BHERenewables@bherenewables.com
If to Subscriber:
City of Rosemount
2875 145th Street West
Rosemount, MN 55068
c. 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,
unless such invalidity or unenforceability frustrates or negates an essential purpose of this
Agreement.
d. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Minnesota without reference to any choice of
law principles.
e. Dispute Resolution.
9
i. Amicable Settlement. The Parties shall attempt in good faith to
resolve all disputes arising in connection with the interpretation or application of the provisions
of this Agreement or in connection with the determination of any other matters arising under this
Agreement by mutual agreement.
ii. Continuation of Performance. During the pendency of any dispute
hereunder, the Parties shall continue to perform their respective obligations under this
Agreement.
iii. Equitable Relief. Nothing in this Agreement shall be construed to
preclude either Party from seeking or obtaining urgent equitable or injunctive relief from a court
of law in relation to this Agreement.
iv. Venue and Jurisdiction. The Parties agree that the courts of the
State 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.
v. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY
RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH
ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
f. Insurance. With respect to the services provided pursuant to this
Agreement, CSGI 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 and limits:
i. Commercial General Liability on an occurrence basis with
contractual liability coverage:
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
ii. Workers’ Compensation and Employer’s Liability:
Workers’ Compensation Statutory
(If CSGI is based outside the state of Minnesota, coverage must compl y
with Minnesota Law).
iii. Employer’s Liability. Bodily injury by:
Accident—Each Accident $500,000
10
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
CSGI to determine the need for and to procure additional insurance which may be needed in
connection with this Agreement. Upon written request, CSGI shall promptly submit copies of
insurance policies to Subscriber.
iv. CSGI 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 this Agreement. CSGI shall
furnish to Subscriber updated certificates during the term of this Agreement as insurance policies
expire.
g. Compliance with Law. Owner shall comply with all applicable laws
(including common laws), ordinances, codes, tariffs, rules and regulations (collectively, “Laws”)
regarding Owner’s obligations and performance under this Agreement. Owner shall obtain and
maintain any and all permits, licenses, bonds, certificates and other similar approvals required in
connection with this Agreement. In the event of an allegation that Owner has failed to comply with
any Laws or failed to obtain any and all permits, licenses, bonds, certificates and/or any other
similar approvals required in connection with this Agreement, Owner shall pay any fines or
penalties imposed upon Subscriber as a result of such failure and shall reimburse Subscriber for
any expenses (including attorneys’ fees) incurred by Subscriber in responding to such allegation.
h. Entire Agreement. This Agreement, and all documents referenced herein,
contain the entire agreement between Parties with respect to the subject matter hereof, and
supersede all other understandings or agreements, both written and oral, between the Parties
relating to the subject matter hereof.
i. No Joint Venture. Each Party will perform all obligations under this
Agreement as an independent contractor. Nothing herein contained shall be deemed to constitute
any Party a partner, agent or legal representative of another Party or to create a joint venture,
partnership, agency or any relationship between the Parties. The obligations of Subscriber and
Owner hereunder are individual and neither collective nor joint in nature.
j. Amendments; Binding Effect. This Agreement may not be amended,
changed, modified, or altered unless such amendment, change, modification, or alteration is in
writing and signed by each Party to this Agreement or its successor in interest. This Agreement
inures to the benefit of and is binding upon the Parties and their respective successors and
permitted assigns.
k. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which shall constitute one and the same agreement.
11
l. Further Assurances. From time to time and at any time at and after the
execution of this Agreement, each Party shall execute, acknowledge and deliver such documents
and assurances, reasonably requested by the other for the purpose of effecting or confirming any
of the transactions contemplated by this Agreement.
m. Survival. The provisions of Sections 10, (Remedies, Limitation of
Liability; Waiver), 13(c) (Severability), 13(d) (Governing Law), 13(e) (Dispute Resolution), and
13(g) (Indemnity) and 13(p) (Confidentiality) shall survive the expiration or earlier termination
of this Agreement.
n. No Third-Party Beneficiaries. This Agreement is intended solely for the
benefit of the Parties hereto. Except as expressly set forth in this Agreement, nothing in this
Agreement shall be construed to create any duty to or standard of care with reference to, or any
liability to, or any benefit for, any person not a party to this Agreement.
o. Confidentiality. Each Party agrees that it will not disclose Not Public
Data (as hereinafter defined), directly or indirectly, under any circumstances or by any means
(excluding disclosures to the LDC or as are required as a participant in the CSG Program), to any
third person without the express written consent of the other Party unless such disclosure is
permitted by the Minnesota Government Data Practices Act, Minn. Stat. ch. 13, or required by
applicable Law. “Not Public Data” means, not public data as defined in Minnesota Statutes §
13.02, subd. 8a (2014).
p. Data Practices.
i. Consistent with Minnesota Statutes, section 13.05, subdivision 6, if
any data on individuals is made available to Owner by the Subscriber under this Agreement,
Owner 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 Agreement, then: (A) all of the data created, collected,
received, stored, used, maintained, or disseminated by Owner in performing this Agreement are
subject to the requirements of the Minnesota Government Data Practices Act; (B) Owner must
comply with those requirements as if it were a government entity; and (C) the remedies in
Minnesota Statutes, section 13.08 apply to Owner.
ii. 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 Owner by the Subscriber, Owner must: (A) have safeguards to ensure private
or confidential data on individuals or other not public data are only accessible or viewable by
Owner employees and agents whose work assignments in connection with the performance of
this Agreement reasonably require them to have access to the data; (B) immediately notify the
Subscriber of any unauthorized access by Owner employees and agents, and unauthorized access
by third parties; (C) 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 Owner’s access to or use of the data; and (D) fully cooperate with the Subscriber
in fulfilling the notice and reporting requirements of Minnesota Statutes, section 13.055. The
12
penalties in Minnesota Statutes, section 13.09 governing unauthorized acquisition of not public
data apply to Owner and Owner employees and agents. If Owner is permitted to use a
subcontractor to perform Owner’s work under this Agreement, Owner shall incorporate these
data practices provisions into the subcontract.
iii. If Owner receives a request to release data referred to in this
section, Owner must immediately notify the Subscriber. The Subscriber will give Owner
instructions concerning the release of the data to the requesting party before the data is released.
[Signature page follows]
13
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
CITY OF ROSEMOUNT
By:
Name: William H. Droste
Title: Mayor
By:
Name: Clarissa Hadler
Title: City Clerk
POLLUX CSG1, LLC
By:
Name: Eric Besseling
Title: Authorized Representative
14
EXHIBIT A
Subscriber Agency Agreement and Consent Form
15
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: Pollux CSG1, LLC
Community Solar Garden Address: 24816 Helena Blvd, New Prauge, MN 56071
Community Solar Garden Operator: Pollux CSG1, LLC
Community Solar Garden contact
information for Subscriber questions BHE Renewables, LLC
and complaints:
Address (if different from above): 1850 N. Central Avenue, Suite 1025, Phoenix, AZ 85004
Telephone number: 515-281-6677
Email address: BHERenewables@bherenewables.com
Web Site URL: http://www.bherenewables.com/
Subscriber Name: City of Rosemount
Subscriber’s Account Number with
Northern States Power Company: 51-6870491-2
Subscriber Service Address where
receiving electrical service from
Northern States Power Company: 15260 Shannon Parkway, Rosemount, MN 55068
16
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 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 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 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.
17
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. Aggregate Information. Aggregate 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 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
18
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 CSG 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.
Subscriber's Name: City of Rosemount
Subscriber's Signature:
William H. Droste, Mayor
Clarissa Hadler, City Clerk
Date:
19
Exhibit 1 to
Solar*Rewards Community Subscriber Agency Agreement and Consent Form
Data Privacy Policies of Northern States Power Company Pertaining to the Solar*Rewards
Community Program
The data privacy policies of Northern States Power Company pertaining to the
Solar*Rewards Community Program are as follows and may be changed from time to time as
filed in the Company's tariff or as otherwise may be authorized by the Minnesota Public Utilities
Commission ("MPUC"):
Definitions
Unless indicated otherwise, the same definition and meaning of terms in this document
are the same as contained in the Standard Contract for Solar*Rewards Community. For ease of
reference, here are some of the specific definitions:
“Company” means Northern States Power Company, a Minnesota Corporation, and its
affiliates and agents.
“Subscribed Energy” means electricity generated by the PV System attributable to the
Subscribers' Subscriptions and delivered to the Company at the Production Meter on or after the
Date of Commercial Operation.
“Subscriber” means a retail customer of the Company who owns one or more
Subscriptions of a community solar garden interconnected with the Company.
“Subscriber’s Account Information” consists of the Subscriber's 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, and
Subscriber specific Bill Credit(s).
“Subscriber's Energy Usage Data” includes 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.
20
Overview
This section addresses how Subscriber's Account Information and Subscriber's Energy
Usage Data will be collected, used and shared as part of participation in the Solar*Rewards
Community Program.
1. How Subscriber's Account Information and Energy Usage Data Will Be Exchanged
a. Subscriber Specific Information
Once a Subscriber has executed a Subscriber Agency Agreement and Consent Form, an
ongoing data exchange will occur between the Company and a Community Solar Garden
Operator (and their designated subcontractors and agents):
(i) The Company will disclose the following Subscriber-specific information to the
Community Solar Garden Operator:
Subscriber's Account Information
Subscriber's Energy Usage Data
Bill credits
(ii) The Community Solar Garden Operator will disclose to the Company the
following Subscriber-specific information:
Subscriber's Account Information
Community Solar Garden Allocation for each Subscriber's Subscription stated
in kW
Production data related to the PV System
Monthly Subscription Information
b. Aggregated Subscriber Information
Aggregated Subscriber information will be reported as part of Permitted Public
Reporting, outlined in Section 2(b) below.
To be considered "aggregated" the reported information must include information
attributable to all Subscribers participating in a specific Solar*Rewards Community program
site, which based on program requirements will contain a minimum of five Subscribers.
Depending on the nature of the aggregated information, however, from this information alone or
in combination with other publicly available information it may still be possible to infer the
amount of production attributed to individual Subscribers to the Community Solar Garden.
21
2. How Subscriber's Information Will Be Used
The following outlines how the Subscriber's Account Information and Subscriber Energy
Usage Data will be used as part of the Solar*Rewards Community Program.
a. Program Management
As part of administering the Solar*Rewards Community program, the Solar Garden
Operator and the Company may provide information related to the Subscriber and/or the
Community Solar Garden to:
the MPUC
the Minnesota Department of Commerce
the Minnesota Office of Attorney General
Other governmental or private entities as required by law or regulation
Account Information and Subscriber's Energy Usage Data to service providers, agents, or
contracted agents who support the program on its behalf. The Company prohibits these service
providers from using or disclosing the Subscriber's information except as necessary to perform
these specific services or to comply with legal requirements. More information about the
Company's general privacy practices is explained in its Privacy Policy available on
www.xcelenerqy.com.
b. Permitted Public Reporting
The Subscriber's Energy Usage Data of each participating Subscriber to a Community
Solar Garden will be combined and reported in the aggregate by the Community Solar Garden
Operator in its annual report on the Solar*Rewards Community program. The identity of
specific Subscribers, the specific Subscriber's Account Information, Subscriber's Energy Usage
Data and Subscriber-specific Bill Credit will not be listed in the public annual report unless the
Subscriber has provided the Community Solar Garden Operator with prior written consent.
Per the requirements of the MPUC, the Company will provide to the MPUC annual
reports which will include information or data requested by the MPUC or Minnesota Department
of Commerce, including the following:
Reporting on Solar*Rewards Community program costs, including an analysis of
the deposit, application, participation and metering fees and further justification
for these fees going forward;
Reporting on the Solar*Rewards Community Gardens, including but not limited
to size, location and the type of Solar*Rewards Community subscriber groups;
Reporting on known complaints and the resolution of these complaints;
22
A copy of each contract signed with a Community Solar Garden Operator, if not
previously filed;
Lessons learned and any potential changes to the program;
Report on bill credits earned and paid; and the
Application process
c. Prohibited Reporting or Sharing
Except as otherwise provided in this document, the Company will not disclose the
Subscriber's Account Information, Subscriber's Energy Usage Data or Subscriber-specific Bill
Credits to a third party without first obtaining the Subscriber's written consent.
Any requests by the Community Solar Garden Operator to the Company for information
about a Subscriber that is not Subscriber's Account Information or Subscriber's Energy Usage
Data will require execution of a separate written consent by the Subscriber. Notwithstanding the
previous statement, the Company will not provide the Community Solar Garden Operator with
the Subscriber's Social Security Number unless directed to do so by the MPUC or Minnesota
Department of Commerce or compelled by law or regulation.
3. Subscriber Data Access and Correction
The following outlines what information is available to the Subscriber from the Company
and the Community Solar Garden Operator, and methods of correcting any inaccuracies.
a. Information Available from the Company
Subscribers can contact the Company's call center to obtain information pertaining to
their specific Bill Credit attributable to their participation in Solar*Rewards Community
Program. The correction of any allocation of previously-applied Bill Credits among Subscribers
or payments to the Community Solar Garden Operator for Unsubscribed Energy, pertaining to a
particular month due to any inaccuracy reflected in such Monthly Subscription Information with
regard to a Subscriber's Subscription in the PV System and the beneficial share of photovoltaic
energy produced by the PV System, or the share of Unsubscribed Energy, shall be the full
responsibility of the Community Solar Garden Operator, unless such inaccuracies are caused by
the Company .
Subscribers may also obtain from the Company the following information related to the
Solar*Rewards Community Program without obtaining written consent from the Community
Solar Garden Operator:
Site location
Operator name
Nameplate capacity
23
Production data related to the PV system
Bill Credit Rate and total amount of Bill Credits applied to the PV System
Any other information pertaining to the Subscriber's Subscription
Other information regarding the Community Solar Garden Operator known to the
Company will not be disclosed unless the Subscriber obtains prior explicit informed consent
from the Community Solar Garden Operator or unless directed to do so by the MPUC or
Minnesota Department of Commerce or compelled by law or regulation.
b. Information Available from the Community Solar Garden Operator
Subscribers and prospective subscribers can contact the Community Solar Garden
Operator to obtain the following information:
Future costs and benefits of the Subscription, including:
i. All nonrecurring (i.e., one-time) charges;
ii. All recurring charges;
iii. Terms and conditions of service;
iv. Whether any charges may increase during the course of service, and if so,
how much advance notice is provided to the Subscriber;
v. Whether the Subscriber may be required to sign a term contract;
vi. Terms and conditions for early termination;
vii. Any penalties that the Community Solar Garden may charge to the
Subscriber;
viii. The process for unsubscribing and any associated costs;
ix. An explanation of the Subscriber data the Community Solar Garden
Operator will share with Northern States Power Company and that
Northern States Power Company will share with the Community Solar
Garden Operator;
x. The data privacy policies of Northern States Power Company and of the
Community Solar Garden Operator;
xi. The method of providing notice to Subscribers when the Community Solar
Garden is out of service, including notice of estimated length and loss of
production;
24
xii. Assurance that all installations, upgrades and repairs will be under direct
supervision of a NABCEP-certified solar professional and that
maintenance will be performed according to industry standards, including
the recommendations of the manufacturers of solar panels and other
operational components;
xiii. Allocation of unsubscribed production; and
xiv. A statement that the Community Solar Garden Operator is solely
responsible for resolving any disputes with Northern States Power
Company or the Subscriber about the accuracy of the Community Solar
Garden production and that Northern States Power Company is solely
responsible for resolving any disputes with the Subscriber about the
applicable rate used to determine the amount of the Bill Credit.
Copy of the contract with Northern States Power Company for the Solar*Rewards
Community Program
Copy of the solar panel warranty
Description of the compensation to be paid for any underperformance
Proof of insurance
Proof of a long-term maintenance plan
Current production projections and a description of the methodology used to
develop production projections
Community Solar Garden Operator contact information for questions and
complaints
Demonstration to the Subscriber by the Community Solar Garden Operator that it
has sufficient funds to operate and maintain the Solar*Rewards Community
Program
The Community Solar Garden Operator is solely responsible for the accuracy of the
Subscriber's share of the Community Solar Garden production information forwarded to the
Company, and should resolve with the Subscriber any dispute regarding the accuracy of such
information.
Subscribers can submit comments to the Company on the accuracy and completeness of
its annual report by contacting solarrewardscommunity@xcelenergy.com.
25
4. Data Retention
The Company will retain the Subscriber's Account Information, Subscriber's Energy
Usage Data and information on Bill Credits for as long as required under applicable law.
26
EXHIBIT B
Schedule of Expected Deliveries of Credits
[pro forma; final to be provided prior to commencement of construction]
Subscriber's Share (kWh)
Year 1 235,580
Year 2 234,402
Year 3 233,230
Year 4 232,064
Year 5 230,904
Year 6 229,749
Year 7 228,600
Year 8 227,457
Year 9 226,320
Year 10 225,188
Year 11 224,063
Year 12 222,942
Year 13 221,828
Year 14 220,718
Year 15 219,615
Year 16 218,517
Year 17 217,424
Year 18 216,337
Year 19 215,255
Year 20 214,179
Year 21 213,108
Year 22 212,043
Year 23 210,982
Year 24 209,927
Year 25 208,878
27
Weather Adjustment Protocol for Expected Deliveries
For any two-year Measurement Period respecting application of the Performance Guarantee,
Expected Deliveries shall be adjusted to reflect any negative difference (shortfall) between
Expected Solar Irradiation (“ESI”) and Actual Solar Irradiation (“ASI”). The ratio of ASI to ESI
for the Measurement Period shall be applied to Expected Deliveries as a weather adjustment
prior to comparing Actual Deliveries to Expected Deliveries for the purposes of the Performance
Guarantee.
The method of the weather adjustment is as follows.
1. The ESI for the Facility is 1390 KWh per square meter.
2. The ASI is to be determined by monthly pyranometer readings at the Facility. The
monthly readings are to be averaged for each of the two calendar years in the
Measurement Period.
3. The weather adjustment factor for the measurement period is the ratio of (i) ASI,
determined per Step 2 of this method to (ii) ESI, determined per Step 1 of this method.
The Expected Deliveries for the Measurement Period is multiplied by this factor to derive
the Guaranteed Performance.
28
EXHIBIT C
Lender Accommodations
Subscriber acknowledges that Owner may be financing the installation of the Facility either
through a lessor, lender or with financing accommodations from one or more financial
institutions and that Owner may sell or assign the Facility and/or may secure Owner’s
obligations by, among other collateral, a pledge or collateral assignment of this Agreement and a
first security interest in the Facility. In order to facilitate such sale, conveyance, or financing,
and with respect to any such financial institutions of which Owner has notified Subscriber in
writing Subscriber agrees as follows:
(a) Consent to Collateral Assignment. Provided the Financing Party has agreed in writing to
recognize Subscriber’s rights under this Agreement and to comply with the terms of the
Agreement with respect to any of Subscriber’s rights thereunder upon the foreclosure or
conveyance in lieu thereof, Subscriber consents to either the sale or conveyance by Owner to a
Financing Party that has provided financing of Owner’s right, title and interest in the Facility and
to this Agreement.
(b) Notices of Default. Subscriber will deliver to the Financing Party, concurrently with
delivery thereof to Owner, a copy of each notice of default given by Subscriber under the
Agreement, inclusive of a reasonable description of Owner default. Subscriber will not mutually
agree with Owner to terminate the Agreement without the written consent of the Financing Party.
(c) Rights Upon Event of Default. Notwithstanding any contrary term of this Agreement,
during the continuation of an event of default by Owner under its agreements with Financing
Party, provided that the Financing Party has agreed in writing to recognize Subscriber’s rights
under the Agreement and to not disturb any of Subscriber’s rights thereunder:
i. The Financing Party, as collateral assignee, shall be entitled to exercise, in the
place and stead of Owner, any and all rights and remedies of Owner under this Agreement in
accordance with the terms of this Agreement and the Financing Party shall also be entitled to
exercise all rights and remedies of secured parties generally with respect to this Agreement.
ii. The Financing Party shall have the right, but not the obligation, to pay all sums
due under this Agreement and to perform any other act, duty or obligation required of Owner
thereunder or cause to be cured any default of Owner thereunder in the time and manner
provided by the terms of this Agreement. Nothing herein requires the Financing Party to cure
any default of Owner under this Agreement or (unless the Financing Party has succeeded to
Owner’s interests under this Agreement) to perform any act, duty or obligation of Owner under
this Agreement, but Subscriber hereby gives it the option to do so.
iii. The exercise of remedies under its security interest in the Facility, including any
sale thereof by the Financing Party, whether by judicial proceeding or under any power of sale
contained therein, or any conveyance from Owner to the Financing Party (or any assignee of the
Financing Party), shall not constitute a default under this Agreement.
29
iv. Upon any rejection or other termination of this Agreement pursuant to any
process undertaken with respect to Owner under the United States Bankruptcy Code or any
similar state law, at the request of the Financing Party made within ninety (90) days of such
termination or rejection, Subscriber shall enter into a new agreement with the Financing Party or
its assignee having the same terms and conditions as this Agreement.
(d) Right to Cure.
i. Except for termination pursuant to Section 3(a) of the Subscription Agreement in
connection with a failure to achieve commercial operation by December 31, 2017, Subscriber
will not exercise any right to terminate or suspend this Agreement unless it shall have given the
Financing Party prior written notice by sending notice to the Financing Party (at the address
provided by Owner) of its intent to terminate or suspend this Agreement, specifying the
condition giving rise to such right, and the Financing Party shall not have caused to be cured the
condition giving rise to the right of termination or suspension within thirty (30) days after such
notice or (if longer) the periods provided for in this Agreement. The Parties respective
obligations will otherwise remain in effect during any cure period; provided that if such Owner
default reasonably cannot be cured by the Financing Party within such period and the Financing
Party commences and continuously pursues cure of such default within such period, such period
for cure will be extended for a reasonable period of time under the circumstances, such period
not to exceed additional sixty (60) days.
ii. If the Financing Party (including any transferee), pursuant to an exercise of
remedies by the Financing Party, shall acquire title to or control of Owner’s assets and shall,
within the time periods described in Sub-section (d)(i) 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.
***
57742439_1.docx
1
Pine Island Unit #2
Met Council Ticket #5
Randomized Selection #233
COMMUNITY SOLAR GARDEN SUBSCRIPTION AGREEMENT
Pine Island Solar Garden Unit 2
WHEREAS, SolarStone Community LLC (“Operator”) intends to construct, install,
own, operate, and maintain a solar photovoltaic System at the Premises described on
Schedule 1;
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 the retail
electric services at the addresses listed in Schedule #1 (the “Service Address”);
WHEREAS, the City of Rosemount, a body politic and corporate, by and through the City of
Rosemount, having an address at 2875 145th Street West, Rosemount, MN 55068 (“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;
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.
1.1 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” 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 requirement of
any Governmental Authority having jurisdiction over such Person or its property, enforceable at law
or in equity, including the interpretation and administration thereof by such Governmental
Authority.
2
“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 at the
Service Address in accordance with the PPA. The Bill Credit Rate to be used by NSP is the Enhanced
Bill Credit as provided in the PPA as the Operator must transfer the Solar Renewable Energy Credits
(“RECs”) to NSP under the PPA unless directed otherwise by Subscriber.
“Billing Cycle” means the monthly billing cycle established by NSP.
“Business Day” means any day other than Saturday, Sunday, or a legal holiday.
“Creditworthy” means a general obligation bond rating of (a) Baa3 or higher by Moody’s, (b) BBB- or
higher by Fitch IBCA, or (c) BBB- or higher by Standard and Poor’s; or, for non-governmental entities
not rated by Moody’s, Fitch IBCA, or Standard and Poor’s, an equivalent credit rating as determined by
Operator through review of such entity’s (x) most recent three (3) years of audited financial statements
with notes, or, if such audited financial statements are not available, (y) most recent three (3) years of
unaudited financials (prepared by an external accountant, if available) including income and cash flow
statements, a balance sheet, and accompanying notes, if any, for each.
“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.
“Effective Date” means the date on which the Agreement is signed by authorized representatives of both
Parties in accordance with Section 2.1.
3
“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” 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.
“Guaranteed Output” has the meaning set forth in Section 7.3(b)
“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.
“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 D.
“Premises” means the premises described in Exhibit C.
“Shortfall Amount” has the meaning set forth in Section 7.4.
“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
4
Delivered Energy in a given month, as described in Exhibit C.
“Stated Rate” means a rate per annum of 1.5%.
“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.
“Termination Fee” means a fee payable by Subscriber equal to (x) the net present value of the
Subscriber’s remaining payments to Operator under the Agreement (based on the Estimated Annual
Delivered Energy) minus (y) the net present value of remaining payments to Operator for Subscriber’s
Allocated Percentage of Estimated Annual Delivered Energy at the Unsubscribed Energy Rate using a
discount rate of five and one half percent (5.5%); provided that such Termination Fee shall not be less
than zero. The Termination Fee for each year of the Term based on Subscriber’s Allocated Percentage as
of the Effective Date is listed in Exhibit F.
“Unsubscribed Energy Rate” means $0.034 per kWh, which is the blended rate NSP pays for
unsubscribed Delivered Energy under rate code A51 in NSP’s rate book in effect on the Effective Date.
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 Section 12.3, or
(ii) the PPA is otherwise terminated.
2.3 Termination Before Commercial Operation. If any of the following events or
circumstances occurs before the Commercial Operation Date, either Party 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 timely application to NSP and best efforts to secure interconnection services,
Operator has not received evidence that interconnection services will be available for the energy
generated by the Solar System.
(b) If NSP or another party with the authority to do so, disqualifies the Operator or the facility
5
from participating in the Community Solar Garden Program.
(c) Before the PPA is signed, if the legislature, PUC, NSP, or any other entity reduces the
credit base rate, or basis of escalation of that rate from that anticipated at the time of acceptance of the
proposal by the Subscriber.
(d) If the State legislature dissolves the Subscriber; provided that Subscriber’s obligations
under this Agreement are reassigned.
2.4 Termination for Unnecessary Delay in Achieving Commercial Operation. Operator agrees to
achieve commercial operation within a commercially reasonable timeframe. If Operator does not achieve
Commercial Operation within 2 years of the Effective Date, at Subscriber’s sole discretion, Subscriber
may terminate this Agreement with 60 days’ written notice. If Subscriber terminates the Agreement
under this provision, Subscriber will have no liability to the Operator except for any liabilities that
accrued before the termination.
2.5 [Reserved.]
2.6 Termination Upon Mutual Agreement. This Agreement may be terminated at any time, for any
reason, by mutual agreement of the Parties in writing.
2.7 Operator Conditions of the Agreement Prior to Installation. In the event that any of the
following events or circumstances occur prior to the Commercial Operation Date, Operator may
(in its sole discretion) terminate this Agreement, in which case neither Party shall have any
liability to the other except for any such liabilities that may have accrued prior to such termination.
(a) There has been a material adverse change, not reasonably knowable by the Operator prior
to execution of the Agreement, 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.
(b) After timely application to NSP and best efforts to secure interconnection services,
Operator has not received evidence reasonably satisfactory to it that interconnection services will
be available with respect to energy generated by the System.
(c) Operator has determined that Subscriber is not Creditworthy.
(d) Operator is unable to obtain financing for the System on terms and conditions
reasonably satisfactory to Operator.
(e) Subscriber’s representation and warranty contained in Section 8.2(d) is no longer true and
correct.
3. CONSTRUCTION, INSTALLATION AND TESTING OF SYSTEM.
6
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.
5. DELIVERY OF ENERGY.
5.1 Purchase Requirement. Subscriber agrees to make payments calculated as Subscriber’s
Allocated Percentage multiplied by (x) Delivered Energy generated by the System beginning on the
Commercial Operation Date and continuing for each applicable month of the Term and (y) the kWh Rate.
If there is a difference between the metered energy credited by NSP to the Subscriber on the subscribed
account’s bills and the Delivered Energy, the Subscriber’s payments will be based on energy credited.
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 F. 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.
7
(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; and
(c) Without limiting the foregoing, Subscriber agrees that NSP will acquire from Operator
under the PPA all energy generated by the Solar System and may, as provided for in the PPA, acquire
all Renewable Energy Credits (as defined in the PPA) associated with the Solar System. If the
Renewable Energy Credits (as defined in the PPA) associated with the Solar System are acquired by
NSP, Operator will notify the Subscriber of the acquisition. 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 shall be entitled to 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. Subscriber will pay a price of $0.1220 per Kilowatt Hour (“kWh Rate”),
with a (1%) annual escalation for the term of this Agreement unless an escalation method is proposed
by the Operator and agreed to in writing by an authorized representative of Subscriber.
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
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. 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
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.
8
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 allocated to Subscriber for such period,
Operator will reimburse Subscriber for the amount paid by Subscriber in consideration for the
Electricity Deficienc y 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’s 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.
9
(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 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.
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, rebates or other financial incentives,
Subscriber will cooperate with Operator to obtain such approvals, 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.
7.3 Minimum Production; Lost Production Payments.
(a) Estimated Annual Delivered Energy is calculated by multiplying estimated output from the
System (using PVSYST software) by the availability factor estimated by Operator while allowing for a
0.7% annual degradation of the System. The Subscriber’s Estimated Annual Delivered Energy is the
Subscriber’s Allocated Percentage multiplied by the Estimated Annual Delivered Energy delivered by
the System.
(b) Operator hereby guarantees that the Subscriber’s Allocated Percentage of Delivered Energy
will be at least eighty five percent (85%) of the Subscriber’s Estimated Annual Delivered Energy (the
“Guaranteed Output”); provided that the Estimated Annual Delivered Energy shall be adjusted for (i)
10
Force Majeure Events, (ii) weather and (iii) decreases in Delivered Energy resulting from an emergency
situation that threatens injury to persons or property that was not a result of the acts or omissions of
Operator.
7.4 Delivery Shortfalls. If, at the end of a Contract Year, the Subscriber’s Allocated
Percentage of Delivered Energy for such Contract Year is less than the Guaranteed Output (the
“Shortfall Amount”), then Operator shall pay Subscriber an amount equal to the excess, if any, of (1) the
difference between the Bill Credits that Subscriber would have received and the Payments that would
have been due had the Shortfall Amount been delivered over (2) the difference between the Bill Credits
that Subscriber actually received and the Payments that were actually received, in each case with respect
to such Contract Year. Operator shall make such payment within forty five (45) days of the end of each
Contract Year.
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, validly existing and in good standing in the jurisdiction
of its organization and it has the full right and authority to enter into, execute, deliver, and
perform its obligations under the Agreement;
(b) it has taken all requisite corporate or other action to approve the execution, delivery,
and performance of the Agreement;
(c) 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;
(d) 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
(e) 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
11
to the resale or other distribution thereof, in whole or in part, and agrees that it will not transfer, sell or
otherwise dispose of Subscriber’s Allocated Percentage in any manner that will violate applicable
securities law;
(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 Service Address, represents no more than 120 percent of Subscriber’s average annual
consumption at the Service Address over the last twenty-four (24) months; and
(d) Subscriber is a retail electric service customer of NSP and the Service Address is
within the same county or contiguous county as the Solar System.
(e) Subscriber is not exempt from the Solar Energy Standard under Minnesota Statutes
Section 216B.1691, subd. 2f(d).
8.3 Exclusion of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 3.1,
4.1, 7.1, THIS SECTION 8, 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, insurrection, sabotage, epidemic, terrorist acts,
12
or rebellion; (iv) strikes or labor disputes (except strikes or labor disputes caused solely by employees
of Operator 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) exercise 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 expired 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 the Agreement and (A) such
breach can be cured within 30 days after Subscriber’s written notice of such breach and Operator
fails to so cure, or (B) Operator fails to commence and pursue a cure within such 30 day period if a
longer cure period is needed; and
(iv) The PPA is terminated for any reason.
(b) Subscriber’s Remedies. If an Operator Default described in Section 11.1(a) has occurred
and results in the failure or inability of the Solar System to produce Delivered Energy over a
period of 180 consecutive days, in addition to other remedies expressly provided herein, and
13
subject to Article 15, 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.
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 the Agreement and (A) if such breach can be
cured within 30 days after Operator’s notice of such breach and Subscriber fails to so cure, or (B)
Subscriber fails to commence and pursue said cure within such 30 day period if a longer cure
period is needed.
(iv) This Agreement is terminated pursuant to Section 2.2(i).
(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 (i) terminate this Agreement and collect the Termination Fee; provided that
if within three years after collecting the Termination Fee, Operator sells all of Subscriber’s
Allocated Percentage (after making commercially reasonable efforts to do so and after
filling any pre-existing unsubscribed portion of the Delivered Energy), then Subscriber
will be entitled to recover from Operator an amount equal to the net present value, using a
discount rate of 5.5%, ascribed by Operator to such new subscriber’s subscription minus
the costs Operator incurred to sell Subscriber’s Allocated Percentage (including marketing
costs associated with finding a new subscriber), (ii) sell Subscriber’s Allocated Percentage
to one or more persons other than Subscriber, and (iii) exercise any other remedy it may
have at law or equity or under the Agreement. In the event of any such termination,
Operator shall use reasonable efforts to mi tigate its damages.
12. ASSIGNMENT.
12.1 Assignment by Operator. Operator shall not sell, transfer or assign
(collectively, an “Assignment”) the Agreement or any interest therein, without the prior written
consent of Subscriber, which shall not be unreasonably withheld. 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.
Notwithstanding the forgoing, Operator may, without the consent of Subscriber, (1) transfer, pledge
or assign all or substantially all of its rights and obligations hereunder to a Financing Party as
14
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) after the Commercial
Operation Date, transfer or assign this Agreement to any person or entity succeeding to all or
substantially all of the assets of Operator, (3) assign this Agreement to one or more affiliates; or (4)
assign its rights under this Agreement to a successor entity in a merger or acquisition transaction;
provided, however, that any assignee under clauses (2)-(4) 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. In the event
that Operator identifies such secured Financing Party, then Subscriber shall comply with the
provisions set forth in Exhibit E to this Agreement. Any Financing Party shall be an intended third-
party beneficiary of this Section 12.1.
Operator’s request for Subscriber’s consent to any assignment must be in writing and provided to
Subscriber at least 10 business days before the proposed effective date of the assignment. Operator
shall include with such request contact information for the assignee.
12.2. Acknowledgment of Collateral Assignment. If Operator identifies a secured Financing
Party and Subscriber consents to the collateral assignment under Section 12.1, then Subscriber
acknowledges and agrees:
(a) to the collateral assignment by Operator to the Financing Party, of Operator’s right, title
and interest in, to and under the Agreement, as consented to under Section 12.1 of the Agreement.
(b) that the Financing Party as such collateral assignee is entitled to exercise any and all
rights of lenders generally with respect to Operator’s interests in this Agreement.
Any Financing Party is an intended third-party beneficiary of this Section 12.2.
12.3 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 for Subscriber to change the Service Address for which the Bill Credits will apply to
another Service Address.
(c) Subscriber’s request for Operator’s consent to any proposed change or assignment as
contemplated in Section 12.3(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 Service Address; (iii) the new Service Address (if applicable); (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
Service Address 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 be Creditworthy and shall execute a new
15
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.
(c) Upon any assignment of this Agreement pursuant to this Section 12.3, Subscriber will
surrender all right, title and interest in and to this Agreement. Any purported assignment in contravention
of this Section 12.3 shall be of no force and effect and null and void ab initio. No assignment will extend
the Term of this Agreement. If Subscriber terminates its retail electric service with NSP or moves
outside of NSP territory without first transferring Subscriber’s Allocated Percentage to an eligible
transferee, Subscriber will forfeit its right to receive Bill Credits, but will continue to be responsible for
the Payments under this Agreement until Subscriber’s Allocated Percentage is transferred or this
Agreement terminates pursuant to its terms.
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: Operator:
City of Rosemount
2875 145th Street West
Rosemount, MN 55068
Financing Party:
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.
14.1 Data Practices. (a) Consistent with Minnesota Statutes, section 13.05, subdivision 6, if any data on
16
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 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 Operator’s work 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.
14.2 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. INSURANCE
15.1 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:
General Aggregate $2,000,000
Products—Completed Operations Aggregate 2,000,000
Personal and Advertising Injury
Each Occurrence—Combined Bodily
Injury and Property Damage
1,500,000
1,500,000
17
2. Workers’ Compensation and Employer’s Liability:
Workers’ Compensation
If Operator is based outside the state of Minnesota,
coverage must comply with Minnesota law.
Statutory
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.
15.2 Limitation of Liability. The Parties will not be liable to the other Party for general, special, punitive,
exemplary, indirect, incidental or consequential damages arising from or out of this Agreement. The total
liability of Operator to Subscriber under this Agreement will in no event exceed the aggregate of all
payments made by Subscriber under this Agreement during the preceding twelve (12) months. Prior to
the first anniversary of the Commercial Operation Date, the total liability of Operator to Subscriber under
this Agreement will not exceed the estimated amount of payments for the first calendar year. That amount
will be Subscriber’s sole and exclusive remedy and all other remedies or damages at law or equity are
waived.
16. COMPLIANCE
16.1 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).
16.2 Under the PUC Order in Docket Number E002/M-13-867, dated, the Operator will, at the request
of Subscriber, 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. MISCELLANEOUS
18
17.1 Integration; Exhibits. This Agreement, together with the Exhibits attached hereto,
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.
17.2 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). If in Operator’s judgment any provision of this
Agreement is reasonably expected to result in Operator’s non-compliance with any provision in the
PPA or the Tariff (as may be amended or revised from), the Parties will exercise commercially
reasonable efforts to negotiate an amendment to this Agreement to conform to the applicable provisions
in the PPA or Tariff.
17.3 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.
17.4 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.
17.5 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 and Insurance), Section 17 (Miscellaneous), or pursuant to other 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 the period of the applicable statute
of limitation.
17.6 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.
17.7 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.
17.8 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
19
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.
17.9 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.
17.10 Counterparts. This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument
17.11 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.
17.12 Records-Keeping. Operator will maintain books, records, documents and other evidence
directly pertinent to performance of the work under this Agreement 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 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.
17.13 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.
17.14 Dispute Resolution. Claims by the Operator disputing the meaning and intent of this
Agreement or arising from performance of this Agreement must be referred in writing to the General
Manager of Environmental Services of Subscriber for a written decision within 60 days after the dispute
arises. The General Manager of 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 claim. Submission
of a dispute or claim to
Dispute Resolution is a condition precedent to the Operator initialing any litigation relating to this
Agreement.
20
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.
17.15 Goodwill and Publicity. Operator shall have the right to use graphical
representations or photography of the System in marketing and promotional materials. Subscriber
agrees to the use by Operator of Subscriber’s name as a subscriber, if applicable, in Operator’s
marketing materials in connection with the System and any future Community Solar Garden
program or similar projects undertaken by Operator. Operator agrees not to disclose any other
Subscriber information in connection with Operator’s marketing and promotional materials.
Subscriber agrees not to use Operator’s name, logo, trademark, trade name, service mark, or other
Operator intellectual property in any marketing or promotional materials without the prior written
consent of Operator. 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 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 publicity. This section will
not be construed to require Subscriber to obtain consent for any postings or publications required
by law or undertaken by Subscriber in its capacity as a government entity.
17.16 Trade Secret Data Provided to Governmental Entities. Operator may provide data
that it designates as trade secret to Subscriber. Under Minnesota Statutes section 13.37,
subdivision 1(b), Subscriber is responsible for determining whether data marked as trade secret by
Operator qualifies as trade secret under the law. For Operator data that Subscriber determines is
trade secret, Subscriber will not share the data with any other Person or entity except as required
by law. If Subscriber receives a request under the Minnesota Government Data Practices Act for
access to data that Operator designated as trade secret but subscriber has determined is not trade
secret, then Subscriber will use its best efforts to give the Operator ten (10) days’ notice before
releasing the data in order to permit the Operator to exercise whatever legal remedies are available
to the Operator to prevent such disclosure.
21
IN WITNESS WHEREOF, the Parties have caused this Contract to be executed by their duly authorized
officers on the dates set forth below.
OPERATOR
By:
Name:
Title:
Date:
City of Rosemount
By:
Name:
Title:
Date:
22
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:
By signing this Solar*Rewards Community Subscriber Agency Agreement and Consent Form, the Subscriber agrees to all of the
following:
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:
23
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 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
24
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 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.
25
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.
Subscriber’s Name: ___________________________
Subscriber’s Signature: ___________________________
Date: ___________________________
26
EXHIBIT B
Certain Agreements for the Benefit of the Financing Parties
1. Lender Conditions. In order to finance the development and operation of the System, Owner
may borrow money from a Lender (as defined in the Agreement). Subscriber acknowledges that
Owner may finance the acquisition, development, installation, operation and maintenance of the
System with financing or other accommodations from one or more financial institutions and that
Owner’s obligations to the Lender may be secured by, among other collateral, a pledge or collateral
assignment of the Agreement and a first priority security interest in the System (collectively, the
“Security Interest”). In order to facilitate the necessary financing, Subscriber consents to
Owner’s granting to the Lender the Security Interest.
Subscriber acknowledges and agrees that: (i) Subscriber and all of Subscriber’s rights under the
Agreement are and will be subject and subordinate to the Security Interest (and as later modified
by any and all renewals, modifications, supplement, amendments, consolidations, replacements,
substitutions, additions, and extensions); and (ii) no amendment or modifications of the Agreement
is permitted without the Lender’s written consent.
2. Lender’s Default Rights. If Owner defaults under the financing documents with the Lender, the
following provisions apply:
A. The Lender, through its Security Interest, will be entitled to exercise any of Owner’s rights and
remedies under the Agreement. The Lender will also be entitled to exercise all rights and
remedies of secured parties generally with respect to the Agreement and the System.
B. The Lender will have the right, but not the obligations, to pay all sums due from Owner
under the Agreement and to perform any other act, duty, or obligation required of Owner, and
to cure any default by Owner in the time and manner provided by the terms of the
Agreement. Nothing requires the Lender to cure any default by Owner (an “Owner Default”)
under the Agreement, to perform any act, duty or obligation of Owner under the Agreement,
unless the Lender has succeeded to Owner’s rights under the Agreement, but Subscriber hereby
gives Lender the option to do so.
C. If the Lender exercises its remedies under the Security Interest in the System, including any sale
by the Lender, whether by judicial proceeding or under any power of sale, or any conveyance
from Owner to Lender (or its assignee) in lieu of sale, the Lender will give Subscriber notice of
27
the transfer or assignment of the Agreement. If Lender exercises these remedies, it will not
constitute a default under the Agreement, and will not require Subscriber consent.
D. Upon any rejection or other termination of the Agreement under any process undertaken with
respect to Owner under the United States Bankruptcy Code, Subscriber agrees to enter into a
new agreement with Lender or its assignee under substantially the same terms as the
Agreement if Lender so requests within ninety (90) days of the termination or rejection of the
Agreement.
E. At Owner’s request, Subscriber agrees to execute and deliver to Lender and Owner such
acknowledgment consent as may be required by Lender and in which Subscriber acknowledges
and confirms that the legal and beneficial ownership of the System remains in Owner, or its
affiliate, and that the System is the property of Owner, or its affiliate.
3. Lender’s Right to Cure. Regardless of any contrary terms in the Agreement:
A. Subscriber will not terminate or suspend the Agreement unless Subscriber has given the
Lender prior written notice of Subscriber’s intent to terminate or suspend the Agreement
describing the event giving rise to the alleged Owner Default, and provide the Lender with
the opportunity to cure the Owner Default within sixty (60) days after such notice or any
longer period provided for in the Agreement. If the Owner Default reasonably cannot be cured
by the Lender within the period established under the Agreement, and the Lender commences
and continuously pursues the cure of such Owner Default within that period, the period for
cure will be extended for a reasonable period of time under the circumstances, but not to
exceed an additional thirty (30) days. Owner’s and Subscriber’s respective obligations will
otherwise remain in effect during the cure period.
B. If the Lender or its lawful assignee (including any buyer or transferee) acquires title to or
control of Subscriber’s assets and within the applicable time period cures all defaults under the
Agreement existing as of the date of such change in control in the manner required by the
Agreement and which are capable of cure by a third party, then the Lender or such third party
buyer or transferee will no longer be in default under the Agreement, and the Agreement will
continue in full force and effect.
C. At the request of Lender and/or its assignee, Subscriber agrees to execute and deliver any
document, instrument, or statement (but not including any payment) required by law or
otherwise as reasonably requested by Lender or its assignee in order to create, perfect,
28
continue, or terminate the security interest in favor of Lender in all assets of Owner, and to
secure the obligations evidences by the Security Interest.
29
Schedule 1
Description of System
Solar System Site Location: Pine Island Solar Garden Unit 2/Goodhue County
Site Owned/Controlled by: Operator
Anticipated Commercial
Operation Date: 12/31/16
Solar System Size: 1,000 kw (AC) (representing an initial
estimate, which may vary depending
on the final design of the System)
Retail Service Address: The following locations in the City of Rosemount:
13690 Azalea Ave, 1289 145th St, 2950 Lower 147th
St, 14840 Cambrian Ave, 14419 Atwater Way, 2875
145th St, 2893 145th St, 14431 Robert Trl, 14455
Brazil Ave, 14795 Camero Ln, 15010 Business
Pkwy, 15000 Claret Ave, 14876 Chrysler Ave, 2901
145th St, 2855 145th St, 3696 145th St, 15700
Chippendale Ave, 13974 Shannon Pky, 2865 145th
St, 15207 1/2 Cranberry Way, 2899 145th St, 13861
Autumnwood Ct, 12000 Connemara Trl, 13886
Autumnwood Ave, 14048 Burgundy Way, 13581
Azalea Ave, 14155 Robert Trl, 14355 Robert Trl,
2047 Connemara Trl
Subscribers Allocated
Percentage: Allocated Percentage: 20.00%
30
Schedule 2
The kWh Rate shall be 12.2¢/kWh (“kWh Rate”) with 1% annual escalator
Estimated Annual Delivered Energy
Estimated Annual Delivered Energy commencing on the Commercial Operation Date, and continuing
through the Term, with respect to the System under the Agreement shall be as follows:
Year of
System
Term
Estimated Annual
Delivered Energy
Subscriber
Allocated
Percentage
Estimated Electricity
Allocated to Subscriber kWh Rate
1 1,602,000 20.00% 320,400 $ 0.1220
2 1,593,990 20.00% 318,798 $ 0.1232
3 1,586,020 20.00% 317,204 $ 0.1245
4 1,578,090 20.00% 315,618 $ 0.1257
5 1,570,200 20.00% 314,040 $ 0.1270
6 1,562,349 20.00% 312,470 $ 0.1282
7 1,554,537 20.00% 310,907 $ 0.1295
8 1,546,764 20.00% 309,353 $ 0.1308
9 1,539,030 20.00% 307,806 $ 0.1321
10 1,531,335 20.00% 306,267 $ 0.1334
11 1,523,678 20.00% 304,736 $ 0.1348
12 1,516,060 20.00% 303,212 $ 0.1361
13 1,508,480 20.00% 301,696 $ 0.1375
14 1,500,937 20.00% 300,187 $ 0.1388
15 1,493,433 20.00% 298,687 $ 0.1402
16 1,485,965 20.00% 297,193 $ 0.1416
17 1,478,536 20.00% 295,707 $ 0.1431
18 1,471,143 20.00% 294,229 $ 0.1445
19 1,463,787 20.00% 292,757 $ 0.1459
20 1,456,468 20.00% 291,294 $ 0.1474
21 1,449,186 20.00% 289,837 $ 0.1489
22 1,441,940 20.00% 288,388 $ 0.1504
23 1,434,730 20.00% 286,946 $ 0.1519
24 1,427,557 20.00% 285,511 $ 0.1534
25 1,420,419 20.00% 284,084 $ 0.1549
* For the purposes of the table Term year 1 shall commence on the Commercial Operation Date
The values set forth 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 shall
also be estimates and in no event shall any such values (whether or not updated) be considered to be
binding in any way on Owner.
31
Schedule 3
Termination Fee
Year of System Term Subscriber Allocated Percentage Termination Fee
1 20% $381,071
2 20% $372,284
3 20% $363,163
4 20% $353,687
5 20% $343,838
6 20% $333,594
7 20% $322,932
8 20% $311,828
9 20% $300,259
10 20% $288,196
11 20% $275,613
12 20% $262,480
13 20% $248,766
14 20% $234,439
15 20% $219,464
16 20% $203,804
17 20% $187,422
18 20% $170,277
19 20% $152,326
20 20% $133,524
21 20% $113,825
22 20% $93,176
23 20% $71,527
24 20% $48,821
25 20% $24,999
* For the purposes of the table Term year 1 shall commence on the Commercial Operation Date
** The Termination Fee is based on the Subscriber’s Allocated Percentage at the time of termination. The
Termination Fee listed on the Effective Date is based on Subscriber’s Allocated Percentage on the
Effective Date.
32
Schedule 4
Legal Description
[To be attached within 120 days of execution of the PPA]
1
Pine Island Unit #2
Met Council Ticket #9
Randomized Selection #237
COMMUNITY SOLAR GARDEN SUBSCRIPTION AGREEMENT
Pine Island Solar Garden Unit 2
WHEREAS, SolarStone Community LLC (“Operator”) intends to construct, install,
own, operate, and maintain a solar photovoltaic System at the Premises described on
Schedule 1;
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 the retail
electric services at the addresses listed in Schedule #1 (the “Service Address”);
WHEREAS, the City of Rosemount, a body politic and corporate, by and through the City of
Rosemount, having an address at 2875 145th Street West, Rosemount, MN 55068 (“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;
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.
1.1 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” 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 requirement of
any Governmental Authority having jurisdiction over such Person or its property, enforceable at law
or in equity, including the interpretation and administration thereof by such Governmental
Authority.
2
“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 at the
Service Address in accordance with the PPA. The Bill Credit Rate to be used by NSP is the Enhanced
Bill Credit as provided in the PPA as the Operator must transfer the Solar Renewable Energy Credits
(“RECs”) to NSP under the PPA unless directed otherwise by Subscriber.
“Billing Cycle” means the monthly billing cycle established by NSP.
“Business Day” means any day other than Saturday, Sunday, or a legal holiday.
“Creditworthy” means a general obligation bond rating of (a) Baa3 or higher by Moody’s, (b) BBB- or
higher by Fitch IBCA, or (c) BBB- or higher by Standard and Poor’s; or, for non-governmental entities
not rated by Moody’s, Fitch IBCA, or Standard and Poor’s, an equivalent credit rating as determined by
Operator through review of such entity’s (x) most recent three (3) years of audited financial statements
with notes, or, if such audited financial statements are not available, (y) most recent three (3) years of
unaudited financials (prepared by an external accountant, if available) including income and cash flow
statements, a balance sheet, and accompanying notes, if any, for each.
“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.
“Effective Date” means the date on which the Agreement is signed by authorized representatives of both
Parties in accordance with Section 2.1.
3
“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” 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.
“Guaranteed Output” has the meaning set forth in Section 7.3(b)
“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.
“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 D.
“Premises” means the premises described in Exhibit C.
“Shortfall Amount” has the meaning set forth in Section 7.4.
“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
4
Delivered Energy in a given month, as described in Exhibit C.
“Stated Rate” means a rate per annum of 1.5%.
“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.
“Termination Fee” means a fee payable by Subscriber equal to (x) the net present value of the
Subscriber’s remaining payments to Operator under the Agreement (based on the Estimated Annual
Delivered Energy) minus (y) the net present value of remaining payments to Operator for Subscriber’s
Allocated Percentage of Estimated Annual Delivered Energy at the Unsubscribed Energy Rate using a
discount rate of five and one half percent (5.5%); provided that such Termination Fee shall not be less
than zero. The Termination Fee for each year of the Term based on Subscriber’s Allocated Percentage as
of the Effective Date is listed in Exhibit F.
“Unsubscribed Energy Rate” means $0.034 per kWh, which is the blended rate NSP pays for
unsubscribed Delivered Energy under rate code A51 in NSP’s rate book in effect on the Effective Date.
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 Section 12.3, or
(ii) the PPA is otherwise terminated.
2.3 Termination Before Commercial Operation. If any of the following events or
circumstances occurs before the Commercial Operation Date, either Party 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 timely application to NSP and best efforts to secure interconnection services,
Operator has not received evidence that interconnection services will be available for the energy
generated by the Solar System.
(b) If NSP or another party with the authority to do so, disqualifies the Operator or the facility
5
from participating in the Community Solar Garden Program.
(c) Before the PPA is signed, if the legislature, PUC, NSP, or any other entity reduces the
credit base rate, or basis of escalation of that rate from that anticipated at the time of acceptance of the
proposal by the Subscriber.
(d) If the State legislature dissolves the Subscriber; provided that Subscriber’s obligations
under this Agreement are reassigned.
2.4 Termination for Unnecessary Delay in Achieving Commercial Operation. Operator agrees to
achieve commercial operation within a commercially reasonable timeframe. If Operator does not achieve
Commercial Operation within 2 years of the Effective Date, at Subscriber’s sole discretion, Subscriber
may terminate this Agreement with 60 days’ written notice. If Subscriber terminates the Agreement
under this provision, Subscriber will have no liability to the Operator except for any liabilities that
accrued before the termination.
2.5 [Reserved.]
2.6 Termination Upon Mutual Agreement. This Agreement may be terminated at any time, for any
reason, by mutual agreement of the Parties in writing.
2.7 Operator Conditions of the Agreement Prior to Installation. In the event that any of the
following events or circumstances occur prior to the Commercial Operation Date, Operator may
(in its sole discretion) terminate this Agreement, in which case neither Party shall have any
liability to the other except for any such liabilities that may have accrued prior to such termination.
(a) There has been a material adverse change, not reasonably knowable by the Operator prior
to execution of the Agreement, 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.
(b) After timely application to NSP and best efforts to secure interconnection services,
Operator has not received evidence reasonably satisfactory to it that interconnection services will
be available with respect to energy generated by the System.
(c) Operator has determined that Subscriber is not Creditworthy.
(d) Operator is unable to obtain financing for the System on terms and conditions
reasonably satisfactory to Operator.
(e) Subscriber’s representation and warranty contained in Section 8.2(d) is no longer true and
correct.
3. CONSTRUCTION, INSTALLATION AND TESTING OF SYSTEM.
6
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.
5. DELIVERY OF ENERGY.
5.1 Purchase Requirement. Subscriber agrees to make payments calculated as Subscriber’s
Allocated Percentage multiplied by (x) Delivered Energy generated by the System beginning on the
Commercial Operation Date and continuing for each applicable month of the Term and (y) the kWh Rate.
If there is a difference between the metered energy credited by NSP to the Subscriber on the subscribed
account’s bills and the Delivered Energy, the Subscriber’s payments will be based on energy credited.
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 F. 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.
7
(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; and
(c) Without limiting the foregoing, Subscriber agrees that NSP will acquire from Operator
under the PPA all energy generated by the Solar System and may, as provided for in the PPA, acquire
all Renewable Energy Credits (as defined in the PPA) associated with the Solar System. If the
Renewable Energy Credits (as defined in the PPA) associated with the Solar System are acquired by
NSP, Operator will notify the Subscriber of the acquisition. 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 shall be entitled to 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. Subscriber will pay a price of $0.1220 per Kilowatt Hour (“kWh Rate”),
with a (1%) annual escalation for the term of this Agreement unless an escalation method is proposed
by the Operator and agreed to in writing by an authorized representative of Subscriber.
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
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. 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
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.
8
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 allocated to Subscriber for such period,
Operator will reimburse Subscriber for the amount paid by Subscriber in consideration for the
Electricity Deficienc y 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’s 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.
9
(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 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.
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, rebates or other financial incentives,
Subscriber will cooperate with Operator to obtain such approvals, 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.
7.3 Minimum Production; Lost Production Payments.
(a) Estimated Annual Delivered Energy is calculated by multiplying estimated output from the
System (using PVSYST software) by the availability factor estimated by Operator while allowing for a
0.7% annual degradation of the System. The Subscriber’s Estimated Annual Delivered Energy is the
Subscriber’s Allocated Percentage multiplied by the Estimated Annual Delivered Energy delivered by
the System.
(b) Operator hereby guarantees that the Subscriber’s Allocated Percentage of Delivered Energy
will be at least eighty five percent (85%) of the Subscriber’s Estimated Annual Delivered Energy (the
“Guaranteed Output”); provided that the Estimated Annual Delivered Energy shall be adjusted for (i)
10
Force Majeure Events, (ii) weather and (iii) decreases in Delivered Energy resulting from an emergency
situation that threatens injury to persons or property that was not a result of the acts or omissions of
Operator.
7.4 Delivery Shortfalls. If, at the end of a Contract Year, the Subscriber’s Allocated
Percentage of Delivered Energy for such Contract Year is less than the Guaranteed Output (the
“Shortfall Amount”), then Operator shall pay Subscriber an amount equal to the excess, if any, of (1) the
difference between the Bill Credits that Subscriber would have received and the Payments that would
have been due had the Shortfall Amount been delivered over (2) the difference between the Bill Credits
that Subscriber actually received and the Payments that were actually received, in each case with respect
to such Contract Year. Operator shall make such payment within forty five (45) days of the end of each
Contract Year.
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, validly existing and in good standing in the jurisdiction
of its organization and it has the full right and authority to enter into, execute, deliver, and
perform its obligations under the Agreement;
(b) it has taken all requisite corporate or other action to approve the execution, delivery,
and performance of the Agreement;
(c) 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;
(d) 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
(e) 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
11
to the resale or other distribution thereof, in whole or in part, and agrees that it will not transfer, sell or
otherwise dispose of Subscriber’s Allocated Percentage in any manner that will violate applicable
securities law;
(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 Service Address, represents no more than 120 percent of Subscriber’s average annual
consumption at the Service Address over the last twenty-four (24) months; and
(d) Subscriber is a retail electric service customer of NSP and the Service Address is
within the same county or contiguous county as the Solar System.
(e) Subscriber is not exempt from the Solar Energy Standard under Minnesota Statutes
Section 216B.1691, subd. 2f(d).
8.3 Exclusion of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 3.1,
4.1, 7.1, THIS SECTION 8, 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, insurrection, sabotage, epidemic, terrorist acts,
12
or rebellion; (iv) strikes or labor disputes (except strikes or labor disputes caused solely by employees
of Operator 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) exercise 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 expired 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 the Agreement and (A) such
breach can be cured within 30 days after Subscriber’s written notice of such breach and Operator
fails to so cure, or (B) Operator fails to commence and pursue a cure within such 30 day period if a
longer cure period is needed; and
(iv) The PPA is terminated for any reason.
(b) Subscriber’s Remedies. If an Operator Default described in Section 11.1(a) has occurred
and results in the failure or inability of the Solar System to produce Delivered Energy over a
period of 180 consecutive days, in addition to other remedies expressly provided herein, and
13
subject to Article 15, 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.
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 the Agreement and (A) if such breach can be
cured within 30 days after Operator’s notice of such breach and Subscriber fails to so cure, or (B)
Subscriber fails to commence and pursue said cure within such 30 day period if a longer cure
period is needed.
(iv) This Agreement is terminated pursuant to Section 2.2(i).
(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 (i) terminate this Agreement and collect the Termination Fee; provided that
if within three years after collecting the Termination Fee, Operator sells all of Subscriber’s
Allocated Percentage (after making commercially reasonable efforts to do so and after
filling any pre-existing unsubscribed portion of the Delivered Energy), then Subscriber
will be entitled to recover from Operator an amount equal to the net present value, using a
discount rate of 5.5%, ascribed by Operator to such new subscriber’s subscription minus
the costs Operator incurred to sell Subscriber’s Allocated Percentage (including marketing
costs associated with finding a new subscriber), (ii) sell Subscriber’s Allocated Percentage
to one or more persons other than Subscriber, and (iii) exercise any other remedy it may
have at law or equity or under the Agreement. In the event of any such termination,
Operator shall use reasonable efforts to mi tigate its damages.
12. ASSIGNMENT.
12.1 Assignment by Operator. Operator shall not sell, transfer or assign
(collectively, an “Assignment”) the Agreement or any interest therein, without the prior written
consent of Subscriber, which shall not be unreasonably withheld. 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.
Notwithstanding the forgoing, Operator may, without the consent of Subscriber, (1) transfer, pledge
or assign all or substantially all of its rights and obligations hereunder to a Financing Party as
14
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) after the Commercial
Operation Date, transfer or assign this Agreement to any person or entity succeeding to all or
substantially all of the assets of Operator, (3) assign this Agreement to one or more affiliates; or (4)
assign its rights under this Agreement to a successor entity in a merger or acquisition transaction;
provided, however, that any assignee under clauses (2)-(4) 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. In the event
that Operator identifies such secured Financing Party, then Subscriber shall comply with the
provisions set forth in Exhibit E to this Agreement. Any Financing Party shall be an intended third-
party beneficiary of this Section 12.1.
Operator’s request for Subscriber’s consent to any assignment must be in writing and provided to
Subscriber at least 10 business days before the proposed effective date of the assignment. Operator
shall include with such request contact information for the assignee.
12.2. Acknowledgment of Collateral Assignment. If Operator identifies a secured Financing
Party and Subscriber consents to the collateral assignment under Section 12.1, then Subscriber
acknowledges and agrees:
(a) to the collateral assignment by Operator to the Financing Party, of Operator’s right, title
and interest in, to and under the Agreement, as consented to under Section 12.1 of the Agreement.
(b) that the Financing Party as such collateral assignee is entitled to exercise any and all
rights of lenders generally with respect to Operator’s interests in this Agreement.
Any Financing Party is an intended third-party beneficiary of this Section 12.2.
12.3 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 for Subscriber to change the Service Address for which the Bill Credits will apply to
another Service Address.
(c) Subscriber’s request for Operator’s consent to any proposed change or assignment as
contemplated in Section 12.3(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 Service Address; (iii) the new Service Address (if applicable); (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
Service Address 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 be Creditworthy and shall execute a new
15
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.
(c) Upon any assignment of this Agreement pursuant to this Section 12.3, Subscriber will
surrender all right, title and interest in and to this Agreement. Any purported assignment in contravention
of this Section 12.3 shall be of no force and effect and null and void ab initio. No assignment will extend
the Term of this Agreement. If Subscriber terminates its retail electric service with NSP or moves
outside of NSP territory without first transferring Subscriber’s Allocated Percentage to an eligible
transferee, Subscriber will forfeit its right to receive Bill Credits, but will continue to be responsible for
the Payments under this Agreement until Subscriber’s Allocated Percentage is transferred or this
Agreement terminates pursuant to its terms.
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: Operator:
City of Rosemount
2875 145th Street West
Rosemount, MN 55068
Financing Party:
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.
14.1 Data Practices. (a) Consistent with Minnesota Statutes, section 13.05, subdivision 6, if any data on
16
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 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 Operator’s work 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.
14.2 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. INSURANCE
15.1 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:
General Aggregate $2,000,000
Products—Completed Operations Aggregate 2,000,000
Personal and Advertising Injury
Each Occurrence—Combined Bodily
Injury and Property Damage
1,500,000
1,500,000
17
2. Workers’ Compensation and Employer’s Liability:
Workers’ Compensation
If Operator is based outside the state of Minnesota,
coverage must comply with Minnesota law.
Statutory
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.
15.2 Limitation of Liability. The Parties will not be liable to the other Party for general, special, punitive,
exemplary, indirect, incidental or consequential damages arising from or out of this Agreement. The total
liability of Operator to Subscriber under this Agreement will in no event exceed the aggregate of all
payments made by Subscriber under this Agreement during the preceding twelve (12) months. Prior to
the first anniversary of the Commercial Operation Date, the total liability of Operator to Subscriber under
this Agreement will not exceed the estimated amount of payments for the first calendar year. That amount
will be Subscriber’s sole and exclusive remedy and all other remedies or damages at law or equity are
waived.
16. COMPLIANCE
16.1 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).
16.2 Under the PUC Order in Docket Number E002/M-13-867, dated, the Operator will, at the request
of Subscriber, 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. MISCELLANEOUS
18
17.1 Integration; Exhibits. This Agreement, together with the Exhibits attached hereto,
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.
17.2 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). If in Operator’s judgment any provision of this
Agreement is reasonably expected to result in Operator’s non-compliance with any provision in the
PPA or the Tariff (as may be amended or revised from), the Parties will exercise commercially
reasonable efforts to negotiate an amendment to this Agreement to conform to the applicable provisions
in the PPA or Tariff.
17.3 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.
17.4 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.
17.5 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 and Insurance), Section 17 (Miscellaneous), or pursuant to other 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 the period of the applicable statute
of limitation.
17.6 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.
17.7 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.
17.8 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
19
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.
17.9 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.
17.10 Counterparts. This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument
17.11 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.
17.12 Records-Keeping. Operator will maintain books, records, documents and other evidence
directly pertinent to performance of the work under this Agreement 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 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.
17.13 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.
17.14 Dispute Resolution. Claims by the Operator disputing the meaning and intent of this
Agreement or arising from performance of this Agreement must be referred in writing to the General
Manager of Environmental Services of Subscriber for a written decision within 60 days after the dispute
arises. The General Manager of 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 claim. Submission
of a dispute or claim to
Dispute Resolution is a condition precedent to the Operator initialing any litigation relating to this
Agreement.
20
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.
17.15 Goodwill and Publicity. Operator shall have the right to use graphical
representations or photography of the System in marketing and promotional materials. Subscriber
agrees to the use by Operator of Subscriber’s name as a subscriber, if applicable, in Operator’s
marketing materials in connection with the System and any future Community Solar Garden
program or similar projects undertaken by Operator. Operator agrees not to disclose any other
Subscriber information in connection with Operator’s marketing and promotional materials.
Subscriber agrees not to use Operator’s name, logo, trademark, trade name, service mark, or other
Operator intellectual property in any marketing or promotional materials without the prior written
consent of Operator. 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 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 publicity. This section will
not be construed to require Subscriber to obtain consent for any postings or publications required
by law or undertaken by Subscriber in its capacity as a government entity.
17.16 Trade Secret Data Provided to Governmental Entities. Operator may provide data
that it designates as trade secret to Subscriber. Under Minnesota Statutes section 13.37,
subdivision 1(b), Subscriber is responsible for determining whether data marked as trade secret by
Operator qualifies as trade secret under the law. For Operator data that Subscriber determines is
trade secret, Subscriber will not share the data with any other Person or entity except as required
by law. If Subscriber receives a request under the Minnesota Government Data Practices Act for
access to data that Operator designated as trade secret but subscriber has determined is not trade
secret, then Subscriber will use its best efforts to give the Operator ten (10) days’ notice before
releasing the data in order to permit the Operator to exercise whatever legal remedies are available
to the Operator to prevent such disclosure.
21
IN WITNESS WHEREOF, the Parties have caused this Contract to be executed by their duly authorized
officers on the dates set forth below.
OPERATOR
By:
Name:
Title:
Date:
City of Rosemount
By:
Name:
Title:
Date:
22
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:
By signing this Solar*Rewards Community Subscriber Agency Agreement and Consent Form, the Subscriber agrees to all of the
following:
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:
23
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 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
24
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 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.
25
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.
Subscriber’s Name: ___________________________
Subscriber’s Signature: ___________________________
Date: ___________________________
26
EXHIBIT B
Certain Agreements for the Benefit of the Financing Parties
1. Lender Conditions. In order to finance the development and operation of the System, Owner
may borrow money from a Lender (as defined in the Agreement). Subscriber acknowledges that
Owner may finance the acquisition, development, installation, operation and maintenance of the
System with financing or other accommodations from one or more financial institutions and that
Owner’s obligations to the Lender may be secured by, among other collateral, a pledge or collateral
assignment of the Agreement and a first priority security interest in the System (collectively, the
“Security Interest”). In order to facilitate the necessary financing, Subscriber consents to
Owner’s granting to the Lender the Security Interest.
Subscriber acknowledges and agrees that: (i) Subscriber and all of Subscriber’s rights under the
Agreement are and will be subject and subordinate to the Security Interest (and as later modified
by any and all renewals, modifications, supplement, amendments, consolidations, replacements,
substitutions, additions, and extensions); and (ii) no amendment or modifications of the Agreement
is permitted without the Lender’s written consent.
2. Lender’s Default Rights. If Owner defaults under the financing documents with the Lender, the
following provisions apply:
A. The Lender, through its Security Interest, will be entitled to exercise any of Owner’s rights and
remedies under the Agreement. The Lender will also be entitled to exercise all rights and
remedies of secured parties generally with respect to the Agreement and the System.
B. The Lender will have the right, but not the obligations, to pay all sums due from Owner
under the Agreement and to perform any other act, duty, or obligation required of Owner, and
to cure any default by Owner in the time and manner provided by the terms of the
Agreement. Nothing requires the Lender to cure any default by Owner (an “Owner Default”)
under the Agreement, to perform any act, duty or obligation of Owner under the Agreement,
unless the Lender has succeeded to Owner’s rights under the Agreement, but Subscriber hereby
gives Lender the option to do so.
C. If the Lender exercises its remedies under the Security Interest in the System, including any sale
by the Lender, whether by judicial proceeding or under any power of sale, or any conveyance
from Owner to Lender (or its assignee) in lieu of sale, the Lender will give Subscriber notice of
27
the transfer or assignment of the Agreement. If Lender exercises these remedies, it will not
constitute a default under the Agreement, and will not require Subscriber consent.
D. Upon any rejection or other termination of the Agreement under any process undertaken with
respect to Owner under the United States Bankruptcy Code, Subscriber agrees to enter into a
new agreement with Lender or its assignee under substantially the same terms as the
Agreement if Lender so requests within ninety (90) days of the termination or rejection of the
Agreement.
E. At Owner’s request, Subscriber agrees to execute and deliver to Lender and Owner such
acknowledgment consent as may be required by Lender and in which Subscriber acknowledges
and confirms that the legal and beneficial ownership of the System remains in Owner, or its
affiliate, and that the System is the property of Owner, or its affiliate.
3. Lender’s Right to Cure. Regardless of any contrary terms in the Agreement:
A. Subscriber will not terminate or suspend the Agreement unless Subscriber has given the
Lender prior written notice of Subscriber’s intent to terminate or suspend the Agreement
describing the event giving rise to the alleged Owner Default, and provide the Lender with
the opportunity to cure the Owner Default within sixty (60) days after such notice or any
longer period provided for in the Agreement. If the Owner Default reasonably cannot be cured
by the Lender within the period established under the Agreement, and the Lender commences
and continuously pursues the cure of such Owner Default within that period, the period for
cure will be extended for a reasonable period of time under the circumstances, but not to
exceed an additional thirty (30) days. Owner’s and Subscriber’s respective obligations will
otherwise remain in effect during the cure period.
B. If the Lender or its lawful assignee (including any buyer or transferee) acquires title to or
control of Subscriber’s assets and within the applicable time period cures all defaults under the
Agreement existing as of the date of such change in control in the manner required by the
Agreement and which are capable of cure by a third party, then the Lender or such third party
buyer or transferee will no longer be in default under the Agreement, and the Agreement will
continue in full force and effect.
C. At the request of Lender and/or its assignee, Subscriber agrees to execute and deliver any
document, instrument, or statement (but not including any payment) required by law or
otherwise as reasonably requested by Lender or its assignee in order to create, perfect,
28
continue, or terminate the security interest in favor of Lender in all assets of Owner, and to
secure the obligations evidences by the Security Interest.
29
Schedule 1
Description of System
Solar System Site Location: Pine Island Solar Garden Unit 2/Goodhue County
Site Owned/Controlled by: Operator
Anticipated Commercial
Operation Date: 12/31/16
Solar System Size: 1,000 kw (AC) (representing an initial
estimate, which may vary depending
on the final design of the System)
Retail Service Address:
2047 CONNEMARA TRL
13885 ROBERT TRL
Subscribers Allocated
Percentage: Allocated Percentage: 20.00%
30
Schedule 2
The kWh Rate shall be 12.2¢/kWh (“kWh Rate”) with 1% annual escalator
Estimated Annual Delivered Energy
Estimated Annual Delivered Energy commencing on the Commercial Operation Date, and continuing
through the Term, with respect to the System under the Agreement shall be as follows:
Year of
System
Term
Estimated Annual
Delivered Energy
Subscriber
Allocated
Percentage
Estimated Electricity
Allocated to Subscriber kWh Rate
1 1,602,000 20.00% 320,400 $ 0.1220
2 1,593,990 20.00% 318,798 $ 0.1232
3 1,586,020 20.00% 317,204 $ 0.1245
4 1,578,090 20.00% 315,618 $ 0.1257
5 1,570,200 20.00% 314,040 $ 0.1270
6 1,562,349 20.00% 312,470 $ 0.1282
7 1,554,537 20.00% 310,907 $ 0.1295
8 1,546,764 20.00% 309,353 $ 0.1308
9 1,539,030 20.00% 307,806 $ 0.1321
10 1,531,335 20.00% 306,267 $ 0.1334
11 1,523,678 20.00% 304,736 $ 0.1348
12 1,516,060 20.00% 303,212 $ 0.1361
13 1,508,480 20.00% 301,696 $ 0.1375
14 1,500,937 20.00% 300,187 $ 0.1388
15 1,493,433 20.00% 298,687 $ 0.1402
16 1,485,965 20.00% 297,193 $ 0.1416
17 1,478,536 20.00% 295,707 $ 0.1431
18 1,471,143 20.00% 294,229 $ 0.1445
19 1,463,787 20.00% 292,757 $ 0.1459
20 1,456,468 20.00% 291,294 $ 0.1474
21 1,449,186 20.00% 289,837 $ 0.1489
22 1,441,940 20.00% 288,388 $ 0.1504
23 1,434,730 20.00% 286,946 $ 0.1519
24 1,427,557 20.00% 285,511 $ 0.1534
25 1,420,419 20.00% 284,084 $ 0.1549
* For the purposes of the table Term year 1 shall commence on the Commercial Operation Date
The values set forth 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
31
table will be updated upon final design of the System; provided, however, any such updated values shall
also be estimates and in no event shall any such values (whether or not updated) be considered to be
binding in any way on Owner.
Schedule 3
Termination Fee
Year of System Term Subscriber Allocated Percentage Termination Fee
1 20% $381,071
2 20% $372,284
3 20% $363,163
4 20% $353,687
5 20% $343,838
6 20% $333,594
7 20% $322,932
8 20% $311,828
9 20% $300,259
10 20% $288,196
11 20% $275,613
12 20% $262,480
13 20% $248,766
14 20% $234,439
15 20% $219,464
16 20% $203,804
17 20% $187,422
18 20% $170,277
19 20% $152,326
20 20% $133,524
21 20% $113,825
22 20% $93,176
23 20% $71,527
24 20% $48,821
25 20% $24,999
* For the purposes of the table Term year 1 shall commence on the Commercial Operation Date
** The Termination Fee is based on the Subscriber’s Allocated Percentage at the time of termination. The
Termination Fee listed on the Effective Date is based on Subscriber’s Allocated Percentage on the
Effective Date.
32
Schedule 4
Legal Description
[To be attached within 120 days of execution of the PPA]
1
Pine Island Unit #1
Met Council Ticket #10
Randomized Selection #238
COMMUNITY SOLAR GARDEN SUBSCRIPTION AGREEMENT
Pine Island Solar Garden Unit 1
WHEREAS, SolarStone Community LLC (“Operator”) intends to construct, install,
own, operate, and maintain a solar photovoltaic System at the Premises described on
Schedule 1;
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 the retail
electric services at the addresses listed in Schedule #1 (the “Service Address”);
WHEREAS, the City of Rosemount, a body politic and corporate, by and through the City of
Rosemount, having an address at 2875 145th Street West, Rosemount, MN 55068 (“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;
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.
1.1 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” 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 requirement of
any Governmental Authority having jurisdiction over such Person or its property, enforceable at law
or in equity, including the interpretation and administration thereof by such Governmental
Authority.
2
“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 at the
Service Address in accordance with the PPA. The Bill Credit Rate to be used by NSP is the Enhanced
Bill Credit as provided in the PPA as the Operator must transfer the Solar Renewable Energy Credits
(“RECs”) to NSP under the PPA unless directed otherwise by Subscriber.
“Billing Cycle” means the monthly billing cycle established by NSP.
“Business Day” means any day other than Saturday, Sunday, or a legal holiday.
“Creditworthy” means a general obligation bond rating of (a) Baa3 or higher by Moody’s, (b) BBB- or
higher by Fitch IBCA, or (c) BBB- or higher by Standard and Poor’s; or, for non-governmental entities
not rated by Moody’s, Fitch IBCA, or Standard and Poor’s, an equivalent credit rating as determined by
Operator through review of such entity’s (x) most recent three (3) years of audited financial statements
with notes, or, if such audited financial statements are not available, (y) most recent three (3) years of
unaudited financials (prepared by an external accountant, if available) including income and cash flow
statements, a balance sheet, and accompanying notes, if any, for each.
“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.
“Effective Date” means the date on which the Agreement is signed by authorized representatives of both
Parties in accordance with Section 2.1.
3
“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” 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.
“Guaranteed Output” has the meaning set forth in Section 7.3(b)
“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.
“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 D.
“Premises” means the premises described in Exhibit C.
“Shortfall Amount” has the meaning set forth in Section 7.4.
“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
4
Delivered Energy in a given month, as described in Exhibit C.
“Stated Rate” means a rate per annum of 1.5%.
“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.
“Termination Fee” means a fee payable by Subscriber equal to (x) the net present value of the
Subscriber’s remaining payments to Operator under the Agreement (based on the Estimated Annual
Delivered Energy) minus (y) the net present value of remaining payments to Operator for Subscriber’s
Allocated Percentage of Estimated Annual Delivered Energy at the Unsubscribed Energy Rate using a
discount rate of five and one half percent (5.5%); provided that such Termination Fee shall not be less
than zero. The Termination Fee for each year of the Term based on Subscriber’s Allocated Percentage as
of the Effective Date is listed in Exhibit F.
“Unsubscribed Energy Rate” means $0.034 per kWh, which is the blended rate NSP pays for
unsubscribed Delivered Energy under rate code A51 in NSP’s rate book in effect on the Effective Date.
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 Section 12.3, or
(ii) the PPA is otherwise terminated.
2.3 Termination Before Commercial Operation. If any of the following events or
circumstances occurs before the Commercial Operation Date, either Party 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 timely application to NSP and best efforts to secure interconnection services,
Operator has not received evidence that interconnection services will be available for the energy
generated by the Solar System.
(b) If NSP or another party with the authority to do so, disqualifies the Operator or the facility
5
from participating in the Community Solar Garden Program.
(c) Before the PPA is signed, if the legislature, PUC, NSP, or any other entity reduces the
credit base rate, or basis of escalation of that rate from that anticipated at the time of acceptance of the
proposal by the Subscriber.
(d) If the State legislature dissolves the Subscriber; provided that Subscriber’s obligations
under this Agreement are reassigned.
2.4 Termination for Unnecessary Delay in Achieving Commercial Operation. Operator agrees to
achieve commercial operation within a commercially reasonable timeframe. If Operator does not achieve
Commercial Operation within 2 years of the Effective Date, at Subscriber’s sole discretion, Subscriber
may terminate this Agreement with 60 days’ written notice. If Subscriber terminates the Agreement
under this provision, Subscriber will have no liability to the Operator except for any liabilities that
accrued before the termination.
2.5 [Reserved.]
2.6 Termination Upon Mutual Agreement. This Agreement may be terminated at any time, for any
reason, by mutual agreement of the Parties in writing.
2.7 Operator Conditions of the Agreement Prior to Installation. In the event that any of the
following events or circumstances occur prior to the Commercial Operation Date, Operator may
(in its sole discretion) terminate this Agreement, in which case neither Party shall have any
liability to the other except for any such liabilities that may have accrued prior to such termination.
(a) There has been a material adverse change, not reasonably knowable by the Operator prior
to execution of the Agreement, 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.
(b) After timely application to NSP and best efforts to secure interconnection services,
Operator has not received evidence reasonably satisfactory to it that interconnection services will
be available with respect to energy generated by the System.
(c) Operator has determined that Subscriber is not Creditworthy.
(d) Operator is unable to obtain financing for the System on terms and conditions
reasonably satisfactory to Operator.
(e) Subscriber’s representation and warranty contained in Section 8.2(d) is no longer true and
correct.
3. CONSTRUCTION, INSTALLATION AND TESTING OF SYSTEM.
6
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.
5. DELIVERY OF ENERGY.
5.1 Purchase Requirement. Subscriber agrees to make payments calculated as Subscriber’s
Allocated Percentage multiplied by (x) Delivered Energy generated by the System beginning on the
Commercial Operation Date and continuing for each applicable month of the Term and (y) the kWh Rate.
If there is a difference between the metered energy credited by NSP to the Subscriber on the subscribed
account’s bills and the Delivered Energy, the Subscriber’s payments will be based on energy credited.
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 F. 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.
7
(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; and
(c) Without limiting the foregoing, Subscriber agrees that NSP will acquire from Operator
under the PPA all energy generated by the Solar System and may, as provided for in the PPA, acquire
all Renewable Energy Credits (as defined in the PPA) associated with the Solar System. If the
Renewable Energy Credits (as defined in the PPA) associated with the Solar System are acquired by
NSP, Operator will notify the Subscriber of the acquisition. 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 shall be entitled to 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. Subscriber will pay a price of $0.1220 per Kilowatt Hour (“kWh Rate”),
with a (1%) annual escalation for the term of this Agreement unless an escalation method is proposed
by the Operator and agreed to in writing by an authorized representative of Subscriber.
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
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. 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
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.
8
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 allocated to Subscriber for such period,
Operator will reimburse Subscriber for the amount paid by Subscriber in consideration for the
Electricity Deficienc y 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’s 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.
9
(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 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.
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, rebates or other financial incentives,
Subscriber will cooperate with Operator to obtain such approvals, 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.
7.3 Minimum Production; Lost Production Payments.
(a) Estimated Annual Delivered Energy is calculated by multiplying estimated output from the
System (using PVSYST software) by the availability factor estimated by Operator while allowing for a
0.7% annual degradation of the System. The Subscriber’s Estimated Annual Delivered Energy is the
Subscriber’s Allocated Percentage multiplied by the Estimated Annual Delivered Energy delivered by
the System.
(b) Operator hereby guarantees that the Subscriber’s Allocated Percentage of Delivered Energy
will be at least eighty five percent (85%) of the Subscriber’s Estimated Annual Delivered Energy (the
“Guaranteed Output”); provided that the Estimated Annual Delivered Energy shall be adjusted for (i)
10
Force Majeure Events, (ii) weather and (iii) decreases in Delivered Energy resulting from an emergency
situation that threatens injury to persons or property that was not a result of the acts or omissions of
Operator.
7.4 Delivery Shortfalls. If, at the end of a Contract Year, the Subscriber’s Allocated
Percentage of Delivered Energy for such Contract Year is less than the Guaranteed Output (the
“Shortfall Amount”), then Operator shall pay Subscriber an amount equal to the excess, if any, of (1) the
difference between the Bill Credits that Subscriber would have received and the Payments that would
have been due had the Shortfall Amount been delivered over (2) the difference between the Bill Credits
that Subscriber actually received and the Payments that were actually received, in each case with respect
to such Contract Year. Operator shall make such payment within forty five (45) days of the end of each
Contract Year.
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, validly existing and in good standing in the jurisdiction
of its organization and it has the full right and authority to enter into, execute, deliver, and
perform its obligations under the Agreement;
(b) it has taken all requisite corporate or other action to approve the execution, delivery,
and performance of the Agreement;
(c) 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;
(d) 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
(e) 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
11
to the resale or other distribution thereof, in whole or in part, and agrees that it will not transfer, sell or
otherwise dispose of Subscriber’s Allocated Percentage in any manner that will violate applicable
securities law;
(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 Service Address, represents no more than 120 percent of Subscriber’s average annual
consumption at the Service Address over the last twenty-four (24) months; and
(d) Subscriber is a retail electric service customer of NSP and the Service Address is
within the same county or contiguous county as the Solar System.
(e) Subscriber is not exempt from the Solar Energy Standard under Minnesota Statutes
Section 216B.1691, subd. 2f(d).
8.3 Exclusion of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 3.1,
4.1, 7.1, THIS SECTION 8, 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, insurrection, sabotage, epidemic, terrorist acts,
12
or rebellion; (iv) strikes or labor disputes (except strikes or labor disputes caused solely by employees
of Operator 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) exercise 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 expired 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 the Agreement and (A) such
breach can be cured within 30 days after Subscriber’s written notice of such breach and Operator
fails to so cure, or (B) Operator fails to commence and pursue a cure within such 30 day period if a
longer cure period is needed; and
(iv) The PPA is terminated for any reason.
(b) Subscriber’s Remedies. If an Operator Default described in Section 11.1(a) has occurred
and results in the failure or inability of the Solar System to produce Delivered Energy over a
period of 180 consecutive days, in addition to other remedies expressly provided herein, and
13
subject to Article 15, 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.
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 the Agreement and (A) if such breach can be
cured within 30 days after Operator’s notice of such breach and Subscriber fails to so cure, or (B)
Subscriber fails to commence and pursue said cure within such 30 day period if a longer cure
period is needed.
(iv) This Agreement is terminated pursuant to Section 2.2(i).
(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 (i) terminate this Agreement and collect the Termination Fee; provided that
if within three years after collecting the Termination Fee, Operator sells all of Subscriber’s
Allocated Percentage (after making commercially reasonable efforts to do so and after
filling any pre-existing unsubscribed portion of the Delivered Energy), then Subscriber
will be entitled to recover from Operator an amount equal to the net present value, using a
discount rate of 5.5%, ascribed by Operator to such new subscriber’s subscription minus
the costs Operator incurred to sell Subscriber’s Allocated Percentage (including marketing
costs associated with finding a new subscriber), (ii) sell Subscriber’s Allocated Percentage
to one or more persons other than Subscriber, and (iii) exercise any other remedy it may
have at law or equity or under the Agreement. In the event of any such termination,
Operator shall use reasonable efforts to mi tigate its damages.
12. ASSIGNMENT.
12.1 Assignment by Operator. Operator shall not sell, transfer or assign
(collectively, an “Assignment”) the Agreement or any interest therein, without the prior written
consent of Subscriber, which shall not be unreasonably withheld. 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.
Notwithstanding the forgoing, Operator may, without the consent of Subscriber, (1) transfer, pledge
or assign all or substantially all of its rights and obligations hereunder to a Financing Party as
14
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) after the Commercial
Operation Date, transfer or assign this Agreement to any person or entity succeeding to all or
substantially all of the assets of Operator, (3) assign this Agreement to one or more affiliates; or (4)
assign its rights under this Agreement to a successor entity in a merger or acquisition transaction;
provided, however, that any assignee under clauses (2)-(4) 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. In the event
that Operator identifies such secured Financing Party, then Subscriber shall comply with the
provisions set forth in Exhibit E to this Agreement. Any Financing Party shall be an intended third-
party beneficiary of this Section 12.1.
Operator’s request for Subscriber’s consent to any assignment must be in writing and provided to
Subscriber at least 10 business days before the proposed effective date of the assignment. Operator
shall include with such request contact information for the assignee.
12.2. Acknowledgment of Collateral Assignment. If Operator identifies a secured Financing
Party and Subscriber consents to the collateral assignment under Section 12.1, then Subscriber
acknowledges and agrees:
(a) to the collateral assignment by Operator to the Financing Party, of Operator’s right, title
and interest in, to and under the Agreement, as consented to under Section 12.1 of the Agreement.
(b) that the Financing Party as such collateral assignee is entitled to exercise any and all
rights of lenders generally with respect to Operator’s interests in this Agreement.
Any Financing Party is an intended third-party beneficiary of this Section 12.2.
12.3 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 for Subscriber to change the Service Address for which the Bill Credits will apply to
another Service Address.
(c) Subscriber’s request for Operator’s consent to any proposed change or assignment as
contemplated in Section 12.3(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 Service Address; (iii) the new Service Address (if applicable); (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
Service Address 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 be Creditworthy and shall execute a new
15
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.
(c) Upon any assignment of this Agreement pursuant to this Section 12.3, Subscriber will
surrender all right, title and interest in and to this Agreement. Any purported assignment in contravention
of this Section 12.3 shall be of no force and effect and null and void ab initio. No assignment will extend
the Term of this Agreement. If Subscriber terminates its retail electric service with NSP or moves
outside of NSP territory without first transferring Subscriber’s Allocated Percentage to an eligible
transferee, Subscriber will forfeit its right to receive Bill Credits, but will continue to be responsible for
the Payments under this Agreement until Subscriber’s Allocated Percentage is transferred or this
Agreement terminates pursuant to its terms.
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: Operator:
City of Rosemount
2875 145th Street West
Rosemount, MN 55068
Financing Party:
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.
14.1 Data Practices. (a) Consistent with Minnesota Statutes, section 13.05, subdivision 6, if any data on
16
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 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 Operator’s work 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.
14.2 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. INSURANCE
15.1 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:
General Aggregate $2,000,000
Products—Completed Operations Aggregate 2,000,000
Personal and Advertising Injury
Each Occurrence—Combined Bodily
Injury and Property Damage
1,500,000
1,500,000
17
2. Workers’ Compensation and Employer’s Liability:
Workers’ Compensation
If Operator is based outside the state of Minnesota,
coverage must comply with Minnesota law.
Statutory
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.
15.2 Limitation of Liability. The Parties will not be liable to the other Party for general, special, punitive,
exemplary, indirect, incidental or consequential damages arising from or out of this Agreement. The total
liability of Operator to Subscriber under this Agreement will in no event exceed the aggregate of all
payments made by Subscriber under this Agreement during the preceding twelve (12) months. Prior to
the first anniversary of the Commercial Operation Date, the total liability of Operator to Subscriber under
this Agreement will not exceed the estimated amount of payments for the first calendar year. That amount
will be Subscriber’s sole and exclusive remedy and all other remedies or damages at law or equity are
waived.
16. COMPLIANCE
16.1 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).
16.2 Under the PUC Order in Docket Number E002/M-13-867, dated, the Operator will, at the request
of Subscriber, 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. MISCELLANEOUS
18
17.1 Integration; Exhibits. This Agreement, together with the Exhibits attached hereto,
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.
17.2 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). If in Operator’s judgment any provision of this
Agreement is reasonably expected to result in Operator’s non-compliance with any provision in the
PPA or the Tariff (as may be amended or revised from), the Parties will exercise commercially
reasonable efforts to negotiate an amendment to this Agreement to conform to the applicable provisions
in the PPA or Tariff.
17.3 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.
17.4 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.
17.5 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 and Insurance), Section 17 (Miscellaneous), or pursuant to other 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 the period of the applicable statute
of limitation.
17.6 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.
17.7 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.
17.8 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
19
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.
17.9 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.
17.10 Counterparts. This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument
17.11 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.
17.12 Records-Keeping. Operator will maintain books, records, documents and other evidence
directly pertinent to performance of the work under this Agreement 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 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.
17.13 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.
17.14 Dispute Resolution. Claims by the Operator disputing the meaning and intent of this
Agreement or arising from performance of this Agreement must be referred in writing to the General
Manager of Environmental Services of Subscriber for a written decision within 60 days after the dispute
arises. The General Manager of 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 claim. Submission
of a dispute or claim to
Dispute Resolution is a condition precedent to the Operator initialing any litigation relating to this
Agreement.
20
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.
17.15 Goodwill and Publicity. Operator shall have the right to use graphical
representations or photography of the System in marketing and promotional materials. Subscriber
agrees to the use by Operator of Subscriber’s name as a subscriber, if applicable, in Operator’s
marketing materials in connection with the System and any future Community Solar Garden
program or similar projects undertaken by Operator. Operator agrees not to disclose any other
Subscriber information in connection with Operator’s marketing and promotional materials.
Subscriber agrees not to use Operator’s name, logo, trademark, trade name, service mark, or other
Operator intellectual property in any marketing or promotional materials without the prior written
consent of Operator. 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 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 publicity. This section will
not be construed to require Subscriber to obtain consent for any postings or publications required
by law or undertaken by Subscriber in its capacity as a government entity.
17.16 Trade Secret Data Provided to Governmental Entities. Operator may provide data
that it designates as trade secret to Subscriber. Under Minnesota Statutes section 13.37,
subdivision 1(b), Subscriber is responsible for determining whether data marked as trade secret by
Operator qualifies as trade secret under the law. For Operator data that Subscriber determines is
trade secret, Subscriber will not share the data with any other Person or entity except as required
by law. If Subscriber receives a request under the Minnesota Government Data Practices Act for
access to data that Operator designated as trade secret but subscriber has determined is not trade
secret, then Subscriber will use its best efforts to give the Operator ten (10) days’ notice before
releasing the data in order to permit the Operator to exercise whatever legal remedies are available
to the Operator to prevent such disclosure.
21
IN WITNESS WHEREOF, the Parties have caused this Contract to be executed by their duly authorized
officers on the dates set forth below.
OPERATOR
By:
Name:
Title:
Date:
City of Rosemount
By:
Name:
Title:
Date:
22
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:
By signing this Solar*Rewards Community Subscriber Agency Agreement and Consent Form, the Subscriber agrees to all of the
following:
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:
23
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 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
24
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 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.
25
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.
Subscriber’s Name: ___________________________
Subscriber’s Signature: ___________________________
Date: ___________________________
26
EXHIBIT B
Certain Agreements for the Benefit of the Financing Parties
1. Lender Conditions. In order to finance the development and operation of the System, Owner
may borrow money from a Lender (as defined in the Agreement). Subscriber acknowledges that
Owner may finance the acquisition, development, installation, operation and maintenance of the
System with financing or other accommodations from one or more financial institutions and that
Owner’s obligations to the Lender may be secured by, among other collateral, a pledge or collateral
assignment of the Agreement and a first priority security interest in the System (collectively, the
“Security Interest”). In order to facilitate the necessary financing, Subscriber consents to
Owner’s granting to the Lender the Security Interest.
Subscriber acknowledges and agrees that: (i) Subscriber and all of Subscriber’s rights under the
Agreement are and will be subject and subordinate to the Security Interest (and as later modified
by any and all renewals, modifications, supplement, amendments, consolidations, replacements,
substitutions, additions, and extensions); and (ii) no amendment or modifications of the Agreement
is permitted without the Lender’s written consent.
2. Lender’s Default Rights. If Owner defaults under the financing documents with the Lender, the
following provisions apply:
A. The Lender, through its Security Interest, will be entitled to exercise any of Owner’s rights and
remedies under the Agreement. The Lender will also be entitled to exercise all rights and
remedies of secured parties generally with respect to the Agreement and the System.
B. The Lender will have the right, but not the obligations, to pay all sums due from Owner
under the Agreement and to perform any other act, duty, or obligation required of Owner, and
to cure any default by Owner in the time and manner provided by the terms of the
Agreement. Nothing requires the Lender to cure any default by Owner (an “Owner Default”)
under the Agreement, to perform any act, duty or obligation of Owner under the Agreement,
unless the Lender has succeeded to Owner’s rights under the Agreement, but Subscriber hereby
gives Lender the option to do so.
C. If the Lender exercises its remedies under the Security Interest in the System, including any sale
by the Lender, whether by judicial proceeding or under any power of sale, or any conveyance
from Owner to Lender (or its assignee) in lieu of sale, the Lender will give Subscriber notice of
27
the transfer or assignment of the Agreement. If Lender exercises these remedies, it will not
constitute a default under the Agreement, and will not require Subscriber consent.
D. Upon any rejection or other termination of the Agreement under any process undertaken with
respect to Owner under the United States Bankruptcy Code, Subscriber agrees to enter into a
new agreement with Lender or its assignee under substantially the same terms as the
Agreement if Lender so requests within ninety (90) days of the termination or rejection of the
Agreement.
E. At Owner’s request, Subscriber agrees to execute and deliver to Lender and Owner such
acknowledgment consent as may be required by Lender and in which Subscriber acknowledges
and confirms that the legal and beneficial ownership of the System remains in Owner, or its
affiliate, and that the System is the property of Owner, or its affiliate.
3. Lender’s Right to Cure. Regardless of any contrary terms in the Agreement:
A. Subscriber will not terminate or suspend the Agreement unless Subscriber has given the
Lender prior written notice of Subscriber’s intent to terminate or suspend the Agreement
describing the event giving rise to the alleged Owner Default, and provide the Lender with
the opportunity to cure the Owner Default within sixty (60) days after such notice or any
longer period provided for in the Agreement. If the Owner Default reasonably cannot be cured
by the Lender within the period established under the Agreement, and the Lender commences
and continuously pursues the cure of such Owner Default within that period, the period for
cure will be extended for a reasonable period of time under the circumstances, but not to
exceed an additional thirty (30) days. Owner’s and Subscriber’s respective obligations will
otherwise remain in effect during the cure period.
B. If the Lender or its lawful assignee (including any buyer or transferee) acquires title to or
control of Subscriber’s assets and within the applicable time period cures all defaults under the
Agreement existing as of the date of such change in control in the manner required by the
Agreement and which are capable of cure by a third party, then the Lender or such third party
buyer or transferee will no longer be in default under the Agreement, and the Agreement will
continue in full force and effect.
C. At the request of Lender and/or its assignee, Subscriber agrees to execute and deliver any
document, instrument, or statement (but not including any payment) required by law or
otherwise as reasonably requested by Lender or its assignee in order to create, perfect,
28
continue, or terminate the security interest in favor of Lender in all assets of Owner, and to
secure the obligations evidences by the Security Interest.
29
Schedule 1
Description of System
Solar System Site Location: Pine Island Solar Garden Unit 1/Goodhue County
Site Owned/Controlled by: Operator
Anticipated Commercial
Operation Date: 12/31/16
Solar System Size: 1,000 kw (AC) (representing an initial
estimate, which may vary depending
on the final design of the System)
Retail Service Address: 13885 Robert Trail, MN 55068
Subscribers Allocated
Percentage: Allocated Percentage: 20.00%
30
Schedule 2
The kWh Rate shall be 12.2¢/kWh (“kWh Rate”) with 1% annual escalator
Estimated Annual Delivered Energy
Estimated Annual Delivered Energy commencing on the Commercial Operation Date, and continuing
through the Term, with respect to the System under the Agreement shall be as follows:
Year of
System
Term
Estimated Annual
Delivered Energy
Subscriber
Allocated
Percentage
Estimated Electricity
Allocated to Subscriber kWh Rate
1 1,602,000 20.00% 320,400 $ 0.1220
2 1,593,990 20.00% 318,798 $ 0.1232
3 1,586,020 20.00% 317,204 $ 0.1245
4 1,578,090 20.00% 315,618 $ 0.1257
5 1,570,200 20.00% 314,040 $ 0.1270
6 1,562,349 20.00% 312,470 $ 0.1282
7 1,554,537 20.00% 310,907 $ 0.1295
8 1,546,764 20.00% 309,353 $ 0.1308
9 1,539,030 20.00% 307,806 $ 0.1321
10 1,531,335 20.00% 306,267 $ 0.1334
11 1,523,678 20.00% 304,736 $ 0.1348
12 1,516,060 20.00% 303,212 $ 0.1361
13 1,508,480 20.00% 301,696 $ 0.1375
14 1,500,937 20.00% 300,187 $ 0.1388
15 1,493,433 20.00% 298,687 $ 0.1402
16 1,485,965 20.00% 297,193 $ 0.1416
17 1,478,536 20.00% 295,707 $ 0.1431
18 1,471,143 20.00% 294,229 $ 0.1445
19 1,463,787 20.00% 292,757 $ 0.1459
20 1,456,468 20.00% 291,294 $ 0.1474
21 1,449,186 20.00% 289,837 $ 0.1489
22 1,441,940 20.00% 288,388 $ 0.1504
23 1,434,730 20.00% 286,946 $ 0.1519
24 1,427,557 20.00% 285,511 $ 0.1534
25 1,420,419 20.00% 284,084 $ 0.1549
* For the purposes of the table Term year 1 shall commence on the Commercial Operation Date
The values set forth 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 shall
also be estimates and in no event shall any such values (whether or not updated) be considered to be
binding in any way on Owner.
31
Schedule 3
Termination Fee
Year of System Term Subscriber Allocated Percentage Termination Fee
1 20% $381,071
2 20% $372,284
3 20% $363,163
4 20% $353,687
5 20% $343,838
6 20% $333,594
7 20% $322,932
8 20% $311,828
9 20% $300,259
10 20% $288,196
11 20% $275,613
12 20% $262,480
13 20% $248,766
14 20% $234,439
15 20% $219,464
16 20% $203,804
17 20% $187,422
18 20% $170,277
19 20% $152,326
20 20% $133,524
21 20% $113,825
22 20% $93,176
23 20% $71,527
24 20% $48,821
25 20% $24,999
* For the purposes of the table Term year 1 shall commence on the Commercial Operation Date
** The Termination Fee is based on the Subscriber’s Allocated Percentage at the time of termination. The
Termination Fee listed on the Effective Date is based on Subscriber’s Allocated Percentage on the
Effective Date.
32
Schedule 4
Legal Description
[To be attached within 120 days of execution of the PPA]
1
Pine Island Unit #5
Met Council Ticket #16
Randomized Selection #244
COMMUNITY SOLAR GARDEN SUBSCRIPTION AGREEMENT
Pine Island Solar Garden Unit 5
WHEREAS, SolarStone Community LLC (“Operator”) intends to construct, install,
own, operate, and maintain a solar photovoltaic System at the Premises described on
Schedule 1;
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 the retail
electric services at the addresses listed in Schedule #1 (the “Service Address”);
WHEREAS, the City of Rosemount, a body politic and corporate, by and through the City of
Rosemount, having an address at 2875 145th Street West, Rosemount, MN 55068 (“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;
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.
1.1 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” 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 requirement of
any Governmental Authority having jurisdiction over such Person or its property, enforceable at law
or in equity, including the interpretation and administration thereof by such Governmental
Authority.
2
“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 at the
Service Address in accordance with the PPA. The Bill Credit Rate to be used by NSP is the Enhanced
Bill Credit as provided in the PPA as the Operator must transfer the Solar Renewable Energy Credits
(“RECs”) to NSP under the PPA unless directed otherwise by Subscriber.
“Billing Cycle” means the monthly billing cycle established by NSP.
“Business Day” means any day other than Saturday, Sunday, or a legal holiday.
“Creditworthy” means a general obligation bond rating of (a) Baa3 or higher by Moody’s, (b) BBB- or
higher by Fitch IBCA, or (c) BBB- or higher by Standard and Poor’s; or, for non-governmental entities
not rated by Moody’s, Fitch IBCA, or Standard and Poor’s, an equivalent credit rating as determined by
Operator through review of such entity’s (x) most recent three (3) years of audited financial statements
with notes, or, if such audited financial statements are not available, (y) most recent three (3) years of
unaudited financials (prepared by an external accountant, if available) including income and cash flow
statements, a balance sheet, and accompanying notes, if any, for each.
“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.
“Effective Date” means the date on which the Agreement is signed by authorized representatives of both
Parties in accordance with Section 2.1.
3
“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” 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.
“Guaranteed Output” has the meaning set forth in Section 7.3(b)
“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.
“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 D.
“Premises” means the premises described in Exhibit C.
“Shortfall Amount” has the meaning set forth in Section 7.4.
“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
4
Delivered Energy in a given month, as described in Exhibit C.
“Stated Rate” means a rate per annum of 1.5%.
“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.
“Termination Fee” means a fee payable by Subscriber equal to (x) the net present value of the
Subscriber’s remaining payments to Operator under the Agreement (based on the Estimated Annual
Delivered Energy) minus (y) the net present value of remaining payments to Operator for Subscriber’s
Allocated Percentage of Estimated Annual Delivered Energy at the Unsubscribed Energy Rate using a
discount rate of five and one half percent (5.5%); provided that such Termination Fee shall not be less
than zero. The Termination Fee for each year of the Term based on Subscriber’s Allocated Percentage as
of the Effective Date is listed in Exhibit F.
“Unsubscribed Energy Rate” means $0.034 per kWh, which is the blended rate NSP pays for
unsubscribed Delivered Energy under rate code A51 in NSP’s rate book in effect on the Effective Date.
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 Section 12.3, or
(ii) the PPA is otherwise terminated.
2.3 Termination Before Commercial Operation. If any of the following events or
circumstances occurs before the Commercial Operation Date, either Party 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 timely application to NSP and best efforts to secure interconnection services,
Operator has not received evidence that interconnection services will be available for the energy
generated by the Solar System.
(b) If NSP or another party with the authority to do so, disqualifies the Operator or the facility
5
from participating in the Community Solar Garden Program.
(c) Before the PPA is signed, if the legislature, PUC, NSP, or any other entity reduces the
credit base rate, or basis of escalation of that rate from that anticipated at the time of acceptance of the
proposal by the Subscriber.
(d) If the State legislature dissolves the Subscriber; provided that Subscriber’s obligations
under this Agreement are reassigned.
2.4 Termination for Unnecessary Delay in Achieving Commercial Operation. Operator agrees to
achieve commercial operation within a commercially reasonable timeframe. If Operator does not achieve
Commercial Operation within 2 years of the Effective Date, at Subscriber’s sole discretion, Subscriber
may terminate this Agreement with 60 days’ written notice. If Subscriber terminates the Agreement
under this provision, Subscriber will have no liability to the Operator except for any liabilities that
accrued before the termination.
2.5 [Reserved.]
2.6 Termination Upon Mutual Agreement. This Agreement may be terminated at any time, for any
reason, by mutual agreement of the Parties in writing.
2.7 Operator Conditions of the Agreement Prior to Installation. In the event that any of the
following events or circumstances occur prior to the Commercial Operation Date, Operator may
(in its sole discretion) terminate this Agreement, in which case neither Party shall have any
liability to the other except for any such liabilities that may have accrued prior to such termination.
(a) There has been a material adverse change, not reasonably knowable by the Operator prior
to execution of the Agreement, 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.
(b) After timely application to NSP and best efforts to secure interconnection services,
Operator has not received evidence reasonably satisfactory to it that interconnection services will
be available with respect to energy generated by the System.
(c) Operator has determined that Subscriber is not Creditworthy.
(d) Operator is unable to obtain financing for the System on terms and conditions
reasonably satisfactory to Operator.
(e) Subscriber’s representation and warranty contained in Section 8.2(d) is no longer true and
correct.
3. CONSTRUCTION, INSTALLATION AND TESTING OF SYSTEM.
6
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.
5. DELIVERY OF ENERGY.
5.1 Purchase Requirement. Subscriber agrees to make payments calculated as Subscriber’s
Allocated Percentage multiplied by (x) Delivered Energy generated by the System beginning on the
Commercial Operation Date and continuing for each applicable month of the Term and (y) the kWh Rate.
If there is a difference between the metered energy credited by NSP to the Subscriber on the subscribed
account’s bills and the Delivered Energy, the Subscriber’s payments will be based on energy credited.
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 F. 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.
7
(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; and
(c) Without limiting the foregoing, Subscriber agrees that NSP will acquire from Operator
under the PPA all energy generated by the Solar System and may, as provided for in the PPA, acquire
all Renewable Energy Credits (as defined in the PPA) associated with the Solar System. If the
Renewable Energy Credits (as defined in the PPA) associated with the Solar System are acquired by
NSP, Operator will notify the Subscriber of the acquisition. 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 shall be entitled to 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. Subscriber will pay a price of $0.1220 per Kilowatt Hour (“kWh Rate”),
with a (1%) annual escalation for the term of this Agreement unless an escalation method is proposed
by the Operator and agreed to in writing by an authorized representative of Subscriber.
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
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. 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
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.
8
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 allocated to Subscriber for such period,
Operator will reimburse Subscriber for the amount paid by Subscriber in consideration for the
Electricity Deficienc y 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’s 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.
9
(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 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.
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, rebates or other financial incentives,
Subscriber will cooperate with Operator to obtain such approvals, 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.
7.3 Minimum Production; Lost Production Payments.
(a) Estimated Annual Delivered Energy is calculated by multiplying estimated output from the
System (using PVSYST software) by the availability factor estimated by Operator while allowing for a
0.7% annual degradation of the System. The Subscriber’s Estimated Annual Delivered Energy is the
Subscriber’s Allocated Percentage multiplied by the Estimated Annual Delivered Energy delivered by
the System.
(b) Operator hereby guarantees that the Subscriber’s Allocated Percentage of Delivered Energy
will be at least eighty five percent (85%) of the Subscriber’s Estimated Annual Delivered Energy (the
“Guaranteed Output”); provided that the Estimated Annual Delivered Energy shall be adjusted for (i)
10
Force Majeure Events, (ii) weather and (iii) decreases in Delivered Energy resulting from an emergency
situation that threatens injury to persons or property that was not a result of the acts or omissions of
Operator.
7.4 Delivery Shortfalls. If, at the end of a Contract Year, the Subscriber’s Allocated
Percentage of Delivered Energy for such Contract Year is less than the Guaranteed Output (the
“Shortfall Amount”), then Operator shall pay Subscriber an amount equal to the excess, if any, of (1) the
difference between the Bill Credits that Subscriber would have received and the Payments that would
have been due had the Shortfall Amount been delivered over (2) the difference between the Bill Credits
that Subscriber actually received and the Payments that were actually received, in each case with respect
to such Contract Year. Operator shall make such payment within forty five (45) days of the end of each
Contract Year.
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, validly existing and in good standing in the jurisdiction
of its organization and it has the full right and authority to enter into, execute, deliver, and
perform its obligations under the Agreement;
(b) it has taken all requisite corporate or other action to approve the execution, delivery,
and performance of the Agreement;
(c) 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;
(d) 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
(e) 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
11
to the resale or other distribution thereof, in whole or in part, and agrees that it will not transfer, sell or
otherwise dispose of Subscriber’s Allocated Percentage in any manner that will violate applicable
securities law;
(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 Service Address, represents no more than 120 percent of Subscriber’s average annual
consumption at the Service Address over the last twenty-four (24) months; and
(d) Subscriber is a retail electric service customer of NSP and the Service Address is
within the same county or contiguous county as the Solar System.
(e) Subscriber is not exempt from the Solar Energy Standard under Minnesota Statutes
Section 216B.1691, subd. 2f(d).
8.3 Exclusion of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 3.1,
4.1, 7.1, THIS SECTION 8, 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, insurrection, sabotage, epidemic, terrorist acts,
12
or rebellion; (iv) strikes or labor disputes (except strikes or labor disputes caused solely by employees
of Operator 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) exercise 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 expired 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 the Agreement and (A) such
breach can be cured within 30 days after Subscriber’s written notice of such breach and Operator
fails to so cure, or (B) Operator fails to commence and pursue a cure within such 30 day period if a
longer cure period is needed; and
(iv) The PPA is terminated for any reason.
(b) Subscriber’s Remedies. If an Operator Default described in Section 11.1(a) has occurred
and results in the failure or inability of the Solar System to produce Delivered Energy over a
period of 180 consecutive days, in addition to other remedies expressly provided herein, and
13
subject to Article 15, 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.
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 the Agreement and (A) if such breach can be
cured within 30 days after Operator’s notice of such breach and Subscriber fails to so cure, or (B)
Subscriber fails to commence and pursue said cure within such 30 day period if a longer cure
period is needed.
(iv) This Agreement is terminated pursuant to Section 2.2(i).
(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 (i) terminate this Agreement and collect the Termination Fee; provided that
if within three years after collecting the Termination Fee, Operator sells all of Subscriber’s
Allocated Percentage (after making commercially reasonable efforts to do so and after
filling any pre-existing unsubscribed portion of the Delivered Energy), then Subscriber
will be entitled to recover from Operator an amount equal to the net present value, using a
discount rate of 5.5%, ascribed by Operator to such new subscriber’s subscription minus
the costs Operator incurred to sell Subscriber’s Allocated Percentage (including marketing
costs associated with finding a new subscriber), (ii) sell Subscriber’s Allocated Percentage
to one or more persons other than Subscriber, and (iii) exercise any other remedy it may
have at law or equity or under the Agreement. In the event of any such termination,
Operator shall use reasonable efforts to mi tigate its damages.
12. ASSIGNMENT.
12.1 Assignment by Operator. Operator shall not sell, transfer or assign
(collectively, an “Assignment”) the Agreement or any interest therein, without the prior written
consent of Subscriber, which shall not be unreasonably withheld. 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.
Notwithstanding the forgoing, Operator may, without the consent of Subscriber, (1) transfer, pledge
or assign all or substantially all of its rights and obligations hereunder to a Financing Party as
14
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) after the Commercial
Operation Date, transfer or assign this Agreement to any person or entity succeeding to all or
substantially all of the assets of Operator, (3) assign this Agreement to one or more affiliates; or (4)
assign its rights under this Agreement to a successor entity in a merger or acquisition transaction;
provided, however, that any assignee under clauses (2)-(4) 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. In the event
that Operator identifies such secured Financing Party, then Subscriber shall comply with the
provisions set forth in Exhibit E to this Agreement. Any Financing Party shall be an intended third-
party beneficiary of this Section 12.1.
Operator’s request for Subscriber’s consent to any assignment must be in writing and provided to
Subscriber at least 10 business days before the proposed effective date of the assignment. Operator
shall include with such request contact information for the assignee.
12.2. Acknowledgment of Collateral Assignment. If Operator identifies a secured Financing
Party and Subscriber consents to the collateral assignment under Section 12.1, then Subscriber
acknowledges and agrees:
(a) to the collateral assignment by Operator to the Financing Party, of Operator’s right, title
and interest in, to and under the Agreement, as consented to under Section 12.1 of the Agreement.
(b) that the Financing Party as such collateral assignee is entitled to exercise any and all
rights of lenders generally with respect to Operator’s interests in this Agreement.
Any Financing Party is an intended third-party beneficiary of this Section 12.2.
12.3 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 for Subscriber to change the Service Address for which the Bill Credits will apply to
another Service Address.
(c) Subscriber’s request for Operator’s consent to any proposed change or assignment as
contemplated in Section 12.3(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 Service Address; (iii) the new Service Address (if applicable); (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
Service Address 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 be Creditworthy and shall execute a new
15
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.
(c) Upon any assignment of this Agreement pursuant to this Section 12.3, Subscriber will
surrender all right, title and interest in and to this Agreement. Any purported assignment in contravention
of this Section 12.3 shall be of no force and effect and null and void ab initio. No assignment will extend
the Term of this Agreement. If Subscriber terminates its retail electric service with NSP or moves
outside of NSP territory without first transferring Subscriber’s Allocated Percentage to an eligible
transferee, Subscriber will forfeit its right to receive Bill Credits, but will continue to be responsible for
the Payments under this Agreement until Subscriber’s Allocated Percentage is transferred or this
Agreement terminates pursuant to its terms.
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: Operator:
City of Rosemount
2875 145th Street West
Rosemount, MN 55068
Financing Party:
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.
14.1 Data Practices. (a) Consistent with Minnesota Statutes, section 13.05, subdivision 6, if any data on
16
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 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 Operator’s work 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.
14.2 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. INSURANCE
15.1 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:
General Aggregate $2,000,000
Products—Completed Operations Aggregate 2,000,000
Personal and Advertising Injury
Each Occurrence—Combined Bodily
Injury and Property Damage
1,500,000
1,500,000
17
2. Workers’ Compensation and Employer’s Liability:
Workers’ Compensation
If Operator is based outside the state of Minnesota,
coverage must comply with Minnesota law.
Statutory
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.
15.2 Limitation of Liability. The Parties will not be liable to the other Party for general, special, punitive,
exemplary, indirect, incidental or consequential damages arising from or out of this Agreement. The total
liability of Operator to Subscriber under this Agreement will in no event exceed the aggregate of all
payments made by Subscriber under this Agreement during the preceding twelve (12) months. Prior to
the first anniversary of the Commercial Operation Date, the total liability of Operator to Subscriber under
this Agreement will not exceed the estimated amount of payments for the first calendar year. That amount
will be Subscriber’s sole and exclusive remedy and all other remedies or damages at law or equity are
waived.
16. COMPLIANCE
16.1 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).
16.2 Under the PUC Order in Docket Number E002/M-13-867, dated, the Operator will, at the request
of Subscriber, 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. MISCELLANEOUS
18
17.1 Integration; Exhibits. This Agreement, together with the Exhibits attached hereto,
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.
17.2 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). If in Operator’s judgment any provision of this
Agreement is reasonably expected to result in Operator’s non-compliance with any provision in the
PPA or the Tariff (as may be amended or revised from), the Parties will exercise commercially
reasonable efforts to negotiate an amendment to this Agreement to conform to the applicable provisions
in the PPA or Tariff.
17.3 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.
17.4 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.
17.5 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 and Insurance), Section 17 (Miscellaneous), or pursuant to other 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 the period of the applicable statute
of limitation.
17.6 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.
17.7 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.
17.8 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
19
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.
17.9 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.
17.10 Counterparts. This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument
17.11 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.
17.12 Records-Keeping. Operator will maintain books, records, documents and other evidence
directly pertinent to performance of the work under this Agreement 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 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.
17.13 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.
17.14 Dispute Resolution. Claims by the Operator disputing the meaning and intent of this
Agreement or arising from performance of this Agreement must be referred in writing to the General
Manager of Environmental Services of Subscriber for a written decision within 60 days after the dispute
arises. The General Manager of 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 claim. Submission
of a dispute or claim to
Dispute Resolution is a condition precedent to the Operator initialing any litigation relating to this
Agreement.
20
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.
17.15 Goodwill and Publicity. Operator shall have the right to use graphical
representations or photography of the System in marketing and promotional materials. Subscriber
agrees to the use by Operator of Subscriber’s name as a subscriber, if applicable, in Operator’s
marketing materials in connection with the System and any future Community Solar Garden
program or similar projects undertaken by Operator. Operator agrees not to disclose any other
Subscriber information in connection with Operator’s marketing and promotional materials.
Subscriber agrees not to use Operator’s name, logo, trademark, trade name, service mark, or other
Operator intellectual property in any marketing or promotional materials without the prior written
consent of Operator. 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 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 publicity. This section will
not be construed to require Subscriber to obtain consent for any postings or publications required
by law or undertaken by Subscriber in its capacity as a government entity.
17.16 Trade Secret Data Provided to Governmental Entities. Operator may provide data
that it designates as trade secret to Subscriber. Under Minnesota Statutes section 13.37,
subdivision 1(b), Subscriber is responsible for determining whether data marked as trade secret by
Operator qualifies as trade secret under the law. For Operator data that Subscriber determines is
trade secret, Subscriber will not share the data with any other Person or entity except as required
by law. If Subscriber receives a request under the Minnesota Government Data Practices Act for
access to data that Operator designated as trade secret but subscriber has determined is not trade
secret, then Subscriber will use its best efforts to give the Operator ten (10) days’ notice before
releasing the data in order to permit the Operator to exercise whatever legal remedies are available
to the Operator to prevent such disclosure.
21
IN WITNESS WHEREOF, the Parties have caused this Contract to be executed by their duly authorized
officers on the dates set forth below.
OPERATOR
By:
Name:
Title:
Date:
City of Rosemount
By:
Name:
Title:
Date:
22
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:
By signing this Solar*Rewards Community Subscriber Agency Agreement and Consent Form, the Subscriber agrees to all of the
following:
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:
23
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 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
24
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 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.
25
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.
Subscriber’s Name: ___________________________
Subscriber’s Signature: ___________________________
Date: ___________________________
26
EXHIBIT B
Certain Agreements for the Benefit of the Financing Parties
1. Lender Conditions. In order to finance the development and operation of the System, Owner
may borrow money from a Lender (as defined in the Agreement). Subscriber acknowledges that
Owner may finance the acquisition, development, installation, operation and maintenance of the
System with financing or other accommodations from one or more financial institutions and that
Owner’s obligations to the Lender may be secured by, among other collateral, a pledge or collateral
assignment of the Agreement and a first priority security interest in the System (collectively, the
“Security Interest”). In order to facilitate the necessary financing, Subscriber consents to
Owner’s granting to the Lender the Security Interest.
Subscriber acknowledges and agrees that: (i) Subscriber and all of Subscriber’s rights under the
Agreement are and will be subject and subordinate to the Security Interest (and as later modified
by any and all renewals, modifications, supplement, amendments, consolidations, replacements,
substitutions, additions, and extensions); and (ii) no amendment or modifications of the Agreement
is permitted without the Lender’s written consent.
2. Lender’s Default Rights. If Owner defaults under the financing documents with the Lender, the
following provisions apply:
A. The Lender, through its Security Interest, will be entitled to exercise any of Owner’s rights and
remedies under the Agreement. The Lender will also be entitled to exercise all rights and
remedies of secured parties generally with respect to the Agreement and the System.
B. The Lender will have the right, but not the obligations, to pay all sums due from Owner
under the Agreement and to perform any other act, duty, or obligation required of Owner, and
to cure any default by Owner in the time and manner provided by the terms of the
Agreement. Nothing requires the Lender to cure any default by Owner (an “Owner Default”)
under the Agreement, to perform any act, duty or obligation of Owner under the Agreement,
unless the Lender has succeeded to Owner’s rights under the Agreement, but Subscriber hereby
gives Lender the option to do so.
C. If the Lender exercises its remedies under the Security Interest in the System, including any sale
by the Lender, whether by judicial proceeding or under any power of sale, or any conveyance
from Owner to Lender (or its assignee) in lieu of sale, the Lender will give Subscriber notice of
27
the transfer or assignment of the Agreement. If Lender exercises these remedies, it will not
constitute a default under the Agreement, and will not require Subscriber consent.
D. Upon any rejection or other termination of the Agreement under any process undertaken with
respect to Owner under the United States Bankruptcy Code, Subscriber agrees to enter into a
new agreement with Lender or its assignee under substantially the same terms as the
Agreement if Lender so requests within ninety (90) days of the termination or rejection of the
Agreement.
E. At Owner’s request, Subscriber agrees to execute and deliver to Lender and Owner such
acknowledgment consent as may be required by Lender and in which Subscriber acknowledges
and confirms that the legal and beneficial ownership of the System remains in Owner, or its
affiliate, and that the System is the property of Owner, or its affiliate.
3. Lender’s Right to Cure. Regardless of any contrary terms in the Agreement:
A. Subscriber will not terminate or suspend the Agreement unless Subscriber has given the
Lender prior written notice of Subscriber’s intent to terminate or suspend the Agreement
describing the event giving rise to the alleged Owner Default, and provide the Lender with
the opportunity to cure the Owner Default within sixty (60) days after such notice or any
longer period provided for in the Agreement. If the Owner Default reasonably cannot be cured
by the Lender within the period established under the Agreement, and the Lender commences
and continuously pursues the cure of such Owner Default within that period, the period for
cure will be extended for a reasonable period of time under the circumstances, but not to
exceed an additional thirty (30) days. Owner’s and Subscriber’s respective obligations will
otherwise remain in effect during the cure period.
B. If the Lender or its lawful assignee (including any buyer or transferee) acquires title to or
control of Subscriber’s assets and within the applicable time period cures all defaults under the
Agreement existing as of the date of such change in control in the manner required by the
Agreement and which are capable of cure by a third party, then the Lender or such third party
buyer or transferee will no longer be in default under the Agreement, and the Agreement will
continue in full force and effect.
C. At the request of Lender and/or its assignee, Subscriber agrees to execute and deliver any
document, instrument, or statement (but not including any payment) required by law or
otherwise as reasonably requested by Lender or its assignee in order to create, perfect,
28
continue, or terminate the security interest in favor of Lender in all assets of Owner, and to
secure the obligations evidences by the Security Interest.
29
Schedule 1
Description of System
Solar System Site Location: Pine Island Solar Garden Unit 5/Goodhue County
Site Owned/Controlled by: Operator
Anticipated Commercial
Operation Date: 12/31/16
Solar System Size: 1,000 kw (AC) (representing an initial
estimate, which may vary depending
on the final design of the System)
Retail Service Address: 13885 Robert Trail, MN 55068
Subscribers Allocated
Percentage: Allocated Percentage: 20.00%
30
Schedule 2
The kWh Rate shall be 12.2¢/kWh (“kWh Rate”) with 1% annual escalator
Estimated Annual Delivered Energy
Estimated Annual Delivered Energy commencing on the Commercial Operation Date, and continuing
through the Term, with respect to the System under the Agreement shall be as follows:
Year of
System
Term
Estimated Annual
Delivered Energy
Subscriber
Allocated
Percentage
Estimated Electricity
Allocated to Subscriber kWh Rate
1 1,602,000 20.00% 320,400 $ 0.1220
2 1,593,990 20.00% 318,798 $ 0.1232
3 1,586,020 20.00% 317,204 $ 0.1245
4 1,578,090 20.00% 315,618 $ 0.1257
5 1,570,200 20.00% 314,040 $ 0.1270
6 1,562,349 20.00% 312,470 $ 0.1282
7 1,554,537 20.00% 310,907 $ 0.1295
8 1,546,764 20.00% 309,353 $ 0.1308
9 1,539,030 20.00% 307,806 $ 0.1321
10 1,531,335 20.00% 306,267 $ 0.1334
11 1,523,678 20.00% 304,736 $ 0.1348
12 1,516,060 20.00% 303,212 $ 0.1361
13 1,508,480 20.00% 301,696 $ 0.1375
14 1,500,937 20.00% 300,187 $ 0.1388
15 1,493,433 20.00% 298,687 $ 0.1402
16 1,485,965 20.00% 297,193 $ 0.1416
17 1,478,536 20.00% 295,707 $ 0.1431
18 1,471,143 20.00% 294,229 $ 0.1445
19 1,463,787 20.00% 292,757 $ 0.1459
20 1,456,468 20.00% 291,294 $ 0.1474
21 1,449,186 20.00% 289,837 $ 0.1489
22 1,441,940 20.00% 288,388 $ 0.1504
23 1,434,730 20.00% 286,946 $ 0.1519
24 1,427,557 20.00% 285,511 $ 0.1534
25 1,420,419 20.00% 284,084 $ 0.1549
* For the purposes of the table Term year 1 shall commence on the Commercial Operation Date
The values set forth 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 shall
also be estimates and in no event shall any such values (whether or not updated) be considered to be
binding in any way on Owner.
31
Schedule 3
Termination Fee
Year of System Term Subscriber Allocated Percentage Termination Fee
1 20% $381,071
2 20% $372,284
3 20% $363,163
4 20% $353,687
5 20% $343,838
6 20% $333,594
7 20% $322,932
8 20% $311,828
9 20% $300,259
10 20% $288,196
11 20% $275,613
12 20% $262,480
13 20% $248,766
14 20% $234,439
15 20% $219,464
16 20% $203,804
17 20% $187,422
18 20% $170,277
19 20% $152,326
20 20% $133,524
21 20% $113,825
22 20% $93,176
23 20% $71,527
24 20% $48,821
25 20% $24,999
* For the purposes of the table Term year 1 shall commence on the Commercial Operation Date
** The Termination Fee is based on the Subscriber’s Allocated Percentage at the time of termination. The
Termination Fee listed on the Effective Date is based on Subscriber’s Allocated Percentage on the
Effective Date.
32
Schedule 4
Legal Description
[To be attached within 120 days of execution of the PPA]