SOLAR PHOTOVOLTAIC SYSTEM
ENGINEERING, PROCUREMENT AND CONSTRUCTION
AGREEMENT
TABLE OF CONTENTS
RECITALS
ARTICLE I: SERVICES
1.1 Scope of Services
1.2 Detailed Design Requirements
1.3 Schedule and Project Management
1.4 Permits
1.5 Removal of Hazardous Materials
1.6 Inspections
ARTICLE 2: DEFINITIONS
ARTICLE 3: DOCUMENTATION AND SUBMITTALS
3.1 Safety Documentation Plan
3.2 Design Drawing Submittals
3.3 Project Schedule
3.4 Progress Meetings and Reports
3.5 Project Commissioning Plan and Report
3.6 Functional Test and Performance Ratio Test Documentation
3.7 Operation & Maintenance (O&M) Binders
3.8 Project Closeout Binders
ARTICLE 4: COMPLETION OF SERVICES
4.1 Functional Test
4.2 Performance Ratio Test
4.3 Punchlist
4.4 Beneficial Use
4.5 Substantial Completion
4.6 Final Completion
ARTICLE 5: SYSTEM OWNER RESPONSIBILITIES
5.1 Cooperation for Licenses, Permits, Interconnects and Approvals
5.2 Cooperation of Host and Customer
ARTICLE 6: PRICE AND PAYMENT
Page | 2
6.1 Milestone Payment Schedule
6.2 Payment Milestones (“PM”)
6.3 Invoices and Documentation of Lien Waivers and Releases
6.4 Payments
6.5 Invoice Disputes
ARTICLE 7: CHANGES
7.1 Occurrences Giving Rise to a Change Order
ARTICLE 8: SCHEDULE AND PERFORMANCE GUARANTEES
8.1 Damages for Late Beneficial Use and Late Substantial Completion
8.2 Damages for Performance Ratio Test Shortfall
8.3 Extended Performance Guarantee
ARTICLE 9: FORCE MAJEURE
9.1 Force Majeure Events
9.2 No Default
9.3 Notice and Cure
ARTICLE 10: DEFAULT, SUSPENSION OF SERVICES AND TERMINATION OF
AGREEMENT
10.1 Suspension and Termination by System Owner
10.2 Termination by Contractor
10.3 Termination Resulting from No Issuance of Notice to Proceed
10.4 Termination for Extended Force Majeure
ARTICLE 11: SUBCONTRACTORS
11.1 Subcontractors
11.2 Contractor Responsibility
ARTICLE 12: RELATIONSHIP OF PARTIES
12.1 Independent Contractor
ARTICLE 13: REPRESENTATIONS AND WARRANTIES
13.1 Authorizations
13.2 Compliance
13.3 System Warranty
13.4 Warranty Repair
13.5 Manufacturer Warranties
13.6 Limited Waiver
13.7 Exclusions from System Warranty
Page | 3
13.8 Survival
ARTICLE 14: TITLE AND RISK OF LOSS
14.1 Warranty of Clear Title
14.2 Contractor’s Drawings
14.3 Risk of Loss
ARTICLE 15: LIABILITY AND INDEMNIFICATION
15.1 Mutual General Indemnity
15.2 Contractor Indemnity
15.3 Defense of Claims
15.4 Limitation of Liability
ARTICLE 16: INSURANCE
16.1 Insurance
16.2 Included Coverage
16.3 Deductibles and Retentions
16.4 Certificates
ARTICLE 17: MISCELLANEOUS
17.1 Disputes
17.2 Confidentiality
17.3 Notices
17.4 Correlation of Documents
17.5 Applicable Law and Jurisdiction; Waiver
17.6 Entire Agreement
17.7 Amendments and Modifications
17.8 Invalidity
17.9 Counterpart Execution
17.10 Neutral Interpretation
17.11 Headings
17.12 No Waiver
17.13 Survival
17.14 Assignment
17.15 Rights and Remedies
17.16 Compliance with Laws
17.17 Equal Opportunities Clause
Page | 4
INDEX OF EXHIBITS
Exhibit A Solar PV EPC Technical Specification
Exhibit B System Attributes and Proposed Array Layout Drawings
Exhibit C Solar Module Data Sheet
Exhibit D Racking System Data Sheet
Exhibit E Inverter Data Sheet
Exhibit F Data Acquisition System Data Sheet
Exhibit I Contract Schedule
Exhibit K Contract Price and Payment Milestones
Exhibit L Electronic Funds Transfer Instructions
Exhibit O Certification of Contractor (per Payment Milestone invoice)
Exhibit P Forms of Waiver and Release
Exhibit P-1 Conditional Waiver and Release Upon Progress Payment
Exhibit P-4 Unconditional Waiver and Release Upon Final Completion
Payment
Exhibit T Form of Notice to Proceed
Page | 5
SOLAR PHOTOVOLTAIC SYSTEM
ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
This Solar Photovoltaic (PV) System Engineering, Procurement and Construction Agreement (“Agreement”) is made and entered into as of __(“Effective Date”), by and between _______________ a_ (“System Owner”), and WARREN SOLAR, LLC, a Georgia limited liability company (“Contractor”). System Owner and Contractor are sometimes referred to individually herein as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Contractor is engaged in the business of engineering, procuring and constructing solar PV systems; and WHEREAS, through Contractor’s involvement in the development of this project, Contractor has proposed the Contract Price based on delivering a System capable of meeting or exceeding the levels of performance stated under this turnkey engineering,
procurement and construction agreement; and WHEREAS, System Owner desires to contract with Contractor for the delivery to System Owner of a complete and operating System in accordance with the terms and
conditions of this Agreement and which is capable of producing electricity in the quantities stated herein; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, and for the mutual covenants contained herein, System Owner and Contractor hereby agree as follows:
Page | 6
ARTICLE I: SERVICES
1.1 Scope of Services
1.1.1 System will be located at the Site as described in Exhibit B. Contractor
shall design, make all necessary procurement for, install, test, and deliver the System to System Owner in accordance with the terms and conditions of this Agreement and its Exhibits A through G attached hereto (the “Specifications”), including the provision of and the performance of (i) all engineering, (ii) civil and other work as required by Site conditions, (iii) all materials and labor, (iv) obtaining and paying the expense for all necessary Host Utility and other required permits and authorizations regardless of the
name of the entity under which such authorizations or permits must be obtained, and (v) all other acts necessary to deliver a complete and operating System (the “Services”). Including structural design stamp and guarantee of roof integrity at the end of installation. Roof integrity will be guaranteed from roofing company. Contractor will comply with all necessary steps to keep roof integrity in effect.
1.1.2 Contractor shall provide all equipment that will comprise a fully functioning System at the Site, including but not limited to photovoltaic modules, racking structures, inverters, data acquisition systems and related electrical conduit, wiring, meters, machinery, parts, tools, components, interconnection of equipment to the points of common coupling, supplies, appurtenances and other items and materials as necessary, all of which shall be delivered in compliance with the Specifications. The DAS supplied by Contractor shall meet the requirements set forth in Exhibit A including
calibrated test instruments pursuant to section 5.3.8 “Instruments and Calibration” that will be used for gathering Performance Ratio Test data.
1.1.3 Contractor shall provide System Owner with all documentation which is necessary and as reasonably requested by System Owner to own, operate and maintain the System. Documentation shall be provided in accordance with the requirements and delivery timeframes specified in Agreement Article 3 “Documentation and Submittals” and Exhibit A. Contractor shall promptly provide all other forms of documentation not otherwise identified which are reasonably requested by the System Owner.
1.1.4 Contractor shall not alter the System layout or substitute equipment as set forth in Exhibit B without the prior express written consent of System Owner, whose consent shall not be unreasonably withheld.
1.2 Detailed Design Requirements
1.2.1 Upon execution of this Agreement, Contractor shall be NABCEP Certified and obtain System Owner’s approval of the location(s) of any System equipment that deviates from the location identified in the Specifications and commence work on a detailed design of the System based on the requirements of the Specifications. The
Page | 7
detailed design of the System shall comply with the National Electrical Code (NEC) and all other applicable codes and standards identified in Exhibit A section 1.2.1.2 “Design Codes and Standards”. Contractor is responsible for ensuring that the System design is approved pursuant to all professional licensing and permitting requirements of the state, county, municipality or other governing entity in the jurisdiction in which the System is
to be installed.
1.2.2 Contractor shall develop and complete the electrical interconnect with the Host Utility which shall include any applicable net metering application(s) and/or any other processes, authorizations or permits required to obtain approval, install, commission and test the electrical interconnection between the System and the Host Utility (the ”Utility Interconnect”) and submit them to the Host Utility. All requirements of
any kind whatsoever that are associated with obtaining and installing the Utility Interconnect to the System including the time necessary to obtain authorization, the time to install, the time to perform tests, and the cost to install, test and meet any other requirements of the Host Utility or of any governing entity having jurisdiction over the Utility Interconnect shall be Contractor’s sole responsibility, and Contractor shall assume all risk associated therewith. System Owner does not represent that it has
expertise in or knowledge of Utility Interconnect processes and procedures, and any action or inaction by System Owner shall not be interpreted as acceptance of any risk or responsibility whatsoever for obtaining the Utility Interconnect. A simultaneous submittal to the Host Utility consisting of one (1) hard copy and one (1) electronic copy of the Host Utility Interconnect application and when applicable, the net metering application shall also be submitted by the Contractor to the System Owner. All expenses and fees associated with the Utility Interconnect, and when applicable, the net
metering applications shall be the responsibility of the Contractor. Contractor shall provide System Owner with one (1) hard copy and one (1) electronic copy of Host Utility Interconnect approvals and permits.
1.2.3 The detailed design of the System shall be verified by a North American Board of Certified Energy Practitioners (“NABCEP”) certified solar PV installer as being in accordance with the design principles of NABCEP. Contractor shall provide System Owner with a signed document certifying that the detailed System design is in accordance with NABCEP design principles prior to the start of System installation. The signed certification document shall include a copy of the solar PV Installer’s current NABCEP certification and shall be delivered to System Owner with the 90% design
submittal identified in Agreement Section 3.2.
1.2.4 If the System to be constructed is a ground mounted solar system,
Contractor shall engage a qualified, licensed geotechnical engineer to perform a geotechnical investigation in accordance with Exhibit A section
2.23.2 “Geotechnical Report”. If the system to be constructed is a roof mounted solar system, Contractor shall engage a qualified, licensed structural engineer to perform and structural test.
1.2.5 Detailed design shall be considered complete after all requirements
pursuant to this Section 1.2 and Agreement Section 3.2 “Design Drawing Submittals” have been completed in accordance with the Specifications.
Page | 8
1.3 Schedule and Project Management
1.3.1 Contractor shall designate a competent project manager and necessary
assistants, all of whom shall be satisfactory to the System Owner. The project manager shall possess the expertise and employ whatever resources necessary to efficiently and professionally perform the Services. The project manager shall not be changed during the progress of the work without the consent of System Owner unless the project manager proves to be unsatisfactory to the Contractor and on this account or otherwise
ceases to be in Contractor’s employ. The project manager shall represent the
Contractor and shall have the authority to make necessary decisions and to legally bind the Contractor on matters pertaining to the Services provided.
1.3.2 Contractor shall manage installation activities to minimize disruption to the Host. Contractor shall carefully coordinate any required service interruptions to the Host’s or Customer’s facilities through System Owner prior to such event. Contractor shall coordinate and provide Services as necessary for the Utility Interconnect with the Host Utility. When third parties perform work on the Site, Contractor shall coordinate the Services with such work by others and shall cooperate to the greatest extent
possible in order for such work to proceed.
1.3.3 Contractor’s installation and commissioning Services shall be performed in compliance with the requirements of the Specifications.
1.4 Permits During performance of the Services, Contractor shall obtain all necessary permits and authorizations that may be required by the federal, state, county, municipality or other governing entity in which the System is to be installed. Immediately after Notice to Proceed, Contractor shall supply System Owner with a list of permits and authorizations to be obtained and the corresponding dates when submittals for such permits and
authorizations shall be submitted to the governing entity having jurisdiction thereof. Contractor shall supply such list on the form provided in Exhibit W, or other form as deemed acceptable by System Owner. Contractor shall simultaneously submit to System Owner one (1) hard copy and one (1) electronic copy of the submittals made by Contractor to the governing entity. All expenses and fees associated with the permits and authorizations shall be the responsibility of the Contractor. Contractor shall provide System Owner with one (1) hard copy and one (1) electronic copy of all final permits and authorizations issued by the governing entity.
1.5 Removal of Hazardous Materials
1.5.1 Contractor shall use and dispose of any “hazardous materials” (as such
term is defined in any applicable federal or state environmental laws) that it brings to the Site in accordance with all applicable laws. Contractor shall be entitled to rely on representations made in either the Land Lease or the PPA as such representations concern the presence of any and all hazardous materials existing on the Site at the time of Mobilization.
Page | 9
1.5.2 Contractor shall promptly notify System Owner of the discovery of any
hazardous materials existing on the Site at any time during the effectiveness of this Agreement. Contractor shall advise System Owner if such discovery requires the suspension of installation until the hazardous materials are removed or are otherwise re-mediated.
1.5.3 Neither Party shall be responsible or liable for hazardous materials
existing at the Site (other than any hazardous materials either may bring to the Site). Each Party agrees to indemnify and hold the other harmless for any claims, fines, damages, and costs (including attorney’s and consultant’s fees) arising out of any hazardous materials for which the indemnifying Party is responsible. This clause shall survive the termination of this Agreement.
1.6 Inspections System Owner may inspect the System and Services performed by Contractor at any time. System Owner shall have the right to reject defective materials, parts, equipment or workmanship and require their replacement or repair at System Owner’s sole discretion to conform to this Agreement. All rejected materials, parts, equipment or workmanship which shall be repaired shall have a repair procedure developed by the
Contractor and submitted to System Owner for review and comment prior to implementation. This procedure will insure that the quality and expected life of the repaired materials, parts, equipment or workmanship are similar to what would be expected had they been replaced. During inspections, the System Owner shall comply with all applicable safety procedures, personal protective equipment and Site escort requirements. Inspections made by System Owner and any review, comment, action or inaction on the part of System Owner with respect to such inspections or repairs shall not constitute any of the following: (a) acceptance of the System or Services; (b)
discharge of any of Contractor’s obligations to meet the standards of performance set forth in this Agreement; (c) waiver of System Owner’s right to require Contractor to meet any and all the terms of this Agreement; or (d) relieving Contractor of any of its liabilities under the terms of this Agreement. The failure of System Owner to inspect the System or Services shall not affect Contractor’s obligation to meet all the terms and conditions of this Agreement.
ARTICLE 2: DEFINITIONS
“Agreement” shall mean, collectively, all the covenants, terms, and stipulations in these articles of agreement and in all exhibits and supplementary documents hereto attached which constitute essential parts of the Agreement.
“Beneficial Use” shall be as defined in Agreement Section 4.4, and shall also mean the name used to identify a specific Payment Milestone.
“Beneficial Use Target Date” shall be as defined in Agreement Section 8.1.1.
Page | 10
“Commissioning Plan” shall mean the plans developed by Contractor and reviewed by System Owner which identifies activities, means and methods used by Contractor to commission the System as described in Agreement Section 3.5.
“Commissioning Report” shall mean the report prepared and issued by Contractor pursuant to Agreement Section 3.5.
“Contract Price” shall mean the firm lump-sum of the Payment Milestone amounts to be paid by System Owner to Contractor as shown in Exhibit K, subject to adjustment as specified in the Agreement, for the execution of turnkey engineering, procurement and construction Services culminating in the delivery of a complete and operating solar PV plant capable of delivering the specified electrical energy output.
“Contract Schedule” shall be as defined in Agreement Section 3.3 and attached hereto as Exhibit I.
“Contractor” is the counterparty to this Agreement responsible for providing turnkey Services and for the delivery of the System to System Owner hereunder. Contractor may be a Prime Contractor directly responsible for subcontracting and managing construction work, or a developer, consultant or other intermediary who participated in
the development phase of the project and who contracts with the Prime Contractor.
“Daily Damages” shall be as defined in Agreement Section 8.1.3.
“DAS” is the acronym for Data Acquisition System.
“Defects” shall be as defined in Agreement Section 13.3.1.
“Effective Date” shall be as identified in the first paragraph of this Agreement.
“Final Completion” shall be as defined in Agreement Section 4.6 and shall also mean the name used to identify a specific Payment Milestone.
“Force Majeure Event” shall be as defined in Agreement Section 9.1.
“Functional Test Plan” shall be as defined in Agreement Section 3.6.
“Host Utility” shall mean the franchised utility to which the System interconnects.
“Indemnified Party” shall mean either Party that is indemnified by the Indemnifying Party as set forth in the Agreement Article 13.
“Indemnifying Party” shall mean either Party that is indemnifying the Indemnified Party as set forth in the Agreement Article 13.
Page | 11
“Inverters Delivered” shall mean the name used to identify a specific Payment Milestone.
“Inverters Ordered” shall mean the name used to identify a specific Payment Milestone.
“Lower Tier Contractors” shall mean Subcontractors who contract with a Second Tier Contractor or another Lower Tier Contractor.
“Measured Performance Ratio Calculator” or “(MPRC)” shall mean the custom software
developed by System Owner as described in Agreement Section 3.6.3.3 with printouts
attached hereto as Exhibit S.
“Mobilization” shall mean the name used to identify a specific Payment Milestone.
“Modules Delivered” shall mean the name used to identify a specific Payment
Milestone.
“Modules Ordered” shall mean the name used to identify a specific Payment Milestone.
“NABCEP” is the acronym for North American Board of Certified Energy Practitioners.
“Notice of Beneficial Use” shall mean a notice in the form as shown in Exhibit J-1 which
is to be submitted by Contractor to System Owner pursuant to the requirements of
Agreement Section 4.4.
“Notice of Final Completion” shall mean a notice in the form as shown in Exhibit J-3
which is to be submitted by Contractor to System Owner pursuant to the requirements
of Agreement Section 4.6.
“Notice of Substantial Completion” shall mean a notice in the form as shown in Exhibit
J-2 which is to be submitted by Contractor to System Owner pursuant to the
requirements of Agreement Section 4.5.
“Notice to Proceed” shall mean a notice in the form as shown in Exhibit T and as
defined in Agreement Section 6.2.
“One Time Damages” shall be as defined in Agreement Section 8.1.2.
“Payment Milestone” shall be as defined in Agreement Section 6.1 and as set forth in
Exhibit K.
“Performance Damages” shall be as defined in Agreement Section 8.2.4.
“Performance Ratio Test” shall be as defined in Agreement Section 4.2.
“POA” is the acronym for Plane of Array.
Page | 12
“Power Purchase Agreement” and “PPA” shall be as defined in the Recitals.
“Prime Contractor” shall mean the contractor who contracts with Subcontractors for the
furnishing of labor, materials and/or equipment necessary for the construction and
delivery of the System required by this Agreement.
“Project Closeout Binders” shall mean the complete set of System documentation
developed by Contractor and submitted to System Owner pursuant to Agreement
Section 3.8.
“Punchlist” shall be as defined in Agreement Section4.3.
“PVSyst” shall mean a photo-voltaic design and simulation software program developed
by PVSyst SA of Switzerland which Contractor shall use to design and simulate the
energy output of a complete solar PV system hereunder.
“Racking Delivered” shall mean the name used to identify a specific Payment Milestone.
“Racking Ordered” shall mean the name used to identify a specific Payment Milestone.
“RGM” is the acronym for Revenue Grade Meter.
“Schedule” shall be as defined in Agreement Section 3.3.2.
“Second-Tier Contractors” shall mean Subcontractors who contract directly with the
Prime Contractor.
“Services” shall be as defined in Agreement Section 1.1.1.
“Site” shall mean that portion of the land or property, as identified in Exhibit B for which
System Owner has obtained the rights from Host and upon which the System shall be
constructed by Contractor pursuant to the terms of this Agreement.
“Specifications” shall mean the technical requirements of the Agreement as identified in
Exhibits A through G.
“Subcontractors” shall mean the contractors who perform construction work and labor
and/or furnish equipment or materials pursuant to agreements with the Prime Contractor
or other Subcontractors.
“Substantial Completion” shall be as defined in Agreement Section 4.5, and shall also
mean the name used to identify a specific Payment Milestone.
“System” shall mean a complete and operating solar photovoltaic system which meets
all of the terms and conditions of this Agreement.
Page | 13
“System Owner” is the counterparty to this Agreement that shall own and operate the
System upon its delivery in accordance with the requirements of this Agreement.
“System Warranty” shall be as defined in Agreement Section 13.3.
“Utility Interconnect” shall be as defined in Agreement Section 1.2.2.
“50% Design Submittal” shall mean the name used to identify a specific Payment
Milestone.
“90% Design Submittal” shall mean the name used to identify a specific Payment
Milestone.
ARTICLE 3: DOCUMENTATION AND SUBMITTALS
3.1 Safety Documentation Plan
3.1.1 No more than ten (10) business days after the Effective Date, Contractor
shall supply to System Owner one (1) electronic copy of Contractor’s safety program.
System Owner will have ten (10) business days from receipt of the safety program to
review and comment. Contractor will in good faith consider System Owner’s comments
and revise their program accordingly. Any action or inaction on the part of the System
Owner with respect to such review and comment shall not constitute any of the
following: (a) acceptance of the Services; (b) discharge of any of Contractor’s
obligations to meet the standards of performance set forth in this Agreement; or (c)
waiver of System Owner’s right to require Contractor to meet any and all the terms of
this Agreement; or (d) relieve Contractor of any of its liabilities under the terms of this
Agreement. The failure of System Owner to review or comment shall not affect
Contractor’s obligation to meet all the terms and conditions of this Agreement.
3.1.2 No less than twenty (20) business days prior to Mobilization, Contractor
shall supply to System Owner a Site specific safety plan to which the Contractor’s
performance of Services shall comply. The Site specific safety plan shall comply with
the requirements set out in Exhibit A section 3.1.1.1 “Project Management”. System
Owner will have ten (10) business days from receipt of the safety plan to review and
comment. Contractor will in good faith consider System Owner’s comments and revise
the plan accordingly. Any action or inaction on the part of the System Owner with
respect to such review and comment shall not constitute any of the following: (a)
acceptance of the Services; (b) discharge of any of Contractor’s obligations to meet the
standards of performance set forth in this Agreement; (c) waiver of System Owner’s
right to require Contractor to meet any and all terms of this Agreement; or (d) relieve
Contractor of any of its liabilities under the terms of this Agreement. The failure of
System Owner to review or comment shall not affect Contractor’s obligation to meet all
the terms and conditions of this Agreement.
Page | 14
3.1.3 Contractor shall also comply with the published safety program of Host,
which is attached hereto as Exhibit H. In the event of a conflict, Contractor shall comply
with the more stringent requirement of the Safety Documentation Plan and the
published safety program of the Host.
3.1.4 Contractor shall comply with all laws and regulations of any legal authority
having jurisdiction applicable to the System installation including those of the
Occupational Safety and Health Administration (OSHA) and shall take all reasonable
measures to reduce or mitigate noise, dust, the spread of debris and materials during
installation of the System. Such measures shall include the removal of all debris, extra
materials, scaffolding, tools, machinery and other materials from the Site and other work
areas during the effectiveness of this Agreement. Owner will not be responsible to any
fines or damages due to non compliance of OSHA by contractor or sub contractor.
3.2 Design Drawing Submittals
3.2.1 Upon the receipt of Notice to Proceed from System Owner, Contractor
shall submit a complete list of drawings and specifications broken down into project
design packages as identified in Exhibit A with release dates for the 50% and 90%
design submittals consistent with the Contract Schedule included herein as Exhibit I.
3.2.2 Contractor shall develop the drawings and specifications to a 50% design
level in accordance with Exhibit A, at which time Contractor shall submit an electronic
copy in PDF format to System Owner for review and comment.
3.2.3 System Owner will have ten (10) business days from receipt of the
completed 50% design submittal to complete its review Unless more time is requested
by owner. Upon Contractor’s submittal of the 50% design, Contractor shall arrange for
a 50% design review meeting with System Owner. System Owner and Contractor shall
cooperate and promptly schedule the review meeting within five (5) days after
completion of System Owner’s review or as mutually agreed between the Parties. The
review meeting shall be conducted jointly with Contractor, System Owner and System
Owner’s representatives. Upon mutual agreement, System Owner and Contractor may
submit comments through other means of communication and forego review meetings.
3.2.4 Contractor shall continue to develop the design to the 90% design level at
which time Contractor shall submit an electronic copy in PDF format to System Owner
for review and comment. Review procedures and meetings for 90% design level review
shall follow the protocol specified for the 50% review process as stated above.
3.2.5 System Owner and Contractor shall cooperate in bringing closure to the
90% design review and the incorporation of review comments made by System Owner.
Contractor shall incorporate System Owner’s design review requirements upon which
the Parties have agreed after which Contractor will complete the design phase and seal
and certify all design drawings. Provided that System Owner’s comments are in
compliance with all applicable codes and standards and said comments do not
constitute a material change to the requirements of the Specifications, the System
Page | 15
Owner’s design review comments shall be incorporated in the final detailed design
without a change in the Contract Price. System Owner’s comments, regardless of
whether such comments are incorporated or not, shall be addressed in writing by
Contractor on a “Design Review Comment Log” the form of which is attached hereto as
Exhibit U. Upon completion of detailed design and at least five(5) business days prior to
Mobilization, the Contractor shall provide an electronic copy in PDF format of signed
and professionally sealed drawings to System Owner. In the event that System Owner
identifies issues or has additional comments after Contractor’s submittal of the final
detailed design, the Parties agree to work together in good faith to resolve any such
issues or comments.
3.2.6 Prior to Substantial Completion, Contractor shall submit to System Owner
one (1) complete hard copy set of 24×36 inch as-built drawings and an electronic copy
in PDF format, and provide one (1) hard copy set of 24×36 inch as-built drawings on
site in a weather protected enclosure.
3.2.7 System Owner’s review of Contractor’s detailed design drawings and
comments thereon or approvals thereof shall not constitute any of the following: (a)
acceptance of the Services; (b) discharge of any of Contractor’s obligations to meet the
standards of performance set forth in this Agreement; (c) waiver of System Owner’s
right to require Contractor to meet any and all the terms of this Agreement; or (d)
release of Contractor from any of its liabilities under the terms of this Agreement. The
failure of System Owner to review or comment shall not affect Contractor’s obligation to
meet all the terms and conditions of this Agreement.
3.3 Project Schedule
3.3.1 Contractor has prepared a schedule included herein as Exhibit I showing
the logical activities for execution of the Services which includes the project milestone
dates upon which the System Owner is relying (the “Contract Schedule”).
3.3.2 Within fifteen (15) business days of the Effective Date, Contractor shall
submit a Critical Path Method (CPM) schedule using the latest version (as of the
Effective Date) of Microsoft Project or other scheduling software as approved by the
System Owner. Said CPM schedule shall create the baseline project schedule to which
all project schedule updates shall be made. The term “Schedule” shall be defined as
the baseline project schedule inclusive of all subsequent updates thereto. The
Schedule shall incorporate the Beneficial Use Target Date, the Payment Milestone
dates and all other critical activities and milestones in the same timeframes as shown
on the Exhibit I Contract Schedule. The Schedule shall be presented in a Gantt chart
presentation format showing critical path activities highlighted in red and listed prior to
non-critical activities. Non-critical activities shall be highlighted in blue. The level of
detail provided in the Schedule is subject to System Owner approval. Contractor shall
accommodate reasonable requests by System Owner to change, modify or enhance the
Schedule format. At a minimum, the following information shall be clearly delineated for
each activity on the Schedule and any subsequent changes thereto:
a) Start and finish dates;
Page | 16
b) Activity duration;
c) Percentage complete;
d) Party responsible to execute activity;
e) Logic links and link type; and- What is this (This means
racking/proper equipment for racking. You can propose what you
would like to see in schedule and we can include.)
f) Float or slack time (Miscellaneous)
3.3.3 Contractor shall maintain the Schedule on a weekly basis such that any
subsequent changes to the Schedule clearly identify modifications to activity logic links,
durations and changes in time of performance when compared to the prior Schedule.
Contractor shall update and maintain the Schedule no less than weekly. Updates shall
be provided in hard copy printout as well as a fully functioning electronic version
transmitted with Contractor’s weekly progress report. In the event that Contractor
encounters a project delay, the weekly update shall reflect modifications to the
Schedule that will be utilized to maintain the timeframes of the critical activities and
milestones in order for the Contractor to complete the project by the originally
established Beneficial Use Target Date shown in the Exhibit I “Contract Schedule.”
3.4 Progress Meetings and Reports
3.4.1 Contractor shall submit to System Owner a status report of the various
Services being provided under the Agreement that shall include a review of the cause of
delays (if any) and the means by which such delays will be recovered so as to maintain
the Contract Schedule. This report shall be submitted weekly in the form provided in
Exhibit X, or other form as deemed acceptable by System Owner, on the day of the
week set by System Owner. The report will include updates on the status of all
Services inclusive of engineering, procurement and construction, progress photos and
shall be accompanied by the updated Schedule along with a detailed two-week look
ahead schedule acceptable to System Owner showing anticipated progress of the
Services for the two week period.
3.4.2 Contractor shall hold and preside over regularly scheduled progress
meetings, no less than weekly, during the course of the construction work. Contractor,
System Owner, Subcontractors and any other individual or entities that System Owner
or Contractor deems appropriate shall attend progress meetings. Progress meetings
between the Parties will be held to coordinate the requirements of the delivery of
Services. Meeting topics shall include but not be limited to issues concerning schedule,
cost, Utility Interconnect, construction method, environmental issues, labor issues,
material procurement or repair and any other issues that either the Contractor or
System Owner deem to be important in support of the efficient provision of the Services.
The Contractor shall provide an agenda for each meeting and circulate it to System
Owner at least one (1) business day in advance of the meeting. System Owner shall
have the right to add or delete agenda items. During the first progress meeting, System
Owner and Contractor shall agree upon the means and methods that will be used to
memorialize the meetings.
Page | 17
3.4.3 Contractor shall take and maintain project photos on a weekly basis
showing the overall progress of construction. Contractor shall incorporate photos in the
weekly status report, or upload photos to System Owner’s internet accessible project
data website on a weekly basis for review. The photos shall show general progress and
completion of the Services, and in particular, Contractor shall provide photos of all work
completed that will be permanently covered or concealed (for example, as with
underground conduit)upon the completion of construction.
3.5 Project Commissioning Plan and Report
3.5.1 No less than twenty (20) business days prior to the start of commissioning
activities as identified in the Schedule, Contractor shall submit to System Owner one (1)
electronic copy of a Commissioning Plan pursuant to the requirements of the Exhibit A
section 4.0 “Commissioning and Testing”, as well as all other applicable tests, designs
and reporting requirements set forth in the Specifications including but not limited to the
following sections of Exhibit A:
Section 1.2.4 Engineering Completion
Section 2.21 Arc-Flash Hazard Design Requirements
Section 3.2.10.11.1 Fiber Optic Testing (when applicable)
Section 3.2.10.13 Electrical Tests
Section 4.2.1 DAS Site Acceptance Test
Section 4.4.2 Instrumentation and Control Testing
3.5.2 System Owner will utilize the checklist provided in the Exhibit A Section
4.4 “System Owner’s Checklist” to review and confirm compliance of the Commissioning
Plan with the terms of the Agreement and the Specifications. If considered necessary
by System Owner, meetings will be held with Contractor and Contractor’s
subcontractors to review, coordinate and if necessary modify the Commissioning Plan
to assure safety and performance of the commissioning activities in compliance with the
Specifications and the Exhibit I Contract Schedule. System Owner shall return
comments (if any) within ten (10) business days of plan receipt. Contractor shall revise
the Commissioning Plan pursuant to System Owner’s reasonable comments.
Contractor shall submit one (1) electronic copy of the final Commissioning Plan within
five (5) business days after receiving System Owner’s comments.
3.5.3 System Owner’s review of Contractor’s Commissioning Plan and
comments thereon or approvals thereof shall not constitute any of the following: (a)
acceptance of the Services; (b) discharge of any of Contractor’s obligations to meet the
standards of performance set forth in this Agreement; (c) waiver of System Owner’s
right to require Contractor to meet any and all the terms of this Agreement; or (d)
release of Contractor from any of its liabilities under the terms of this Agreement. The
failure of System Owner to review or comment shall not affect Contractor’s obligation to
meet all the terms and conditions of this Agreement.
3.5.4 A Commissioning Report will be issued by Contractor in compliance with
the Exhibit A section 4.0 “Commissioning and Testing”. The Commissioning Report will
Page | 18
be submitted to System Owner within five (5) business days after commissioning is
complete. Commissioning shall be complete and the Commissioning Report shall be
submitted to System Owner before the Functional Test is started.
3.6 Functional Test and Performance Ratio Test Documentation
3.6.1 Acceptance of the System shall be based on Contractor’s submission of
documentation demonstrating successful completion of the Functional Test pursuant to
the requirements of the Exhibit A section 5.2 “Functional Tests” and System Owner’s
completion and documentation of successful completion of the Performance Ratio Test
pursuant to the Exhibit A section 5.3 “Performance Ratio Test”. Both the Functional
Test and the Performance Ratio Test shall be conducted over a consecutive seven (7)
day period during which the System must operate as expected on an unattended basis.
3.6.2 Functional Test Plan
3.6.2.1 No less than twenty (20) business days prior to starting the
Functional Test, Contractor shall provide System Owner with a proposed Functional
Test Plan (“FTP”) for the System. The Functional Test procedures identified in the FTP
shall include the means and methods by which the Contractor will demonstrate that the
monitoring system, inverters and trackers (when used) as well as the System in general
are operating pursuant to the requirements of the Exhibit A section 5.0 “Performance
Tests and Acceptance Tests.”
3.6.2.2 System Owner will have ten (10) business days from receipt of the
proposed FTP to review and comment. Contractor shall revise the FTP pursuant to
System Owner’s reasonable comments. Contractor shall submit one (1) electronic copy
of the final ATP within five (5) business days after receiving System Owner’s comments.
System Owner’s review of Contractor’s FTP and comments thereon or approvals
thereof shall not constitute any of the following: (a) acceptance of the Services; (b)
discharge of any of Contractor’s obligations to meet the standards of performance set
forth in this Agreement; (c) waiver of System Owner’s right to require Contractor to meet
any and all the terms of this Agreement; or (d) release of Contractor from any of its
liabilities under the terms of this Agreement. The failure of System Owner to review or
comment shall not affect Contractor’s obligation to meet all the terms and conditions of
this Agreement.
3.6.3 Performance Ratio Test
3.6.3.1 As a means to assure that the System is capable of producing the
amount of annual energy output as modeled by PVSyst, System Owner Contractor shall
conduct a one time shall conduct a Performance Ratio Test, which has been developed
in accordance with guidance from the National Renewable Energy Laboratory. Within
ten (10) business days of the Effective Date, Contractor shall provide the fully
functioning native file of the PVSyst model shown in Exhibit M, including the annual
hourly data (8760 data) file in Microsoft excel or CSV file format. To assure that the
quality standard of the System is maintained at or above the level anticipated by System
Page | 19
Owner’s reliance on the Specifications, System Owner’s written approval shall be
required prior to Contractor’s substitution of any equipment identified in the
Specifications. In the event of Contractor’s request to substitute any equipment
affecting the expected energy output as set forth in the PVSyst model, Contractor shall
reassess the PVSyst model based on the requested equipment change and submit it
with any request made for such substitution. The latest PVSyst model developed on
behalf of the equipment provided pursuant to the Specifications or for approved
substitution shall be the PVSyst model used for the Performance Ratio Test.
3.6.3.2 The Exhibit A section 5.3 “Performance Ratio Test” describes the
protocol by which the System Owner will gather and archive Performance Ratio Test
data.
3.6.3.3 To complete the Performance Ratio Test, System Owner shall
utilize the Measured Performance Ratio Calculator (“MPRC”). Sample MPRC printouts
are included herein as Exhibit S. System Owner shall conduct the Performance Ratio
Test within ten (10) business days of System Owner’s approval of Substantial
Completion, and shall provide a copy of the results to Contractor.
3.7 Operation & Maintenance (O&M) Binders
Tab 1: Complete description of the System in an approximately 1 page narrative,
including but not limited to:
System Information/description
Summary of major components
Description of interconnection
Tab 2: Final PVSyst model
Tab 3: Operating Manuals for major components including but not limited to:
Modules
Racking
Inverters
DAS (Pyranometer, RGM, Sensors, etc.)
Utility provided equipment, as applicable (i.e. SEL Relays, switches,
transformers, etc.)
Tab 4: Installation Manuals/Specification Sheets for major components including
but not limited to:
Modules
Racking
Inverters
DAS (Pyranometer, RGM, Sensors, etc.)
Combiner Boxes (if applicable)
Recombiner Boxes (if applicable)
Page | 20
Medium Voltage equipment (as applicable)
Switchgear (as applicable)
Tab 5: Maintenance Schedules for major components
Tab 6: Operating Procedures for the site including but not limited to:
Detailed, step-by-step normal shutdown and start-up sequences
Emergency shutdown procedure (in the form of a one page diagram that can be
shared with the Host)
Tab 7: Warranty Information and Registration Cards (as applicable) for major
components, including but not limited to:
Inverters
Modules
Racking
DAS
Combiner Boxes (if applicable)
Recombiner Boxes (if applicable)
Medium Voltage equipment (if applicable)
Tab 8: Letters from equipment manufacturers indicating that any necessary
inspections of the installation have been performed, that equipment has been
properly installed and the warranty is in full force and effect.
Tab 9: For roof mounted arrays, a final letter from the roof manufacturer
certifying that installation of the System was done in accordance with the roof
manufacturer’s requirements and that any associated roof warranty remains in
full force and effect. Contractor will not move forward with construction if roof
warranty will not comply.
Tab 10: Revenue Grade Meter calibration certificate(s)
Tab 11: Module data including:
Flash test data (electronic copy only, with one page hard copy as cover sheet)
Complete list of module serial numbers
Tab 12: 11×17 inch set of as-built drawings (A 24×36 inch set of as-built set of drawings
shall have been previously provided pursuant to Agreement Section 3.2.6)
Tab 13: Photos of project site and labels for equipment and signage including but not
limited to:
Inverters with arc flash label and identifier number label (i.e. Inverter 1, 2, 3…)
Lockbox installed on site
Combiner Boxes with labels (as applicable)
Torque marks applied to racking components
Torque marks applied to electrical components
Page | 21
Grounding methods employed
Tab 14: Certifications of Final Inspection from all required jurisdictions
Tab 15: Commissioning Report
Tab 16: System equipment documentation reflecting a final, complete Exhibit P
Tab 17: Completed Site Access Form (blank form to be provided by System Owner
upon Contractor’s request)
Tab 18: Spare Parts List:
Same format file as System equipment documentation; include serial numbers
and storage location
3.7.2 System Owner shall have ten (10) business days to review the O&M
Binder for completeness and to identify any documentation therein that is not in
conformance with the requirements of this Agreement. Upon notification by System
Owner, Contractor shall provide any missing documentation and bring such
documentation into conformance with the terms of this Agreement. Contractor shall
deliver two (2) hard copy binders and one (1) electronic copy (on a universal serial bus
(USB) flash drive) to System Owner within ten (10) business days after receiving
System Owner’s comments.
3.7.3 System Owner’s review of Contractor’s O&M Binder and comments
thereon or approvals thereof shall not constitute any of the following: (a) acceptance of
the Services; (b) discharge of any of Contractor’s obligations to meet the standards of
performance set forth in this Agreement; (c) waiver of System Owner’s right to require
Contractor to meet any and all the terms of this Agreement; or (d) release of Contractor
from any of its liabilities under the terms of this Agreement. The failure of System
Owner to review or comment shall not affect Contractor’s obligation to meet all the
terms and conditions of this Agreement.
3.8 Project Closeout Binders
3.8.1 Prior to Final Completion, Contractor shall submit to System Owner for
review one (1) electronic copy of the Project Closeout Binder which shall include:
Tab 1: Completed Punchlist
Tab 2: Performance Ratio Test results (to be provided by System Owner)
Tab 3: Copies of all permits and certifications of final inspection
Tab 4: Copy of all concrete mix (design mix) used for foundations of equipment and
structures
Page | 22
Tab 5: Contact List including but not limited to:
List of Second Tier Subcontractors
List of vendors
On site Host point of contact
Police
Fire
Hospital
Other applicable emergency contacts
3.8.2 System Owner shall have ten (10) business days to review the Project
Closeout Binder for completeness and to identify any documentation therein that is not
in conformance with the requirements of this Agreement. Upon notification by System
Owner, Contractor shall provide any missing documentation and bring such
documentation into conformance with the terms of this Agreement. Contractor shall
deliver two (2) hard copy binders and one (1) electronic copy (on a universal serial bus
(USB) flash drive) to System Owner within ten (10) business days after receiving
System Owner’s comments.
3.8.3 System Owner’s review of Contractor’s Project Closeout Binder and
comments thereon or approvals thereof shall not constitute any of the following: (a)
acceptance of the Services; (b) discharge of any of Contractor’s obligations to meet the
standards of performance set forth in this Agreement; (c) waiver of System Owner’s
right to require Contractor to meet any and all the terms of this Agreement; or (d)
release of Contractor from any of its liabilities under the terms of this Agreement. The
failure of System Owner to review or comment shall not affect Contractor’s obligation to
meet all the terms and conditions of this Agreement.
ARTICLE 4: COMPLETION OF SERVICES
4.1 Functional Test
4.1.1 Contractor shall notify System Owner a minimum of five (5) business days
prior to commencing the Functional Test. Contractor will guarantee completion of the
system within 120 days from the initial payment
4.1.2 Functional Testing will be performed pursuant to the Functional Test Plan.
During the seven (7) day Functional Test period, all System equipment will operate in a
normal operating mode equivalent to that which will be utilized by the System Owner
during commercial operation. In the event that certain System equipment has multiple
operating modes (i.e. manual and automatic) Contractor must successfully demonstrate
and document the proper operation of each mode during the test period.
4.1.3 In the event that a System condition occurs such that the System does not
meet the Functional Testing requirements pursuant to Exhibit A section 5.2 “Functional
Tests,” the Functional Test will be failed and the test stopped. The Contractor shall be
Page | 23
given the necessary time to make corrections to the System after which the Functional
Test shall be restarted for a subsequent seven (7) day period. If any corrections made
to the System in order to restart the Functional Test are temporary in nature such that
additional correction is necessary to fully conform to the Specifications as judged by the
System Owner, then the test cannot be officially restarted without System Owner’s
written approval. If such approval is not granted, Contractor must bring the System into
full compliance with the Specifications by performing a permanent correction prior to
proceeding with the Functional Test.
4.2 Performance Ratio Test
4.2.2. System Owner shall complete the Performance Ratio Test pursuant to the
Exhibit A section 5.3 “Performance Ratio Test”. In the event that the calculations using
the MPRC show that the System achieved a Performance Ratio equal to or greater than
that predicted by the Exhibit M PVSyst model (or its successor PVSyst model pursuant
to Agreement Section 3.7.4.1) for the month during which the Performance Ratio Test
was run, the Performance Ratio Test shall be declared successful.
4.2.3 In the event that the System does not achieve energy output necessary to
pass the Performance Ratio Test, the percentage shortfall will be calculated to the one
hundredth of a percent. Upon performing the shortfall calculation, System Owner shall
notify Contractor of the failure of the test after which Contractor shall be granted a
twenty (20) business day cure period during which the System can be permanently
corrected in order to run a subsequent Performance Ratio Test.
4.2.4 If any corrections made to the System in order to restart the Performance
Ratio Test are temporary in nature as judged by the System Owner (i.e. that will require
additional work or adjustment after the test is complete to fully conform to the
Specifications), then the test cannot be officially restarted without System Owner’s
written approval. If such approval is not granted, Contractor must bring the System into
full compliance with the Specifications by performing a permanent correction prior to
proceeding with the Performance Ratio Test. Any subsequent Performance Ratio Test
shall be conducted pursuant to the above requirements unless otherwise modified
through mutual agreement of the Parties.
4.2.5 In the event that the second Performance Ratio Test fails, System Owner
and Contractor shall work cooperatively to identify the cause and what steps Contractor
can take to correct the System energy output shortfall. Upon Contractor’s request,
System Owner shall grant a second twenty (20) business day cure period after which
the above stated procedure will be repeated. In the event that Contractor chooses not
to request another opportunity to cure, liquidated damages shall apply pursuant to
Agreement Section 8.2 and the Performance Ratio shortfall upon which liquidated
damages are calculated shall be the average derived from the first and second
Performance Ratio Tests.
4.2.6 In the event that a third Performance Ratio Test is run and it too fails, any
further granting of time to cure and subsequent testing shall be at the sole discretion of
Page | 24
the System Owner. If no additional time to cure is granted by System Owner then
liquidated damages shall apply pursuant to Agreement Section 8.2 and the
Performance Ratio shortfall upon which liquidated damages are calculated shall be the
average derived from the first, second and third Performance Ratio Tests. System
Owner shall not unreasonably withhold additional opportunities for Contractor to cure
the System Performance shortfall.
4.2.7 In the event that Contractor chooses to validate the Performance Ratio
Test results using means other than the MPRC, the Contractor shall supply all of the
measured test data necessary for System Owner to independently utilize the MPRC to
verify Contractor’s calculations. In the event that the Contractor’s calculated results are
not validated through comparison with the System Owner’s MPRC calculated results,
the burden of proof to show that the Contractor’s results have been accurately
calculated shall be on the Contractor. In the event of a dispute concerning the
calculated results of Contractor versus that of System Owner, such dispute shall be
referred to dispute resolution pursuant to Agreement Section 17.1. Final Completion
shall not be granted until such dispute is resolved.
4.3 Punchlist
4.3.1 At the time that Contractor delivers the Notice of Substantial Completion to
System Owner, Contractor shall submit to System Owner those items or actions that it
believes to be minor in nature and not required to achieve Substantial Completion but
that must be completed to achieve Final Completion (the “Punchlist”). The Punchlist
shall include a proposed schedule within which Contractor will complete such remaining
actions or items after Substantial Completion in order to meet the requirements of Final
Completion. The Punchlist shall be included with Contractor’s Notice of Substantial
Completion.
4.3.2 System Owner will have ten (10) business days from receipt of the
Punchlist to review and comment. Contractor shall revise the Punchlist pursuant to
System Owner’s reasonable comments. Contractor shall submit one (1) electronic copy
of the final Punchlist within five (5) business days after receiving System Owner’s
comments. System Owner’s review of the Punchlist and comments thereon or
approvals thereof shall not constitute any of the following: (a) acceptance of the
Services; (b) discharge of any of Contractor’s obligations to meet the standards of
performance set forth in this Agreement; (c) waiver of System Owner’s right to require
Contractor to meet any and all the terms of this Agreement; or (d) release of Contractor
from any of its liabilities under the terms of this Agreement. The failure of System
Owner to review or comment shall not affect Contractor’s obligation to meet all the
terms and conditions of this Agreement.
4.4 Beneficial Use
4.4.1 “Beneficial Use” shall be defined as the point in time that the following
requirements have been met:
Page | 25
(a) the System is fully operational (including the DAS) and capable of
providing electric power to the Customer with all requisite inspections completed;
(b) the Utility Interconnect has been achieved and the Host Utility approval to
operate the System has been obtained; and
(c) Customer is obligated to pay for the deliverable delivered pursuant to the
PPA.
4.4.2 When Contractor believes that it has achieved the requirements of
Beneficial Use as detailed in Agreement Section 4.4.1 above, Contractor shall certify
that the requirements have been met by delivering to System Owner the completed
Notice of Beneficial Use attached hereto as Exhibit J-1 together with all other required
documents, software and other items that have not been previously delivered to System
Owner. Within five (5) business days from receipt of the Notice of Beneficial Use, the
System Owner shall either provide written notification of Beneficial Use approval by
signing and returning Contractor’s Notice of Beneficial Use or shall identify in writing the
specific reason(s) for not granting Beneficial Use and the corrective action(s) that
Contractor must take in order to achieve Beneficial Use. In the event that System
Owner does not notify Contractor of its non-approval within five (5) business days from
receipt of Contractor’s Notice of Beneficial Use, Contractor may deem that Beneficial
Use has been approved by System Owner. In the event that System Owner grants
Beneficial Use or fails to respond within the specified period, the date of Beneficial Use
shall be that date upon which Contractor submitted the Notice of Beneficial Use.
System Owner’s approval of the Notice of Beneficial Use shall not be unreasonably
withheld.
4.5 Substantial Completion
4.5.1 “Substantial Completion” shall be defined as the point in time that
Contractor certifies and System Owner accepts by executing the Notice of Substantial
Completion that the following requirements have been met:
a) Contractor has completed the Services except for Punchlist items included
with Contractor’s Notice of Substantial Completion;
b) Complete commissioning results in accordance with Exhibit A section 4.0
“Commissioning and Testing” (including but not limited to IV Curve traces, insulation
tests, mechanical and electrical checks) have been successfully completed,
documented and delivered to System Owner;
c) the System Functional Test has been successfully completed,
documented and submitted to System Owner;
d) Contractor has provided System Owner the fully functioning file of the
System’s PVSyst model as described in Agreement Section 3.6.3.1;
Page | 26
e) Contractor has submitted an electronic copy and hardcopy 24×36 inch set
of as-built drawings to System Owner, with an additional hardcopy 24×36 set of as-built
drawings located on site in a weather protected enclosure;
f) Contractor has provided the final O&M Binders in accordance with
Agreement Sections 3.7;
g) Contractor has supplied complete System equipment information in an
electronic Excel spreadsheet format that reflects a final, complete Exhibit V;
h) all Contractor, Second-Tier Contractor and equipment supplier warranties
related to the Services and the System have been delivered to System Owner; and
i) all System keys, combinations and passwords have been delivered to
System Owner.
4.5.2 When Contractor believes that it has achieved the requirements of
Substantial Completion as detailed in Agreement Section 4.5.1 above, Contractor shall
certify that the requirements have been met by delivering to System Owner the
completed Notice of Substantial Completion attached hereto as Exhibit J-2 together with
all other required documents, software and other items that have not been previously
delivered to System Owner. Within five (5) business days from receipt of the Notice of
Substantial Completion, the System Owner shall either provide written notification of
Substantial Completion approval by signing and returning Contractor’s Notice of
Substantial Completion or shall identify in writing the specific reason(s) for not granting
Substantial Completion and the corrective action(s) that Contractor must take in order to
achieve Substantial Completion. In the event that System Owner does not notify
Contractor of its non-approval within five (5) business days from receipt of Contractor’s
Notice of Substantial Completion, Contractor may deem that Substantial Completion
has been approved by System Owner. In the event that System Owner grants
Substantial Completion or fails to respond within the specified period, the Substantial
Completion Date shall be that date upon which Contractor submitted the Notice of
Substantial Completion. System Owner’s approval of the Notice of Substantial
Completion shall not be unreasonably withheld.
4.5.3 In the event that System Owner does not approve Substantial Completion,
Contractor shall promptly undertake the actions necessary to meet the requirements of
Substantial Completion as stated by System Owner after which Contractor shall
resubmit the Notice of Substantial Completion pursuant to the requirements stated in
4.5.2 above. When resubmitting the Notice of Substantial Completion, Contractor shall
also include a certification stating that required actions as stated by System Owner have
been completed. The procedures set forth above shall be repeated until System Owner
approves the Notice of Substantial Completion.
4.6 Final Completion
Page | 27
4.6.1 “Final Completion” shall be defined as the point in time that Contractor
certifies and System Owner accepts by executing the Notice of Final Completion that
the following requirements have been met:
(a) any requirements of Substantial Completion that System Owner has agreed
to defer to Final Completion;
(b) all Punchlist items have been completed or waived by System Owner;
(c) Contractor has submitted all required documents and information specified in
this Agreement inclusive of the Project Closeout Binder provided in accordance with
Agreement Section 3.8;
(d) all Subcontractors have been paid as evidenced by the delivery to System
Owner of Contractor’s Final Completion Certification (Exhibit O) and of Conditional
and/or Unconditional Final Waivers and Lien Releases of all Subcontractors (Exhibit P-3
and/or Exhibit P-4);
(e) the Performance Ratio Test has been successfully completed or liquidated
damages pursuant to Agreement Section 8.2 have been applied; and
(f) Contractor has completed accurate population of System parameters within
the DAS.
4.6.2 When Contractor believes that it has achieved the requirements of Final
Completion as detailed in Agreement Section 4.6.1 above, Contractor shall certify that
the requirements have been met by delivering to System Owner the completed Notice
of Final Completion attached hereto as Exhibit J-3 together with all other required
documents, software and other items that have not been previously delivered to System
Owner. Within ten (10) business days from receipt of the Notice of Final Completion,
System Owner shall either provide written notification of Final Completion approval by
signing and returning Contractor’s Notice of Final Completion or shall identify in writing
the specific reason(s) for not granting Final Completion and the corrective action(s) that
Contractor must take in order to achieve Final Completion. In the event that System
Owner does not notify Contractor of its non-approval within ten (10) business days from receipt of Contractor’s Notice of Final Completion, Contractor may deem that Final Completion has been approved by System Owner. System Owner’s approval of the Notice of Final Completion shall not to be unreasonably withheld.
4.6.3 In the event that System Owner does not approve Final Completion,
Contractor shall promptly undertake the actions necessary to meet the requirements of Final Completion as stated by System Owner after which Contractor shall resubmit the Notice of Final Completion pursuant to the above stated requirements. When resubmitting the Notice of Final Completion, Contractor shall also include a certification stating that required actions as stated by System Owner have been completed. The procedures set forth above shall be repeated until System Owner approves the Notice of Final Completion. If Final Completion has not been achieved within ninety (90) days after the date of Substantial Completion, System Owner shall have the right (but not the obligation) to complete any uncompleted Services itself and to charge Contractor for all reasonable costs incurred by System Owner in so doing. Such costs shall be offset against the portion of the Contract Price then remaining unpaid, or if such costs are in excess of the remaining balance of the Contract Price to be paid, Contractor shall pay System Owner additionally for any costs exceeding the unpaid portion of the Contract Price.
ARTICLE 5: SYSTEM OWNER RESPONSIBILITIES
5.1 Cooperation for Licenses, Permits, Interconnects and Approvals
System Owner shall cooperate with Contractor to obtain all required licenses, permits, the Utility Interconnect and approvals necessary for the design, equipment procurement and installation of the System in accordance with the terms and conditions of this Agreement. Regardless of the name of the entity in which they are in, Contractor shall in any event perform all actions necessary to obtain, and bear all costs of, such licenses, permits, utility interconnections and approvals and of any inspections, audits or verifications associated with such licenses, permits, utility interconnections and approvals.
5.2 Cooperation of Host and Customer
System Owner will cooperatively support activities in which the Host and/or the Customer must be involved in order for Contractor to perform certain Services; however, Contractor shall be solely responsible for obtaining Host and Customer’s involvement as necessary and to the extent necessary in order to perform the Services pursuant to the terms of this Agreement.
ARTICLE 6: PRICE AND PAYMENT
6.1 Milestone Payment Schedule
The Contract Price is the sum of the Payment Milestones stated in Exhibit K for completed Services. System Owner shall pay Contractor each Payment Milestone set forth in Agreement Section 6.2 as each Payment Milestone is achieved and invoices and required documentation is provided as set forth in Agreement Section 6.3.1. The Payment Milestones shall be clearly identified on Contractor’s Schedule and weekly Schedule updates developed in accordance with Agreement Section 3.3. 6.2 Payment Milestones (“PM”) Each of the following shall be a Payment Milestone as set forth in Exhibit K. Owner has the right to approve all equipment specs prior to the initial payment. 6.2.1 “Notice to Proceed” shall mean a written order sent by the System Owner after the Effective Date notifying Contractor of the date upon which the Contractor is given authority to proceed with the Services. Conditions precedent (if any) to System Owner’s issuance of the Notice to Proceed to be provided in the form attached hereto as Exhibit T and the time by which the Notice to Proceed must be issued are specified in Exhibit K. In the event that the Notice to Proceed is not issued within the required time, either Party may terminate this Agreement pursuant to Agreement Section 10.3. 6.2.2 “50% Design Submittal” shall mean the date upon which Contractor submits all required documentation to be included as part of the 50% design level submittal package as specified in Agreement Section 3.2.
6.2.3 “90% Design Submittal” shall mean the date upon which Contractor
submits all required documentation to be included as part of the 90% design level submittal package as specified in Agreement Section 3.2.
6.2.4 “Racking Ordered” shall mean the day on which all of the racking
materials and equipment have been ordered for delivery to the Site.
6.2.5 “Inverters Ordered” shall mean the day on which all of the inverter
materials and equipment have been ordered for delivery to the Site.
6.2.6 “Modules Ordered” shall mean the day on which all of the module
materials and equipment have been ordered for delivery to the Site.
6.2.7 “Mobilization” shall mean the day on which the Contractor or its
designated Subcontractors have permanently mobilized with Contractor’s full time direct employee representative resident on Site, Contractor is performing work on the Site, has completed the detailed design requirements as stated in Agreement Section 1.2.5 and provided safety documentation in accordance with Agreement Section 3.1. For avoidance of doubt, Contractor’s direct employee representative shall not include an individual assigned by Contractor who is in the employ of a Second-Tier (or lower tier) Contractor.
6.2.8 “Racking Delivered” shall mean the day on which the requirements for
Mobilization have been met, all of the racking materials and equipment arrive on Site or are located in a licensed, bonded warehouse covered by an insurance policy with proof thereof for the protection of the integrity and the value of the equipment while in storage, and assembly of the racking begins on Site. 6.2.9 “Inverters Delivered” shall mean the day on which the requirements for Mobilization have been met, all of the inverters arrive on Site with accompanying Bill of Lading and/or Delivery documentation, and installation of the inverters begins on Site. 6.2.10 “Modules Delivered” shall mean the day on which the requirements for Mobilization have been met, all of the PV modules either arrive on Site or are located in a licensed, bonded warehouse covered by an insurance policy with proof thereof for the protection of the integrity and the value of the equipment while in storage, System
Page | 30
Owner has received serial numbers for all modules, and flash test data for all modules and installation of the modules begins at the Site.
6.2.11 “Beneficial Use” shall mean the point in time that all the requirements of Beneficial Use are achieved pursuant to Agreement Section 4.4. 6.2.12 “Substantial Completion” shall mean the point in time that all the
requirements of Substantial Completion are achieved pursuant to Agreement Section 4.5. 6.2.13 “Final Completion” shall mean the point in time that all the requirements of Final Completion are achieved pursuant to Agreement Section 4.6. 6.3 Invoices and Documentation of Lien Waivers and Releases 6.3.1 Contractor shall deliver to System Owner an invoice for each Payment Milestone that is achieved. As a condition precedent to System Owner making the payment that is due, each invoice shall include; i) documentation that substantiates the achievement of the Payment Milestone as judged by the System Owner; ii) a list of the Subcontractors who performed work related to the Payment Milestone (Appendix A to Agreement Exhibit O; iii) a Certification duly signed and sworn by Contractor (Exhibit O) that such Subcontractors have either been paid or will be paid for such work, along with accompanying Conditional or Unconditional Waivers and Releases Upon Progress Payment (Exhibit P-1 and Exhibit P-3) to be provided at Contractor’s discretion; and, iv) upon Contractor’s invoice for the Final Completion Payment Milestone, a final Certification duly signed and sworn by Contractor (Exhibit O) that all Subcontractors have either been paid or will be paid and accompanying Conditional or Unconditional Waivers and Releases Upon Final Completion Payment (Exhibit P-2 and Exhibit P-4) signed by each Subcontractor that each has either been paid or will be timely paid for all work, labor, materials, equipment and Services provided to complete Contractor’s obligations under the Agreement. 6.3.2 Contractor certifications shall be substantially in the form attached hereto as Exhibit O and Conditional and Unconditional Waivers and Releases shall be substantially in the forms attached hereto as Exhibit P-1, Exhibit P-2, Exhibit P-3 and Exhibit P-4. All payments to Contractor shall be contingent upon Contractor providing such certifications and lien waivers and releases to System Owner. System Owner’s payment of Contractor invoices shall not constitute an acceptance of Contractor’s Services that are not provided in strict compliance with the terms and conditions of this Agreement. 6.3.3 Contractor shall include a provision in its subcontracts that requires all Second-Tier and Lower Tier Contractors to provide waivers and releases of liens in the same format specified in Agreement Sections 6.3.1 and 6.3.2 above for all payments made for the Services provided. Certifications, lien waivers and releases shall be substantially in the form attached hereto as Exhibit O (“Certification of Contractor”), Exhibit P-1 (“Conditional Waiver and Release Upon Progress Payment), Exhibit P-2 (“Conditional Waiver and Release Upon Final Completion Payment”), Exhibit P-3 (“Unconditional Waiver and Release Upon Progress Payment”), and Exhibit P-4 (“Unconditional Waiver and Release Upon Final Completion Payment”), or in other forms acceptable to System Owner.
6.4 Payments
6.4.1 System Owner shall pay the full amount of each invoice on or before the thirtieth (30 th ) calendar day following issuance thereof. All payments made by System Owner under this Agreement shall be by electronic funds transfer pursuant to the instructions set forth in Exhibit L attached hereto, or by check payable to Contractor at the address for notices set forth in Agreement Section 17.3, or at such address as may be modified by Contractor pursuant to the requirements of that Section.
6.4.2 Contractor’s receipt of payments from System Owner pursuant to this
Agreement shall only be used to pay the Contractor and Second-Tier Contractors for work directly associated with the Services set forth in this Agreement. In the event that Contractor fails to provide waivers and releases of liens pursuant to Agreement Section 6.3 above, or otherwise fails to remove any and all liens, claims, security interests or encumbrances associated with Contractor’s Services within thirty (30) calendar days after notice thereof, System Owner shall have the right under this Agreement without being in breach of this Agreement to enter into a settlement directly with the claimant and to pay the claimant any reasonable amount as judged by System Owner necessary to satisfy and remove such liens, claims, security interests or encumbrances and thereafter to reduce the Contract Price by such reasonable amount plus 10%.
6.5 Invoice Disputes
If System Owner disputes an invoice in total or any portion thereof, System
Owner shall provide written notice to Contractor indicating the reason for the dispute and the amount to be withheld. The System Owner will pay the undisputed portion of the invoice pursuant to the payment terms identified herein. The Parties shall resolve disputes relating to any invoices in accordance with the procedures set forth in Agreement Section 17.1.
ARTICLE 7: CHANGES
The Parties expressly agree that this Agreement is premised on a performance based contracting method through which Contractor’s performance is assessed against the desired outcome rather than the level of effort performed by the Contractor. The desired outcome is the delivery of the System within a specific time frame and with electrical output and performance at levels that are greater than or equal to the specified levels in the Agreement. Contractor has been provided with the flexibility to determine and implement the best approach to meet the performance objectives of this Agreement and is entitled to receive only those payments pursuant to the terms of this Agreement that meet or exceed the levels of System performance and quality specified herein and for the delivery of the System by the dates set forth herein. Any structural changes must be approved.
7.1 Occurrences Giving Rise to a Change Order
7.1.1 Contractor shall be entitled to receive a change order for a change in the Beneficial Use Target Date and/or a change in Contract Price only if there is an Extended Force Majeure Event as specified in Agreement Section 10.4, or if System Owner: a. orders a change in the Services that would not otherwise be necessary for the Contractor to; i) comply with the terms and conditions of the Agreement; ii) deliver the System with an electrical output equal to or greater than the specified level; or iii) deliver the System by the Beneficial Use Target Date; b. changes the electrical output requirement of the System after the Effective Date; c. shortens the time between the Effective Date and the Beneficial Use Target Date; or d. suspends Services for System Owner’s convenience as specified in Agreement Section 10.1.1.
7.1.2 Within five (5) business days after the occurrence of an event giving rise to a change order as stated above, Contract or shall advise System Owner in writing of the cost and/or schedule impact resulting from the change. If System Owner agrees with Contractor’s statement as to the impact of the change, the Parties shall proceed promptly to enter into a written change order to equitably revise Exhibit K “Contract Price and Payment Milestones” or modify the Beneficial Use Target Date. If System Owner disagrees with Contractor’s statement as to the final impact of the change, System Owner shall promptly advise Contractor in writing of the basis for its disagreement, and System Owner and Contractor shall thereafter work together promptly and in good faith to resolve any issues, during which the Contractor shall proceed with the change order Services. Either Party shall have the right to invoke the dispute resolution process pursuant to Agreement Section 17.1. Except as herein provided, and within the time frames stated, no order, statement, or conduct of System Owner shall be treated as an approved change order under this Section or entitle the Contractor to an equitable adjustment hereunder.
ARTICLE 8: SCHEDULE AND PERFORMANCE GUARANTEES
The Parties hereby agree that it is extremely difficult to accurately establish
System Owner’s damages resulting from Contractor’s failure to a) achieve Beneficial Use by the Beneficial Use Target Date, b) achieve the guaranteed level of System kWh output per year, and/or c) complete the Services beyond Beneficial Use in an expeditious manner. As a result, the Parties hereby agree that in the event giving rise to such damages, the provisions in this Article 8 reasonably reflect the amounts to be paid by Contractor to System Owner as liquidated damages and not as a penalty. The liquidated damages defined herein are cumulative and shall be applied as a reduction in the Contract Price. In the event that liquidated damages reduce the Contract Price below an amount that has already been paid by System Owner under this Agreement, Contractor shall, within thirty (30) calendar days after notification, refund to System Owner the amount paid above the reduced Contract Price.
8.1 Damages for Late Beneficial Use and Late Substantial Completion
8.1.1 Contractor shall perform all of the Services and obtain System Owner’s
approval of Beneficial Use no later than December 31, 2016 (“Beneficial Use Target Date”). In the event Contractor fails to meet the Beneficial Use Target Date, the Parties hereby agree that the System Owner may incur damages associated with the i) loss of revenue from the generation of kWhs, ii) the loss of revenue from the sale of renewable energy credits, iii) the loss of value associated with asset depreciation in its various forms inclusive of depreciation value lost if the System is not in commercial operation by specific dates as set by law, and iv) expenses associated with the cost of energy other potential damages. In the event that Contractor fails to achieve Beneficial Use by the Beneficial Use Target Date for any reason other than (a) a Force Majeure Event, (b) an approved change order pursuant to Agreement Article 7, or c) a material breach by System Owner, the Contract Price shall be reduced in accordance with the following amounts which the Parties agree are a reasonable accounting of System Owner’s damages.
8.1.2 In the event that the date of Beneficial Use occurs after the Beneficial Use Target Date, the Contract Price shall be reduced by the amount shown in the table below in addition to any other damages (“One Time Damages”).
Beneficial Use Achievement Date One Time Damage
January 1, 2017 $2,000.00
February 1, 2017 $4,000.00
March 1, 2017 $6,000.00
April 1, 2017 $8,000.00
May 1, 2017 $10,000.00
June 1, 2017 $12,000.00
Each Additional Month $2,000.00
8.1.3 For each full day that the date of Beneficial Use occurs after the Beneficial Use Target Date, the Contract Price shall be reduced by the amount of $1,300.44 (One Thousand Three Hundred Dollars and Forty Four Cents) in addition to any other damages (“Daily Damages”). The day upon which Beneficial Use is attained shall not be counted as a day of delay. Additionally, Contractor shall reimburse System Owner for any liquidated damages that System Owner is obligated to pay Customer pursuant to PPA Section 2.4.1.
8.1.4 For each full day that the date of Substantial Completion extends beyond the date that is thirty (30) calendar days from the date of Beneficial Use, the Contract Price shall be reduced by the amount of $500.00. The day upon which Substantial Completion is attained shall not be counted as a day of delay.
8.1.5 For avoidance of doubt, the following calculation is provided to show how damages are to be calculated in the event of late achievement of Beneficial Use and Substantial Completion. The values used in this calculation are for example only and 8.2 Damages for Performance Ratio Test Shortfall
8.2.1 In the event that the Performance Ratio Test pursuant to Agreement
Article 4 does meet the average Performance Ratio for the period during which the Performance Ratio Test was run, the Performance Ratio Test shall be declared successful and no liquidated damages shall apply.
8.2.2 In the event that the Performance Ratio Test pursuant to Agreement
Article 4 demonstrates that the System does not meet the average Performance Ratio for the period during which the Performance Ratio Test was run, a shortfall will be calculated to the one hundredth of a percent as specified in Agreement Section 4.2.3. Contractor shall be given the opportunity to cure the System performance shortfall. If, through subsequent testing, Contractor’s cure is successful as proven by a subsequent Performance Test, no liquidated damages shall apply.
8.2.3 In the event that Contractor’s first attempt to cure a performance shortfall is not successful, Contractor will be given an additional opportunity to cure as specified in Agreement Sections 4.2.4 and 4.2.5. In the event that such additional opportunity to cure does not result in a successful Performance Ratio Test, liquidated damages shall apply.
8.2.4 Liquidated damages shall be applied for each percent of shortfall by the smallest Performance Ratio Test shortfall of all officially performed Performance Ratio Tests (which calculation is defined in Agreement Section 4.2.3) expressed to the one hundredths of a percent, and multiplying such value by the Contract Price.
8.2.5 For avoidance of doubt, the following calculation is provided to show how damages are calculated as a result of a Performance Ratio Test shortfall. The values used in this calculation are for example only and are not actual damage values under this Agreement. For the purposes of this example calculation, assume that; (i) the first official Performance Ratio Test shortfall equals 2.25%; (ii) the second official Performance Ratio Test shortfall equals 1.05%; (iii) the Contract Price is $1,000,000; and, (vi) damages for Performance Ratio Test shortfall are paid after two official Performance Ratio Tests have been conducted.
Performance Ratio Test shortfalls = 2.25% and 1.05%
Smallest Performance Ratio Test shortfall = 1.05%
Performance Ratio Test Damages = 1.05% x $1,000,000
Performance Ratio Test Damages = $10,500
Performance Ratio Test shortfall damages pursuant to this Agreement Section 8.2 shall be added to any applicable damages for any delay in the achievement of the Beneficial Use Target Date as set forth in Agreement Section 8.1 above.
8.3 Extended Performance Guarantee
8.3.1 Contractor warrants and guarantees that during the first year of operation occurring after the date that Substantial Completion is achieved, the System will generate no less than ninety five (95) percent of the weather adjusted output value shown in the DAS for such time period (“Minimum Output Guarantee”), provided that reductions in System performance due to breach of the Agreement by System Owner, Force Majeure Events and suspensions of energy productions made at the request of System Owner shall be excluded from any assessment as to whether the Minimum Output Guarantee has been met for purposes of this subsection 8.3.1. 8.3.2 In the event that System energy output is less than the Minimum Output Guarantee for the one year time period identified in subsection 8.3.1, Contractor shall pay System Owner in addition to any One Time Damages, Daily Damages and/or Performance Ratio Test shortfall damages, (i) a damage amount computed by multiplying the difference in the Minimum Output Guarantee and the actual kWh production by the price per kWh for the annual period shown in Exhibit A; and, (ii) any costs and/or penalties that System Owner may incur under the terms of the PPA. 8.3.3 In the event that the actual output of the System is below the minimum output guarantee for an annual period, commencing on the day that Substantial Completion is achieved, System Owner shall notify Contractor pursuant to Agreement Section 17.3 and state the number of actual kWh’s produced by the System for the annual period in question and show all calculations associated with the payment Contractor must make to System Owner pursuant to Agreement Section 8.3.2 above. In addition, System Owner will provide any necessary payment instructions with such notification. Contractor shall pay System Owner within thirty (30) calendar days after receiving System Owner’s notice of payment due and supporting calculations. 8.3.4 Any dispute concerning the payment amount shall be settled pursuant to Agreement Section 17.1.
ARTICLE 9: FORCE MAJEURE
ARTICLE 10: DEFAULT, SUSPENSION OF SERVICES AND TERMINATION OF
AGREEMENT
10.1 Suspension and Termination by System Owner
10.1.1 System Owner may at any time for its convenience, by written notice,
suspend the performance of Services by Contractor, in whole or in part, subject to the terms and conditions of this Agreement. If any such suspension by System Owner increases Contractor’s cost of performance or delays the achievement of Beneficial Use, then Contractor shall be entitled to a change order to establish a new Beneficial Use Target Date and/or to an increase in Contract Price for proven increases in Contractor’s costs as a result of such suspension.
10.1.2 System Owner may: (a) suspend any part of the Services to protect
against a substantial risk of harm to persons or property resulting from Contractor’s failure to comply with the terms and conditions of the Agreement; or (b) suspend Contractor’s performance of the Services due to Contractor’s failure to comply with the material terms and conditions of the Agreement after due written notice and a thirty (30) day cure period or such longer cure period as System Owner reasonably determines. Such suspension shall not be considered a suspension by System Owner for its convenience under Agreement Section 10.1.1 above or otherwise entitle Contractor to a change order for Schedule delay or increased cost.
10.1.3 If Contractor a) should be adjudged bankrupt, or if Contractor should make a general assignment for the benefit of its creditors, or if a receiver should be appointed on account of Contractor’s insolvency; b) disregards any applicable law including federal, commonwealth, municipal law, by-law, ordinance, permit, regulation, order or decree in executing the Agreement; c) disregards the material instructions of System Owner under the Agreement; or, d) violates any material provision of the Agreement, then System Owner may, subject to the provisions of Agreement Section 10.1.4 below and without prejudice to any other right or remedy may have under the Agreement and/or the law, and after giving Contractor seven (7) calendar days written notice: (1) terminate Contractor’s right to proceed with the remaining Services; (2) take possession of the Site and all materials and equipment that will comprise the System ; and (3) finish the remaining Services by whatever method System Owner may reasonably deem expedient. In such case, Contractor agrees to assign to System Owner all material contracts, all Second-Tier Contractor contracts to the extent requested by System Owner and all Second-Tier Contractors and manufacturer warranties related to the Services and the System, and Contractor shall not be entitled to receive any further payment under the Agreement. Contractor shall pay System Owner (i) all costs and expenses expended by System Owner (inclusive of the additional reasonable cost of System Owner’s employees and consultants) to obtain and mobilize a replacement contractor to complete the Services; (ii) all costs incurred by System Owner to complete the terminated Services, less the amount System Owner would have paid Contractor to complete such terminated Services in accordance with the Agreement; (iii) liquidated damages pursuant to Agreement Section 8.1 if the date of Beneficial Use achieved by the replacement contractor occurs after the Beneficial Use Target Date; and, (iv) liquidated damages pursuant to Agreement Section 8.2.
10.1.4 If System Owner believes that the Contractor is in default of this
Agreement pursuant to Agreement Section 10.1.3 b), c), or d) above, then System Owner, before being entitled to terminate Contractor’s right to provide Services, will provide Contractor with a written notice giving Contractor a fifteen (15) calendar day period from the receipt of the written notice to correct such default condition or such longer cure period as System Owner reasonably determines. If Contractor fails to correct the default condition within such time period, then System Owner shall be entitled to terminate the Contractor’s right to proceed with the Services as specified in Agreement Section 10.1.3 above.
10.1.5 System Owner by written notice to Contractor may for its convenience terminate Contractor’s right to proceed with the Services. In such case, System Owner shall pay Contractor for Services performed up to the point of termination which payment may include Contractor’s reasonable costs incurred to comply with System Owner’s termination election, reasonable costs of Contractor and Second-Tier Contractor demobilization and proven, preset termination payments, if any, for the provision by Contractor and Second-Tier Contractors of materials, parts or equipment (subject to System Owner’s right to require such materials, parts or equipment to be completed and supplied to System Owner by Second-Tier Contractors).
10.1.6 In the event of a suspension of Services or termination of this Agreement by System Owner for whatever reason under the terms of this Agreement, Contractor shall use all commercially reasonable efforts to mitigate costs incurred by System Owner in connection with such suspension or termination. 10.1.7 In the event that the PPA terminates pursuant to PPA Sections 2.4.1(ii), 2.4.2, 3.6.2, 3.6.3, 3.7, or 6.1.2, then System Owner may terminate this Agreement and Contractor shall reimburse System Owner for all payments made to Contractor prior to the date of such termination within 30 calendar days after receiving System Owner’s Notice of Payment Due. Additionally, if the PPA terminates pursuant to either PPA Section 2.4.1(ii) or 2.4.2, then Contractor shall reimburse System Owner for any liquidated damages System Owner incurs pursuant to PPA Section 2.4.3.
10.2 Termination by Contractor
10.2.1 If System Owner (a) fails to pay any undisputed part of the Contract Price when due (b) commits gross negligence, recklessness or intentional misconduct affecting Contractor’s ability to perform the Services hereunder, (c) violates any material provision of the Agreement, or (d) voluntarily or involuntarily files or has filed against it a bankruptcy or other similar petition, enters into an assignment of its assets for the benefit of its creditors or otherwise is unable to pay its debts as they become due, then Contractor, before being entitled to terminate this Agreement will provide System Owner written notice giving System Owner a thirty (30) calendar day period from the receipt of the written notice to correct such default condition or such longer cure period as reasonably agreed between the Parties. If System Owner fails to correct the default condition within such time period, then Contractor shall be entitled to terminate this Agreement.
10.2.2 In such event, Contractor shall be paid for Services performed up to the point of termination, which payment may include reasonable costs of Contractor and Second-Tier Contractor demobilization and proven, preset termination payments, if any, for Second-Tier Contractors providing materials, parts or equipment (subject to System Owner’s right to require such materials, parts or equipment to be completed and supplied under such subcontract).
10.3 Termination Resulting from No Issuance of Notice to Proceed
10.3.1 In the event that the conditions precedent to the Notice to Proceed as
specified in Exhibit K are not met by the responsible Party or not otherwise waived by System Owner within the number of calendar days elapsing after the Effective Date as specified in Exhibit K, either Party shall have the right to terminate this Agreement through written notice to the other Party. Termination will be effective upon delivery of the termination notice. In the event of such termination, any costs incurred by either Party in fulfillment of any of the terms and conditions of this Agreement prior to said termination shall be borne by that Party and no additional payments shall be made pursuant to this Agreement unless otherwise mutually agreed in writing between the Parties.
10.3.2 If Contractor is unable, despite its best commercially reasonable efforts, to acquire the permits or other authorizations required to perform and complete Services hereunder and comply with all applicable laws, such that the System cannot be constructed in accordance with this Agreement and the Specifications, then Contractor shall promptly so notify System Owner and, if feasible, propose a modified System design that can be accommodated. If a modified System design is not feasible, or if System Owner rejects such modified design, then System Owner may terminate this Agreement in accordance with the provisions of Section 10.3.1
10.4 Termination for Extended Force Majeure
10.4.1 System Owner shall be entitled to terminate this Agreement upon ten (10) business days prior written notice to Contractor if any Force Majeure Event affecting either Party’s ability to perform has been in existence for a period of forty-five (45) consecutive days or longer. In such event, Contractor shall be paid for Services performed up to the point at which the Force Majeure Event started which payment may include reasonable costs incurred to comply with System Owner’s directions in connection with the termination, reasonable costs of Contractor and Second-Tier Contractor demobilization and proven, preset termination payments, if any, for Second- Tier Contractors providing materials, parts or equipment (subject to System Owner’s right to require such materials, parts or equipment to be completed and supplied under such subcontract).
10.4.2 Contractor shall be entitled to terminate this Agreement upon ten (10)
business days prior written notice to System Owner if any Force Majeure Event affecting Contractor’s ability to perform has been in existence for a period of forty-five (45) consecutive days or longer; provided however, Contractor shall not be entitled to such termination right in the event that System Owner agrees to provide an approved change order for Contractor’s proven and reasonable costs of delay accruing after the delivery of Contractor’s termination notice. Contractor shall include with such termination notice a cost estimate of its daily costs accruing each day that the Force Majeure Event continues after delivery of Contractor’s termination notice. Within five (5) business days after delivery of Contractor’s termination notice, System Owner shall notify Contractor of its acceptance or rejection of Contractor’s right to terminate. In the event that System Owner rejects Contractor’s right to terminate, the Parties shall in good faith establish the value of System Owner’s approved change order attributed to the Force Majeure Event. For avoidance of doubt, Contractor’s estimate shall not constitute the value of System Owner’s change order without supporting documentation proving the reasonableness of the costs incurred by Contractor after the date of delivery of Contractor’s termination notice.
ARTICLE 11: SUBCONTRACTORS
11.1 Subcontractors : Owner has permission to deny any subcontractors.
11.1.1 Contractor may engage one or more Subcontractors directly (Second Tier Contractors) to carry out its performance of the Services hereunder. Contractor shall provide System Owner with prior written notice on the form provided in Exhibit X or other form as deemed acceptable by System Owner, identifying the Second-Tier Contractors, the scope of services that each Second-Tier Contractor will be performing, and evidence that each Second-Tier Contractor has obtained and will maintain insurance as required by Agreement Article 16.
11.1.2 Contractor and Second Tier Contractors shall follow Host’s access
protocols, including but not limited to sign-in, security screens and safety orientation while working on Site.
11.1.3 System Owner shall have the right to require the removal from the Site, and Contractor shall comply, of any agent or employee of the Contractor, or any Second-Tier Contractors or Lower Tier Contractors, their agents or employees who in System Owner’s sole judgment exhibit unsafe work practices, unacceptable quality of workmanship or behavior inappropriate for the workplace.
11.2 Contractor Responsibility
Contractor shall be responsible for providing each of the various portions of the Services hereunder, so that all such portions thereof conform in all respects with the requirements of this Agreement regardless of any failure of any Second-Tier Contractor or Lower Tier Contractor to perform. No Second-Tier Contractor or Lower Tier Contractor shall bind or purport to bind System Owner through any form of contractual relationship or agreement with Contractor or otherwise.
ARTICLE 12: RELATIONSHIP OF PARTIES
12.1 Independent Contractor
Contractor is an independent contractor and this Agreement is not, and shall not be construed as, an agreement of partnership, joint venture, or employment between System Owner and Contractor, or between System Owner and any of Contractor’s agents, employees or Subcontractors. The equipment and personnel used by Contractor or Subcontractors in performing Contractor’s obligations under this Agreement shall at all times be under the sole and exclusive control of Contractor. Contractor shall not create any obligation for System Owner, assume any responsibility for System Owner, or attempt to bind System Owner in any way except as permitted under the terms of this Agreement. Except as permitted by this Agreement, Contractor shall not, in any manner, represent that it is an agent of System Owner or is associated or affiliated with System Owner in any capacity other than as an independent contractor. Contractor is not authorized to enter into any contract with any person or entity on behalf of System Owner and shall not represent itself as being so authorized.
ARTICLE 13: REPRESENTATIONS AND WARRANTIES
13.1 Authorizations
Contractor warrants that it holds such licenses and authorizations as are required to perform the Services and meet all obligations of the Contractor under this Agreement. Contractor further warrants that it will, at its own expense, keep such licenses and authorizations in full force and effect during the term of this Agreement.
13.2 Compliance
Contractor warrants that it will comply with all statutes, rules, regulations,
ordinances, and laws that govern the Services to be performed by Contractor under this Agreement, including any conditions contained in permits or Utility Interconnect agreements relating to the Services to be performed. Contractor further warrants that the System shall be designed, installed and tested in a good and workmanlike manner consistent with the highest standards and state of the art existing at the time of installation, shall be constructed using new equipment and materials, and the Services shall conform in all material respects to the requirements of this Agreement.
13.3 System Warranty
13.3.1 For purposes hereof, “Defects” means, unless otherwise specifically
stated, any design, engineering, equipment, material, installation or other Services that do not conform materially to the Specifications or are of improper or inferior workmanship as judged by the System Owner.
13.3.2 The Contractor warrants that: (a) all materials, parts and equipment
purchased by Contractor for incorporation into the System shall: (i) comply in all respects with the Agreement including the Specifications; (ii) be new and free from any and all latent and patent Defects in design, materials, and workmanship; (iii) be suitable and adequate for the purposes for which they were designed and as specified in the Agreement; and (iv) meet power industry utility grade standards; (b) that the engineering and construction Services provided by Contractor (either directly or through Subcontractors) as part of the Services under the Agreement will: (i) comply in all respects with the Agreement and shall be free from any and all Defects, and (ii) otherwise be performed in accordance with that degree of care and skill ordinarily exercised by members of the engineering profession and construction industry engaged in the engineering and construction of solar photovoltaic (PV) plants; (c) in the event of a System malfunction or failure which is the subject of a warranty claim under Section
13.5, Contractor shall, on behalf of System Owner, take all actions necessary to perfect and enforce the warranty claim; and (d) Contractor shall provide all services necessary to maintain the System (or Sub-System if set forth as such in the Recitals) in a continuous and reliable operating condition at its sole cost including but not limited to fault analysis and correction, low energy yield diagnosis, DAS alert response, site visits, emergency response, and any other necessary related services (“System Warranty”). The System Warranty shall begin upon the date of Substantial Completion of the System and will continue for a period of one (1) year.
13.3.3 For any engineering, design or construction Services provided by
Contractor which do not conform to the System Warranty, the Contractor will, upon written notice by System Owner, re-perform such nonconforming Services so that the System conforms with the System Warranty. Where Contractor’s Services involve engineering, design and construction and nonconformity in Contractor’s engineering, design results in nonconformity in Contractor’s construction Services, Contractor’s obligation of re-performance shall extend to the re-performance of the resulting nonconforming construction. Damages due to poor design or install should be covered by contractor. Owner will approve the design before construction.
13.3.4 For any materials, parts and equipment provided by Contractor which do not conform with Contractor’s System Warranty, the Contractor shall, upon written notice by System Owner, repair or replace such materials, parts and equipment, including all required transport-in and transport-out from the Site, so that they conform with the System Warranty.
13.4 Warranty Repair
13.4.1 For any materials, parts, or equipment to be repaired or replaced by
Contractor under the System Warranty, the Contractor shall evaluate the option to repair or replace in coordination with System Owner. All materials, parts, or equipment to be repaired shall have a repair procedure developed by Contractor and submitted to System Owner for review prior to implementation. This procedure will ensure that the nonconformities are repaired so that the repaired materials, parts or equipment conform to the System Warranty.
13.4.2 Contractor and System Owner shall work together to reasonably
coordinate Contractor’s access for performance of any warranty work with System Owner’s operation of the System.
13.4.3 If Contractor fails to respond at the Site to pursue resolution of its warranty obligation within 72 hours of notification by System Owner (or as otherwise agreed between the Parties upon notification), System Owner may perform the warranty repairs which are Contractor’s obligation under the System Warranty using any reasonable and available means. System Owner shall then deduct such repair cost from any final payment due the Contractor under this Agreement, or issue an invoice to Contractor for 1.25 times the direct expense incurred by System Owner to complete the repairs on Contractor’s behalf. In the event that the amount due and owing System Owner for such warranty repair is greater than the amount still owed by System Owner to Contractor under the Agreement, System Owner shall deduct any amount still owing to Contractor (after which System Owner shall have no further obligation to pay Contractor such deducted amount) and then invoice Contractor for the remaining amount. Contractor shall pay System Owner the amount due for such System Owner repair within 30 days of invoice receipt.
13.5 Manufacturer Warranties
13.5.1 Warranties provided by manufacturers of the solar modules, inverter(s), racking system and data acquisition system are identified in Exhibit G attached hereto. Upon Substantial Completion of the System, Contractor shall deliver to System Owner all of its rights in and to all manufacturer warranties applicable to the System and the equipment comprising the System. All equipment warranties shall begin at the date of Substantial Completion.
13.5.2 If Contractor obtains any warranties that extend beyond the warranties provided by Contractor as to time and/or scope, Contractor shall provide the benefits of such extended warranty to System Owner by assigning to System Owner the balance of such extended warranty.
13.6 Limited Waiver
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY WARRANTIES OR GUARANTEES TO THE OTHER, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND BOTH PARTIES DISCLAIM AND WAIVE ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW INCLUDING
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13.7 Exclusions from System Warranty Contractor is not and shall not be liable with respect to any breach or nonconformity with the warranties made by Contractor in this Agreement to the extent that such nonconformity is due to:
(a) Ordinary wear and tear in the operation of the System;
(b) Alterations or repairs of the System carried out by any person, other than Contractor or Subcontractors, not authorized by Contractor; or
(c) A Force Majeure Event.
13.8 Survival
All warranties described herein or that are otherwise obtained through the
performance of the Services shall survive termination of this Agreement.
ARTICLE 14: TITLE AND RISK OF LOSS
14.1 Warranty of Clear Title
14.1.1 Contractor warrants that legal title to and ownership of the System shall be transferred to System Owner free and clear of any and all liens, claims, security interests or other encumbrances. Contractor shall notify System Owner of any and all liens, claims, security interests or other encumbrances filed by any and all Subcontractors against System Owner’s leasehold interests or other interests in the System as soon as Contractor receives notice of same. Should any such lien or notice of such lien be filed, Contractor shall discharge the same by bonding or payment within thirty (30) calendar days after Contractor receives notice that the lien or claim is filed. In the event that Contractor does not discharge any such lien, claim security interest or encumbrance within the thirty (30) calendar day period, System Owner shall have the right to discharge same as specified in Agreement Section 6.4.2.
14.1.2 Title to the System and risk of loss shall pass to System Owner upon
Beneficial Use that is achieved in accordance with the requirements of Agreement
Section 4.4. Prior to Beneficial Use, Contractor shall grant a security interest in the System to System Owner or its designee(s) commensurate with the payments made by System Owner on behalf of Contractor achieving Payment Milestones pursuant to Agreement Article 6. The granted security interest shall be in any property, service or System component of value resulting from Contractor’s pursuit of the Services performed up to the date of System Owner’s transfer of funds for the applicable Payment Milestone. Such security interest shall be vested in, but not be limited to engineering, design, permitting, licensing, all equipment inclusive of racking, inverters, solar modules and other System equipment that is in a manufacturer’s facility, warehoused off Site, delivered to the Site or installed. Contractor agrees to cooperate with System Owner and to execute any document necessary to perfect each such security interest. Each such security interest shall remain in effect until the time that title to the System passes to System Owner. If Contractor delivers any of the foregoing equipment into storage for subsequent delivery to the Site, Contractor shall (i) so notify System Owner, (ii) ensure that the affected equipment is covered by an insurance policy or other surety instrument for the protection of the integrity and value of the equipment while in storage, (iii) provide documentation of same to System Owner and (iv) ensure that System Owner is afforded unrestricted access to the equipment to perfect System Owner’s security interests in the equipment thereto.
14.1.3 Contractor shall be responsible for the care, custody and control of the System, and shall exercise due care with respect thereto until the earlier of Beneficial Use or termination of this Agreement.
14.2 Contractor’s Drawings
Title to all drawings, specifications, documents, and engineering and other data furnished or to be furnished by Contractor in connection with the Services shall pass to System Owner upon Beneficial Use. Contractor shall retain its intellectual property rights in any drawings, specifications, documents, engineering and other data that are proprietary to Contractor, but only to the extent that Contractor discloses such rights to System Owner prior to the execution of this Agreement.
14.3 Risk of Loss
Contractor shall bear the risk of loss with respect to the System and all
equipment and materials comprising or to comprise the System, whether or not incorporated therein or located on or off the Site, until Beneficial Use, at which time risk of loss will pass to System Owner.
ARTICLE 15: LIABILITY AND INDEMNIFICATION
15.1 Mutual General Indemnity
To the maximum extent permitted by law, each Party hereto (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party and the directors, officers, shareholders, partners, agents and employees of such other Party, and the affiliates of the same (collectively, the “Indemnified Parties”), from and against all loss, damage, expense and liability in connection with this Agreement (including court costs and reasonable attorney’s fees) resulting from injury to or death of persons, and damage to or loss of real or personal property, to the extent caused by or arising out of the willful acts, negligent acts or omissions of the Indemnifying Party or its failure to comply with the provisions of this Agreement.
15.2 Contractor Indemnity
Contractor shall hold System Owner harmless from all liens and claims filed by its Subcontractors or other third parties for Services performed or material furnished to Contractor, and Contractor shall release, discharge or otherwise remove all such liens or claims by bonding, payment or otherwise and shall notify System Owner of such release, discharge or removal prior to Final Completion. If Contractor fails to provide such release, discharge or removal, System Owner shall have the right to pay the sums necessary to obtain such release, discharge or removal, in which case System Owner shall have the right to deduct the amounts so paid from the amounts due Contractor hereunder, or otherwise invoice Contractor if the amounts so paid by System Owner exceed the amounts due Contractor, which invoice Contractor shall pay upon receipt. Notwithstanding the preceding two sentences, Contractor shall have no obligation, financial or otherwise, to release, discharge or remove any liens or claims in the event that it has not been fully paid in accordance with the terms and conditions of this Agreement for the Services that it has performed to achieve Substantial Completion hereunder; provided however that Contractor has applied the payments it has received from System Owner as necessary to pay subcontractors who Contractor engaged to carry out Contractor’s Services as required by Agreement Section 6.4.2 and that Contractor has not diverted such payments to other purposes not related to Services hereunder.
15.3 Defense of Claims
The Indemnifying Party shall have the right to defend the Indemnified Party by counsel (including insurance counsel) with respect to any claims within the indemnification obligations hereof. The Parties shall give each other prompt written notice of any asserted claims or actions indemnified against hereunder and shall cooperate with each other in the defense of any such claims or actions. The Indemnified Party shall not take any action relating to such claims or actions within the indemnification obligations hereof without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, and the Indemnifying Party shall not settle any such claims without the Indemnified Party’s prior written consent, unless the settlement includes a full and unconditional release of claims against the Indemnified Party.
15.4 Limitation of Liability
Page | 47
Except for claims related to gross negligence or willful misconduct in the
provision of Services hereunder and subject to Agreement Section 15.1, Contractor’s liability for any and all claims by System Owner hereunder, including claims of breach of contract, negligence and strict liability related to the provision of Services, shall not exceed the Contract Price. Except to the extent otherwise expressly specifically provided herein, neither Party nor any of their respective shareholders, members, partners, officers, directors, agents, subcontractors, vendors or employees shall be liable to the other Party or its affiliates hereunder for any consequential or indirect loss or damage arising out of this Agreement, whether such loss or damage arises in contract, tort (including negligence), strict liability, warranty, statute or otherwise, including loss of revenues, loss of profit, cost of capital, loss of goodwill, increased operating costs or any other special or incidental damages. The Parties further agree that the waivers and disclaimers set forth above shall survive the expiration, termination or cancellation of this Agreement. It is specifically understood and agreed that there shall be absolutely no personal liability on the part of any of the officers, directors, employees, shareholders or members of the Parties for the payment of any amounts due hereunder, or the performance of any obligations hereunder, and each Party shall look solely to the assets of the other Party for the satisfaction of each and every remedy of such Party in the event of any breach by the other Party. In furtherance of the foregoing, each Party agrees that it shall neither seek nor obtain, nor be entitled to seek or obtain, any deficiency or other judgment against any of the officers, directors, employees, shareholders or members of the other Party for any action or inaction on the part of any shareholder or member or its respective officers, employees, controlling persons, executives, directors, agents, authorized System Owner or affiliates, and such Party therefore releases such persons from such claims. Notwithstanding the above, Contractor’s total and cumulative liability related to Services hereunder including any liquidated damages set forth in Article XII, under this Agreement shall not exceed 40% of the total amounts received by the Contractor for the performance of Services.
ARTICLE 16: INSURANCE
16.1 Insurance
16.1.1 Contractor warrants that it will, at all times relevant to the Agreement, carry coverage with financially sound insurance providers (as evidenced by an AM Best rating of A- / VIII or better) that are licensed to do business within the operating territories of System Owner. In addition, the Contractor must provide System Owner with a bona fide list of all deductibles, retentions, or any other cost sharing agreements affecting this coverage. These deductibles, retentions, or other forms of cost sharing shall not exceed $10,000. In the event that the Contractor insurance is provided by one or more claims made policies, Contractor shall maintain such coverage for five (5) years after the termination of this contract. The insurance coverage shall include, but not be limited by, the following:
Page | 48
a) Workers’ Compensation: Workers’ compensation insurance in
compliance with appropriate federal and state laws, and Employers Liability Insurance with limit of not less than $1,000,000 per accident or disease for each employee; b) Commercial General Liability: Commercial general liability insurance, occurrence form, including, but not limited to, contractual coverage that provides, at a minimum the contractual liability coverage contained in the Commercial General Liability ISO form for all of the provisions of the Agreement where contractor assumes all liability accepted under the Agreement, with limits of not less than $1,000,000 per occurrence and in the aggregate, $1,000,000 Products and Completed Operations aggregate; $1,000,000 Personal Injury and Advertising injury per offense; c) Excess Liability: Excess liability insurance, Umbrella Form, shall
carry coverage in excess of the limits provided for in the above policies (except Workers Compensation and Employers Liability insurance), with a limit of not less than $1,000,000; Add something that says Contractor is responsible for any damages to the structural integrity of the system as well??? Was this note put in the wrong section? d) Builders Risk: Insurance in respect of the interests of System Owner and Contractor covering physical loss of or damage to the Services, Site, and System for the full Contract Price, less non-recurring costs. This insurance will be on a replacement cost basis, shall include coverage for hot testing and commissioning, transit coverage and storage of equipment and materials intended to be incorporated into the Services.
16.1.2 Certificates: Upon execution of the Agreement, Contractor shall cause
certified copies of all required insurance policies to be endorsed by the insurance providers for the above coverages. Evidence of the above insurance policies shall be provided to System Owner, on a continuous basis and on a standard ACORD form 25 or equivalent, providing not less than 30-days notice of cancellation or material alteration. The Contractor shall provide, annually, a copy of the applicable Additional Insured and Waiver of Subrogation endorsements to System Owner. Liability limits may be met under a primary, one or more excess policies, or any combination thereof. The insurance certificates shall reflect the following changes to standard language: The following wording shall be used on the Certificate:________, its successors, subsidiaries, directors, officers, agents and employees are named as additional insureds on all Commercial General and Excess Liability policies. All of the above policies, except Professional Liability will provide a blanket waiver of subrogation to the benefit of Certificate Holder. This insurance is Primary, not Contributory, and not in excess of any other insurance of Certificate Holder.
ARTICLE 17: MISCELLANEOUS
Page | 49
17.1 Disputes Contractor’s project manager and his System Owner counterpart (as designated by System Owner) will endeavor in good faith to resolve any dispute that arises between System Owner and Contractor regarding the application or interpretation of any provision of this Agreement. If the Parties are unable to reach an equitable resolution to the dispute, the aggrieved Party shall give notice of protest in writing to the other Party invoking the provisions of this Section 17.1. The notice of protest must be accompanied by a detailed statement clearly identifying the contractual basis upon which the protest is being filed along with pertinent supporting documentation. Upon the receiving Party’s receipt of the aggrieved Party’s written notice of protest invoking the provisions of this Section 17.1, the following process shall take place. (a) Within ten (10) business days after receipt of a Party’s written notice of protest which includes a detailed statement and supporting documentation of the claim, the receiving Party shall answer the protest, in writing, with a detailed statement clearly identifying the basis upon which the receiving Party refutes the aggrieved Party’s claims. (b) Within seven (7) business days of receipt of a Party’s written notice of protest, both Contractor and System Owner shall identify authorized representatives within their organizations that have the requisite authority to settle the dispute and bind their respective organizations through their signature and acceptance of the terms and conditions of a settlement agreement. The authorized representative identified by each Party shall not be the same representative previously engaged by either the Contractor or System Owner to lead negotiations to settle the dispute prior to the aggrieved Party’s filing of the notice of protest. (c) Within ten (10) business days of receipt of the Party’s written notice of protest, the authorized representatives shall have opened communications and set a date upon which they will meet at a mutually acceptable location in order to pursue dispute resolution. (d) Within twenty (20) business days of receipt of a Party’s written notice of protest, the authorized representatives shall meet and attempt to resolve the dispute. The dispute resolution process shall proceed in whatever manner is mutually acceptable to the authorized representatives. The signature of the authorized representatives on any settlement agreement shall bind the Contractor and System Owner respectively to the terms and conditions of the settlement agreement. (e) In the event that the authorized representatives do not reach agreement and thirty (30) business days have elapsed after receipt of a Party’s written notice of protest, either Party may pursue its remedy at law or equity. At all times during this dispute resolution process inclusive of the time during which either Party pursues its remedy at law or equity, the Contractor shall diligently proceed with the Services in accordance with the Agreement.
Page | 50
17.2 Confidentiality
17.2.1 Both Parties agree that this Agreement and its performance by both
Parties are proprietary and confidential to the Parties, and that disclosure of the terms of this Agreement or of the costs incurred under this Agreement to third parties could place one or both Parties at a commercial disadvantage. Subject to the other provisions of this Section, each Party agrees not to disclose to any third parties the terms of this Agreement or costs incurred by either Party under this Agreement without the other Party’s prior written consent except to the extent that disclosure may be required by applicable law or by court order; provided, that the Party of whom disclosure is being required first shall give advance notice to other Party so as to permit said other Party to attempt to obtain a protective order requiring that the confidential information to be disclosed be used only for the purposes for which the law or order was issued or to vacate or otherwise quash the order or other legal process. Contractor agrees to keep confidential all documents, utility bills, financial reports, architectural, electrical and mechanical plans, Specifications and any other information provided by System Owner under this Agreement. Each Party may disclose confidential information hereunder to its authorized representatives, attorneys, agents, consultants, subcontractors, suppliers and employees on a need to know basis so long as such persons agree in writing to be bound by the confidentiality obligations of this Section 17.2. The foregoing confidentiality obligations of the Parties shall remain in effect for five (5) years after the execution of this Agreement.
17.2.2 The Parties agree and acknowledge that each Party may promote the
installation and use of the System; provided that (a) Contractor shall obtain System Owner’s written approval of any written or published materials related to this System prior to its public use, (b) neither Party shall identify the other by name without the consent of the other Party and the approval by such other Party of all written materials identifying such other Party, and (c) Contractor will obtain permission from System Owner prior to any Site visits after Final Completion.
17.3 Notices
Any written notice, direction, instruction, request or other communication required or permitted under this Agreement shall be deemed to have been duly given on the date of receipt, and shall be delivered (a) personally to the Party to whom notice is to be given, (b) by electronic mail to the Party to whom notice is to be given (provided receiving Party issues an electronic mail receipt acknowledgment), (c) by a recognized overnight delivery service to the Party to whom notice is to be given, or (d) to the Party to whom notice is to be given, by first class registered or certified mail, return receipt requested, postage prepaid (with additional notice by regular mail), and addressed to the addressee at the address stated below, or at the most recent address specified by written notice given to the other Party in the manner provided in this
Section 17.3. When Notification is to System Owner:
Page | 51
When Notification is to Contractor:
WARREN SOLAR, LLC
123 ABC Road
Columbia, SC 29205
Attention: President and CEO
17.5 Applicable Law and Jurisdiction; Waiver
17.5.1 This Agreement is made and shall be interpreted and enforced in
accordance with the laws of the State of Mississippi, without giving effect to any choice or conflict of law provisions. The Parties hereby consent and submit to the personal jurisdiction of the courts of the State of Mississippi.
17.5.2 SYSTEM OWNER AND CONTRACTOR HEREBY WAIVE THEIR
RESPECTIVE RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION.
17.6 Entire Agreement
This Agreement (including any attachments and exhibits hereto) and any
documents expressly incorporated herein by reference shall constitute the entire Agreement between the Parties regarding the subject matter hereof and supersede all prior agreements, understandings, representations, and statements, including any marketing materials and sales presentations whether oral or written. As of the Effective Date, there are no agreements, understandings, or covenants between the Parties of any kind, expressed or implied, or otherwise pertaining to the rights and obligations set forth herein that have not been set forth in this Agreement.
17.7 Amendments and Modifications
No amendments or modifications of this Agreement shall be valid unless
evidenced in writing and signed by duly authorized representatives of both Parties.
17.8 Invalidity
The invalidity or unenforceability, in whole or in part, of any portion or provision of this Agreement will not affect the validity and enforceability of any other portion or provision hereof. Any invalid or unenforceable portion or provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain such invalid or unenforceable portion or provision. Notwithstanding the provisions of the preceding sentence, should any term or provision of this Agreement be found invalid or unenforceable, the Parties shall
Page | 52
immediately renegotiate in good faith such term or provision of this Agreement to effectuate the same intent and to eliminate such invalidity or unenforceability.
17.9 Counterpart Execution
This Agreement may be executed and delivered by the Parties in any number of counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
17.10 Neutral Interpretation
The Parties acknowledge that this is a negotiated Agreement and, in the event of any dispute over its meaning or application, this Agreement shall be interpreted fairly and reasonably and neither more strongly for, nor more strongly against, either Party.
17.11 Headings
Any headings or captions contained in this Agreement are for reference purposes only and are in no way to be construed to interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof.
17.12 No Waiver
No waiver of any of the terms and conditions of this Agreement shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. Any waiver of the terms hereof shall be effective only in the specific instance and for the specific purpose given. The failure of a Party to insist, in any instance, on the strict performance of any of the terms and conditions hereof shall not be construed as a waiver of such Party’s right in the future to insist on such strict performance.
17.13 Survival
Any provisions necessary to give effect to the intent of the Parties hereunder after the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
17.14 Assignment
Neither Party shall assign this Agreement without the written consent of the other Party, such consent not to be unreasonably withheld.
17.15 Rights and Remedies
Except where this Agreement expressly provides to the contrary, the rights and remedies contained in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
17.16 Compliance with Laws
Page | 53
In performance of their respective obligations under this Agreement, each Party agrees to comply with all applicable laws, statutes, rules, regulations, judgments, decrees, injunctions, writs and orders, and all interpretations thereof, of all
governmental authorities having jurisdiction over such Party.
17.17 Equal Opportunities Clause
17.17.1 This Agreement is subject to the requirements of 41 CFR 60-1.4 and 29 CFR part 471, Appendix A to Subpart A, which are incorporated herein by reference, as applicable. In addition, this Agreement is subject to the requirements of 41 CFR 60- 300.5(a) and 41 CFR 60-741.5(a), and Contractor and any subcontractors shall abide by the requirements of these provisions which are incorporated herein by reference, as applicable. The foregoing federal regulations prohibit discrimination against qualified individuals on the basis of protected veteran status and disability and require affirmative action to employ and advance in employment protected veterans and qualified individuals with disabilities. During the performance of this Agreement, Contractor agrees to comply with all federal, state and local laws regarding discrimination on the basis of race, sex, handicap, religion, and national origin, and to furnish all information and reports which may be required by System Owner due to System Owner’s status as a federal contractor. Contractor specifically agrees to comply with 48 CFR §52.219-9 “Small Business and Small Disadvantaged Business Subcontracting Plan,” to provide all prospective minority and protected class subcontractors with a copy of status verification forms approved by Contractor and to have such subcontractors forward copies of the completed forms to Contractor.
17.17.2 System Owner looks favorably upon providing maximum subcontracting opportunities to minority business enterprises and encourages Contractor to provide such opportunities in its subcontracts under this Agreement. Contractor agrees to provide System Owner with a list of minority business enterprises with whom Contractor enters into subcontracts hereunder.
Page | 54
IN WITNESS WHEREOF, the duly authorized representatives of the Parties have
each executed this Solar Photovoltaic engineering, procurement and construction
Agreement, as of the Effective Date.
System Owner:
By Authorized Representative: __________________
Name:
Title:
Contractor: __________________________________
By Authorized Representative: __________________
Name:
Title:
Page | 55
Exhibit A Solar PV EPC Technical Specification
Exhibit B
System Attributes and Proposed Array Layout Drawings
B.1 System Address:
B.2 Rated Capacity at STC 1 (kW DC): _ KW
1 STC is defined as Standard Test Conditions (1,000W/squared meters, Air Mass
(AM) 1.5; 25°C cell temperature)
B.3 Major Equipment:
Component Manufacturer Model Quantity
Module
Racking
Inverter
Data Acquisition
System (DAS)
B.4 Proposed Array Layout Drawings: See next page
B.5 System Layout or Equipment Changes: Contractor shall not alter the proposed
System layout or substitute equipment defined in this Exhibit without the prior express
written consent of System Owner.
Exhibit C
Solar Module Data Sheet
Exhibit D
Racking System Data Sheet
Exhibit E
Inverter Data Sheet
Exhibit F
Data Acquisition System Data Sheet
Exhibit I
Contract Schedule
Payment Milestone Achievement Date
Notice to Proceed
50% Design Submittal
90% Design Submittal
Racking Ordered
Inverters Ordered
Modules Ordered
Mobilization
Racking Delivered
Inverters Delivered
Modules Delivered
Beneficial Use
Substantial Completion
Final Completion
Exhibit J
Forms of Notice of Beneficial Use, Substantial Completion and Final Completion
Exhibit J-1
Form of Notice of Beneficial Use
PROJECT NAME: _________________________
PROJECT ADDRESS: _______________________
Pursuant to Section 4.4.2 of the Solar Photovoltaic System Engineering, Equipment Procurement and Installation Agreement (the “Agreement”), dated _ by and between (“System Owner”) and _ (“Contractor”), this Notice of
Beneficial Use is hereby provided by Contractor to System Owner for acceptance and execution. All capitalized terms used, but not defined, herein shall have the meaning ascribed to them in the Agreement. Contractor hereby certifies that (a) the System is fully operational and capable of providing electric power to the Customer with all requisite inspections completed; (b) the Utility Interconnect has been achieved and Host Utility approval to operate the System has been obtained; (c) Customer is obligated to pay for the deliverable delivered pursuant to the PPA; and (d) title, ownership, custody and control of the System is hereby transferred to System Owner. By accepting and executing this Notice of Beneficial Use, System Owner agrees that Contractor’s obligations pursuant to Agreement Section 4.4 are complete. Upon receipt of this executed Notice of Beneficial Use, Contractor shall submit an invoice to System Owner for the Milestone Payment due at Beneficial Use.
The date of Beneficial Use is hereby established as ___________.
Contractor: ___________________________________________
By Authorized Representative:__________________
Name:
Title:
Date: _______________________________________
System Owner accepts Contractor’s Notice of Beneficial Use, acknowledges the date of Beneficial Use as set forth above and accepts title, ownership, custody and control of the System.
System Owner:
By Authorized Representative: _________________
Name:
Title:
Date: _____________________________________
Exhibit J-2
Form of Notice of Substantial Completion
PROJECT NAME: _________________________
PROJECT ADDRESS: _______________________
Pursuant to Section 4.5.2 of the Solar Photovoltaic System Engineering, Equipment Procurement and Installation Agreement (the “Agreement”), dated _ by and between (“System Owner”) and _ (“Contractor”), this Notice of Substantial Completion is hereby provided by Contractor to System Owner for acceptance and execution. All capitalized terms used, but not defined, herein shall have the meaning ascribed to them in the Agreement. Contractor hereby certifies that (a) Contractor has completed the Services except for Punchlist items identified herein; (b) the System Functional Test has been successfully completed and documented; (c) Contractor has provided the fully functioning file of the System’s PVSyst model in its native file format, including the 8760 data file; (d) Contractor has provided a hardcopy 24X36 inch set of as-built drawings; (e) all Contractor, Second-Tier Contractor and equipment supplier warranties related to the Services and the System have been delivered to System Owner; and (f) all System keys, combinations and passwords have been delivered to System Owner. By accepting and executing this Notice of Substantial Completion, System Owner agrees that Contractor’s obligations pursuant to Agreement Section 4.5 are complete. Upon receipt of this executed Notice of Substantial Completion, Contractor shall submit an invoice to System Owner for the Milestone Payment due at Substantial Completion. Pursuant to Section 4.3 of the Agreement, a list of items to be completed or corrected by Contractor is identified in the Punchlist appended hereto. Signing this Notice of Substantial Completion by the System Owner in no way alters the responsibility of Contractor to complete the Services and achieve Final Completion in accordance with the Agreement. The date of Substantial Completion is hereby established as _____________.
Contractor:
By Authorized Representative:__________________
Name:
Title:
Date: _______________________________________
System Owner accepts Contractor’s Notice of Substantial Completion, and
acknowledges the date of Substantial Completion as set forth above.
System Owner:
By Authorized Representative: _________________
Name:
Title:
Date: _____________________________________
Exhibit J-3
Form of Notice of Final Completion
PROJECT NAME: _________________________
PROJECT ADDRESS: _______________________
Pursuant to Section 4.5.2 of the Solar Photovoltaic System Engineering, Equipment, Procurement and Installation Agreement (the “Agreement”), dated by and between. (“System Owner”)and (“Contractor”), Contractor hereby provides System Owner this Notice of Final Completion. All capitalized terms used, but not defined, herein shall have the meaning ascribed to them in the Agreement. Contractor hereby certifies that (a) all Substantial Completion items specified in Section 4.5.1 have been completed; (b) all Punchlist items except any that have been waived in writing by System Owner have been completed; (c) Contractor has submitted all required documents and information specified in this Agreement inclusive of the final O&M Binders and Closeout Binders provided in accordance with Agreement Sections 3.7 and 3.8; (d) all Contractor and Second-Tier Contractor warranties related to the Services and the System have been delivered to System Owner; (e) all Subcontractors and Second Tier Contractors have been paid and unconditional lien waivers and releases of Contractor and Second-Tier Contractors have been obtained and delivered to System Owner; (f) the Performance Ratio Test has been successfully completed, or liquidated damages pursuant to Agreement Section 8.2 have been applied; (g) Contractor has supplied complete System equipment information as required by System Owner in an electronic Excel spreadsheet format reflects a final, complete Exhibit V; and (h) Contractor has completed accurate population of System parameters within the DAS. To fulfill its obligations in Section 14.1.1 and Section 15.2, Contractor certifies that all Second Tier Contractors have been paid and proof of payment and unconditional lien waivers and releases by Contractor and by Second-Tier Contractors have been delivered to System Owner. Upon acceptance of this Notice of Final Completion, System Owner agrees that Contractor’s obligations under the Agreement are completed except for those obligations that survive termination as set forth in Sections 1.5.3, 8.3, 13.3, 13.4, 13.5, 13.6, 13.8 and 17.2. Upon receipt of this executed Notice of Final Completion, Contractor shall submit an invoice to System Owner for the Milestone Payment due at Final Completion. The date of Final Completion is hereby established as __________________.
Contractor:
By Authorized Representative:__________________
Name:
Title:
Date: _______________________________________
System Owner accepts Contractor’s Notice of Final Completion in accordance with the Agreement.
System Owner: .
By Authorized Representative:__________________
Name:
Title:
Date: _______________________________________
Exhibit K
Contract Price and Payment Milestones
Contract Price:
Payment Milestone % of Total Dollars (USD)
Notice to Proceed 40%
Contractor Mobilization 25%
Inspection of System 25%
Final Completion 10%
Total Contract Price: 100%
System Owner shall issue the Notice to Proceed to Contractor within ten (10) business days of Contractor’s satisfying the following conditions precedent. If there are no conditions precedent, then line number one below will be described as “not applicable”:
Exhibit L
Electronic Funds Transfer Instructions
Company Name and Address:
WARREN SOLAR, LLC
Beneficiary Bank Name:
Bank City and State:
ABA code:
Account Number:
Special Notes (if applicable):
Exhibit O
Certification of Contractor (per Payment Milestone invoice)
Waiver and Release of Lien
Section 6.2 Payment Milestone: ______
Date: ___________________________
Pursuant to Section 6.3.1 of the Engineering, Procurement and Construction
Agreement (“EPCA”) dated , 201, by and between _(“Contractor”)
and (“System Owner”) for the construction of a photovoltaic facility, Contractor submits this executed Certification to System Owner as a condition of receiving the Milestone Payment specified above. The undersigned hereby certifies that to the best of the undersigned’s knowledge, information and belief, the Waivers and Releases of Lien attached hereto include Contractor, and all subcontractors, suppliers of materials and equipment and performers of work, labor or services (“Subcontractors”) who have or may have liens or encumbrances or the right to assert liens or encumbrances against any property of System Owner including leasehold interest, buildings, and real estate improvements (“Property”) arising in any manner out of the performance of the EPCA to date. The undersigned certifies that all Subcontractors listed in Exhibit A furnished labor, materials and/or equipment in connection with the Milestone Payment that is due under the EPCA and have been paid, or will be timely paid, the amounts specified. Contractor represents that attached hereto are the Waivers and Releases of Lien executed by Subcontractors, suppliers and providers of work, labor, materials or equipment furnished to date in the performance of the EPCA and relinquish and dissolve all their rights to any: (i) lien on System Owner Property under the EPCA; (ii) surety bond for all labor, materials or equipment furnished in connection with such Property to the date of this Certification; and (iii) all past or present claims, defenses, actions, causes of action, demands, obligations, rights, damages and costs which such Subcontractors, suppliers or providers of work may have or may assert regard to payment for labor, materials or equipment furnished.
Contractor agrees to defend and save System Owner harmless from (a) all liens, claims and demands and (b) all expenses incurred, including attorneys’ fees, costs of defense, and the payment for labor performed and/or material or equipment furnished, unpaid sales, use or other taxes in connection with System Owner’s property, leasehold interests, buildings or real estate improvements to the date of this
Certification. Contractor represents and warrants that no other person or entity has any prior interest in the claims, demands, allegations or causes of action arising on its behalf on account of the work performed by Subcontractors that is the subject of this Certification and that the undersigned has the sole right and authority to execute this Certification. Contractor further represents and warrants that the undersigned has not sold, assigned, transferred, conveyed, or otherwise disposed of the claims, demands or rights released hereby. Pursuant to this Certification Contractor shall be responsible for insuring that each Subcontractor listed on Exhibit A is paid the full and complete amount that is due for labor, materials and/or equipment furnished to the date of this Certification and that any conditional lien release provided at the time of the execution of this Certification shall become an unconditional release as to amounts paid when the Subcontractor receives payment in full. This Certification is executed as a sealed instrument this _ day of _, 2015.
CONTRACTOR
By__________________________________________
Printed Name:____________________
Title: ___________________________ (Authorized Officer)
Date: __________________________
Exhibit P-1
Conditional Waiver and Release Upon Progress Payment
Form of Affidavit and Lien Waiver
Upon receipt by the undersigned of a progress payment by wire transfer or check from [] (“Prime Contractor”), in the sum of $____ payable (“Payment Amount”) to _ and when the payment is effective or the check has been properly endorsed and has been paid by the bank upon which it is drawn, this document shall become effective to release any mechanic’s lien, mechanic’s lien affidavit, stop notice, bond right, security interest and other claim or encumbrance the undersigned has that arises in any manner out of the performance to date of the Engineering, Procurement and Install Agreement (“EPCA”) dated , 201_, by and between _(“Contractor”) and (“System Owner”).
The undersigned certifies that to the best of the undersigned’s knowledge,
information and belief, this Waiver and Release of Lien applies to the progress Payment Amount for labor, services, materials and equipment furnished to date by Subcontractor under any agreement between Subcontractor and Prime Contractor in the performance of the EPCA, and shall dissolve any liens or encumbrances, or waive the right to assert liens or encumbrances, Subcontractor has or may have against any property of System Owner arising in any manner out of the performance of the EPCA to date.
This Waiver and Release of Lien does not cover any retentions retained before or after the release date, extras furnished before the release date for which payment has not been received, work or services furnished after the release date or any disputed portions of invoices or payment requests under any Subcontractor agreement with Prime Contractor, if any. Rights based upon work performed or items furnished under a written change order which has been fully executed by the parties prior to the date hereof are covered by this Waiver and Release of Lien.
This Waiver and Release of Lien shall no longer be valid to the extent that any portion of the progress Payment Amount is legally required to be refunded or otherwise returned to Prime Contractor, System Owner or the estate of either under bankruptcy or similar laws. Before any recipient of this document relies on it, said recipient should verify evidence of payment to the undersigned. If the undersigned has filed with a public agency a U.C.C. Financing Statement evidencing a security interest in equipment delivered or installed in connection with the EPCA, the undersigned agrees that the System Owner is hereby authorized to file any and all documents necessary to terminate the effectiveness of such U.C.C. Financing Statement.
Dated: __ [Subcontractor]
By:
Name:
Title:
Exhibit P-4
Unconditional Waiver and Release Upon Final Completion Payment
Form of Post-Payment Final Completion Payment Unconditional Lien Waiver and
Release
Dated: __ [Subcontractor]
By:
Name:
Title:
NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT.
Exhibit T
Form of Notice to Proceed
[Insert Date]
To (Name)
Title
Company
Address
Re: [Insert Project Name]
PV Project Notice to Proceed
Dear [Insert Name],
You are hereby notified to commence Services in accordance with the Solar
Photovoltaic System Engineering, Procurement and Construction Agreement (“EPC”)
between our parties dated [insert date].
Performance of the Services specified in the EPC shall begin upon receipt of this Notice to Proceed.
Please call the undersigned at [Phone Number] or email [email] if you have any questions regarding this letter.
Sincerely,
[Project Manager Name]
Project Manager