18-1859f f • f0 UM I LVJ f.
WHEREAS, the City of Denton, Texas ("Denton") is a Texas home -rule municipal
corporation that owns and operates an electric utility known by the trade name of Denton Municipal
Electric ("DME"); and
WHEREAS, the City was one of several municipally -owned utilities ("MOU")
participating in a request for proposal for the purchase of solar -generated electric power and
capacity initiated by New Braunfels Utilities, an MOU of the City of New Braunfels ("NBU RFP"),
and
WHEREAS, a total of 37 entities submitted proposals for 123 different projects in response
to the NBU RFP;
WHEREAS, a multi -disciplinary team of DME employees and an outside consultant
evaluated the submitted proposals in accordance with the terms of the NBU RFP and determined
that the ENGIE Long Draw Solar, LLC project was among the highest rated; and
WHEREAS, ENGIE Long Draw Solar, LLC, is a Delaware limited liability company
("Long Draw Solar");
WHEREAS, a Power Purchase Agreement ("PPA") between Denton and Long Draw Solar
has been negotiated that allows Denton to purchase from 75 MW of solar -generated electricity for
a contractual term of twenty (15) years; and
WHEREAS, the City Council finds that the PPA is a significant part of achieving Denton's
goal of meeting the future needs of its electric customers with 100% renewable energy as set forth
in its Renewable Resource Plan, is prudent, and in the welfare of Denton's electric ratepayers and
public; and
WHEREAS, the City Council finds that the PPA will not impair the ability of Denton to
comply with the provisions of any of its utility revenue bonds, as amended, which are issued and
outstanding; and
WHEREAS, the City Council finds that §252.022(a)(15) of the Texas Government Code
applies to the PPA and excepts the procurement of electricity from the requirements of competitive
bidding; and
WHEREAS, in accordance with the provisions of §551.086 of the Texas Government Code,
after due notice of the public meeting was provided as required by law, the PPA between the City
and Long Draw Solar was submitted for final consideration to Denton's Public Utilities Board
("PUB") on November 12, 2018; a majority of the PUB, a "Public Power Governing Body" as
defined by State law, convened a Closed Meeting as permitted by law, and discussed, considered,
and deliberated the PPA; and, in its Open Meeting proceeded to take final action and recommend
to the City Council that the PPA be recommended for approval by the City Council by a vote of
5- ) in favor to z e r -O 0 )opposed; and
WHEREAS, in accordance with the provisions of §551.086 of the Texas Government
Code, after due public notice being given, the City Council, a "Public Power Utility Governing
Body" under state law, the Council has discussed, deliberated, and considered the PPA in a Closed
Meeting of the City Council on November 13, 2018, after receiving a legal opinion of counsel that
the Contract is a proper item for consideration in its Closed Meeting, which item involves
competitive electric matters, including business and commercial information which, if disclosed,
would give advantage to its competitors or prospective competitors; and
WHEREAS, the City Council has further determined and finds that specific information
contained in the PPA to be entered into between the City and Long Draw Solar should be excepted
from public disclosure, as permitted by the provisions of §552.133 of the Texas Government
Code, as information that is reasonably related to a competitive electric matter ("Competitive
Information"), the disclosure of which would provide an advantage to its competitors or
prospective competitors; and
WHEREAS, the City Council has further determined that it is in the public interest that it
should exercise its right under the Texas Government Code to lawfully safeguard and keep the
Competitive Information contained in the documents in the preceding paragraph sealed, as it is
competitive electric and financial information; and
WHEREAS, Denton desires to enter into such other arrangements in support of the PPA
with Long Draw Solar which are incident and related to the PPA, including, but not limited to,
guaranties, letters of credit and performance bonds, and to take such additional actions as the City
Manager, or his designee, shall determine to be necessary and advisable to consummate and
effectuate the PPA; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The recitations and findings contained in the above Preamble are
incorporated herewith and are considered to be a part of this Ordinance.
-S-1-11-r-1 ION 2. The City Council, approves and authorizes the City Manager and City
Secretary, or their designees, to execute and attest respectively, the PPA between Denton and Long
Draw Solar as set forth in Exhibit "A" attached hereto and made a part hereof.
SECTION 3. The City Council, as additional security for Long Draw Solar's performance
under the PPA, approves and authorizes the City Manager and the City Secretary, and their
respective designees, to approve and accept irrevocable and non -transferable standby Letter(s) of
Credit ("Letter(s)"), in accordance with the PPA, with said Letter(s) being drawn upon a
commercial bank within the United States, on behalf of Denton, as additional credit protection,
under the terms and conditions of, and being substantially in the form as set forth in, the PPA, with
such amendments, changes and additions as the City Manager, or his designee, may approve.
SF'CTION 4. The City Council, approves and authorizes the City Manager and City
Secretary, and their respective designees, to execute and attest respectively, all other documents
which are incident and related to the PPA, after the same have been approved by the City Attorney,
or his designee, and to take such additional actions as the City Manager, or his designee, shall
determine to be necessary and advisable to effectuate the matters set forth above.
SECTION 5. The City Manager, the City Attorney, or their designees, be, and each of
them individually hereby is, authorized and empowered to perform all such acts and obligations as
required with respect to the PPA described herein.
SECTION 6, Immediately following the execution and delivery of the PPA, the City
Secretary is directed to seal and maintain the same in her custody and control, as documents
excepted from public disclosure under the provisions of §552.133 of the Texas Government Code
(the "Public Power Exception") unless otherwise lawfully ordered to disclose said documents.
SECTION 7. This ordinance and a copy of PPA, as redacted of Competitive
Information, shall be open for public inspection and reproduction. The unredacted Contract shall
not be produced for public inspection, but shall be sealed, as provided for in Section 6 above.
SECTION 8. This ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this ordinance was made by __ and
3-"�',- — ____
seconded by �_TO //W WV,4 AI the ordinance was passed and approved by
the following vote 0 1:
An� Nay Abstain Absent
Chris Watts, Mayor: V1,
Gerard Hudspeth, District 1:
Keely G. Briggs, District 2: V
Don Duff, District 3:
John Ryan, District 4:
Deb Armintor, At Large Place 5: V/
Paul Meltzer, At Large Place 6: V
day of
PASSED AND APPROVED this the �3 _�°� �,� _ ,, 2018,
CHRIS WATTS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY:
EXHIBIT "All
CITY OF DENTON, TEXAS
(D/wA DENTON MUNICuPAL ELEcrRIC)
im
ENGIE LoN(; DRAw SOLAR LLC
Rii,NEWABLE POWER, Pl,,RCHA,St,, A(;R.P'EMFNT
,20,
(-'i N of Deauon qcdar PPA
:R> DAC ll II)
Execution P'ersion
ARTICLE I - DEMITtONS, ANT) RULES OF IN17ERPRETATION ................... ...... I
11 Rules of Construction ..«1111. 1 111.«,.....,..,, 1111.« .............. 1111...,, ..a........,,,..-1
L2 Definitions..,..,,.. ......... ...... -2
ARTICLE 2 -TERAI AND CERTAIN EAR LYTER N41 NATIONRIGHTS
............. 13
2.1
Tenn.- .................. ................. ............
13
2,2'
Survival of'Certain Provions... ....... ....................
-- ...... ,«.-., 21
23
Certain Ternlination Rights of'Seller...............«........
.......1
ARTICLE
3 - FACILITY DESCRIPTION.- ....... ...... ........ ................ .........
..... 14
3A
Sununary Deseription........... .... ...... -- ........,.,.,.,......«.1
12
Location.,.. ....... ........................... — ....... .. ..... ...
...... - 14
3.3
Gencral Design of the ....... ... -----14
.......................... ........ �..23
ARTICLE
4 - COMMERCIAL OPERATION- ............................1..,..,,..............x..1
4
4A
Conunercial Operafion
......... 23
4,2
Construction Milestones
........................ ...... ....... 23
4. 3,
13rogress Reports ............... ....... ....... ...... ......... ......
...... ---16
4A
Access Righls--.., ....
...... .......-2
4.5
Conditions to Achievement of Commercial Operation Wte... ... ......
16,
4x6
Test Energy- .111.1., 11 ....... ....... ... -- 11-1-111---, —, -111`---1—.
118
4.7
Arrangements for Electric Supply to the Facility ...
ARTICLE
5 - DEL[VERV, ENERGV SCIIEDULING, PEAK
PRODUCTION AND METERING.— ..................1 - ..................
5A
QSE; Scheduling and Dehvcry�, Risk (A Loss,-
S
5.2
ERC OT Approved Meter.............
53
A(tiustment for Inaccurate Meters ...... ........
-- 19
ARTICLE 6 - SALE AND PURCHASE..., ....... ........ . .... .... ..... ...... ... .— ............ ....... —20
6A
Sale acrid Purchase...--.- .......... ---- ....... ...... ----20
6.2
Transfer of Noti-EnciiAttiib't:ites..............
............. ........ ..-2
63
Curtailing Deli very of Solar Energy .... .....................
-- ...... ,«.-., 21
6A
G uaran tc ed 0 utp u t � - - � ......... .....
...... ......... ---- ..... 22
ARTICLE 7'-
111AYMENTCALC ULATION.........
......... ........ 21).
7A......
7.2,
S olar Energy Payment Rate ........
ARTICLE 8
- BILLING AND LAYMEN 'I . ............... ...................
.......................... ........ �..23
8.1
Billing
8.2
......
......... 23
83
Billing Disputes .............
........................ ...... ....... 23
ARTICLE 9
- OPER. 4TIONS AND MAIN'rENANCE...
........ ..........23
......................................x......'23'
9A
Facility Operation,", Rcfiabilily Standards—.—.
...... .......-2
9,2
011tage and Perfomiance Reporting. , ........
...... .......... -.------24
:R II)AC ll II)
3 Openming C"r:umnruttee and Operating ... „2
9A Ac,,cess to Facility,- Trnmrrs . �,,,,__2
9.5 Furtaure Non -Energy Attributes .
ARTICLE 1:10_ PERF �MAN(7E ASSURANCE ................................. .......,.......... 25
101.1 Development Security......... „ fl,, ,,,., , a,,, ,,,,,,,,, ,,,,,,,,,,,,, ,,,,w.,....2
10.2 Perl`brinaance Securit;y.."..'.... a,,..,, ..,,.. �.... ... ..�...,.
�10.3 Right to Access Scher Performance Assurance,..... ....... .,,...,,....2
10A 1C1:,alurireul Forrn ofSeller Perforniance ssuarance...._..,.. ...... _. _...--- _26
iOl,5 Maintenance of eller° Performance ��aar� rz�a ... .... .......... ... ............. „
1(1 k r)a tiirsi eNfQulIa^ DoA(wr^nii�unpo Aocriirs�noo 1'7
ARTICLE LE II DEFAULTAND REMEDIES....., ........... 27
11.1 Events ur1" f' efa ult unf' Seller .....,...... ....,.........
11.2 events of Default of Buyer ......... .......... ........ ......... .........,...,..
11.3 Termination ........... ........., .....,,,,, . ____29
114 Specific Peu•1"r1u•urullnce,......,., ............ ..... ......... ......... ......................... tJi
1 L5 1lenneulies Cumulative...___ .... . .............. ..... ......... ........... ............. 30
11.6 Waiver anti Exclusion ofOthcr Da niutte .., .,........ ...........301
1.1,7 Payinew c`f'Amount B uue. ......... ............ ,,,,, ,...,,.. ....,,.,.....,,,...,...,.3
11,8 Duty to fv111tigatie; Notice. ......,,31
ARTICLE LE 1 -,CONTRACT T ADMINI 7RATION AND NOTICES., ..... ............ 11
12.1 Notices 1r'r ............... ... ......31
1.12 Represent a tive for No,tuce. ......... ............ ... ............. . .......... .. ..........31.
12.3 Authority of Representatives ,...w .. ......................... ...... ......... . ........31
12.4 Operating Records ...... ....... ....... ......... ......... ........... .......... . ..........31.
�12,�5 Billing and Payment Records,.. ..................... ....... .. ......... ................3'2
12.6 x min tion of Records_. .... __...... ...... .....,.....,.32
..1 Definition ofForce � 2
yu�r•�e'�,1
13.2 pp 41e.ualsrlrt. �rrf" �`u�rce err � erne .................. ........ .. ,
�....„ ....,.....,,,..,...,..33�
.,� A
13w3 Limitations on f#` -et erf Pearce Maieurre.. ........... ...... .................. ..... .,...33
ARTICLE 14 - REPRESENTATIONS, WARRANTIES AND COVENANTS.........3 4
14J S6 6er's Representations, , 'Warranties nod Coven .... _______._34
14.2 Bu
yer's Representations, Warranties rano (,,oven ants ... ...........................3 �
ARTICLE 1, - INSURANCE ......w .................. ....,.... ......... .....,�.. ...,......»...........a..��C
ARTICLE16 _ INDEMNITY ........_... ...................m, ., .. ......... ..,..... .........,....,...37
166 In e rnifueul l.,ra*,e . ................ ......... ........... . .„,., ,..,..,......,....,...,..3 '
16.2' 4)ef nese of i('lar s, f6r Indemnified Losses.....,,.. ,. 3
103 Settlernent of Claims by Indernni�fineal rty......... ....... 3
16.4 In uurance Proceeds 3
uo
R III........ II)AC""'ll""'III........ II: )
AR'ructx, 17 - LEGALA' ND REGULATORY COMPLIANCE....., ......
17.1 ............
17,2 Assistance with Coniphance ...
173 Change in Law .......
ARTICLE 111- ASSIGN WENTAND 0"1"1IERTRANSFER
RESTRtcrIONS, .......... ......................... ................................................. 39
18.1 No Assigrunent Without Consent ......... ...... 39
18.2 Accurnmodation of Facility Lender or Tat Equity lnvestor,�
Survival cut Obligations After U`oreelosure ........ ............. .......... _._40
18.3 Sale ot'Facility .... I.. . ....... ...... ............
18A Transfer Without Consent is Null and Void,,,...,. ..... _ .... ___ ...__..,......_41
l&5 Notice of Facility Lender or Tax Equity Investor Action..,...... ... _____41
18,6 Subcontracting A2
ARTICI,E 1,9- - MISCELLANEOUS ............ ____ ..... ...... ................ _..42
19A.....................
19 2
Taxes
... ..42
19.3
Fities iind Penallies............. ......... .........
42
19A
Disclaiimer of Thitd Party Beneficiary Mghts
19.5
Relationship oft e Parties
....... ...... ... __,43
19.6
Severability,.... ...... .......
........ ...............A
19
Colin 'tete Agreement; Amendinents ....... ........
...... "14„3
19,8
Bindirq! Efl'cQt,- Sturidard (if Review ......
19,19
fIcadn1gS............................... ......
______44
19, 10
(_'ounterparls; linaged, Agreement ............
....... 44
19,11
Governing Law; Jurisdiction;
....... ______44
19.12
Bankruptcy Code Matters .................. ............
.. ........ ..... A4
19.13
Co n fid en t i a] i ty
4 5
EXHIBIT A CONSTRUCTION MILESTONES
1AN.11.110 11.111,51ma
UNIT
EXHIBIT R-2 ESTIMATED ANNUAL OUTPUTAND 0. 501,11)
DEGRADATION S('IIEDtJl.,,E
EXHIBIT B-3 OUTPUT SHORTFALL DAMAGES
EXHIBIT B-4 EXAMPLE CALCULATION OF OUTPUTSHORTFALL
DAMAGES
EXHIBITC N01'110E ADDRESSES
EXHIBIT 1) INSUIZANCE COVERAGE
a
�R 11)AC '11""'111........11::1
RENENVABLE POWER PURCHASE AGREEMENT
'11eis RENEWABLE POWER PURCHASE AGREEMENT (this "A
igeemeant "'), lis
entered into as of ... .. .. .. .. .. "", (the '"Effective Date"), between the CITY O. F
DEN'FON,JEXAS, a 1'exas liu,inie-rule ri'lunicipal cotl>oration that wholly ownsaend orcrate,,,,an
clectne anility under the trade narne of'Denton Municipal Electric, with its pn'xicipal Place of
busiriess at 215 EMcKinney Street, Denton,'rexas ?(im (the "Buyer"), arid El CIE LONG
DRAW SOLAR LLC, a Delaware fitnited liability conipany ("�Scller"). Buyer arid Seller are
cach hereinafter referred to individuafly as a "Part "artics."
A" wid collectively as the "I
WHEREAS,, Sellirr desires to sell to Buyer the Buyer's Share of the Facility Products (its
SUCh (erms are defined in Sectigii 1, ), and Buyer desnres to buy the Buyer's Shaire of'such
l,'acility Pro(Juds from Seller; and
NOW ntEREFORE, in consideration of the mutual covenants contained in this
Agreen-tent, the suffisciency and adequacy of which are hereby acknowledged, the Parties,
intenditig to be lega,lly bound, agree to the Poll owl'),1g:
ARTICLE I - DEFINITIONS AND RULES OF INTERPRETATION
1, 1, Rals's 2fStanstruction, The initially capitalized tenris listed in this Article shall
have the mearlings set 1,61111 in seell ll'
on ' 2 ' whenever the ternis afipear in this Agreernomt, whaber
in the singular or the plural or in the present or past tense. fri addition, the following nllcss, of
construction shallapply:
(A) "I'lie masculine shall include the femirnne and neuter.
(B) Ref' renccs to "Ailicles," "Sect or "Exhibits" !shall be to articles,
sections, or exhibits ofthis Agreement.
(C) References tai any Law shall be to such Law, as it may be amended,
restated, supplemented, niodified, or interpreted or applied by as relevant Goverrimental Authority
froin tirrie to thne.
(D) References to any agrecirient shall be to such agreement, as it may be
arneirded, restated, supplemented, orniodified froi,�n tirne to firne.
C�ty oN)cnoov Sc�h," PPA
:R II)AC II II)
(E) The words "herein," "hereof" and "h ere un'd er- shall refer to this
Agreement as a whole and not to any particular article, or see(ic)n of this Agreement; the word
"including" shalI nwan "including, without limilation;" and the word "include" shaH iriean
"include, without hiritation."
(F) The Exhibits attached to this Agreement are incorporated in iijid are
intended to be as pant. ofthis, Agreement.
(Q) This Agreement was negotiated and prepared by both Parties with the
advice arid participation of'counsel, "Me Parties have agreed to the wording of this Agreement
and none oits provisions shall be construed against one Party on the R)Und that such Party is,
the author of this Agreement or any part hereof,
L2 Definitions, The RAlowing terms shall have the meanings, set f6tili herein:
"Ahandoninent" means i IbIlowing cornniencernent of., construction of' the Facility,
complete cessation of the design, construction, testing and inspection work with respect to tire
Facility, harm any sixty (60) days out of any ninety (90) consecutive, day period by Seller arid
Seller's ct"nitractors, or i(ii), following the Commercial Operation Date of the Facility, the
fC1i11(jL1i,SJnuen1 Ofall possession aticl control of the Fat"Mity by Seller (other than ars a result of a
transfer permitted by this Agreement), but not including in efther (i) or (d) any such cessation or
relinquis1trnent that is caused by or attributable to Force MaJetire, to an Event of* Delault by
Buyer,
"ACK92table Financial Institigtion" inearis a financial institution with (i) as corporate
rating equal to either A- or better from Standard & Poor's or A3 or better I"roin Moody's, in cach
case without being on negative credit watch (or the equivalent) frorri such rating agency. If'
Standard &, Poor's or Moody's ceases, to provide ratings searvices arid does not have as SUCCALSS(W
providing sUch services, Buyer shall have the right, acting in a commercially reaso, nable manner,
to select an alternative rating agency and the equivalent credit nati I ng 1() apply in this, definition.
minae ms a legal entity that is the direct or indirect owner ol'a
majority of [Ile ownership Interests in Seller with as rating USSiJlCd 10 SUCK Cnfll)d"S LUISCOM-M,
long -terra debt obligatknis (not supported by third-parly credit enhanceinerit), equal to A- or
better 11-onr tan and & P(:,)1 mr's or A3 or better 6-oni Moody's-or A-, in each case without neing
on negative credit watch for the equivalent) froni, Such 11AInIg agCIICy. if either Standard &
Poor's or Moody's ceases to provide rutin s, services and does neat have as successor providing
suich services, Buyer shall have the right, acting in as commercially reasonable manner, to select,
an alternative rating agency and the equivalent credit rating to apply in this definition,
"Affiliate" of any nanied Person or entity rneans (i) any other Person or entity that
Contro Is,, is under the Control of, or is under common Control with, the narned entity and (ii) any
Person that, direedy or indirectly, is the beneficial owner of 50940 or more of any class. ot'equity
sec,urflies of, or as membership, joint venture,, Partnership or other ownership interest in, as Party
or cif which the Party is directly or indirectly the owner <4509"rine. more of any, class of equity
securities or other ownership interest, A Tax Ec:juity investor shall not constiture an Affiliatc of
Seller solely" by' virtUC of itS tax equity invesiment.
,2
City of Delitoll, Solar PFA
�R II)AC ll II )
"Ancillary Services", shall have the meaning scl forth in the ERCOT Protocols, and
Openating Rule,; as stich ntles may be ujxbalt.d fromfirne to tirne
"Applicable Market Rules" means (he (i) the applicable ERC04' Operating Rules; and
(it) any ruiles, regulatioris and orders Issued by NERC or Texas RE and al')plicable to the.'Facility,
in coach cascas amended orsupplemented frorn firric to tinie, 1"or avoidance ofdoubt, Applicable
Market RuIeS include (a) all Texas RE and ERCOT reliability requirements applicable to all
Market Parlicipants, arid (b) all applicable rOqUirenients regarding interconnection ofthe Faelit y,
including the applicable requiretilents of the ERCOTOperating Rules,
"Agprovals" means all appliewinns, approvals, aUth0riZHnons, consents, filings,
licenses, orders, permits or sinnhar requirements imposed by any (Jovernniental Authority, the
Transmission Owner or ERGO necessary to develop, constnict, operate,, and maintain the
I"acility and, to forecast, Schedule or deliver electricity and Non -Energy Attributes fron) tile
ri"icility as ecnitlemplated by dais Agreerrient,
"Back-Ue Meter"' has tile ineannig, given to that tcrin in Sectiog5.2.C(:,,),
"hankru.,ptKy Event" ine,ans, in reference to to Person, that such Person:� (i) is dissolved
(other. than pursuant to, a consolidation, anialganiation oi� merger),� (ii) inakes ct general
assignirnerit, arrangement or cornposition with or for the bCDCfit (AitS CrOCIAMS; (iii) inStittltCS a
procceding weking as judgment of insolvency or bankruptcy or any other relief' under any
harikruptcy or insolvency law or other sirnilar right affecting creditors' rights, or presents, a
petition for its %Ainding tip or liquidation; (iv) has instituted agaiiast it as proceeding seeking as
judginerit of insolvency of bankruptcy or any other reliefunder any bankruptcy or insolvency
law or other similar Jaw affecting creditOrs" rights,, or a petition is presented for 4s winding -up, or
liquidation (]tat is not stayed or dismissed within sixty (610) days after filing; (Iv) has, a resOlUtion
passed For its winding -up, oft'icNal, managenient or liquidation, other than pursuant to a
consolidation, arnalgarnatio.n or merger; (v') seeks or becomes subject to the appointment of an
adininistrao',)r, provisional liquidator, receiver, trustee, cirstodian, or other siniflar
official f6r call or substantially all of its assets, (vi), has a secured paily take possession of all or
substantially all, col lits assets, or has as distress, exectition, "11111C111110111 ' , SMILIC4,41",86on! or other legal
process levied, enf(r)rced or stied on or against all or substantially all col its assets; (vii) files an
answer or other pleading adirlitting or failing to contest the allegations of a petition -filed against
event with respect
it in any proceeding of the foregoinnat
g ure; (viii) caUSCS or is Sub
goet too am,
to it which, under applicable Law, has an analogous effect to any of the events specified in
clauses (I), to tvii) (ifICILI.SiVC); 01' (ix,) takes any action In furtherance of, or indicating its consent
to, approval of', or acquicscence III, any (if the foregoing acts,
"Bu,siness...Day" means any calendar day that is not a Saftirday, a Sunday or a NERC.'
recognized hohday,
M
City of Denton Solar PP'A
�R> Il:) llIl)
"Buirer's Sbare" nicans the quantity of NfWb reprcseniing Btryers PercerMage of the
Facility Products.
61.1tange in Law" incans 0) any change to as Law or Applicable Market Rules that has
genieral applicability to, solar gerienation fiacififies sisriflar in size and operating characteristics to
the laeflity, lincludnig changes to la,Nk's or regulations regulating or inij,)osing a. tax, fee or other
charge on or relatied to acti\xities related to this Agreement, or (J), as change to) as La\NOr
Applicable Market Rules that other\vise alters the econornic beneins and burdens related to
activities related to this Agreenient.
Assign ment ALi-cement" has the nicaning, assigned to it in Section 18,2 ,
"Conintercial 011)cration Date" means the date (flat Meller provides notification to Buyer
pursuant to Section 4.1 confirming that all of' the Conditions specified in, Section 4.5 have
occurred, have otherwise been satisfied or have been waived by Buyer,
"Conimercial-9 1
1wration Year" rnearis any consecutive 12 nionth Period, during the
Term, connnencing, oil a January I an(] ending on the followirig Deveiriber 3l; provided that the
first Cornn,ierci,,d Operation Year (the 11Fj Oilleraitiotj Year"), shall coninICTICC,
the Connnerc.ial Operation Date and und on the ft)[lowing December 31, The "Final
ornmercial Opera Ono_ Y car"' sl afl cornincrice on January I and end on the last day of the
Tenm
nicans all Curtailments, error* rt fir reductions or
curtailments in Facility output resulting fh,,)m (a) an emergency as defined in the T'ransinission
Service Providers open "access transt'nission Iarifl`l (b) rnainteriance outages, whethiet- planned or
unplanned, ofany part of the Iran smisswn systern car arrays lesting of the transmission systerri to the
extent such maintenance outage requires a restriction or reduction to the output of tine Facility;
(c) Seller's failure to maintkiin in fufl force and effelot any Approval to the extent such failure
pi-evenu the Seller from defivering Solar Energy to the Delivery Point; or (d) a curtailment
elected by Seller undcrSL%cj1on 0,3
1EM
"L("'Onigliance Premiurn"' shall have the incarting so, fordi fil the El COT Operating
",Conditions" INIS the InCaflillg assigned to it in Section 4, 51,
1I.Confidentiall Information" means hLisiness or technical infon,nalion, righlMly in the
possession of" either Party, which infonl1lation derives actual or potential, coninlerelal vahjc lioni
not being- generally known or readily ascertainable through independent development, or reverse
engineering by, Persons %xho can olitain eco norme value frorn its disclosure and use, and includes
inforniation l'urnisheld or disclosed to the other Party in conriection with discussions leading Lip to
execution of this Agreenient, including this Agreement, Confidential Iriformation must be
designated in Nwriting as confidential by the Party supplying such inton-riation the "Disclosin
Eartir," the other Party being the "Receivin g Partj,"), Confidential MR)rmation does notinclude
infornlation thata (i) is or becornes publicly available other than as as result of as violation of this
Agrelenicnit; i(ii) was, at the time of the disclosure. already in the Receiving Party's possession;
(iii) is disclosed to the RieceMng Party bly a third, Party who, to the Receiving Part'y"s knoxiedge,
in
City of Denton sou ir PPA
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is not Prohibited Ii-Orn disclosing the information pursuant to any agreement with the Disclosing
Party; (iv) the Reci(,,"iving Party develops or di(,mives without the aid, �,:ipplic,,ilicm or use of the
privileged or proprietary infimnation; or. (v), the Recelving Party is required to disiclose pursuant
to applicable Law,
46ar rµra:b,s""nican the dates set forth in Exhibit A by which Seller aigrecs
to achieve the corresponding results specified for such dates, including dre Target Commercial
Operation Date, in each case subject to extension on as day-for-day basis for each day that eller
i,; prevented from achieving a milestone dUC to Force Mat I eure, orTransniission Service Provider
Delay.
"Control" (inc4idling the terms "controls," "under the contact s-.)f' and "Under common,
control with") rneans the possession, directly or indirectly, (if' the power to direct or cause the
direction of tile: management of the policles of a, Perscm or entity, wheiller through Ownership
irnerest, by contract or. offierwise,
"iCurtaillment" or "Curtail", as the context requires, micans any curtailment of delivery
of Sohrr Energy to the Intiorcontiection Point resulting From a reduction (iricluding C.Urladirient-tc),
zero output or non-dispatch) of the lict electrical (AnPLA of the Facility from levels of net
electrical output the Facility kV0A1ld otherwise be capable of producing.
"'Delay Damages," leas the incaning assigned to it in Section 4. 1,
"Eariv Termiltilitiorr Fee" has die to it UrSecti,.o...ri 4. 1,
"hifective Date" has the xnekinirig set forth in the pi carrible oftIrs Agreement.
"EPC' Contract" mearis the contract or contracls, providing for the procurement,
rnanufadure, delivery, and installation of the gencrating and step -lip Iransforrilalion equipment
(including but not limited to panels and inverters) that is lo be part of' the Facifily and the
services related to the crigineloring and construction of the Facility'. The EPC Contract may
consist of a single enginciering, procurement alid construction contract (in which case, such
single contract shall constitute the "EPC Contract"), or it may consist of serics of contracts
11br engineering, procurement, and/c)r construction (in which case such series of" contracts shall
collectively constitute the "EPC Contract" ).
9
City 01" Denton Solar PPA
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"ERCOT" ineans tare Ellectric Reliabilily Council of Texas, a non-profit corporation, and
its successor(s) in function.
IIERCOT Av roved bleier,."" rineans the ERC"()T-approved settlement meter USeCl I)N+
ERC.,'OT for real time metering of'Scilar Energy generated by the Facility.
ER(,o,r means the El COT Noidal Protocols, ERCOT Operating
Guides and other binding docurmaits adoptul by f..R(°°OT, including air), attaclurients or exhibits
referenced in sucli doctiments, as amended ft -ORI firne tar time, that contain the Scheduling,
operating, planning, reliability,, and settlement policies, rules, guidelines, procedures, standards
and criteria of ERCOT,
"`Event 4ADefau It"' has the inearu ng assigned6�i� it in Article I ...I
......... . .
"Facilk "' ineans, collectively, Sellers clectric goierating facifily and all facilities
owned by Seller and required to intcreonnect to the Delivery Point f,)ursuant to the
Interconnection Agrcernetn, the purpose of which is to proiduce electricity and, deliver such
electricity to (lie Delivery Point, including all of the 1'6110wingsolar panels, Inverters,
equipment, buildings, generators,, step, -up transformers, output breakers, facilities necessary to
connect to the Delivery Point, protective and associated equil-nilent, improvements, anti other
tangible asset,,, contract rights, real property, casements, rights ofway, surface use agreements
and other interests or rights, in real estate reasonably necessary for the constniction, operation,
arid maintenance of the electric generating facility that produces, the Solar Encrgy sub.icct to this
Agreement,
""baa kill,. nieans the obligalJons of Seller to a.,ny le.nder pursuant to the Financing
Documov,,;, inclul(fing principal of, prernJuni and interest on iildet-)Iedness, lees„ expenses or
JVINIRIC, a11TIOUms due UP1011 91ccelcrat)(11, prepayment or resMicturing, swap or inleress rate
hedging breakage costs and any ctanns dor interest due with respect to any of the foregoing.
"Facilia y.....Leuder" nviivs, eoflec(ively, any lender(s) providing any Facility Debt, and
anysucciessor(s) or,,assigris thereto,
I'Facili!j Products"' means (i) all Solar Energy generated by the Facility and delivered to
the Delivery Point, and (k) all Non -Energy Attributes associated with such Solar Energy.
bacilitAl Products" does not include any ITCs, depreciation benefits or any other tax benefits,
grants, incentives, or subsidies dof any nature, all of which are retained by Seller.
z
City of Denton So air PTIA
�R III IIDAC l 111 I)
"Final Connnercial Ogeration Year,"' shall have the riveaning assigned to it in the
defitlition of Com.rnercial Operation Year,
"Financing Documents" reams the loan and credit agreements, notes, bonds, indentures,
security agreements, �ease financing, q),rcernents, tnortgzagios, deeds of trust, interest rate
exclianges, swap agreements and other documents relating to the deviclopnient, bridge,
construction aintlor permanent, debt firiancing for the Facility, or itivestnient by a Tax [".,kluily
Investor, including any credit enhancement, credit support, working capital financing, or
refinancing, documents, and ally aDd all arnendillenis, modifications, or supplements to the
foregoing that may be entered into frorn firne to, time at the discretion of Seller in connection
with development, construction, ownership, leasing, operation or maintemance of the Facility,
"First Commercial Operation Year" shall have the as assigned to it in the
d,ef utition of Cotrimercial Operation Year.
11,14,01-ce maieure" shall have. the riteaning assigned to it in Section 13.1
"'Forced Outvac:" means any condition at (lie Facility Illat requiries, or Nsults in
Unplanned rctilovall of the Facility, or some pam Iliercrif, frolit service (whether ftom an operating
State (Yr "I TOSCIVC ISAILltdown stile).
"Tuture* Non -eller gy AttribUte" has the nicaning assigned to it in Seetion 9. 5,
"Governmental Authority" means any lederall, slate, loc,,,fl or municipal governmental,
qua.si-govcrnrncntal,, regulatory or a(fininistrative agency, commission, body or other authority
cxercisnig m- entitled to exercise any administrative, executive, judicial, legislative, policy,
regulatory oi, taxing authority or power, or any court or governniental tribunal. "Governniciltal
Authority" includes any independent symern operator, teliabdity organization, pUblic utility
conirins,sion, or other cluasi-govemmental or CJUASi-regulatory authority havi rig Jurisdiction over.
Seller, Buyer, the Facilny, or the subject, matter of this AgIreement, including NERC, ERIC'01%
lit. CT and Tc as RE to the extent applicable; provitied, hoivever, that "Governmental
Authority" shall, not ill any, event inoludc any Party.
11
",Guaranteed taut eu " has the nicaning set lbrill in Section 6A(A).
I'lliazardous, Materials" tricans any substance, niatcrial., ;as, or iia,Irtieu late inatler-that is
ivgalated by asly local goverrunental authority, any applicable Slate, or the United States of
America, as, art environmental Pollutant or dangerous to, pubbe licalth, public Welfare, or tire
natural envirotuncra, inclUditig protection ofrion-hurnaii forl-ris of life, land, water, groundwater,
and air, including any malchal or substance Haat. is (i) defined as "toxic," "poflufing," Iia "ardours
waste," "haLardous, material," "IrazardOILIS substance," "extremely hazardOLIS WaMC," "solid
waste" or "restricted hazardous waste" Under any provision of local, state, or Weral law;
(ii) Petroleum, Including ally fractiotr, derivative or additive; illi) asbestos; (jv) polychlorinated
biphelayls; (v), radioactive maticiial; (vi) designated as a "llazardous substance" pursuant to the
(;'Ican Water Act, 33 Lt. ,t.;"'. §125l vt scql3 IJ,S,C,, §1251)1- (vii) defined as a "'hazardous
N
City of Denton Sohr PPA
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waste" purstiant to the ReSOUrce Goiiservation and Recovery Act, 42 US,C6901 el seq.
(42 (JS. C. §(n901); (viii) defined as a "ha/ardous substance- pimsaant to the Coniprellielis I Ive
Environnienud Response, Compensation, and t,iabdity Act, 42 USC. §9601 et scq� (42 US.C.
§9601)1, (ix)dcfJncd as an "chemical substance" under this "foxic Stibstances Control Act,
15 U,SC, §2601 el: seq. (15 USE, §2601); or. (x) defined as a pesticide unider (lie Federal
Insecticide, Fungicide, and, Rodenticide Act, 7 U.S.C, § 136 et seq, (7 US(.7, § 136)1,
I'Iniaggd Agreement" has the rneaning assigned lo it in Section 19,101.
"In demiti,ed Losses" has the meanings assignied to it in Article 16,
"tudginnified Part" has the meanings assigned to it in Article 16,
I
"Ilidenini in lltart "" has the meanings assigned to it in Article 16.
"Installed nicans the actual installed nameplate capacity ofthe Facility,
" 'IiitercoiiiiectiouAgt-eejxietit" means the Interconnection Agreement to, lie entered into
between Seller and Transmission Service Provider,
nicans the single, physical point at which elcertical
inlerconticction is made bets eleii thie F,,icility and the Ti-anstilission Service Providcr's systeni at
the proposed plant node near WETT"s 345 kV lx)ng Draw Substation [959900] in the ERCOT
West Zone, 'I"he Intercminection Point is a point wilbin the operational auf horily ofIERCOTatid
is subject tothe ERCOT Operating Rules. "I'lic Interconnection Point is more fully described on
Exhibit B -I.
................... .. .. .. . . .. . --
-rrcs- means, the investment tax credits avaihable under 26 USX. § 48 fir investnients
in energy property.
"Law" means any statute, ordinance, code, treaty, ftanchise, rule, regulation, tariff, order,
wjit, judgment, in ' imiction, decree, award or detentinnition ofany arbitrator or a LOUI-I or other
m
Goveniental ALIthotity having the effect of the ftiregoing, whether in effect now or at any time;
in the future.
"Letter -of -Credit" means ain irrevocable standby letter of credit in forni and substance
acceptable to the Party for whose benela (lie letter of credit is posted, from anAcceptable
Financial histitotion. Thc� tennis ofst,,ich letter of credit shall be govemcd by IST198, International
CIIAMI)CrOf COMITICI-CC PUblication No, 5901, be consistent with this Agrceirrent, and 141CILIde an
provision for at least 30 days advarict, notice to the beneficiary Party of army" expiration or earlier
termination of the letter, of cre(fit so as to allow such Party si,ifficient time to exercise its rights
under the letter oferedit, it the posting Party fails do extend orreplace the letter oferedit. The
letter of credit must lie isswed for as minimum term of 360 dtiys. I'he Party posting as Letter of
Credit shall cause the renewal or extension of the Letter of Credit for additional consecutive
tennis of' 360 (lays, or more (or, if' shotler, the reinainder of the Term, ) no later than 30 days
before each expiration date (,)fthe Letter of Credit.
City of" Denton Solar PPA
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"LNIP" means the k)calional rnar,l�inal price, which is the no�,,Anet clearbig pice for
Energy at the applicable ERCOT connuercial pricing node nearest the InWrconnechon 11oint as
such pricing node may be modified frorn time to time by ERCOT' or its successor, as provIdeld in,
the ERCOT Operkaing Rules.
1111arkel Price" has the meaning assigned to it in Exhibit 13- ,
"Moody.'s" rneans Moody's Investor Services, Inc.
"MMI "' rneans nue gaNvalts ofalleinating electric current.
11NERC" means the North American Electric Reliability Cotpuration an(] its successors
in responsibilities and function.
�;M,M,
means The coniniittee established pursitant to Section 9.3,(A).
11,0pergifing Record's" means all agreements associaied with the IacilitY , blueprints ror
construction, operating, niar.wals, all warranties on equipni'ient, and all dcwunients, whether in
printed or electronic (Zirmat, that the Seller uses or maintains in the ordillat'y COUI'se Ol'operating
the f"acility; but specil'ically excludin&l (i) any studies, analyses 01' fOTCCasts relating to the
Facility that are deerned proprietary by Seller uriless tile Same are expressly rcquired hereunder
to be prepared by eller and provided to, BLIYCr leer` purposes ofthis Agreement (other than by
virtue (A any reqturement refialing to 110ocrating Rccords"); and (4) any agreements associated
with the Facility, blueprints for constniction, operating manuals, warranties on equipment or
docurnients that, under confidentiality agreements Nvith third parties, Seller is required to keel:,)
confidential.
"Other Buyer" rneans a purchaser of ScAar Energy frorn the Facility other than Buyer, as
defined in the Recitals.
City of erucic Solar P'PA
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'Other, 11PA" shall have fliC, MC8,11LII&I FW01 to that wimi iri the Recitals
"OlItput Shortfall" has the niminingassTned to it in Section 6,,.,4(6j.
"Output Shor!jAK--Qgq!Aars" means the arnount deternlined lira accordance with
Exhibit 13-3,
"Performaugg biLguri n -jeans a letter of" credit, guaranty or cash collateral in an
al,nount equal to tile Required Secafity Level provided by Seller to 13U.YCr pursuant to Artiele 10,
"Persou" means an individual, partnership, corporation, limited liability company, jornt
venture, association, trust, unincorporated organization, Governmental Authorily, or other forin
of entity or organizaticlin.
'Trime Rate" meatis the "prime rate"' as published in Die Mill Street.fom-ne�jl (ostein
Editioni) under its "Money Rates" column and spe6fied as "i base rate oil corporate lcmns at
large U.S. conirnercial banks," or, if' neo longer pinblished as stIch, the rate of interest announced
fi-om nine to firne b,)i, JP Morgan Chase Bank, National Associati4-.mi, as, its prime rale, base rate, or
reference rate, It' Thi° ff"U'll stre"'et Journe"d (Eosirer-ri Edii ) puffl i sties moire than one "Prinse
Rate"' under its "Money Rates" column, then the Pruile Rate shall be the average of,sucli rates. If
7he 141all Street dournal (LaskvvE�difion) is not poblishetJ on a date when Prime Rate is to hie
determined, then Prime Rate shall be the Mine Rate published on the date that first precedes t1w
date on which Prime Ratc is to be detentined,
"Pro, Forma Solar Enei:gj," nicans for any period, the quantity of electric energy,
expressed In MWh, diat would have been produced by (lie Facility and delivered to the Delivery
Point during Such period (but for Curtailment), determined by the result of the equatioll
reasonably CalCUlated and provided by Seller to reflect the potionfial generation of the Facility as
a function of' generating capacity, solar insolation and panel temperature and using relevalit
Facility availability, weather, historical and other pertinent data ft,,)r the period in qnestion.
"Prudent Indusimilmaim" means those practices,, methods and acts that would be
implenienicid and followed by prudent opicratiors of' solar electric energy gencrating facilities
sirnillar to the Facifily, during Ole relevant three Period, w1lich practices, methods and acts, In the
exercise of prudent and responsible professional judigilient in the fight of the facts known or that
should reascstlably have been known at the linic the decision was niade, would reasonablyliave
been expected to accc)niplish the desired result consistent with mantifiacairers' warrainfies and
recommendations, contractual obligations, the requfivnients or gaidarvice of' the "J"ransrnission
Owner', El COT arid each other applicable Governmental Authority, Li the requirements of"
insurers, good business practiCeS, I_el L abilily and saicty,, 11rudent llidustry Practices shall not be
linifteA to the optimulm practices, methods, techniques, standards or acts, to (tie exclusion of all
others, but rather shall be as range of reasonable practices, methods, techniques, standards or acts
generally aaceepted in the solar industry,
"PUCT" means, Public Utility Comillission of Texas, and its successorts) in
responsibilities and function,
H
City of Denton Si PPA
DAC llII)
".QSE" nicans Qualifick! SchedUhIlIg Entity as such terra is define(I in the ERCOT
Operating Rules.
"Reliability Standards" rricans all national, regional and state reliability and power
duality standards, including those set by (Jovernmental Authorities.
ll lenewal)le Eiterev Credit(s)" or. "RECs" unearis, the certificate of" prooflot'gencration
issued by ERt OT' certifying one nregaa. watt hour of generation korn the Facility and any
Compliance Premium associated ihereivith,
"RcLilacement Costs" inearis the positive, a ifference, ifany, between (i), the inarket price
Buyer would incur, as calculated by Buyer in as cornmercially reasonable manner, to purchase
rephicet-flents I -or the Buyer's Share of Facility Products that Scher Jails to provide during a
Seller Evcnit of Default or as the result ofa termination for a Seller Event of Det"atill, and (ij), the
aniount that would have been payable by Buyer for the same anrown of Facility Prociii-c-is under
this Agreernem. Tit calculating the market price that Buyer would, incur, Buyer may' without
htriiCation r0erence inf6tination, mpplied by one or rnore third parlics (excludiaig Affiliales of
Buyer), such as quotations (either firm or indicative) or relevant rates, prices, yields, yield
curves, volatilities, spreads or other relevant rnz-irket data in ERCOT,, comparable transactions,
forward price curves based on econoinic analysis, for ERCOT, and comparable transactions in
ERCOT. The quantity of Solar Energy that Seller fails to provide, during a Seller ;vent. of
Default shall be the Pro Forma, Solar Frier y+ deemed to have been generated with respect to such
period, except in the clasie ofa teriumarri011 governed by jion 2. 1.3
(it Section I (in which
case the quantity of Solar Energy would be calculated as set forth in those provisions),
"'Resource Commissioninj_L)ate" shall have the nicaning ser forlb, in the ERGOT
Operating Rules.
"RU'C" shrill rrican Reliability I 4'rit Corninitinent, ,As, defined in the ERCOT OPerataig
Roles, from tirric tis l tirne,
"Schedide" or `t'!-C�bjedufi�111 nicans the actions of Seller, Buyer and/or their desigirated
represeTualives ofnotify6ig, rcquiesting, and confirming to each other and to HC(lr the amount
ot'Solar Energy tot tile delivered on arl given day or days at arry given liour at the Delivery Point
as defined by and consistent with RCOT' Operating Rules,
I'Scheduled OutagelDlerating" ilicans a planned of the 1"acillity's
generation that, is required for inspec6on, pi evenfive or currective inaiutenance,.
11all er fg[f9rmatjgg ss, rance" rneans, the Development Security and Perforl'Tia lice
Security require d to he established and maintained by Seller purstrant to Article 10.
"Site" ineans (i) the parcel (if real property on, which theFacility will he constructed and
located, and (it) any easernents, rights of way, surface use agTeeMents and other uneriests, or
City of Denton &)rar PIIA
�R II)AC ll II )
rights in real estate reasonably ne(:,,essary for the constructkin, operation and rnaintenance ofthe
Facility,
"ISolar Energy" nicans the MWh of Unit ( 'ontingent, as available, electric energy
generated by lIic Facility and delivered to tile Delivery Point in real time, on an hourly basis,
Sicdar Energy will be iricasuriod using the ERCO'T Approved Meter in accordance with the
rneledrig methodology recognized bly ERco,r for settleinent plurposes. The energy generated by
the Facility that is used by the Facility fijr house power, maintenance power, finc losses and any
other energy not rnetered and received at the Interconnection Point is not Solar Energy,
"Solar rneans the rate set tbrth in Section 7.2 to be llaiid by
Buyer to Seller for Solar Energy delivered by Seller to Buyer at the Delivery Point under this
Agreement.
"Sqlar pallels", nicaris solar photovoltaic panels and associated equiptnent necessary to,
collect sunlight and convert it into electricity or 1her-mal energy.
" , Standard & Poi or's" ineans Stanoard & Poor's aOnService, as division ofMcGraw
I fill 11,1corporated,
"Target Commercial Operation Date", nuarls the Target (7ornrnercial Operation Date
as specified in 'Ex-Ilibit A, which date: may be extended by Seller under S ectiorl 4j..
"lax Equity Investor"' means as Person who acquires as direct or indirect interestin Seller
for the purpose of ensuring that the Facility is owned (for tax purposes), at least in part, by as
Person able to utilize file tax benefits and/or grants ill lieu thereol" associated with holding an
ownership interest in tile Facility (including ally subsequent transferees of any such Persons).
"Term" has the ineaning assigned to it in ' - fiql-11'j,
"Test Ener " nleans Solar Encrgy that is produced by the Facility and delivered at the
Delivery Point betbre the Commercial Operation Wte.
111 ,41 RE" means Texas Reliability Entity, Inc, and its successors in responsibififies
and function,
"Tra"smiiion, Service111rovider" has the ineaning gi . ven to that tenn in the ERCOT
Operating Rules, As o1 line l"ffective Date, the Transmission Scrviee Provider is "I.1``l
11"J"rans"I"ission Service 1ProvjgJer_D(j;ij?,`1 nicans as delay in achieving as Milestone or tile
Corntilercial Operatiori Date cause(] by the Transniission Scrvice Provider's Ulure to, coiriply,
with the Interconnectic)n Agreernent or delays in achieving 11ne construction milestones, set forth
in, tile interconnection Agreement that are not caused by Seller's default under the:
Intercomiection Agreonenl.
M
City of DentonSDW MIA
II)AC ll II)
"NV E"I'T" n1cans Wind F'nergy Transmission Texas, and its succcssorin
responsibilities and function.
ARTICLE 2 - TEMI AND, CER"FAIN EARLY TERMINATION IUCHTS
12 Survival of Certain Provisions. Applicable provisions of this Agreement s,hall
confinUe in effe�et- expiration or ternlinaflon, including early (ornaination, ofthis Agreement,
to, the extent necessary to enforce or complac the duties, obligations, or responsibilifies of the
Parties r"Irising before tenuinatiou with respect to.- firial billings and �Wjustmejits related to the
perioc'], before termination, and payrnent f" any money due and owing to cither Party pursuant to
this Agreement. Obhgaljons that by their nature should survive expiration, or lennination,
including early terinination, of this Agreernein, including warrantles, remedies (and liniimhfons
thereon), or, indeninifications specified in this Agreerrient shall survive for the period of the
applicable statute(s) of lirnitation. `l bars Agreement may be terrntinated carl)� pursuant to Sections
2j, lJ! and 13.3.
0
IN
City of Denton Solar PPA
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mmr���� 0 KOM
ARTICLE 3 - FACILITY DESCRIPTION
3.1 Sunt Descrintion. Seller shall develop, design, consti-act, own, operate and
niaintain the, Facility, which is generally described in Exhibit'R. 1,
3.2 Location, 'I"'he Facility shall be located on the Site. A gencral description of the
Site, the location of clic F"acility al the Site, Ihe location of the Delivery Point and the lucaiion Of
the imponant ancillary and intereonnection facilities, is included in Exhibit B -L
3.3 Gener _pSiji Sel er shall design and construct the Facility
al Inof the Facility, I
according to Prudent Industry Practices, the Intercomiecfion Agreenient, afl Approvals and A
requirenients of 1AW,
ARTICLE 4 - COMMERCIAL OPERATION
1151
City of Denton S,(Aar PPA
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7
0
4,2 LosImt—ion —Milestoum
(A) To achieve the ('(,)rnrnercial 1', ration Date by The 'rarget(',"ornraeMial
Operation Date, Seller agrees to use e('snimercial Illy reasonable and diligent, efforts to meet the
("onstruction Milestones set forth in Exhibit& Iwovidcd that to the extent Seller is prevenleid
firom In'lecting a (""onstrLICIACM Nfile.S11011C (We to ForceMa ' peure or a delay caused by Buyer's
f"ailurc to perk)rm its obligation tuider this Agreement, and such,Cons tiluction Milestone is a
In
City, of Deriton Soho MIA
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critical path Itern, the firne ft�r pertbri-nance of such ('onstruction Milestone shall be extended oii
a day- for-day basis for each'i days duration OfSLIcls Force Majeure or Buyer caused delay,
(B) In addition to Seller's triond-fly reports under Sect.611al. 3, the Parties'
representatives shall ineet weekly by telephone or itt person to, update each other concerning the
schedule for achieving the Construction Milestones, any expected delays, us achieving any of
those niflestones, and all plarts to expedite critical path iterns.
(C), Afler the Effective Wle, each 'Party shall promptly notify the other ofany
event or circumstance that it anticipaties will delay the achievement ot'a Construction Milestone.
Ifany critical path item is delayed, Seller shall implement Plans, to expedite the critical path neni
in order to minuilize delays in achieving the Target Con-inierelal Operation Date.
43 Progress ReLmirts, At nionithly intervals begirining thirty (30) days after the
Eff 6've Da[c and ending on, (be Commercial Operation Datc,, Seller sisal] submit to Buyer.
Progress reporls, (including, photos where applicable) describing the eurrent status of each
Construction Milestone, including tire plercentage complefion c& cach, Consiruiction Milesione
(where perccritage comr.fletion is a rclevant and ineaningfW indication ol'progress) and the stalus
ofnegotiadon and documentation ofthe EPC Contracts asid the Financing Documents arncll the
status of obtaining Approvals,
W
Buyer shall have the right, subject to reasonable advance nc)tice and scheduling recluneinents that
Seller may establish fi,om lime to three, to access the Site and monitor the construction, start-up
arid testing of the Faeflity, and Seller shall comply with all reasonable requests of' Buyer' with
respeet to these events, Seller shall cooperate in such physical inspections of the Site and the
Facility by Buyer as sway be reasonably requested by Buyer duling constrUCtion, start-up and
testing of (lie Facility. Al1l persoirs visiting the Site and the Facility on behall'of Buyer shall
observe such reasonable coriditions to access and safely precautions (including any requircl1wras
for escorted access) as rnay be esiablislied or required by Seller and shall conduct themselves its a
manner that will riot interfere wAli consoirctilon, stark -tela and testing of the 11, acifily, Buyes's
rnorritornig, (ecirslical review arid inspection of the Facility or any 1`1 acifity, agreements shall
noither be construed as endorsing the de,,,,ign thereof nor as asiy warnarity of" safely, durability, or
reliabilityofthic: Facility,
In
City 0f' DC111011 So ar PIPA
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4,7 Arran gerne nts for Electric Supply to the Facility. Seller shall ble responsible:
f6r obtaining any retail electric service or station servicc required in conniection with the
operation of the Facility. Seller is respons i tile for ensuring, that such clectric service is available
to conimence tes6ng beforc the Commercial Operation Date.
ARTICLE 5 - DELIVERY, ENERGY
SCHEDULING, PEAK PRODUCTION AND METERING
City ot"Dention Solar PPA
�R> II)AC llII)
5.2 ERCOT AL)L)rovert Meter,
(A) nic Elft OT Approved Meter used to nicasure the S�Aar 1"I'Dergy generated
by Circe Facility under this Agreement and teal imonitor and coordinate in, real tare (lie openition of
the Facility iliall be owned, installed and maintained in accordance with the Inter -connection
Agreerrient and the ERCOTOperafing Rides at, no cost to Buyer.
(13) '"I'lic ERCOT Approved Meter shall be inspected and niaintained in
accordance with the Interconnection Agreement and the El COT Operating Rules. Seller sliall
provide Buyer notice and as reasonable opportunity to be present at anily tirnie when Such, ERCOT
Approved Meter is to be inspected and tested or adj U StOd. Seller shall pr(mde Buyer with all
authorizations necessary to have access to the ERCOT Apprcwed Meter, including obtaining any
cil or other agreement from the Transmission Service Provider necessary to, allow Buyer
Such i1ccess.
(C) Either Buyer or Seller may elect ter install and maintain, at its own
expense, bdcknp� metering devices reasonal-fly acceptable to (lie other Party ("Back -Up Meter")
in, addition ten alae ERCOTApproved Meter; prl,J)"Pie'led, lmovtwer, 11mi Buyer and the Otlier Buyers
may ec4lectively Install only one Back -Up, Meter. Installation and nia intena lice of as Back -Up
Meter shall be perkirmed in, as manner acceptable to Seller. Each Party, at its own expense, sliall
inspect and test its Back -Up Meter upon installation and at least annually thereafter. Each Party
shall provide the other Party with reasonable advance notice of, and permit a rel'iresentative of
the other Party to witness and verify,, such inspections and lests. If a Back -Up Meier is found to
be de ficetive or inaccurate, the metering shall be adjUsted, relmired, replaced, and/or recalibrated
as near as practicable to a condition of zero error by t1le Party mkiiing, such detective or
inaccurate device and at that Party's expense,
5.3 Adjustnignt for Inaccurate meters.
(A) Ifthe Elf COT Approved Meter or any Back -Up Meter fails to register, or
if the rneasurement inade by the ERCOT Approved Meter or any Back -Up Meter is I'mand upon
testing to be irtaccurate by more than O.Y/o, an a(tilusiment shall be made correoing all
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City of Denton, soietr V11A
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measurements by the inaccurate oar defective meter,, for bod'i the airiount of the inaccuraicy and
the petioid ofthe inaccuracy, in the folloiving rninnen
(B) Ifthe ERCOT Approved Meter is f'ound to be defective or inaccurate, the
Parties shalll use Buyer's Back-up Meter, if installed, tested and maintained in accordance with
this Article 5, to ad.just the aniount of' Buyer's Share of" Solar Energy deemed delivered, If
Buyer's Back-up Metering is installed on the low side of Seller's step-up transformer, the
Buyer's Back-up metering data shall be adpsted 1"or losses, if the Buyer did not install back-up
metering, or. Buyer's Back-up Nfeteiing is also found to be iMICCUrale by more than (1)3%, the:
Parties shall estimate flie anrount of the TIMCSSary adjustrnent on the basis of deliveries of"
Buyer's Share of Solar Friergy from the Facility during pleriolds of'sirriflar operating conditions
when the meter was registering accuralely. The adJustinent shall be ma ide For the pariod during
which inaccurate tric.4asurernents were madc,
(C) 'If the Parties emflat agree on the aclual period duringwhich the inaccunite
nw,asuretments we re. rnade, the pe6od during which lbe nic,asuremeras are to be adjusted shall hie,
the shorter of (i) the last one-fialfol'tine period frorn the fast previous test of` the meter to the test
that found the meter to be defective or inaccurate, or (ii) the 190 days irnmediately, prcceding the
test that fou,nd the meter to tic defective or inaccur,,ac.
(D) To the extent that the ad,liistmeni periold covers as period of deliveries for
",hich payrnem liars already been made by Buyer,, Seller shall use the corrected measurements as
determined in accordance: with this I �- to recompute the aMOUnt due for the period. of the
inaccuracy and shall subtract the: previous, piayments, by Buyer for this, period from stsch
recomputed amount, If the difference is an positive number, Buyer shall piay the difference to
Seller; ifthe differCDCC is a negative rnrumber, Seller shall pay that difference to Buyer, or at the
discretion of Buyer, such payment tnay take the fonn of an offiset to payments due Sellerby
Buyer. The owing Party, shaill pla,y, sueb dilkrence not, later than 30 days after the owing 11mly
receives notice of the amount due (unless, in the case of Buyer, Buyer elects payn,wntl via all,
offset),
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City (if Denton Solar PPA
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ARTICLE 7 - PAYMANT CALCULATIONS
T1 Paym—eul, Commencing on the Commercial Operalioii D" at Buyer ,;hall pay
Seller for Solar Energy delivered by Seller lc)the Delivery Point at the Solar Energy Payment
Rate. 'Fhe paynicni inade by Buyer to Seller for Solar Energy delivered to Buyer in a calendar
monfli shall equal the Solar Energy delivered to Buyer during such rnonth multiplied by the Solar
Energy Payment Rate, Buyer and w eller agree that the Solar Energy Payrnent Rate is inteirded to
compensate Seller for both the Solar Energy delivered to Buyer, as well as any associated Non-
1",nergy Attributes, and that Seller is not entided to a separate price or Payment for the Non -
Energy Attributes of'tbe 1,acihly.
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City of Denton sotar PP'A
8.1 Gillian Lijuvoices. Each calendar nionth shall constitute a billing period, 'N,o later
than fifteen (l5) Business Days after the end ofeach calendar month, Seller shall provide to
Buyer, electronically, an invoice for the amount due Seller tiy Buyer under this Agreement in
respect of the pievious, calendar rrionth billing period, including a calculation showing the
amounts owing fior 'Buyer's Share of Solar Energy. Seller's invoice will show all billing
parameters, rates and factors, kind any other data reasonably pertinent to the calculation of
monthly payments due to Seller, including, but not limited tio, (."Urtailments and any Compliance
Costs actually expended to stich date.
83 Biffin L.1jilpy1n. Either Party may dispute invoiced arnounts, but shall pay to the
other Party at licast O'le undispnted portion of inw)icc(l amounts on or before the invoice due date,
Nklhen the billing dispute is resolved,, the PaMy owing shall pay the amount owed within 5
Business Days of the date of'such resolution, with We payment interest, charges calculated on the
amount owed in accor(Jarice with, the provisions ofSeeflog 8,,2 hereof f3uyff at aHly file may
c.)ffiel against any arid all arnounts that may be due and owed to Seller under this Agreement, any
and all undisputed WTIOUIAS, including datnages and other payments, that are au ed by 'Seller to
Buyer pursuant to this Agreement, Undisputed and non -offset poilions of aniounts invoiced
under this Agreement shall be paid on or before the due date or shall be subJect to the late
payment interest charges set forth in Section 8,,2.
ARTICLE 91 - OPERATIONS AND, IWAINTE NANCE
U Facility 0aratiozILRefiability Standards.
(A) Seller shall staff, control, operate and maintain the [''acility consistent w%, ith
Prudent Industry Practices, the Interconnection Agreement, all Approvals, applicable Laws,
applicable Market Rules, applic,-,Lble Reliability Standards, and the operating procedures
developed pursuant to Seclion 19.3.,
(B) Peisonnel capable of starting, running and stopping the Facility shall bc
continuously available, cithcr at the Facility or capable of reinotely starting, operating and
stopping the Facility within 20 MillLACS'.
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Clity of Denton soi,v PFIA
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9.2 Oulagg and Pct-fprnlance Reportim .
(A) Seller shall connply with all currient Buyer, NERC, ERC(..)T,,CandTextas RE
generating LITIft Outage reporting requjrionient: , as; they tnay be revised froin titne: lotime, and as
theyapply to the Facility.
(B) Seller will permit Buyer to view SCADA data. tsar purposes, ofobtailling
real-litne generation intbrrriatiori regarding the Facility, Buyer will pay all costs of its
C011MILInications link Nvith Seller's SCADA systierri. Commencing upon the Corninercial
Operation Date and continuing thrOUgh the: Term, Seller shall electronically provide to Buyer
data regarding the Solar Energy production at the Facility in fificen (15) rninUte intervals,
93, Operatinx Committee and Operating Procedures,,
(A) Buyer and Seller shall each appoint one representative and one alternate
representalive to act m matters relating to the Parties' performance (,+hgations witler this
Agreement and to devellop operating arrangements for the generation, delivery and reccipt of
Solar Energy hereunder, Such representatives shall cnstitwc (lie "Operating Connnittee",
The Parties shaH, notify each other in writing of such allpointnients and any changes lherelo. The
Operating Conarniftee shall have no aU(1101-ity to at the terins or conditions of this
A grcCYT'l OIL
(B), Before the oinrnercial Operation Date, the Operating Committee shall
develop Mutually agrecable written operating procedurcs which shall include: method of
dlay-to-day communications.- inetering, telemetering, teleconinlUnications, and data ucqUiSifiOrl
procedures; key persomiel list for applicable Buyer and Seller operating centers; operations and
maintenance scheduling, reporting and budgets; Solar Energy reporlS; Unit operalions log; and
SLICII other matters as may be mutually agreed upon by the Parties, In addition, the Operating
Cornrnittee shall establish, maintain and modify as need,ed fro nn time to, time a mutitally
agreeable, schodule for Schcduled Outages/Deratings.
9A Access toFacifityl 'rom's, Approp6ate representatives, (if Buyer shall at
rc-asonable finnan s during reg uh,,tr business hours, andw4h, reasonable prior notice, ha%(e access (o
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City of Denton Solar PPA
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the Facility to read, lneters, and to perforiii all inspeclions, inAntenance, service, and operaticnial
reviews als may be appn,-,)pfia te to facilitate the perlbrmancc of this Agremient. While at the
Facility, such representatives shall observe such reasonable safely premitions as rnay be
required by Seller and shall conduct themselves in a manner that will not interfere with the
operation of tile F'acility. Seller will cooperate with Buyer by allowing Buyer and its invitelos
reason,aNe access tal Clue Facility for the purposes of condUCthIg IOUrS Of the Facility, with
reasonable advance notice, Subject to applicable safely and insurance requirements. Such tours
shall be scheduled at SLIch turies as shall be Mutually agreed upon by Seller and Buyer, Seiler
shall provide such employee tour guides and operational demonstrations as Buyer shall
reasonably request. Buycr shall conduct such tours so as not to interfere with the operation of
the Facility.
9'. 5 Future Noy -Entergy Attributes. 11"the Facility or its Amput becotne eligible for
any Non-Friergy Attribule tfuit is recognized after the Effective Date, such Non -Energy
Attributes shall be deerned, Included In, tile i'acility Products sold to Buyer under this Apyeernent,
and 'Buyer shall have the right and title to such Non Energy AtIribUteS in accordance with this
Section 9. 5, Buyer is solely entiticd to any revenues (net of third -party costs), received from
ERCOT ur any other third party attributable to Such Non -Energy Attributes generated by the
Facility during the Term, Buyer will be responsible (bi, any costs required to register, verily,
confirm, SCIMILIle, transfer am othetivise make available to Buyer such Non -Energy Attributes.
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I I ......... . . .... I I I I I
ARTICLE 1, 1 - 1) E F'A U Ur A ND RE MEDI ES
H,J I
(A) Any ofthu killowing events (logcurer with airy of the uvetiIs specified in
section I
111 1 . f A I I . 2M f, c ) r . I I each, an "Event, of Defiquit", shall
constitute air Event, u:.)f Deftiult of Seller ul'.)on its occuffence an(I no cure period shall be
jppl icable:
(I A Bankniptc Event shall have o�ccurred with respect to Seller;
Y I
(2) The sale by Seller to as third party, or diversion by ScHer for an'y
LISC, ofany of'Buyer's Sharc o,f Solar Energy or Non -Energy Attributes;
(3) ScHer's rnatcrizd intentional misrepresentation or misconduct in
connection with Ibis Agrecinent and/or the operation orthe Facility;
(4) Seller*s assignment of this Agreement, except as permitted in
accordance with Article to or
(5) SeHer's 111HUrC W BC114.,ve the CornmierciM 01�')erafion Date try the
Guaranteed Commercial Operalion Dale, as, that date imay be extended pursuain to
Section 4, 1 ,
(B) Any ofthe followingshall constitute an Event of'Defauftl olf Seller If Seller
has failed to cure such default within 30 days after the date (if written notice from Buyer to Seller
as 1')rovided lor in Section 12,1 and ((,) the FacifilLender oi Tax Equity Investor as provided for
Y
in
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City of'Denton Suhm PPA
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(I) ScHer's f4dure to comply with the requirements k)f..A rt i C le 1 0;
(2) Seller's Abandonment of the Facility;
(3) Selller's failure to rnake any payinent due hereunder (net of'
outstanding damages and any other rights, of o f!"set that Seller may have pUrSUant to this
Agreeunent),
(4) Seller's Ulure to rna4itain in effcct any agrelements required to
deliver the, RUVer'S Share of'Solar Energy to the Delivery Point pursuant to Scetion5j,
including the Interconnection Agrccrrrent; provided that if"' any such agTeCluent is the
SLIhj= ofa good faith dispute between, Seller and the counterparty, no Event of'Default
shall exist in respect of such agreement so long as Seller continues to diligently pursue
resolution of sucli dispute-, (.)r
(5) Any representation or warranty rnaide by Seller in this Agreement
shall prove to have, been false or misleading in any material respect wberi made.
(C) Any (if the following shall constitute an Event of Default of Seller if Seller
has failed to cure such default within the tinic period set forth below following written tiolice
from Buyer to Seller as provided f6r in Section 12.1- and to the Facility Lender or Tax Equity
. . ... ..... . .. . ............ .... ..
Investor as providcd f'or in Section 18,2:
(1) SCHO"S fitilUrC to CORIPly, within 6O days of Buyer's notice of
default to Seller and to the Facility Lender and Tax Equity Investor, with any obligation
under this Agreement where such failure is, not otherwise an Event of Del'ault under as
specific provision of this, Section I I I th,al would result in a material adverse impact 011
Buyer; provi,dc,,d that it the default is curable but cannot reasonably be cured within the
60 (Jay cure period, Seller shall have an additional 90 days in which to cure the default as
Iong ais, Seller commences the cure within the original 60 day cure pe.6od and thereafter
take diligent acticnis to complete the cure.
11,2 L,'vents, rip L)e aur jt L)f Bover,
,(A) Any of the following shall constitute an Event (4 Diol"ault of Buyer upon
its occurrence and no cure period shall be applicaWe:
111),
, i A Bankruptcy vent shall have occurred wait respect to Buyer; or
(2) Buyer's assignni-ient of this Agreement, except as permitted in
accordance with Article I 8
(B) Airy of the following shall constitute an, Event of Default of Buyer it'
Buyer has failed to cure such default within _10 days after the date of written notice from Seller to
Buyer as provided for in Section 12. 1:
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lity of'Denton Saki; PPA
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(.t ) Buyer's, lailLffe (0 11181ke any paytneiit due hereander (net of
Olustanding dainages and any other rights of'offset th,at Buyer may have pursuant taa this
Agreement); or
() Any rcpi-csentation or warranty made by Buyer in this Agreen'ient
shall prove to have been false or misleading in any material respect when made,
(C) Art), of the killowing shall constitute an Event of Default of Buye'r if
Buyer has failed to cirre such defimll, within the time period set fim,th below following written
notice from Seller to Buyer as provided liar in Section12. 1 �
(I ) Buyer's failure to coniply,, within 60 days of Seller's notice of
default, with any obligation under this Agreement where such I'A'Ailure is not otheivise an
Event of Default under a specific provision of this, ' S ' ection, 11,2, that wouldesuin
rlt a
inaterial advei�sc impact on Seflcr; provided thal, if the deficlult is cural-)Iv but cannot
re.asonably be curcd within the 6(1 day cmrc period, Buyer sfiall hi'me an addifionvO 90, days
in wbicli to cure (lie, default as long as Buyer conimences than cure within the original 601
day mire period and thereafter take diligent actions to coiriplctc the citre.
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City of'Dcrition, Solai P'PA
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11.4 Specific Pet- rorinance. In addition to the other remedies specified in
in the event that any Evesi(of Default is not cured within the applicable cure Period set forth
ficrein, the anon defaulting. Party shall have the right to specific performance of the defaulting
Party's, obligaoions hereunder (cither than payrrient oNigations
IL5 Remedies Cumulati,ve, Subject to the exchkvily ofDclay, Damages provided in
Section 4,1 each fight or rernedy of the ilarties provi(Jed for in this Agreenlerit, ball leac
cumulative of' an(I shall, be in addition to every other tight or remedy provided for In this
Agreement, and, the ex,cicise, or the beginning of the exercise, by as Party of any One or tnore or
the rights or remedies providc(f for herein shall not pi-cclude file simultaneous or later excrcisic by
SuCh Party c1C ally or all other eights or relliedies provided f6r hcrein,
IL6 Waiver and Ex1clusjq)Ujqj,Qth1tr Damages. The Parties confilin that the express
renledlies and ineasuires of dartiages provided in this Agreement salisy the essential purposes
hereof. If no, remedy or measure of darnages, is, expressly provided in this Agreernient, the,
obligor's fiability shall he hinited to direct, actual damages cmly, NEITIIf4R PARTY SHAI-1.1
BE LIABLE THE 0 1
O 1""HER PARTY FOR COEQ
NS,I)ENTIAL, INCIDENTAL, PUNITIVE,
EXEMPLARY OR INDIRECT DAMAGMS, LOST PROFITS (EXI EPT TO EXTENT
INCLUDED IN DIRECTOR (77OVER DAMAGES) OR OTHER BUSINESS INTERRUPTION
DAMAGES BY ST�a\TtYTFI IN TORT OR CONTRACT (EXCEPT TI1 THE EX"J"E'N't'
P1 4.fVID11"D IN I'llIS AGREEMEN'T); 111ROVII)EII), THAT IF EITHER PART),r IS HELD
MAILO A 1`14IRD PARTY FOR SUCH DAMAGES AND THE PARTY 111-41) LIABLE
FOR SUCH DAMAGES IS ENTITLED TO INDEMNIFICATION THERLT"OR FROM THE
OTI IER PART'N", THE INDEMNIF'YING' PARTY SHALL BE LIABLE FOR, AND
OBLIGATED "1"0 REIMBURSE THE INDEMNIFIED PARTY FOR, SUCI-4 DAMAGES.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SELLER
HEREBY Dl&(,,LAIMS THE WARRANTIES OF MERCHANTABILFFYOR FITNESS FOR
A PARTICULAR M)RPOSE,
11,7 Payment, of Amounts Due , Without fimiting any other provisions ofthis Article
and at arly (itne before or after terniination of this Agreement, the Pally to whourl carr y damages
(including Delaarnages) are owed under this Agret,,rnent may wird the other Party an invoice
f6r such damages and such, irijvoice shall be payable in she, rnaxwei,, and in, accordance with the
provisions of Section 8.2., including the provision for late Payment charges.
30
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lity of Dienton, sonar TIP,�%
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11,8 Dart r to MitOvate ,_Nw1m Each Pa tly agrees that it (a) has a duty to rami ate
damages and covenants that it mw ill use commert.�ially reasonable eff"(,',srts tua nliru'rnize any
damages it, nlay incur as as restflt of the other Party's perfin-mance or n c)n -per fonnance of the
Agreement and (b) an obi gation of good faith and fair dealing with respect to its performance
hereunder,
ARTICLE 12 -CONTRACTADMINis,rRAT ION AND NoncLi s
12.1 Noticti in, Writhi , Notices requircd by this Agiecnient shall be addressed to the
other Party, inckiding the other Party's representative on the Operating Committee, at the
addresses noted in Exhibit C as either Paan y updates them frorn tirne to tirne by written notice to
the other part),. Any notice, request, consent, or other conarn, unicat ion required or aUtholized
under this Agreement to be given by one Party to the other Party shall be in writing, It shall
either be hand delivered or mailcid, postage prepaid, to the representativc ot'said other party, If
rnailed, [Ile M)tiCe, 1-C(ILICS1, conserit ori, other colinintirilcation shall be sinitiltaneously sent by
facsimile or other electronic ineans, A� ny such notice, rec'juest, consent, or other COMITIUmeation
shall be deem eld to have been received on the Business Day on which it was hand delivered cor
transnlifted electronically (unless hand delivered or transtilifted after 5 li,rn, prevailingtime at the
recipient's JOCJjrioji' ill WIlich case it shall be deernic-ol received on the ncxt Business D,ay). legal-
thane or routine corrununications concerning Facility operations shall be exempt from this
Section 1"x,1,
112 Representative for Notices, Each Party shalt maintain as ale i,
representative to rcceive notices. Such representative nlay, at, the option of each Parry, be the
same person as that ["arty's representative cor ahernate representative on the Operating
Conitnittee, or a different person, Either Parry may, by written n(:)tice to the other Party, change
the representative or (lie address to which suiclinoticas and communications are to be sent,
12.3 Autholl,11'', of Representatives, Tile Parties' rcprcscntafivcs 'csignaled above
shall have authority to act for its respective princi . pals in all technical matters relating to
perftorinance of" lhi:Agreement and to attempt to resolve disputes or p()tierrfial disputes. Bowever,
they, in, their caplacity as repre�eniatives, shall tim 1111ave thic atilhorfly to aniend or irloidify any
provision of` this Agreement.
12A Opet-ating Records,
(A) SeUer and Buyer shall keep complete and aCCUrme Operating Records and
all other data necessary to properly administer this Agreement, including such records as may bc
required by any Governmental Authority and as other -wise required by Pilident Industry
l"n"Iclices.
(13) Seller shall maintain an accurate and up-to-date operating log, in
electronic f6rniat and at the Facility, with records of production f each clock ho-irr; changes in
operating status; Scheduled Outages/Deratings and Forced Outages; any unusual conditions
found during inspections; and any inch records, as may be required by a Governmental
Atithon'ty,
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12,5 Billingaiid,Pal,,nient.Recor(l:s, To facilitate paynient and verificati on, Seller and
Buyer shall keep all books and records neuessary billing rami paynienls in, accordance with the
Provisions ofArticle --' 8 hercof. All records of'Seller pertaining to tile operation ol'a Facility, shall
be maintained, at tile Sellers principtfl corporate offices currently located at, the address set forth
in l",,xhibit, C or oil the prerinses of` tine Facility.
116 Exanaiggaijoil 9f Records, Seller and Buyer may examine the records described
in Sections 12A and12..
kept by the other Party relating to transactions under and
administration of this Agreement, at any time, upion request and during normal husiness hours,
12,7 Exhibits. Either Party may change the infi,.wination, for their notice addresses in
Exhibit C at any tinie without the approval of the other Party by giving written notice of such
change it) the other Party.
I
ARTICLE 13 - FORCE MAJEURE
111 Definition of Force N16eure.
(A) The tern,i "Force, Majeure", aS Used in this Agrociiient, mearis any cv,ent
or circunistance which wholly or partly j.,)i-events or delays the performaiwe of any rnaterial
obligation arising urider this Agreement (including but not limited to deliveries of Solar Energy
to (he Delivery Point), tna only ifand tr,,.) tile, extent that (i) such event is beyond the rewsonable
control of" and with(,mt (lie fault or negligence ofthe Party clairning Force Majeure; (u) the Party
claiming Force Ntijicure could not have reasonably foreseen such event or taken reasonalfle
precautions to prevent or mitigate such event, and carmot overconic such event with diligent
effort, and (iii), suich event is not the result ofnegligence or failure ofilic Party clairning, Force
Majeure. Provided that an event rneets the foregoing criteria, an Force Majeure may include. acts
of God, sudden and LUIUSUal actions of tile elements such as floods, earthquakes, hurricanes,
volcanic eruption or tornadoes; lightning-, ice, storms; sabotage; vandalism beyond that which
could, reasonably be prevented; pandemic or e idernic� terrorism; war; riots; fire; explosion;
p I
blockades; ad(,,iption or change in, any rule or rCgLflatlon or environniental constraints lawfiffly
imposed by a Governmental ALIthOrity" Of d' strike, w1ork stoj,npage, or labor dispute affecting
Sol I er or one or more cif` its A ffiliates or contractors or any other third parry employed by Seller
do work on 'the Facility. Without limiting the generality of the foregoing, wlien measuting the
duration of a delay caused by a Force Majeure, the duration coif" tine Force Majeure event shall be
calculated so as to include evacuations or other disruptions that occur before or after such Force
Nlajcurc event including the tinic required to either inake preparations in advance of (including
evacuations) or inake replairs to the exlent practicable following such event, and to resuille
normal operations after the Force Majeure event has COnClUded.
(113) NicAwithstanding the foregoing, (lie term `"force Majeure" does nal
include:
Q1') any acts or omissions of any third party, including any vendor,
ma(exialnian, custonier, or supplier of Seller, unless such acts or ornissions are
themselves excused by reason of Force Majeure;
32
City of Denton Solm PPA
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(2) a inechanical or equipment breakdown or other nrishap or eveills or
conditions attributable to normal wear and tear or flaws, unless such rni,,shapor even't is
caused by one of thc evcnts otherwise meeting the criteria above (inclulding as serial detect
occurring within the three (3) years, of the Cornmervial Operation Date
(3) except as otherwise provided in clause (1), any failure to obtain or
locate equipinent, including Solar Panels;
(4) Seller's ability to sell Solar Energy at a higher p,rice, or Buyer's
ability to purchase solar energy at a lower price;
(5) the inability of a Party to obtain financing; or
(6) the inability of a Party to obtain Approvals of any IV—P e for the
constniction, operation or =iintenance of the Facility.
13.2 AL)LAicablift-y of `once .,lrLaitore, Neither Party shall he responsible or li-able for
any dclay or faiture in its perfon-nance under this Agreement, nor shall any dellay, failure, or
other occurrence or everitbeconie an Event of Default, provided that-.
(1), the non-perforining Party gives the other Party prompt writlen
notice describing the Particulars of the oceurrence ofthe Force Majerrre;
('2), the suspension of perfiornianio,�e is of no greater selope, and of no
longer duration than is required by the Force Majeure (and the existence of Force
Majeure shall not relieve the Parties of specific obligations under this Agreement
('including payment obligations) to the extent that per(6rinance nal" such obligations is not
precluded by Force Mz�jetjre);
(3) the non-per(6nning Party proceeds with reasonable diligence to
rernedy its inability to perforrn and provides weekly progress reports to the other Party
describing actions taken to end the Force Majeure,- and
(4) when the non-perl6nning Party is able to resume performance of
its obligations under this Agreement, that, Party shall give (be other Parly, written notice to
that effect,
133 Untitati2ais 'I
2n Effect of Force Majeure, n no event will any dclay or f6iture, of
Performance caused, by Force Majcure exicrid this Agreernent beyond the'Fenn, In the event, that
any delay or failure, of perfonaarce caused by Force Majeure con6nues fair ,in uninterrupted
period of 365 days, from its occurrence or inception, as noliced pursuant taw lection, 13j, the:
Party not clanning Force Majeure, ria y, at any time following the cnd of such 365 day period,
terminate this Agreement upon written notice to the affected Party, without fialher obligation by
either Party except as to costs and balanccs incurred prior to, the effective date of such
termination. 'The Party not cLitrning Force Majeure inay, but shall not be obligated to, extend
such 365 day period, for such additional time as it, in its sole discretion, deems appropriate.
RN
( I
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ARTICLE 14 - REPRESENTATIONS, WARRANTIES AND ("OVENANTS
l4.l. Seller's Represen ty t kl�ltis, 'War rait ties and Covenants, Seller liereby refiresents,
warrants arid covenalits as f,')Ilows:
(A) Seller is as luirited liability company duly organized, validly, existing and in
g('),od standing under the laws of Delaware. Seller is qualified to dc) business in each other
jurisdic,tion where the fililufle to SO LjUalify would have as material adverse effect on the business
or financial Gondition of Seller; and Seller has all rcqLliSitC power arid aLIA110ITily to conduct its
business, to olwn its properties, and to execute, deliver,, and perforin its obligations under this
Agreement,
(B) The execution and delivery of this Agreement by Seller, and, the
performance by Seller of its obligations hereunder, have been duly authorized by all necessary,
corporate actiori, and (to not arid Nvill rroC
requiTe any consent or approval by any governing body of eHer,
other Ilian that which has been obtained arid is in full f'orcle and effect (evidence of which
shall be defivere(i to BUyer upon its request)l;
(2), violate any, Law CtlfrCully in efficel having applicablifily to Seller of
violate any provisioill in any of' Seller's organisation al docunients, inckiding Seller's,
bylaws, or limired liability company operating agreement or partnership agreenrent, as
the case may be, or under the violation of which couldl have a nitaterial adverse effect on
the ability ofSeller to perlbrin its obligutions under this Agreement,,
(3) result in a breach or clonsitinite a defauh under any agreentent
relating to the nuinagement or affairs of' Seller or any indenture lot- loan or credit
agreement, or any other agreement, lease, or instrument to, which Seller is a party or by
which ellller or its properties or assets may be bound or affected, the breach or of of
which could reasonably be expected to have as rnaterial adverse effect on the ability of'
Seller to perf'oril'i its obligations under this Agreenlent, or
(4) result in, or require, the cretition or is iposilion of any morig
,!age,
deed oftrum, pledge, lien,, security interest, or other charge or encumbrance ofiiny nature
(other than as in ay be clonteniplaled by this Agreenient ' ) upon or willi respect to any ofthe
assets or properties of Seller now owned orliereafter acquired, the creation mar unposition
of which could reasonably lie expected to have a material adverse effect on the ability of'
Seller to perfiorni its obligations under this Agreernent.
(C This Agreenierit is a valid and binding c4illigation of Seller, enfiorueable in
accordance with its terms, except as enforcement rnay be Innited by bankruptcy, insolvency or
similar laws, affecting rights of ereditors generally or by general principles l:,),f equity,
(D) Seller shall coniply imith all applicable Laws,
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City of Denton, Mar PPA
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(E) There is no pending, or to its knowledge, threatened against it or uany, of its
Affiliates, any legal proceeding that could niaterially adversely affect !its ability to po-forril its
obligations under this Agreement.
(F No defauh. (howsoever defined) under as material agreement to which it is
a party has occurred and is continuing, and nosuch default woluld occur as as result ofits entering
into or perforating its obligations under this Agreement.
((-J) No event has occurred that would be an Event of'Derault hereunder,
14,2 tear jer's..._..RcV rejen tatjo_ns,---NVa rra u ties and Covetimits. Buyer hereby
represents, warrants and covenants as follows�
(A) BuYer is a 1'exas home -rule tnunicipal corporation duly organized, validly
existing and in good standing under the JaNvs of the S,tate oTexas and is qualified in each other
'jurisdiction whcrc the failure to so qualify would have as material adverse effect: upon the
business (sr fnulnci�,d condition of' Buyer,, and Buyer has all Fe(jUiSaC power and authority to
conduct its business, to (,)wj.,) its j)r()pejIics, and to execute, deliver, and perfi)nn its obligations
under this Agreement,
(B) 'Fhe execution, defivery, and Performance of its obligations under this
Agreement by Buyer have been duly authorizeld by all necessary corporatic or governmental
action, and do not and will not:
(1) require any, consent or approval by any governing blody of Buyer,
other that'i that which has been obtained and is in full force and effect (evidence ofwhich
shall be delivered LO Seller upon its request)r
(2) violate any provision, of law, rule, regulation, order, writ,
judgment, injunction, decree, detennination, or award currently in effect having
applicability', to Huyer or violate any, provmon in any calyer's corporate docurnents or
bylaws,, the violl'ttion of which could bave a material adverse effect on the at)ifity of
Buyer tio) perform its, obligations undcr this Agreement;
(3), result, in as breach or constitute as defiudl laider ally agreement
relating to the nuuvigetniont or affairs of Buyer, or an.y indelflure or loall or Credit
agreeniew, or any other agre'erne nt, le"isic, or inso-urnern to which Buyer is a f)airty or by
which Buyer or its properties or assets may be bOLM(l or affeetied, the breach or defint I( of
which could reasonably be expected to have a material adverse, effect on, the ability of"
Buyer to perlbrin its obligations under this Agreement; or
(4) result in, or require the creation or imposition of' any mortgage,
deed oftrust, pledge, lien, security interest,or other charge crai® encumbrance o,f any nature
(other than as may be conternplated by this Agreement) upon or with respect to any of the
assets or properties of Buyer now owned or hereafter acquired,, the creation or imposition
of which could reasionably be expected to have as material ad\,,erse effect on the ability of
Buyer to perform its obligations under this Agreement,
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(C) This Agreentent is it valid and binding ot)ligatio)n of Buyer, enforceable in
accordance ),Otto its wrms, except as criforcenwrit may tile, finifted by liankrupitc,y, insolvency or
sitrular laws affecting tights ofereduors generally or by general princiPles ot'equity.
(D) No approval, authorization, consent, or other action byany (3rovernmenwi,
Airthon'ty Is required tol authorize Buyer's execuflon, d0i'very and perfortilance of' this
Agreernerot.
(E) Thcre is, ool pending, or tco its knowledge, threatened against it or any of its
Affiliates, any legal proceeding that could materially adversely affect its ability to perfOrT11 its
()bfigatjons under this Agreement,
(F) No default under a material agreement to which it is a parly has, fxcurred
and is continuing, and no such detault would occur as a rMllt OfitS entering into or pert6nning
its obligations, under this Agreenient.
(G) No event has occurr-ed Illat would be an EN1,ent of'Defiaull hereunder,
ARTICLE 15 - INSURANCE
(A) Seller shall procure and maintain, at its expense, and Shall cause its
subcontractors to procure and niain(ain, tit ftill, force and effect, it of the tyjies and
anlounts as set ftly"th in hill D to this Agricernerw The insurance limits and other
recluirerilents specified in this Article 15 and ExhibitD are the I-C(jUired aniounts and priovisions
and Seller is responsible for providing any additional insurancle it deems necessary to protect
Iroin Hazardous Materials, other exposure or claims in excess of the rninimurn stated coverage
limits,
(B) Each insurance policy riCqUired by this Artiel 15 and Exhiibt I) shall ble
....... — ----- -----------
endorsed tio state that cloverage shall not be suspended,, voi&d, canceled by either party, redUced
in coverage or in limits except upon 301 days prior written notice to Buyer, A blanket
endorsement from the current policy is aceq)table.
(C) All policies shall be written with insurers in accordance with tile
requirements set forth in, Exhibitl). All policies shall be written on an occurrence basis. If
... ................ ..
coverage is made on as claims -made form, Seller shall ni,u.lrntain continuous coverage or exercise
an extended discovery jill for as period of nol less, thart 5 years followin,; lermination or
expiration of this Agreement.
(D) Seller shall, pit.irsuant to the clot -responding Constmetion Westone, and on
or belbre (lie anniversaq), date of such Construction Mkstonc in each Conuriercial Operation
Year, cause to be provided to Buyer insurance ceilificates acceptable to Buyer evidencing that
insurance coverages for the Facility are 1ro cornpliance with Prudent Industry Practices, and, tit
the Spec i flea tions for insurance coverage set forth in this Article '15 and I'Alibit D, Such
certificates shall evidence that Seller's insurance policies rnaintained in aCLordance WiLl'i thiS
Agreerneni (a), narne BLIyer its an additional insured (except, worker's com lien sation), including
with respect to bodily in�jury, property damage, piersoinal injury and products/completed
operatilons; (b) Provide as waiver of any rights of subrogation against Buyer, its Affiliates and
to
City of'Denton!,sklar P11A
�R> Il)AC llIlia
their officers, directors, !r eats, SUbcontractors, and einployecs;, (c) pi-cwide that Buyer will be
given 30 (,lays advarice Nvrkten notice of any cancellation of coverage or deletion of tire
certificate holder as an additional insiured under the policies; and (d), indicate that the
Colyrn'llercial General Liability policy has been endorsed. as described in E`xhibit D. If the waiver
required by clause (h) of' the preceding sentence is not obtained by Seller, Seller shall defend,
indenmify and hold BLAYCr flarri'dess Emil any clafin or proceeiditig by Sefler's insurerts) seeking
suhrogation that should have been waivied.
(E) Seller shall be respin ramble to (.)brain and provide to Buyer separate
certificates firorn each SUbcontractor, and aill coverages for subcontractot's shall be subject to the
requirements contained herein, Any failure oil the part of Buyer to Pursue or obtain the
certificate of insurance from Seller and/or the fiailurie of Boyer to ploint (Alt, any non-comphance
of such certificates of Insurance Shall not Constitulte as waiver of any of the insuranicic
requirements hereunder, nor relieve ScIler or its subcontractors of any of its obligations or
fiabililies heretinidier.
( F, ) 'I"he insurance ir,)bligaiions set forth in this Article 15 and Exhibit D are
intended to be as separate and distinet obligatio'n, on the part Of' Seller, and ally SUbcontractor.
Accor(lingly, these provisions shall be enf'orceable and Seller and its subcontractors shall be
bound thereby regardless of whether or not indeninity provisions are determined to be
lerif'orceable in the jUfisdictioni in which this Agi-cenrent is perforryied,
(G) T'he obligation of Seller and any subcontractors to provide the insurance
specified in this Article 15 and Exhibit D, shall riot limit in any way ifie liability or obligations
assurned by Seller under- this Agreenient. Seller's Iliahility under this Agreement shaH trot be
linnited to the, amourit of insurance coverage required herein.
ARTICLE 16 - IND,EMNITV
166 Indeninifiled Los5cs,
(A) Each Party (the "Inder ilifyinn 1 Party,") agrces to the exter-il pennitted by
Law to indemnify, defend, and hold harniless title Other party, and its officers, ernployces,
directors and other representatives and agents (collectively, the Andeninified, Parti") from and
agahlisit all clanns, dernands, losses, liabilities and expenses, including reasonable attorneys' fees,
(i), for persomil injury, death or damage ro real Property and tangible personad property oftbe
Indeninified Party or any other person or entity to the extent arising Out of', resulting frorn, or
caused by the negligent or tortious acts, errors, or onrissions of the Indemnifying party, its
Affiliates, directors, officers, craployces, or agents, (ii) violation of Law by the Indemnifying,,
Party, its Affiliates, directors, officers, eT-npl(,,iyees,, or agents, or (iii) breach or violation of its
obligations under thisAgreenrient (collectively, "Indeninified Losses"),
(B) In addition, Seller agrees to indemnify, deferid and hold harinless Buyer,,
and its officers, employees, directors and other representatives and agents, from and against all
Indemnified Losses, to the extent arising out of, , resulting from, Or caused by any Hazardous
Materials or any other violation of the felderal, state or local environmental laws,wvith resect to
Seller, the Site or the Niciljty.
W
City of' Dellt(In Solar P11A
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(C) If (i) f&s, fives, penalOes, or costs are clainied or assessed against a Party
by any, Govcnime"awl ALflhority dUC, to nonconiphance by the other llatiy with an), requirements
oif LaAi,, nanny Pemin, or contractwal obhgation, or (ii) the work ofa Party or any ofits contractors
or, subcolitractois is delayed or stopped by order of any Govicniniental Authority dLIC to sueh
Party's noticotripliance Mth: airy reqiiiretnents of [,aw, Pen -nit 01' C01lVaCtUal obligation, such
warty to tire extent perniitted by Law shall indemnify and hold [lie other Parity harniless against
any and all clainis, derriands, losses, liabilities and expenses, including reasonable attorneys'
fees, suffered or inCUrred, by such other Party as as restilt of such non-cornpliance, Including
clainis for indemnity or contribution made by third Parties against stich other Party,
(D) These indierrinification obligations shall apply norwithstand ill g ally
negligent or intentional acts, errors m oniissions of the firdeninified Party, brit the Indernnifying
Party's liability to pay dartiages w the Indentinfied Party shall be reduced in proportion taw i the
percerr cagio by which the Indeninified Party's negligent or intentional acts, errors or orilissions
ica,nrw.A tile Indenindled 1.,,ossies. Nei then Party shall be inderninf."ied for flS chur)ages resuking
froin its sole negligence, intentional acts or willfill misconduct. These in Provisions
shall not be construed to (I) relieve any insurer of its obligation to pay clairns consistent with tile
provisions ofa valid insurance policy ar (ii) cirlargio or rclieve any liability ofone Party to the
other Party for any breach ofthis Agreernellt.
M2 Ddsuc of Claini, for Indenigifled Losses. Promptly after receipt by an Party of
any claini or notice (,)if the commencement of any action, administrative or legal proceeding, or
investigation as to wvlucli the inderrinity provided for in this j,u tic 1.6 may apply, the
indemnified Party shafll notify the Indemnifying Ptuly in Wil I ting of such fila Tile indemnifying
Party shall assurne tile defense thereof with counsel designated by tile Indemnifying Paily and
satisfactory to the indemnified Party, pEwided, L)owevely, that if the, defendants In any such
action include both the Indernnified Party and the Indeninifying Party and tire Indt-ninified Party
shit all have, reasonably iec urcluded that there may be legal dcfenses avadabilc ic,n it which, are
different from or, additionid to
,, or inconsistent with, those availiable to the Indicinnifying Party,
the Indeninified Party shall have flic right to, select and be represented by siepanite counsel, at the
hidcrnnify inn g Party's CXPICIISC, 'Unless as liability lilisui
rer s Willing t1o, Pay Such, C(,')$tS.
163 Settlement of Claims by lridev-pi.nified Party, N'thic Inderrinifying Party fails to
assunie die defense of as clairn rnefilillg iridCrIfliffica6ion, the Inderrinified ["ally rilay at thic
expense ofthe indemnifying Party contest, settle, cwr pay suchi claim, provided that settlement or
fill] payrnent of any such claiin i -nay be made only Following consent of" the Indemnifying Party
or, absent such consent, \,kritten opinion of the Indernnified Party's counsel that stich claini is
meritorious or warrants settlement,
16A Insurance Procceds, f7xcept as, othenvkc provided in this Article 161, in tile
event Ilia a Party is obligated to indcaurify and lufld the other Party harinless in-rdier this Article
E6, tire ammint owint! to the lindetrinified Party will be the aillount of the fildenitflfied Party's
aelual loss net of' any insuralice pi -tweeds received by the, In dieninified Party followillg a
reasonable effort by the Indemnified P'aily to obtal'si such insurance procceds. ThisS....C.a.i.9.1 i 1 6,41,
does not, constitute an separate waiver of subrogation nor create any obligation on the part ofthe
Indemnified Party to obtain insurance coverage in addition to that required under this
M
City of Dern onSoar PPA
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Agreement, or in any way lini4 1he Inderruiffied Party's rights to be held harn'i less, ovith respect to
the even( in quc,.'A1'(A'1.
ARTICLE 17 - LEGAL AND REGULATORY COMPLIANCE
17.1Courplianic . Each Party shall at all times clonilily %vith all applicable LaWS,
except f6r any non-compliance which, individually or in the aggregate, could not reasonaWy be,
,expected to have a inaterial adverse cil'ect on the business or finalicial condition of the Paay or
its ability to, fulfill its commitments under this Agreement. As applicable, each Party shall give
all required no ices, shall procureand maintain all necessary Approvals, licenses, and inspections
neccssary for perl'onnance of this Agrevi-nent, and shall pay its respective charges and fees in
connection therewith,
17',2 Assistance witli ComL),Ijancc. Each Paxly Shu ll deliver, or cause to be delivered to
t1tc, other Party cedificales of its officers, accoullitants, engineers cr�r agents as to niatters as inay
be reasonably reqLwstiod, and shall triake avaitable, tipon reasonable rcijucst, personnel and
records relating to the Facility to the extent that the re -questing Party requires the sarne in order to
fulfill any regulatory reporting reqUil`01110111S, or 10 assist the MalUeStlllg PW1Y in fifigation,
includitig adnums(ra(:k,'c proccedingis bef6rc utility regulatory clominissions.
ARTICLE 18 - ASSIGN MEN'T AND OTHER TRANSFER RES"I"RIC"FIONS
I&I No Assignmen't Without Consen't. Except as perrnifted in this Mlicle 18, neither
Party shall assign this, Agreement or any portion thereof" without the prior written, consent ofther
other l"aily.Ai,iypel-iiiittedassigiieesti,,allexpi-e.sslyassutiietyro assigr,ic.)i"sc�,vbiligal,iojistiet-eui,idei--,
bowever no assigimient, shall relieve the assignor of' its obligations hereunder ill the event the
assi&net'- fails it) perlimn, tuinless the other Party expressly agrees on wfiting to waive or release
Ohne assignor's confiruilng obligations pursuant W this Agreement,,
(A) Seller's consem shall not, be required t6r Buyer to assign this Agreenient
f'(,,)r collateral purposes to its secured, lenders,
(B), Buyers consent shall n(')t be required for (i) Seller to, assign this
Agrelernent for collateral purposes to the l"acility Lender or Tax Equity Investor, (ii) to assign
this Agreenlera to an Afflifiate M' Seller provided that assigriec's obfigaOons ander this
39
City of Dent on Solar PPA
�R II::) ll II )
Agreem(,nit continue lie, suppone(i by the Plerformance Assurarice re(,juired under this Agreenlient
and the assignee is as capable as Seller of' perforining, or (iii) Facility Lender to assign this
Agreement in whole or in part to any Pers,o)n acquiring a direct or indirect ownership intere,,.4 in
the Facility or. in Seller a,s a result of any 16'reclosure, deed In fileu of foreclosure, short salle or
ally (ither Ilicarls of, l'acifity Lender's exercise Ol'Or Under miy security grantled to Facility
Lender by the ternis of the Financing Documents, ScIler shall notify Buyer, pursuant to
Sciction 12. 1, of any such assiginnent to an Affiliate, a Facility Lender or a Tax Equity Investor
no later than 10 Business Days after the assignment.
1 Ag�,gmmodaflon._of,.±,'
A,cjllty Lendej- oi- Tax Eguitj juvestoriSurvival of'
(A) J'o il�iicilitate Sellcr's, obitaining of financing to construct and operate the
Facility, BUyeF Shall make reasonable effbju to provide such Consents to assignments,
cierlifications, refnesernations, infornration, or offier docurnents as may be reasonably requested
by Seller or the Facility Lender or Tax Equity Investor in connection with the fillancing of the
Facility, including estoppel certificates; M.,yi ' ( ' 10, that in resp011difIg tar army such request,r
Buyer`
shall have no obligation to proivide any consent, or enter into any agrecinient or other docurnent,
that adversely affeas ail), of' BUYCI-S rights, Ibenefiits, risks and/or obligations undcr this
Agreenient. Seller shall renriburse, or shall caLlSe the Facility Lender orTax Equity Investor to
reunburse, Buyer for the expenses (including, Without lin-iiiation, the reasonable fi es and
expenses of counsel) incurred by Buyer in The preparation, negotiation, execution and/or delivery
of any documents requested by Seller or the Facility Lender or Tax EqnIty Investor, and
provided by Buyer, pursuant to
(B) Any consent to collateral assignment of this Agreement or estoppel
agrelernent, (collectively, a "Collateral, AssiLjrtment_AjEE*jq cut") niusl be in foi-in and substance
reasonably agrced to by Buyer and rnust inCILKIC', among o(hei filings, the followhig provisions:
(1), BUYU Shilll give notice of a default by Seller to the Peison(s)
specified in the Colliiien.il Assigninent Agreernent at the sanie tin -le as such notice is
given to S,eller wid in any i hiefore exercising Buyier's right to tcrtninate this
Agreernent as a result of such Event of" Def
(2) The Facility Lender or Tax U-juity Investor will have the right, to
CLU -C a default on behalf o I" 'Seller and shall have such time (but in nio event niore than
ninety ( O) calendar days) in addition to the cule, pleriods set ft)rth in this Agreell'ient as
Facility Lender or Tax Equity Investor reasonably requests in which to cure clairried
defaults;
(3) The Facility Lender or Tax Equity Investor will have The right to
consent before (a) any mutually, agreed ternimation, of this Agreement which does not
arise otit of an Event (lif Default or other tennination olfright, and (b) any tennination 'of
this A�g-reeniierit, which arises out of an Event of efind[, before tile expiration of any
extended cure pfioid ()enefiting Facility Lei,rder or Tax Equity firvestoc,
In
City ol"Denton soiar PP,N
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O The Facility Lender or Toix Equity Investor will receive pli I or
notice ofand the right to approve material aniciidinents to (lus Agreement;
(5) the Facility L,crider will ha %,,e the right to stela in to control and
operate the Facility if Seller defaultsunder its agreements with the Facility Lender,
(C) Seller agrees, and shall use clominercially reasonable efforts to cause the
Facility Lender or"Fax Equity Investor to agree and [lie Financing Docurnerits ((:i provide that, as
king as no Buyer Event ofDol'aul( exists, the Facility and any third party takdrig possession ofthe
Facility through the exercise of' the Facility Lender's, or -rax f quity Itivestor's rights arid
rernedies shall remain subject to the terms of this Agreement and shall assume all of Seller's
obligations hereunder, both prospective an null accrued,,, including the obligation to cure any there
exisfirg Event of Default capable Of CUM by per fonliance or (lie payrnent of inion cy da urates,
183 Salle of Fay ciljLr.
(A) Any llease, side, conveyance or other transfer or disposition by Seller of its
interest (:ur title in any material portion of its Faciliiy assets, now owned or herciifter acquired,
shall require the prior written consent of BUyCr; 11111vided, however, il'tat fluYo-'s consent shay ,flf
not be required fc,or (x) collateral assign.nient or other security instrunwrits in favor cif' as Facility
Lender, for the iransfer ol'Seller's interest or title in, any jnaferifl 1.ionlion of the l"acility or the
Facility assets to an Affiliate of Seller pernritted by Section 18,1(13)(0, or (z), in the Ordinary
clourse of business, aa.s parts need repair, or. replacement, In order to provide consent if required,
Buyer needs, to determine, to its reasonable satisfaction, within 45 days after receiving notice
from Seller of a proploseid disposition of Seller's interest or title in any material portion of its
Facility assets, thatn (i) the financial resources of the entity acquiring interest or title in such
assets are sufficient to permit it to meet its obligations under this Agreenient, and (nn) the
acquiring entity will continue to have, through its employees or through as third party operator of
the Facility, the technical skills and experience reasonably nVCVSSW-Y W Meet its obligations,
under this Agreement, Buyer's corisenA process rrray include its Publlic LItilily Board and City
(7oullcil approvals.
(B) Seller shall provide with its initial notice all infotiiiakon and
docurnentation reasonably necessary to derrionstrate to Buyer that the requirements set forth
above iii iterns (i) arid (ii) of'subsection '(.,Aj will be meet. If" Buyer fails to notilSeller of its
deten,nination as to whether such conditions, are nict ,vithin such 45 day perilod, as transfer of
interest of title in the Facility will be decrued to be consented to by Buyer,
(('1) For the avoidance of a
doubt, tire eoluisition ofa direct or indirect intet
res
in Seller by a Tax Equity Investor is not: subilect to this Secti2n 1U1 1
18A Transfer Without 'Cousent is Null and Vogul. Any sale, transfer, or assignment
of this Agreement made without, fb1filling the requirement.-, of the Agreement shall be null and
void and shall constitute an Event of Default pursuant to Article I L
18,5 Ngtiec of F J1 Within 10 days
following Seller's reecipt of each written notice frorn the Facility Leader orTax Equity Invcstor
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City of Denton ScAar 1PA
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of defaull, or Facility Vender's; or Tax Equity Investor's intem to exercise any renredies, under the
Financing Documents, Seller shall deliver a ioopy o.di'such noticle to f3uyer,
18,61 Subcontractitt . ScIlier nray subcontract its duties or obligations under tfus
Agreement without the prior written cionsent of" Buyer, providgd, that 110 StW11 'sUbcontracl shall
relieve Seller of any, ofits duties or obligations hereunder.
AR,nCLE 19 - MISCELLANEOUS
191,1 Waiver. The failure of either Party to el'IfOreC Or insist Upon compliance with or
strict perfonnance ofany of, the ten-nis or conditions of this Agreernem, or to take advantage of
any of its rights thereunder, shall nm constitute a waiver or relinquishment of any such ternis,
conditions, or Tights.
R2 Taxes.
(A) Seller shall pay or cause to be paid all taxes on or with respect to the
Facility or on or with respect to the delivery and sale of Facility Products to Buyer that are
iruposed bel )re or upon the delivery of Faicility Proiducts at the Delivery Point. Buyer shall pay
or cause to be paid all taxes with respeict to the delivery and sale of Facility Products to Buyer
that are imposed after the delivery of R'icility Products at the Delivery Point, If a Party is
required to reant or Pay taxes that are the other flarty's responsibiflt), hereunder, the Party
responsible fiat SUch taxes hiarcunder shall prorripfly reimburse the other for such ta xes, f7or the
avoidance of doubt, i party shall be responsible for all taxes in on it in respect of
income, gross, receipts ornet worth.
( ' 13) "fine Parries shall cooperate to minimize tax exposure; however, neither
Party shalll be obligated ten n1CUr any financial burden to reduce taxes for which the other Party is
respionsibile hereunder, All Solar Energy dehivereid by Seller to Buyer hereunder shall hie sales
kir resale, with Buyer reselling such Solar Fnergy. Buyer shall obtain and provide Seller with
any certificates required by tiny Goverru-nental Authority, or otherwise reasonably requested by
Seller to evidence that the deliveries of Solar Energy hereunder are sales for resale.
193 flues :mAi,lRenaltics, Each P,arty shall play when due all fees, fines, penalties or
COSAS inCLHI-ed by such Party or its agents, eriployees or contractors For nica,womplkince by such
Party, its employees, or subcontractors w0h, any provision oil" this Agrelenrierit, or arty, cointr,actual
obligabon, Pertnit or requirenrents of Law except for such fines, penallion; and cosis that are
being actively contested in good faith and with due diligence by such Party and 16r which
adequate financial rcsmws have been sell aside to pq such fines, penalties or oosO in the event
of an adverse detern-tination.
191A Diselairner of Tbird Pokily Benieficiarllei ghts, In executing this Agreement,
neither Party extends, and shall not be constmed to exterid, its credit ol" financial support for the
benefit cit any third. parties lending money to or having other transactions with the other Party,
Nothing in this Agreement shall be construed to create any duty to, or standard of care with
reference to, or army liability to, any Person not a party to this Agreement.
42
City of Denton Solar PFIA
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191.5 Relatilonship of the Parties.
(A) This Agreement shall not be I interpre(ed to create an assocUllion, Joia I rot
venture, or partnership between the Parties nor to irnpose any partnership obliga6on or liability
upon either Party, Except as. specifically provided for in Sectiot 11.4, neither Party shall have
any right, pc))Arer, or authority to enter into any agreement or undertaking foi, or act oil behalf'of,
or to act as anagent or represenuative of, the other Party.
(11) Each Party shall he solely liable for the payrnent (,)if all wages, [axes, and
other costs related to the employment of'persons to perform such services, including, all federal,
state, and local Income, social security, payroll, and, employment taxes and statutorily mandated
workers' compensation coverage. None of` the persons eniployed, by as Party shall be considered
employees of` the other Party for any puri -pose.
1 .6 Severabillity, In the event any of file, terms, covenan,B, or conditions of this
Agreement, 4s Fxfiibits, or the application of any sluch lerins, covienants, or conditions, shall bie
lield invalid, Illegal, or uneriftwceable by any court or adminisirative body all
other lernis, covicnanL%, and conditions of the Agreement and their application not adversely
affected thereby shall renlain in force and eflect.
19.7 Comgletc,
--Agrc_&nig,ntj Amendinients, The terms and provisions contained in
this Agreement COnStilUtle the entire agreernent between Buyer and Seller \vAh respect to tile
subject inatter of this Agreelnent and shall supersede all pl-CViOUS GOallllarnCdti0nS,
representations, oragrelernients, either verbal orA,iltlen, bletween Buyer and Seller wilh respect to
the sulhject matter of this Agreement. This Agreement rnay be amended, changed, modified, or
altered, provided thal such arniendment, change, modification, or alteration shall be ill writing
and signed by both Parties, and providcd ffirther, th,at certain, of the Exhibits attached to this
Agrecrl'ieni tnay ll,e changed to the extent Conteillplated by the express provisions of tills
Agrc,.enient,
It Binding. Effect,1Stqijdard of RievieNy.
(A) This Agreement, as it may be amended fi-oni time twa time pursualit lo this
A...rticle .
19, shafl be binding upon and inure to Ille beirefil of the Parties a
rtierld, thiefi� respective
. ... . ...
suceessors-in-unereat, legal representatives, and, assigns permitted hereunder. Neither Panay shall
seek (directly or indireetty), nor suppoil any third Party in seeking,,, to revise tile prices, fees,
rates, tel"IYES or Conditions acct fOrtril in or established according to this Agreement through
application or complaint to the Public Ulilil,y of Texas or the F"Jeral Energy
Regulatory Commission of' the Uniled States. FUllher, the Parties agree that the standard of
review for changes to the prices, fees, rates, terms or conditions set limh in or estabfishied
according to this Agreement proposed by as Party (to the extent that any waiver herein is
unenforceable or ineffiective as to such Pany), as norm -Party or any regulatory agency actingsua
spco,ite shall soliely be the "'public, isiterest" application of the" , just and reasonable" standard Of
review set forth in United Gtis Pij,w Line Co. v, lWobile Gas Service Coq),, 3501 US 332 (1 56)
an(] F(,,,eleral ("onimission v lyic"rrej, Pacific Povver 350 U.S. 348 (19,56) and clatified
:civ then- progeny, including Moi.gan Stanley Caj.)ilal Grouj,,r, v, Public 1,161. Disr No, I
Snohomish, 554 US. 527 (200 , or the "PUblic interest" mandard, ol"review set fi.,lah, ini Jfigh
IN
City of Denton SAtr NIA
�R II)AC ll II)
PPoints Natural Gas CO, v, Railil:uld (7onunission, Tex, Civ. App---Austin 1971, irril relf't1nre,
and the Patlies shall not take as contrary position in any leu rocceding.
(B) Each Party acknowledges and aigyrees that electricity inarkels are volatile
and unpredictable, and inarket prices can increase to intflitiptes ofthe Solar Energy flayrnerit at
or decrease to fractions ot'dic Solar Energy Raynient Rate given the length of the Tenn of this
Agreement. In light of this, the rates and terms arrid conditions oif this Agreement are just and
reasonable and will continue to be Just and reasonable even if inarket prices urcrease or decrease
significantly, including as a result oficirCUrnstances that were not foreseen by the Parties at the
time this Agreeirient was entered into. Fach Party Ini-thee acknowledpeis that (i) it is in the
Parly's best interests U.) enter into this Agreement, (ii) it has entered into this Agreement freely
and without duress cur coercion by [lie other Party,, and (iii), neither Party haas arra undue advantage
or bargaining, power over the other Pany",
19 9 Headings, ("'aptions and headings used in this Agreement are torr ease of'
reference only, and do not constitute a part ofthis Agrelerrient,
19.10 Cpunter ipart % hirci Ued.....Allreement, This Agreernt!nl may be executed in any
nurnber, of cciurater parts, and cach executed counteq)art shall have the sarne I'61-ce and ell w as an
original instrinnent. An or executed copy of this Agreernent or any other related document
may be copied and stoired on computer tapes and disks (aii 111inaged Agreeinent"), If in ling ed
Agreerrient is introduced as evidence is any j udicial, arbitration, inediation or administrative
proceedings, it shall he considered as admissible evidence, Neither Party shall obJect to the
admissibility of the Iniaged Agreement on the basis that such was not OriginOted or maintained in
documentary form under the hearsay rule, the best evidence rule or other rules of evidence,.
l9i,11 (3oi vern ing La %v ; Buri di ticrn ; VEn tic, The laws
toicontractsnide and enteredinto intheStatcofTextis shall govicrithug Azrieci ent, Forany
g -n
dispute arising out of this Agreernent, the Parties hereby irrevocably submil to the exclusive
Jurisdiction of the stale or fedeml courts located nr Dallas, Texas,
19.12 Ban1crupitcy Code Matters. The Parties acknowledge anid intend that this
Agreemeril, the tnqnstletia.)ins coniternplalled in this Agycernent, and any that maybe
proV Ided by either Party to the other under this Agreenrent will each, and together, constitute one
and, tire sarne "forward contract,"', "I'orward agreernii and "niaster noting agreerrient" within
the nricaning of tire Bankruptcy Coide, and that Buyer and Seller are "Rit-ward contract
trierch ants" within the nicaning ofthe Bari k ru PtCY Code, Each Party agrees, that it will not rnake
any assenion or clann, or otherwise take any position to the effect that this Agreement, the
transactions contemplated tinder this Agreement, ,,ind any insin-urniclit(s) that may be provided by
wither Party under this Agreement (including the Guaranty) do Tiol each, and together, constitute
one and the sarne "'forward contract," 1brward agreernent" and ""narrater netting agreernent"
within the meaning of (lie Bankruptcy Code, or that Buyin- and Sehcr are not "'forward contract
inierchants" Nvithin the aicaning ofthe Bankruptcy Code. Williota hiinifing Ow L
�crwralily ol,'the
foregoing, flic Parties acknwA`I0dgC and ',Agree that, (i) pUrSUant to Article 362(b)(6) of the
Bankruptcy Code, as setoiff made irt connection with this Agrelemeril is not enjoinext or othe�luiise
precluded by the autionratic stay in by the Bankruptcy Code; and (ii) pUrSUant to Article
M
City of Detiton Solar i1P,,%
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546(e) ol " the Bankruptcy Code, transfers rn,"ide in connection \with this Agreement are not sill!�pect
to avoidance,
M 13 Confidentialilv. The Parties ackrimAlledge that portions of this Agreement
contain Confidential Information and may reqtirre the Rarties to disclose additional Confidential
Irdbrination hereunder, Each Party agrees chat it sliall not, withoat the written consent ofthe
party or as otherwise Provided herein, disclose to any third party (other than to the disclosing
party's Affiliates, constiltants and advisors who need to know stich infibrin a lion in connection
with the performance oftheir duties or services for such Affiliates, or the disclosing Party), SLICII
portions ol this Agreement, or the terms and provisions hiereof", or, any additional Confidential
Information disclosed pursuant, to the Part),,'s performance of this Agreement snarl idenfified as
Clonfidierifial, Information at the firne to such disclosure, except, to the exMit that disclosure to a,
tliard party is required by Law,
19,14 Texas Public 1"forroation Act., 'Notwithstanding any other provision of this,
Agreernent, the Parties understand tbat'Buycr is a governmental entity and is required to comply,
and Buyer does hereby agree to cornplY, with the Texas Public Int6rinabon Act (Chapter 552 of
the 'I"exas Gioverliment Code) when respon,ding to requests fi)r records, in its possession excelit
where the inl'brination is considered pUblie POW10- Utility cornpctitive inibmiation protected by
the provisions of the Texas Goventment Code, Sections 552.101, 5511014, 2,110 aildJor
552,1313. Disclosure of information required by the I "exas Public Information Act shall not
constitute a breacb of any provision contained her6r if so ordered 'by the State ofTexas Attorney
General. Notwithstanding the foregoing, the Parties acknowledge and agree that this Agrcernent
is confidenti,,il, c(:)nnricrcially w.nsili've inforrmation protected fron) disclosure pursuant to the
Tcxas Public Inforniation Act, In the event that Btiyer is requested or required by legal or
regulatory authority to disclose this array Confidential lnforiiiaticon, Buyer shall proinpfly notify
Seller Ol'SUch request or requirement prior to, diSCIOSLIT'e, if pennitted by law, so that Scllcr nlay
seek an appropriate protective order, In the event that as proteelive order or other riornedy is not
obtairied, Buyer agrees to Furnish, only that pi.,)rtion of the Confidential InIbrmation that it
reasonably determines, in colISUltation with its counsel, is consistent with Ifie, scope of the
st,jbpoena or deniand, and to exiercise reasonable efforts to obtain assurance that confidential
treatirient will be accorded such Confidential Information,
Iremaindero Mly page intentionally It, -1
f ft blank
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City, of Denton Sohr PPA
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IN WITNESS WHEREOF, the Parties have executed this Agreement.
ENGIE LONG DR/OV SODA
By
Title: :" °l. _.
CITY OF DENTON, TEXAS
A Texas home -rule corporation
Name: Todd Hileman
Title: City Manager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
46
THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational
obligations and bust ess terms.
Signature
Title
Department
Date Signed: �'LLL
11101110110
I of 1,
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Muliffm
Exhibit B-1 --,P'age I of'!
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EXHIBITD-2
Exbibit B-2 -- Page I of I
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MEN!
11001
Exbibit B-2 -- Page I of I
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EX1,11BIT B-3
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11
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i.................... I ..................................................... I ........... E] .................. .....
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INhibit [3-4 — Page 1, of"I
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[&millifl
NOTICE ADDRIKSSES
MCM=
Denton Municipal Electric
1659 Spencer Road
Denton, TX 76205
Attn� General Manager
T'elephorw: (940) 349-8487
Facsiniile(940) 349-7334
With as copy lo.
City Legal Dept.
2115 E. McKinney Street
Attentiow City Attorney
Dentori,Texas 76201
Telephonea (940) 349--8333
Facsiiuilc� (940) 382 7923
FNCYIE Long Draw Solla,r LLC
Denton Municipal Electric
16 9, Spencer Rd,
Denton, TX 76205
Attentiom Energy Settlements
Email, Mike, Wilsonl(( citofdetiton.cc)m
Exhibit C -- Page I of I
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I
i
Exhibit D Page 2 of 2
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