The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Presenting a live 90-minute webinar with interactive Q&A
Solar Energy Projects:
Structuring EPC Agreements Unique Issues in Solar PV EPCs, Performance Guarantees and Defect Warranties
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
TUESDAY, NOVEMBER 28, 2017
Meredith L. Hiller, Esq., Holland & Knight, Boston
Stephen J. Humes, Partner, Holland & Knight, New York
NOTE: This is not a legal document to be used for any specific transaction without review
and revisions by qualified counsel.
© Holland & Knight LLP – ALL RIGHTS RESERVED
PV SYSTEM ENGINEERING, PROCUREMENT
AND CONSTRUCTION AGREEMENT
_______________________
between
[CONTRACTOR’S NAME]
and
[OWNER’S NAME]
dated as of
______ __, 2017
NOTE: This is not a legal document to be used for any specific transaction without review
and revisions by qualified counsel.
i
© Holland & Knight LLP – ALL RIGHTS RESERVED
TABLE OF CONTENTS
1. DEFINITIONS .....................................................................................................................1
2. RULES OF INTERPRETATION ........................................................................................1
3. CONTRACT PRICE AND SYSTEM SIZE ........................................................................1
3.1 System Contract Price ..............................................................................................1
3.2 Intentionally Omitted ...............................................................................................1
3.3 Payments of System Contract Price .........................................................................1
3.4 Intentionally omitted ................................................................................................3
3.5 Inclusions and Exclusions from Contract Price .......................................................3
3.6 Manner of Payments ................................................................................................4
4. CONDITIONS OF THIS AGREEMENT PRIOR TO INSTALLATION ..........................4
4.1 Approvals Termination ............................................................................................4
4.2 Intentionally Omitted ...............................................................................................5
5. APPROVALS; PERMITS; SOLAR INCENTIVES ...........................................................5
5.1 Utility Approval .......................................................................................................5
5.2 Governmental Approvals| ........................................................................................5
5.3 Solar Incentives ........................................................................................................6
5.4 Intentionally omitted ................................................................................................6
6. PROCUREMENT, INSTALLATION AND TESTING OF SYSTEM ..............................6
6.1 Limited Scope Work ................................................................................................6
6.2 Procurement/Delivery ..............................................................................................6
6.3 Installation Work .....................................................................................................7
6.4 Substantial Completion ............................................................................................8
6.5 Final Completion .....................................................................................................8
6.6 Contractors .............................................................................................................10
6.7 Change Orders .......................................................................................................10
7. SYSTEM MILESTONE SCHEDULE ..............................................................................11
8. SYSTEM OWNERSHIP, OPERATIONS, TRANSFER AND OWNERSHIP OF
ENVIRONMENTAL ATTRIBUTES ...............................................................................11
8.1 Title Transfer; Risk of Loss ...................................................................................11
8.2 Ownership of Environmental Attributes ................................................................11
8.3 Owner of the System ..............................................................................................12
9. ADDITIONAL OWNER AND SAFARI RESPONSIBILITIES ......................................12
9.1 Additional Owner and Contractor Responsibilities ...............................................12
10. REPRESENTATIONS AND WARRANTIES..................................................................15
10.1 Warranties Relating to Agreement Validity ..........................................................15
10.2 Additional Representations and Warranties of Owner ..........................................16
10.3 System Warranties .................................................................................................16
ii
© Holland & Knight LLP – ALL RIGHTS RESERVED
10.4 Installation Warranty .............................................................................................16
10.5 Equipment Warranties ...........................................................................................16
10.6 Performance Guaranty ...........................................................................................17
10.7 No Other Representations and Warranties .............................................................17
10.8 EXCLUSION OF WARRANTIES........................................................................17
10.9 O&M Agreement ...................................................................................................17
11. FORCE MAJEURE ...........................................................................................................17
11.1 Definition ...............................................................................................................17
11.2 Excused Performance.............................................................................................17
11.3 Termination in Consequence of Force Majeure Event ..........................................18
12. DEFAULT .........................................................................................................................18
12.1 Default.................................................................... Error! Bookmark not defined.
12.2 Remedies ................................................................ Error! Bookmark not defined.
13. INTENTIONALLY OMITTED ........................................................................................18
14. LIMITATION OF LIABILITY .........................................................................................18
15. ASSIGNMENT ..................................................................................................................18
15.1 Assignment by Contractor ..................................... Error! Bookmark not defined.
15.2 Assignment by Owner............................................ Error! Bookmark not defined.
16. CONFIDENTIALITY........................................................................................................18
16.1 Confidentiality Obligation ..................................... Error! Bookmark not defined.
16.2 Permitted Disclosures ............................................ Error! Bookmark not defined.
16.3 Goodwill and Publicity .......................................... Error! Bookmark not defined.
16.4 Enforcement of Confidentiality Obligation ........... Error! Bookmark not defined.
17. INDEMNITY ................................................. ERROR! BOOKMARK NOT DEFINED.
18. INSURANCE .....................................................................................................................18
18.1 Coverages ............................................................... Error! Bookmark not defined.
18.2 Cross Liability Coverage ....................................... Error! Bookmark not defined.
18.3 Insurers ................................................................... Error! Bookmark not defined.
18.4 Evidence of Insurance ............................................ Error! Bookmark not defined.
18.5 No Waiver .............................................................. Error! Bookmark not defined.
18.6 Failure to Maintain Coverage ................................ Error! Bookmark not defined.
18.7 Right to Purchase Insurance................................... Error! Bookmark not defined.
18.8 Certified Copies ..................................................... Error! Bookmark not defined.
18.9 No Representation of Coverage Adequacy ............ Error! Bookmark not defined.
19. DISPUTE RESOLUTION .................................................................................................18
19.1 Procedure ............................................................... Error! Bookmark not defined.
19.2 Informal Resolution ............................................... Error! Bookmark not defined.
19.3 Litigation ................................................................ Error! Bookmark not defined.
19.4 Continuance of Work During Dispute ................... Error! Bookmark not defined.
iii
© Holland & Knight LLP – ALL RIGHTS RESERVED
20. MISCELLANEOUS ..........................................................................................................18
20.1 Amendments; Change Orders ................................................................................18
20.2 TIME OF THE ESSENCE; Standards ...................................................................18
20.3 Limited Effect of Waiver .......................................................................................18
20.4 Incorporation of Preamble, Recitals, Appendices, Schedules and Exhibits ..........18
20.5 Singular, Plural and Gender ...................................................................................18
20.6 No Construction Against Draftsman ......................................................................19
20.7 WAIVER OF JURY TRIAL ..................................................................................19
20.8 Headings ................................................................................................................19
20.9 Entire Agreement ...................................................................................................19
20.10 Survival ..................................................................................................................19
20.11 Governing Law and Jurisdiction ............................................................................19
20.12 Severability ............................................................................................................19
20.13 Relation of the Parties ............................................................................................19
20.14 Successors and Assigns..........................................................................................19
20.15 Counterparts ...........................................................................................................19
20.16 Attorneys’ Fees ......................................................................................................19
20.17 Notices ...................................................................................................................19
APPENDICES AND SCHEDULES
Appendix A Definitions
Schedule 1 Description of System
Schedule 2 Work
Schedule 3 Milestone Schedule
Schedule 4 Reports, Plans and other Documentation Regarding Hazardous Substances
Schedule 5 System Performance Guaranty
Schedule 6 Form of Waiver and Release of Lien upon Installment Payment
Schedule 7 Form of Waiver and Release of Lien upon Final Payment
Schedule 8 Tenant Restrictions – Leases and Power Purchase Agreements
Schedule 9 Form of O&M Agreement
Schedule 10 Site Description
Schedule 11 Applicable Permits
Schedule 12 Testing and Commissioning Program
NOTE: This is not a legal document to be used for any specific transaction without review
and revisions by qualified counsel.
1
© Holland & Knight LLP – ALL RIGHTS RESERVED
PV SYSTEM ENGINEERING, PROCUREMENT AND CONSTRUCTION
AGREEMENT
This PV System Engineering, Procurement and Construction Agreement (this
“Agreement”) is made and entered into as of this __ day of ______, 2017 (the “Effective Date”),
by and between [ENTITY NAME], a [STATE] [ENTITY TYPE] (“Contractor”), and
[ENTITY NAME], a [STATE] [ENTITY TYPE] (“Owner”). Owner and Contractor are
sometimes referred to generically and in the singular in this Agreement as a “Party” and
collectively in this Agreement as the “Parties.”
WHEREAS, Owner owns the land and improvements comprising the [SITE
NAME], located at [ADDRESS], as shown on Schedule 10 (“Site”); and
WHEREAS, Owner desires that Contractor design, engineer, permit, procure and
install the System at the Site and perform the other services set forth in this Agreement, and
Contractor is willing to do the same, upon the terms and subject to the conditions set forth
herein.
NOW THEREFORE, in consideration of the mutual promises and agreements set
forth below, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:
1. DEFINITIONS. In addition to the other words and phrases specifically defined
elsewhere in this Agreement, in the recitals of this Agreement, in the appendices attached
to this Agreement and in the schedules attached to this Agreement, words and phrases
used in this Agreement, where capitalized, are defined as set forth in the definitions set
forth in Appendix A attached hereto.
2. RULES OF INTERPRETATION.
3. CONTRACT PRICE AND SYSTEM SIZE.
3.1 System Contract Price. The total price (“System Contract Price”) that Owner
will pay to Contractor pursuant to this Agreement is System Constant multiplied
by the Final System Nameplate Capacity. The System Contract Price for the
System shall not exceed the System Contract Price. The Final System Nameplate
Capacity for the System shall not be more than [XX] percent ([XX]%) greater
than the DC System Size or more than [XX] percent ([XX]%) less than the DC
System Size. The “DC System Size” of the System is set forth in Schedule 1,
attached hereto. The Final System Nameplate Capacity for the System may be up
to [XX] percent ([XX]%) greater than the DC System Size or up to [XX] percent
([XX]%) less than the DC System Size without the consent of the Owner and
without the need for a Change Order, provided that Contractor shall provide
Owner with prompt written notice of such difference in the DC System Size.
3.2 Intentionally Omitted.
3.3 Payments of System Contract Price.
2
© Holland & Knight LLP – ALL RIGHTS RESERVED
(a) Intentionally Omitted.
(b) Owner shall pay the System Contract Price to Contractor in installments
(each an “Installment Payment”) when certain milestones (each a
“Contractor Milestone”) are achieved, as follows:
(i) [XX] percent ([XX]%) of the System Contract Price on the
Effective Date;
(ii) [XX] percent ([XX]%) of the System Contract Price upon the
placing by Contractor of the order for the Modules for the System
and the verification of said order to the Owner, including
presentation of purchase orders to the Owner;
(iii) [XX] percent ([XX]%) of the System Contract Price upon delivery
of the racking for the System to the Site;
(iv) [XX] percent ([XX]%) of the System Contract Price upon the
delivery of the Modules for the System to the Site, at which point
Owner shall be deemed to have paid all amounts owed for the
purchase of the Modules;
(v) [XX] ([XX]%) of the System Contract Price upon the installation
of the racking for the System;
(vi) [XX] ([XX]%) of the System Contract Price upon Substantial
Completion;
(vii) [XX] ([XX]) of the System Contract Price, subject to adjustment
caused by an increase or decrease in the System Contract Price to
the extent that the DC System Size is smaller than or larger than
the Final System Nameplate Capacity, upon Final Completion.
Prior to receiving an Installment Payment for the completion of a
Contractor Milestone, Contractor shall submit to Owner a written
application (“Installment Application”) establishing that Contractor has
achieved the particular Contractor Milestone, which Installment
Application shall include, but not be limited to: substantiating data and
information, as required by Owner; a certification from Contractor that the
Labor Work and/or materials which are the subject of the particular
Contractor Milestone are free from all defects and are in accordance with
the Final Construction Drawings and all Approvals; and waivers of lien, in
the form attached hereto as Schedule 6, from Contractor and from all
subcontractors and suppliers who are furnishing, on an aggregate basis, in
excess of $[XX] worth of labor, materials, equipment or services for the
Work. In each case where an Installment Payment will include money for
a final payment to a subcontractor performing Labor Work or to a vendor
supplying materials or equipment, the Installment Application shall also
3
© Holland & Knight LLP – ALL RIGHTS RESERVED
include a final waiver of lien, in the form attached hereto as Schedule 7,
from the subcontractor providing the particular Labor Work and/or the
vendor supplying the particular materials or equipment. Acceptance of
said Installment Payment from Owner by Contractor shall constitute full
waiver and release by said subcontractor and/or vendor and by Contractor
of all claims against Owner arising out of the Labor Work, materials or
equipment provided by said subcontractor or vendor. To the extent
approved by Owner in accordance with this Agreement, and subject to
withholding for improper performance of the Work, defective Work,
defective materials or equipment, claims or potential claims of unpaid
subcontractors or suppliers of which Owner has notice, other damage to
the Owner related to the Work, or otherwise as provided in this
Agreement, Owner shall pay Contractor the Installment Payment
requested by Contractor within [XX] ([XX]) days following receipt by
Owner from Contractor of an Installment Application.
(c) Final Completion. In order to achieve Final Completion as defined in
Section 6.5, installation of the System must be in strict accordance with
this Agreement, Contractor shall have fully complied with
Subsection 9.1(h) of this Agreement and Owner must have received: (i) a
certification from Contractor that all Contractor Parties have been paid in
full, and (ii) final waivers of lien, in the form attached hereto as Schedule
7, from Contractor and all the Contractor Parties. Acceptance of the final
Installment Payment by Contractor shall constitute full waiver and release
by Contractor for the System. Contractor shall submit and deliver and
assign all Warranties, guaranties, as-builts and other closeout documents
for the System to Owner as preconditions to Owner’s payment of the final
Installment Payment of the System Contract Price.
3.4 Intentionally omitted.
3.5 Inclusions and Exclusions from Contract Price.
(a) The System Contract Price for the System includes, without limitation, the
cost of the Modules, the cost of the storage of the Modules, the costs of:
structural improvements to the Site and buildings and/or improvements
thereon; electrical system upgrades to the Site and buildings and/or
improvements thereon, including any materials required for such
improvements; the Work for the design, permitting, installation and
interconnection of the System; all materials and equipment comprising the
System; modifications to the System required by the Local Electric Utility;
all Work, materials and equipment required to interconnect the System to
the electric distribution system of the Local Electric Utility; repairs or
changes to the electric system of the Site, the buildings and/or
improvements thereon; roof repairs required for the Work; taxes and fees
of Governmental Agencies and Local Electric Utilities associated with any
Approvals; and any costs associated with the presence of Hazardous
4
© Holland & Knight LLP – ALL RIGHTS RESERVED
Substances in, on or under the Site and/or any of the buildings and/or
improvements thereon if the presence of said Hazardous Substances is set
forth in any of the reports, plans and other documentation listed in
Schedule 4 of this Agreement. Any costs for the System associated with
the presence of Hazardous Substances in, on or under the Site and/or any
of the buildings and/or improvements thereon if the presence of said
Hazardous Substances is not set forth in any of the reports, plans and other
documentation listed in Schedule 4 of this Agreement are excluded from
the System Contract Price for the System. Any costs for the System that
are the subject of a Change Order signed by Owner and Contractor and
due to a change requested by Owner, prior to Contractor incurring or
committing to incur any such cost, are excluded from the System Contract
Price.
(b) Notwithstanding anything to the contrary contained in this Agreement, the
costs of the following are included in the System Contract Price and the
System Contract Price and any of the following costs above the System
Contract Price will be Contractor’s sole costs, expense and responsibility:
(i) Intentionally omitted.
(ii) Any tariffs charged by the United States government, whether
retroactive or not, (“Tariffs”) on any components of the System.
(c) The System Contract Price shall not include any costs associated with any
changes to the System, Installation Work, Commissioning Work or Final
Completion Tasks required due to circumstances Contractor was aware of,
or should have been aware of as a result of the completion of the Limited
Scope of Work and Procurement and Transportation Work. Any such
costs shall be Contractor’s sole costs, expense and responsibility.
3.6 Manner of Payments. All payments from Owner to Contractor set forth in
Section 3.3 hereof are due and payable as provided in Section 3.3 hereof. All of
the aforesaid payments from Owner to Contractor shall either be by check sent to
the address of Contractor set forth in Section 20.17 hereof or by wire transfer in
lawful currency of the United States and pursuant to the following wire transfer
instructions:
Bank:
ABA:
Account:
Account Name:
4. CONDITIONS OF THIS AGREEMENT PRIOR TO INSTALLATION.
4.1 Approvals Termination. If, within [XX] ([XX]) days of the Notice to Proceed, the
Approvals, other than final electrical approval (on Substantial Completion of the
5
© Holland & Knight LLP – ALL RIGHTS RESERVED
System) of the municipality in which the System is located and the final approval
(on Substantial Completion of that System) of Local Electric Utility serving the
Site are not obtained, Owner can terminate this Agreement by written notice to
Contractor and upon such termination, this Agreement shall be null, void and of
no further force or effect, except that Contractor shall deliver the Termination
Deliverables prepared or under progress on the date of termination to Owner
within [XX] ([XX]) days of Contractor’s receipt of the Owner’s notice of said
termination.
4.2 Intentionally Omitted.
5. APPROVALS; PERMITS; SOLAR INCENTIVES.
5.1 Utility Approval. Contractor shall obtain, with the reasonable assistance of
Owner, all necessary approvals from the Local Electric Utility, including but not
limited to interconnection approval (collectively “Local Electric Utility
Approvals”), to install and operate the System at the Site, interconnect the System
to the electrical distribution System of the Local Electric Utility and conduct the
complete Work for the System, including the submission of interconnection
permit applications and interconnection agreements for interconnection of the
System with the electrical distribution system of the Local Electric Utility, and to
allow for net metering of the System. For the avoidance of doubt, Contractor will
be responsible for the submittal, management, and oversight of the application
process until the Local Electric Utility Approvals are obtained, provided that
Owner provides the information, property access, and signatures necessary for
Contractor to carry out this duty. All applications, plans, agreements and other
documents submitted to the Local Electric Utility shall be subject to the prior
written approval of Owner; provided that if the Owner does not provide said
written approval or a written disapproval of any application, plan, agreement or
other document submitted to Owner by Contractor pursuant to the notice
provisions of this Agreement within [XX] ([XX]) Business Days of Owner’s
receipt of same, then Owner is deemed to have approved the particular
application, plan, agreement or other document submitted to Owner.
Notwithstanding anything to the contrary set forth in this Section 5.1, Contractor
is not required to commence or prosecute any litigation, arbitration or
administrative proceedings to obtain any Local Electric Utility Approvals, and its
failure to do so shall not be an Event of Default.
5.2 Governmental Approvals|. Contractor shall obtain, with the reasonable assistance
of Owner, all Governmental Approvals necessary for the installation and the
operation of the System at the Site in compliance with Applicable Law. The
assistance of Owner may include provision by Owner of electrical drawings and
structural drawings for each Site. For the avoidance of doubt, Contractor will be
responsible for the submittal, management, and oversight of the application
process for all Governmental Approvals until the Governmental Approvals are
obtained, provided that Owner provides the information, property access, and
signatures necessary for Contractor to carry out this duty. All applications, plans,
6
© Holland & Knight LLP – ALL RIGHTS RESERVED
agreements and other documents submitted to any Governmental Authority shall
be subject to the prior written approval of Owner; provided that if the Owner does
not provide said written approval or a written disapproval of any application, plan,
agreement or other document submitted to Owner by Contractor pursuant to the
notice provisions of this Agreement within [XX] ([XX]) Business Days of
Owner’s receipt of same, then Owner is deemed to have approved the particular
application, plan, agreement or other document submitted to Owner.
Notwithstanding anything to the contrary set forth in this Section 5.2, Contractor
is not required to commence or prosecute any litigation, arbitration or
administrative proceedings to obtain any Governmental Approvals necessary for
the installation and the operation of the System at the Site, and its failure to do so
shall not be an Event of Default.
5.3 Solar Incentives. Contractor shall obtain, with the reasonable assistance of
Owner, all the Solar Incentives, including but not limited to, preparing, filing,
refilling and processing all of the necessary applications and related
documentation required for Owner to obtain the Solar Incentives. In fulfilling its
obligations under this Section 5.3, Contractor shall act diligently and use all
commercially reasonable and necessary efforts to obtain the Solar Incentives. For
the avoidance of doubt, Contractor will be responsible for the submittal,
management, and oversight of the application process, provided that Owner
provides the information, property access, and signatures necessary for Contractor
to carry out this duty. All applications, plans, agreements and other documents
submitted to any Governmental Authority, and/or Local Electric Utility, as
applicable, shall be subject to the prior written approval of Owner; provided that
if the Owner does not provide said written approval or a written disapproval of
any application, plan, agreement or other document submitted to Owner by
Contractor pursuant to the notice provisions of this Agreement within [XX]
([XX]) Business Days of Owner’s receipt of same, then Owner is deemed to have
approved the particular application, plan, agreement or other document submitted
to Owner. Notwithstanding anything to the contrary set forth in this Section 5.3,
Contractor is not required to commence or prosecute any litigation, arbitration or
administrative proceedings to obtain any Solar Incentives, and its failure to do so
shall not be an Event of Default.
5.4 Intentionally omitted.
6. PROCUREMENT, INSTALLATION AND TESTING OF SYSTEM.
6.1 Limited Scope Work. Upon the Notice to Proceed, Contractor shall perform the
Limited Scope of Work.
6.2 Procurement/Delivery. Contractor shall perform the Procurement/Transportation
Work for the System in accordance with the Milestone Schedule for the System.
Contractor shall procure all of the components of the System, set forth on
Schedule 1 and all other components of the System required for said System to
achieve Commercial Operation and Final Completion. As part of the
7
© Holland & Knight LLP – ALL RIGHTS RESERVED
Procurement/Transportation Work, Contractor shall cause the preparation of all
design drawings and all final construction drawings, which shall be subject to the
Owner’s review and prior written approval, (“Final Construction Drawings”) of
the System and the mounting of the System on, each Roof area of the Site;
provided that if the Owner does not provide said written approval or a written
disapproval of any Final Construction Drawing submitted to Owner by Contractor
pursuant to the notice provisions of this Agreement within [XX] ([XX]) Business
Days of Owner’s receipt of same, then Owner is deemed to have approved the
particular Final Construction Drawing submitted to Owner. The term “Final
Construction Drawings” includes a signed, sealed certification by a professional
structural engineer, licensed in the state in which the Site is located, that the
installation of the System on each Roof will not damage or impair the structural
integrity of the building on which that Roof is located. All of the components of
the System set forth on Schedule 1 and all other components of the System
required for the System to achieve Commercial Operation and Final Completion
shall be new.
6.3 Installation Work.
(a) Contractor shall cause the System to be installed on the Site in accordance
with:
(i) all installation specifications provided by the manufacturer and
vendor of each component of the System,
(ii) the Final Construction Drawings for the System,
(iii) the Local Electric Utility’s interconnection requirements,
(iv) Applicable Law,
(v) Prudent Utility Practice,
(vi) All Approvals for that System,
(vii) Schedule 1,
(viii) Schedule 2, and
(ix) Schedule 3.
(b) Contractor shall provide, as part of the System Contract Price for the
System, system monitoring equipment and [XX] ([XX]) years of
monitoring services with the data monitoring system set forth in
Schedule 1, attached hereto or a system that is of the same quality and
which functions in the same manner (the “Monitoring Equipment”). Any
monitoring displays and or kiosks, which will be chosen at the sole
discretion of the Owner, will be acquired at an additional cost above the
8
© Holland & Knight LLP – ALL RIGHTS RESERVED
System Contract Price for the System. Contractor shall install the
Monitoring Equipment as part of the Installation Work.
6.4 Substantial Completion. Contractor will have achieved substantial completion
(“Substantial Completion”) of the System when all of the Modules, inverters and
racking and mounting hardware for the System have been installed and wired.
6.5 Final Completion. Contractor will have achieved final completion (“Final
Completion”) of the System when the System is in Commercial Operation and the
Final Completion Tasks set forth in Schedule 2 and below are complete.
(a) Interconnection. Contractor shall use commercially reasonable efforts to
arrange for interconnection by the Local Electric Utility of the System and
all portions thereof to the electric distribution system of the Local Electric
Utility immediately upon Substantial Completion of the System or portion
thereof, as applicable. Contractor shall lead the interconnection process
and manage required testing and commissioning. Subject to the
provisions of Subsection 9.1(g) hereof, Owner shall provide the Local
Electric Utility reasonable access to the Site to conduct inspections and
shall cooperate with the Local Electric Utility in providing necessary
documentation and consents.
(b) Commissioning and System Acceptance Testing.
(i) Contractor shall perform the Commissioning Work as set forth in
Schedule 2.
(ii) As part of Final Completion of the System, the Contractor Parties
shall perform, or cause to be performed, all tests, approvals and
inspections of the Work required by all Governmental Authorities,
the Local Electric Utility and as otherwise reasonably necessary,
appropriate or customary to assure the Commercial Operation and
the proper operation of the System in accordance with all
Approvals of the System, Applicable Law and solar industry best
practices (collectively “System Acceptance Testing”). Contractor
shall notify Owner not less than [XX] ([XX]) Business Days prior
to the anticipated date of System Acceptance Testing for the
System or portion thereof, which shall be conducted to ensure that
the System is operational and able to be interconnected to the
electric distribution system of the Local Electric Utility. Owner
shall have the right, but not the obligation, to be present at and
observe the System Acceptance Testing. Contractor shall obtain
written confirmation of the results thereof and conformity of such
results with the then-agreed design of the System from the
contractor performing the System Acceptance Test. If, for any
reason, the System does not satisfactorily complete the System
Acceptance Test (as determined by the contractor), Contractor
9
© Holland & Knight LLP – ALL RIGHTS RESERVED
shall (or shall cause contractor to) repair or correct any defect or
deficiency that caused such failed test within [XX] ([XX]) days.
Upon completion of such repairs or correction, Contractor shall
cause such System Acceptance Test to be re-performed in
accordance with this Paragraph 6.5(b)(ii).
(c) Clean-up. Contractor shall keep the Site, including storage areas used by
it, free from accumulation of waste materials or rubbish arising out of the
Work, and prior to Final Completion of the System shall clean up, remove
and properly dispose of any such waste materials or rubbish from and
about the Site as well as remove all tools, equipment and materials of the
Contractor Parties.
(d) Liens. Contractor shall not place and shall not permit or suffer to be
placed by any Contractor Party any Liens on the Site. If any Liens are so
filed against the Site, Contractor shall cause such Liens to be removed,
satisfied and discharged of record against the Site within [XX] ([XX])
days of Contractor’s receipt of notice of such a Lien from Owner.
Notwithstanding anything to the contrary contained in this Agreement,
Contractor’s failure to comply with any provision of this Subsection 6.5(d)
shall be an immediate Event of Default by Contractor.
(e) Punch List. It is a condition of the Final Completion of the System and
Owner’s acceptance of that System that all of the requirements of this
Agreement with respect to Final Completion have been met to the
Owner’s reasonable satisfaction. Prior to Owner’s payment to Contractor
of that portion of the System Contractor Fee due on the Final Completion
of the System or portion thereof, and as pre-condition to Final Completion
of the System or portion thereof, Owner will provide Contractor with
written confirmation that Final Completion has been achieved with respect
to the System or portion thereof or with a punch list (“Punch List”) of
outstanding items with respect to the System or portion thereof, that do not
conform to the requirements of this Agreement. In the event that Owner
prepares a Punch List for the System or portion thereof, Final Completion
for the System or portion thereof, shall not be achieved until Owner and
Contractor each sign the Punch List stating that all of the items on the
Punch List have been completed in conformity with the requirements of
this Agreement.
(f) Roof Warranties. It is condition of the Final Completion of the System
that if Contractor has caused the roof warranty for any Roof to be voided
or impaired, Contractor shall, as part of the System Contract Price for the
System being installed on said Roof, perform all work and purchase all
materials necessary to fully reinstate said warranty for said Roof and shall
cause the full reinstatement of said warranty for said Roof.
10
© Holland & Knight LLP – ALL RIGHTS RESERVED
(g) System Warranties. Contractor shall transfer the System Warranties to
Owner.
6.6 Contractors. Contractor may procure the services of contractors which in
Contractor’s reasonable judgment may be necessary to complete the Work and
Contractor’s other duties and obligations pursuant to this Agreement; provided
that no such engagement shall relieve Contractor of any of its obligations or
liabilities under this Agreement. All Contractor Parties shall discharge their
respective obligations in full compliance with this Agreement. As between
Owner and Contractor, Contractor shall be solely responsible and liable for the
acts, omissions or defaults of all Contractor Parties engaged pursuant to this
Section 6.6. Nothing in this Agreement shall be construed to impose on Owner
any obligation, liability or duty to a Contractor Party (other than Contractor)
engaged pursuant to this Section 6.6 or to create any contractual relationship
between any Contractor Party, (other than Contractor) or other third party and
Owner including, but not limited to, an obligation to pay or to see to the payment
of any moneys due any such Contractor Party (other than Contractor) or other
third party. No Contractor Party (other than Contractor) is intended to be nor
shall be deemed a third party beneficiary of this Agreement. Contractor shall
advise each Contractor Party of the substance of this Section 6.6 with regard to
the primary relationship between Owner and Contractor. Contractor shall carry
out its obligations under and pursuant to its agreements with Contractor Parties in
order to facilitate the timely completion of the Work without unnecessary disputes
and complications.
6.7 Change Orders. Except as provided in Section 3.1 of this Agreement, there shall
be no change to the Work for the System, the System Contract Price, the Final
Construction Drawings, the manufacturer and model, as set forth on Schedule 1,
of the components of the System, the System Warranties or the Milestone
Schedule for the System set forth on Schedule 3, collectively a “Change,” except
to the extent provided in a written instrument signed by Owner and Contractor (a
“Change Order”). Each Change Order shall state the Parties’ agreement to the
following as applicable:
(a) The change in the size of the System;
(b) The change in the Work for the System;
(c) The amount of the adjustment in the System Contract Price for the
System;
(d) The amount of the adjustment in the System Contract Price for the
System;
(e) The change in the Final Construction Drawings for the System;
11
© Holland & Knight LLP – ALL RIGHTS RESERVED
(f) The change in the System components set forth on Schedule 1 for the
System; and/or
(g) The extent of the adjustment in the Milestone Schedule for the System.
The cost of any Change set forth in a Change Order shall be the actual cost of the
additional time and materials comprising the Change plus (in the case of an
Owner requested Change only) [XX] percent ([XX]%) of the actual cost of the
additional time and materials comprising the Change. Notwithstanding anything
to the contrary set forth in this Section 6.7, the increase or decrease in the size of
the System in DC Watts by [XX] percent ([XX]%) or less shall not be a Change.
7. SYSTEM MILESTONE SCHEDULE.
Contractor shall perform the Work in accordance with the milestones, set forth in
Schedule 3 (the “Milestone Schedule”), on or before the date set forth for achieving that
milestone set forth in the Milestone Schedule. Contractor shall achieve Substantial
Completion for the System on or before the Guaranteed Substantial Completion Date and
shall achieve Final Completion on or before the Guaranteed Final Completion Date. In
the event that Contractor fails to complete the Work required for any milestone set forth
in the Milestone Schedule, due to a Force Majeure Event or to delays by tenants of the
Site in signing interconnection applications and/or agreements, and/or providing access to
their leased areas, it shall pay Owner [XX] dollars ($[XX]) as liquidated damages for
each day that such milestone is not met until all necessary Work for completion of such
milestone is finished.
8. SYSTEM OWNERSHIP, OPERATIONS, TRANSFER AND OWNERSHIP OF
ENVIRONMENTAL ATTRIBUTES.
8.1 Title Transfer; Risk of Loss. Title, free of all Liens, to all components, materials
and supplies comprising or used in the installation of, the System shall pass to the
Owner upon the earlier of: (i) the date payment for the particular component,
material or supply is made by Owner, or (ii) the date on which the particular
component, material or supply is delivered to the Site. However, the risk of loss
for said components, materials and supplies comprising or used in the installation
of the System and for the System shall remain with Contractor until Final
Completion, and Contractor shall retain care, custody and control of said
components, materials and supplies comprising or used in the installation of the
System and the System until Final Completion. Title to each portion of the
System shall be in Owner when title to the first component of the System passes
to the Owner. Possession and control of each portion of the System, immediately
following Final Completion and acceptance of the System by Owner, shall be
turned over to Owner at which time title to the System shall be free of all Liens.
8.2 Ownership of Environmental Attributes. Owner will own all Environmental
Attributes associated with the System.
12
© Holland & Knight LLP – ALL RIGHTS RESERVED
8.3 Owner of the System. Owner shall at all times, subject, however, to the provisions
of Section 8.1, retain title to and be the legal and beneficial owner of the System
and the System shall remain the property of the Owner or Owner’s assigns. The
Parties specifically acknowledge and agree that, subject, however, to the
provisions of Section 8.1, Owner shall be the owner of the System for federal
income tax purposes and, in that connection, shall be entitled to the depreciation
deductions associated with the System as well as any investment tax credits or
other income tax benefits provided under the Applicable Law to which the
System’s owner may be entitled.
9. ADDITIONAL OWNER AND SAFARI RESPONSIBILITIES.
9.1 Additional Owner and Contractor Responsibilities.
(a) Health and Safety. Owner shall keep the Site, at all times from the
Installation Commencement Date through Final Completion, consistent
with Applicable Law pertaining to the health and safety of Persons and
property other than with respect to the obligations with respect to the Site
of Contractor under this Agreement. Contractor shall be responsible for
compliance with all Applicable Law pertaining to the health and safety of
the Contractor Parties and to the health and safety of all Persons on the
Site at any time as said health and safety is impacted on by the Work, the
System and the presence of the Contractor Parties on the Site.
(b) Hazardous Substances. Contractor is prohibited from bringing any
Hazardous Substances to the Site, unless otherwise expressly and
previously agreed in writing by the Owner and only to the extent and
subject to the conditions and requirements set forth in any such writing.
(c) Permitted Areas. Prior to any entry onto the Site by any Contractor Party
to perform any Work other than the Limited Scope of Work and the
Engineering, Contractor shall prepare and Owner shall have approved in
writing, plans for the Site, showing the locations of: (i) the portions of the
Site where the System is to be installed (collectively “Installation
Areas”); (ii) the staging areas (collectively “Staging Areas”) for the
installation of the System; (iii) the contractor and subcontractor parking
areas (collectively “Parking Areas”) for the installation of the System;
(iv) the laydown areas and equipment delivery areas (collectively
“Laydown Areas”) for the installation of the System; and (v) the locations
on the Site (collectively “Access Areas”) where the Contractor Parties can
obtain access to the aforesaid locations. The Installation Areas, the
Staging Areas, the Parking Areas, the Laydown Areas and the Access
Areas are referred to collectively in this Agreement as the “Permitted
Areas.” The Contractor Parties shall confine their installation of the
System to the Installation Areas. The Contractor Parties shall confine
their parking on the Site to the Parking Areas. The Contractor Parties
shall confine their staging for the installation of the System to the Staging
13
© Holland & Knight LLP – ALL RIGHTS RESERVED
Areas. The Contractor Parties shall confine their equipment storage,
laydown and equipment deliveries to the Laydown Areas, and the
Contractor Parties shall only access the Permitted Areas through the
Access Areas.
(d) Tenants. The Contractor Parties shall not interfere with the use or quiet
enjoyment of any tenants of the Site and shall work diligently to comply
with any reasonable requests to accommodate Owner and/or its tenants
during the time that Contractor Parties are performing the Work. In
addition to and not in limitation of, the foregoing, the Contractor Parties
shall not materially or adversely interfere with the operations of any tenant
of the Site or of any of Owner’s operations at the Site. Further in addition
to and not in limitation of, the foregoing, the Contractor Parties shall
comply with all commercially reasonable tenant restrictions set forth in all
power purchase agreements (“PPAs”), for the purchase and sale of
electricity generated by the System, between Owner and tenants of the
Site. Further in addition to and not in limitation of, the foregoing, the
Contractor Parties shall comply with all those tenant restrictions in leases
between tenants of the Site and Owner and in PPAs set forth on Schedule
8 attached hereto.
(e) Security. From the Installation Commencement Date of the Work until
the Final Completion, Contractor shall be responsible for the security of
the System, including all stored equipment and materials during
installation and until Final Completion and shall take whatever security
measures are necessary for protection from loss or damage to the System
and said stored equipment and materials. Additionally, Owner agrees to
continue to provide, during the term of this Agreement, with respect to the
Site, whatever security, if any, Owner provided for the Site as of the
Effective Date.
(f) Taxes and Fees. Owner shall pay for all documented taxes imposed by
any Governmental Authority on the purchase and installation of the
Systems. However, Contractor shall be responsible for all income,
payroll, construction and social security taxes imposed by any
Governmental Authority on any Contractor Party.
(g) Access to Sites. The Contractor Parties are only permitted access to the
Site subject to the requirements of and to the extent permitted by this
Subsection 9.1(g).
(i) Prior to any entry onto the Site by any Contractor Party, Contractor
shall provide Owner with [XX] ([XX]) Business Days prior written
notice of said entry, unless said entry is for an emergency
threatening property, health or safety in which event Contractor
shall give Owner such advance telephonic notice of said entry as is
practicable under the circumstances and shall within [XX] ([XX])
14
© Holland & Knight LLP – ALL RIGHTS RESERVED
hours of said entry provide Owner with a written explanation of
such Entry.
(ii) Prior to and during all entries onto the Site by any Contractor
Party, Contractor shall have complied with and at all times be in
compliance with the requirements of Article 18 of this Agreement.
(iii) All entries onto the Site by any Contractor Party shall be in full
compliance with Subsection 9.1(b) and Subsection 9.1(d) of this
Agreement.
(iv) The Contractor Parties shall only enter onto the Permitted Areas
and all entries shall be in full compliance with Subsection 9.1(c) of
this Agreement.
(h) Roof Warranties. The roof of a building located on the Site on which roof
Contractor is installing or causing to be installed the System and which
has a roof warranty as of the date on which Contractor starts the
Installation Work for the System to be installed on that roof is referred to
in this Agreement as a “Roof.” Contractor shall meet all of the
requirements of the roofing manufacturer and/or installer of each Roof in
order to maintain the warranty for that Roof in full force and effect. If
Contractor causes the roof warranty for any Roof to be voided or
impaired, Contractor shall, as a condition of Final Completion and as part
of the System Contract Price for the System being installed on said Roof,
perform all work and purchase all materials necessary to fully reinstate
said warranty for said Roof and shall cause the full reinstatement of said
warranty for said Roof. Any repairs to a Roof required to continue an
existing roof warranty for a Roof are the responsibility of Contractor.
After a post-System installation inspection of a particular Roof by the
roofing manufacturer and/or installer of said Roof has been completed,
and said manufacturer and/or installer has confirmed in writing to Owner,
by way of a letter of acceptance from said manufacturer and/or installer
that said Roof is satisfactory to said manufacturer and/or installer, that the
roof warranty for said Roof remains in full force and effect, standard roof
manufacturer warranty terms shall apply and Owner shall resume all
responsibility for said Roof. The obligation of Contractor to obtain said
letter of acceptance from said manufacturer and/or installer that said Roof
is satisfactory to said manufacturer and/or installer survives Final
Completion.
(i) Health and Safety. Contractor shall cause the Contractor Parties to take all
necessary and reasonable safety precautions with respect to providing the
Installation Work and shall (and shall cause the Contractor Parties to)
comply in all material respects with all Approvals and Applicable Law
pertaining to the health and safety of persons and real and personal
property.
15
© Holland & Knight LLP – ALL RIGHTS RESERVED
(j) Reports. Upon Owner’s issuance of the Notice to Proceed, Contractor
shall provide a monthly progress report (“Monthly Report”) to Owner, on
or before the [XX] ([XX]th
) Business Day of each month. The Monthly
Report shall contain a description of the status of completion of the
System, and Contractor shall be entitled to combine any Monthly Reports
under any PV System Engineering, Procurement and Construction
Agreements with Owner or its Affiliates and provide such Monthly
Reports as one compiled Monthly Report.
10. REPRESENTATIONS AND WARRANTIES.
10.1 Warranties Relating to Agreement Validity. As a material inducement to the
execution of this Agreement, each Party represents and warrants to the other Party
as of the Effective Date that:
(a) it is duly organized and validly existing and in good standing in the
jurisdiction of its organization, and is registered or qualified to conduct its
business in all jurisdictions where such qualification is necessary in order
for it to perform its obligations hereunder;
(b) it has the full right and authority to enter into, execute, deliver, and
perform its obligations under this Agreement;
(c) it has taken all requisite corporate or other action to approve the execution,
delivery, and performance of this Agreement;
(d) this Agreement constitutes its legal, valid and binding obligation
enforceable against such Party in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws now or hereafter in effect relating to
creditors’ rights generally and by general equitable principles;
(e) there are no bankruptcy, insolvency, reorganization, receivership or other
arrangement proceedings pending or contemplated by such Party, or to the
best of its knowledge, threatened against it;
(f) there is no litigation, action, proceeding or investigation pending or, to the
best of its knowledge, threatened before any court or other Governmental
Authority by, against, affecting or involving any of its business or assets
that would materially adversely affect its ability to carry out the
transactions contemplated herein; and
(g) its execution and performance of this Agreement and the transactions
contemplated hereby do not constitute a breach of any term or provision
of, or a default under, (i) any contract or agreement to which it or any of
its Affiliates is a party or by which it or any of its Affiliates or its or their
property is bound, (ii) its organizational documents, (iii) any Applicable
Law, or (iv) intellectual property rights of others.
16
© Holland & Knight LLP – ALL RIGHTS RESERVED
10.2 Additional Representations and Warranties of Owner. Owner further represents
and warrants to Contractor that Owner has a fee simple or leasehold interest in the
Site and prior to the Installation Commencement Date, Owner will have a
leasehold, easement or license interest in the Permitted Areas of the Site on which
the System is to be installed.
10.3 System Warranties. Contractor shall provide a full System warranty for all
design, installation, workmanship, material, components, parts and labor for the
System for a period of [XX] ([XX]) years from the date that the System
commences Commercial Operation (the “System Warranties”). Contractor’s
warranty of the equipment comprising the System shall be secondary to the
particular equipment manufacturer’s warranty for the particular piece of
equipment. This warranty does not include O&M and does not cover ordinary
wear and tear, such as replacing fuses. This warranty further excludes repairs or
replacements required because of the improper use of the System. This warranty
is void if any repairs or maintenance are performed other than through the O&M
Agreement, unless Contractor has defaulted under the O&M Agreement to the
extent that Owner has had to have repairs and/or maintenance performed other
than through the O&M Agreement, in which event this warranty remains in full
force and effect notwithstanding the performance of said repairs and/or
maintenance other than through the O&M Agreement.
10.4 Installation Warranty. Contractor shall provide a full warranty, for a period of
[XX] ([XX]) years from the date that the System commences Commercial
Operation, of all design, installation, workmanship, materials, components, parts
and labor for the affixing, mounting and connection of the System to each Roof
and the building on which said Roof is located which warranty includes all
preparation Work for the mounting of the System to the structural components of
that building and the connection of said System to the electrical system of that
building (the “Installation Warranty”). This warranty provided in this Section
10.4 is void if any repairs or maintenance are performed other than through the
O&M Agreement, unless Contractor has defaulted under the O&M Agreement to
the extent that Owner has had to have repairs and/or maintenance performed other
than through the O&M Agreement, in which event this warranty remains in full
force and effect notwithstanding the performance of said repairs and/or
maintenance other than through the O&M Agreement.
10.5 Equipment Warranties. In addition to Sections 10.3 and 10.4, Contractor shall
cause the manufacturers of all System equipment to provide market-standard
equipment warranties. Contractor shall pass on, assign to, and cause to vest in
Owner all available manufacturer, vendor and installer warranties for and related
to the System (the “Equipment Warranties”). These will include by way of
addition and not by way of limitation, for the System, a minimum of: [XX]
([XX]) years from the date of Commercial Operation of the manufacturer’s
warranty of all solar modules of the System, [XX] ([XX]) years from the date of
Commercial Operation manufacturer’s warranty of all the inverters of the System
17
© Holland & Knight LLP – ALL RIGHTS RESERVED
and [XX] () years from the date of Commercial Operation manufacturer’s
warranty of all of the racking and mounting equipment of the System.
10.6 Performance Guaranty. Contractor shall provide a system performance guaranty
(the “System Performance Guaranty”) of the System. The System Performance
Guaranty shall commence on Commercial Operation and shall be identical in
form and substance to the System Performance Guaranty set forth in Schedule 5
attached hereto. In the event Contractor fails to achieve the Guaranty Level,
Contractor shall pay Owner Production Damages calculated as set forth in
Schedule 5.
10.7 No Other Representations and Warranties. Each Party acknowledges that it has
entered into this Agreement in reliance upon only the representations and
warranties in this Article 10, and that no other representations or warranties have
been made by the other Party with respect to the subject matter hereof.
10.8 EXCLUSION OF WARRANTIES. WITHOUT WAIVING ANY CLAIM
OWNER MAY HAVE AGAINST ANY OTHER MANUFACTURER,
VENDOR OR CONTRACTOR, OWNER ACKNOWLEDGES AND AGREES
FOR THE BENEFIT OF SAFARI THAT EXCEPT FOR THE WARRANTIES
EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE
PERFORMANCE GUARANTIES EXPRESSLY PROVIDED FOR IN THIS
AGREEMENT, SAFARI DOES NOT MAKE NOR SHALL BE DEEMED TO
HAVE MADE, AND EXPRESSLY DISCLAIMS, ANY AND ALL IMPLIED
WARRANTIES, AS TO THE VALUE, CONDITION, FITNESS FOR ANY
PARTICULAR PURPOSE, DESIGN, OPERATION, MERCHANTABILITY
OR USE OF THE SYSTEM OR THE EQUIPMENT COMPRISING SAME.
10.9 O&M Agreement. Concurrently with the Parties’ execution of this Agreement,
the Parties shall execute the O&M Agreement in form and substance identical to
Schedule 9, attached hereto.
11. FORCE MAJEURE.
11.1 Definition. “Force Majeure Event” means [XX].
11.2 Excused Performance. Except as otherwise specifically provided in this
Agreement and except for a Party’s obligation to pay money, a Party shall not be
considered to have committed an Event of Default or be liable for any delay or
failure to comply with or perform its obligations under this Agreement, if and to
the extent that such delay or failure is attributable to the occurrence of a Force
Majeure Event; provided that the Party claiming relief under this Article 11 shall:
(a) notify the other Party in writing of the existence of the Force Majeure Event
within [XX] ([XX]) days, (b) promptly exercise all reasonable efforts necessary to
minimize delay caused by such Force Majeure Event, (c) notify the other Party in
writing of the cessation or termination of said Force Majeure Event within [XX]
18
© Holland & Knight LLP – ALL RIGHTS RESERVED
([XX]) days and (d) promptly resume performance of its obligations hereunder as
soon as practicable thereafter.
11.3 Termination in Consequence of Force Majeure Event. If a Force Majeure Event
shall have occurred that has affected Contractor’s performance of its obligations
hereunder and that has continued for a period of [XX] ([XX]) consecutive days or
[XX] ([XX]) days in the aggregate, then Owner shall be entitled to terminate this
Agreement upon [XX] ([XX]) days’ written notice to Contractor. If at the end of
such [XX] ([XX]) day period such Force Majeure Event shall still continue, this
Agreement shall automatically terminate. Upon such termination of this
Agreement with respect to a Force Majeure Event, neither Party shall have any
liability to the other by reason of this Agreement except that Contractor shall
return any sums paid to Contractor by Owner with respect to any Work not
completed or underway as of the date of the Force Majeure Event within [XX]
([XX]) days and Contractor shall, at Owner’s election, either (i) restore the Site to
the condition the Site was in prior to the Installation Commencement Date,
reasonable wear and tear excepted, in which case all amounts paid by Owner to
Contractor for goods and services not yet delivered pursuant to this Agreement
shall be refunded to Owner within [XX] ([XX]) days, or (ii) deliver the
Termination Deliverables produced as of the date of such termination to Owner
and the Contractor Parties shall vacate the Site.
12. DEFAULT.
13. INTENTIONALLY OMITTED.
14. LIMITATION OF LIABILITY.
15. ASSIGNMENT.
16. CONFIDENTIALITY.
17. INSURANCE.
18. DISPUTE RESOLUTION.
19. MISCELLANEOUS.
19.1 Amendments; Change Orders.
19.2 TIME OF THE ESSENCE; Standards.
19.3 Limited Effect of Waiver.
19.4 Incorporation of Preamble, Recitals, Appendices, Schedules and Exhibits.
19.5 Singular, Plural and Gender.
19
© Holland & Knight LLP – ALL RIGHTS RESERVED
19.6 No Construction Against Draftsman.
19.7 WAIVER OF JURY TRIAL.
19.8 Headings.
19.9 Entire Agreement.
19.10 Survival.
19.11 Governing Law and Jurisdiction.
19.12 Severability.
19.13 Relation of the Parties.
19.14 Successors and Assigns.
19.15 Counterparts.
19.16 Attorneys’ Fees.
19.17 Notices.
THE BALANCE OF THIS PAGE IS INTENTIONALLY
LEFT BLANK. SIGNATURE PAGES FOLLOW.
20
© Holland & Knight LLP – ALL RIGHTS RESERVED
IN WITNESS WHEREOF and intending to be legally bound hereby, Contractor
and Owner have executed this Agreement as of the Effective Date.
[ENTITY NAME]
By:__________________________________
Name:
Title:
Date:
[ENTITY NAME]
By:__________________________________
Name:
Title:
Date:
21
© Holland & Knight LLP – ALL RIGHTS RESERVED
APPENDIX A
Definitions
“Access Areas” has the meaning set forth in Subsection 9.1(c).
“Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such first Person. For the purposes of
this definition, “control” means, with respect to any Person, the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or otherwise. “Control” may be deemed to
exist notwithstanding that a Person owns or holds, directly or indirectly, less than 50% of the
beneficial equity interest in another Person.
“Agreement” has the meaning set forth in the preamble.
“Applicable Law” means, with respect to any Person, any constitutional provision, law,
statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding,
injunction, registration, license, franchise, permit, authorization, application requirement,
application checklist, guideline, Governmental Approval, consent or requirement of any
Governmental Authority or Local Electric Utility having jurisdiction over such Person or its
property or its interconnection with the electric distribution system of the Local Electric Utility,
enforceable at law or in equity, including the interpretation and administration thereof by such
Governmental Authority or the published interpretation and administration thereof by such Local
Electric Utility.
“Approval Work” has the meaning set forth in Schedule 2.
“Approvals” means all: Local Electric Utility Approvals, Governmental Approvals and
all Solar Incentives for and/or with respect to the System, with all appeal periods therefrom
having expired without any appeals thereof being taken.
“Breach” has the meaning set forth in Subsection 12.1(e).
“Business Day” means any day other than Saturday, Sunday or any other day on which
banking institutions in New York, NY are required or authorized by Applicable Law to be closed
for business.
“Change” has the meaning set forth in Section 6.7.
“Change Order” has the meaning set forth in Section 6.7.
“Commercial Operation” means that the System is: (a) fully functioning and
interconnected to the electrical distribution system of the Local Electric Utility in accordance
with all Approvals and Applicable Law and (b) the System is fully functioning, producing
electricity and supplying electricity to the Local Electric Utility in accordance with Applicable
Law, all Approvals, the PPA and all of the terms and provisions of this Agreement.
22
© Holland & Knight LLP – ALL RIGHTS RESERVED
“Commissioning Work” has the meaning set forth in Schedule 2.
“Contractor” has the meaning set forth in the preamble.
“Contractor Parties” means collectively Contractor, its contractors, subcontractors, sub-
subcontactors, vendors and materialmen and the officers, partners, members and direct and
indirect employees of any of them.
“DC System Size” has the meaning set forth in Section 3.1.
“Defective Work” when applied to any Work, means any Work that does not materially
comply with any of the EPC Requirements.
“Dispute” has the meaning set forth in Section 19.2.
“Effective Date” has the meaning set forth in the preamble.
“Engineering” has the meaning set forth in Schedule 2.
“Environmental Attributes” means all environmental characteristics, environmental
claims, environmental credits, environmental benefits, environmental emissions reductions,
environmental offsets, environmental allowances and environmental allocations, howsoever
characterized, denominated, measured or entitled, attributable to the System, including any such
attributes initially created, denominated or defined after the Effective Date. Environmental
Attributes include but are not limited to: (i) any avoided emissions of pollutants to the air, soil or
water including but not limited to sulfur oxides (SOx), nitrogen oxides (NO), carbon monoxide
(CO), particulate matter and other pollutants; (ii) any avoided emissions of carbon dioxide
(CO2), methane (CH4) and other greenhouse gases that have been or may be determined by the
United Nations Intergovernmental Panel on Climate Change to contribute to the actual or
potential threat of altering the Earth’s climate by trapping heat in the atmosphere; (iii) all set-
aside allowances and/or allocations from emissions trading programs, including but not limited
to allocations available under Applicable Law; and (iv) all credits, certificates, registrations,
recordations or other memorializations of whatever type or sort, representing any of the above,
including but not limited to all RECs. Environmental Attributes do not include production or
investment tax credits or grants associated with the construction or operation of the System or
other financial incentives in the form of credits, reductions, exemptions, deductions, adjustments
or allowances associated with the System that are applicable to a local, state or federal income
taxation obligation.
“EPC Requirements” means this Agreement, including any schedules, exhibits and
attachments hereto.
“Equipment Warranties” has the meaning set forth in Section 10.5.
“Event of Default” has the meaning set forth in Section 12.1.
“Final Completion” has the meaning set forth in Section 6.5.
23
© Holland & Knight LLP – ALL RIGHTS RESERVED
“Final Completion Tasks” has the meaning set forth in Schedule 2.
“Final Construction Drawings” has the meaning set forth in Section 6.2.
“Final System Nameplate Capacity” means the technical full-load sustained direct
current electrical output of that System, indicated on a nameplate that is physically attached to
the System or to the Subsystems comprising the System, expressed in DC watts.
“Force Majeure Event” has the meaning set forth in Section 11.1.
“Governmental Approval” means any approval, consent, franchise, permit, certificate,
resolution, concession, license, or authorization issued by or on behalf of any applicable
Governmental Authority, with all appeal periods in which to appeal said approval, consent,
franchise, permit, certificate, resolution, concession, license, or authorization having expired
without any appeals thereof having been taken, including but not limited to, site plan and
variance approvals from municipal planning boards and zoning boards of adjustment.
“Governmental Authority” means any federal, state, regional, county, town, city, or
municipal government, whether domestic or foreign, or any department, agency, bureau, or other
administrative, regulatory or judicial body of any such government, including but not limited to,
the Commission, municipal planning boards and zoning boards of adjustment.
“Guaranteed Final Completion Date” means the date, set forth on Schedule 3, by which
Contractor shall achieve Final Completion.
“Guaranteed Substantial Completion Date” means the date, set forth on Schedule 3, by
which Contractor shall achieve Substantial Completion.
“Hazardous Substance” means (A) any substance which is listed, defined, designated or
classified under any Environmental Law as a (i) hazardous material, substance, constituent or
waste; (ii) toxic material, substance, constituent or waste; (iii) radioactive material, substance,
constituent or waste; (iv) dangerous material, substance, constituent or waste; (v) pollutant; (vi)
contaminant, or (vii) special waste; (B) any material, substance, constituent or waste regulated
under any Environmental Laws; or (C) petroleum, petroleum products, radioactive materials,
polychlorinated biphenyls, pesticides, asbestos, or asbestos-containing materials.
“Installation Areas” has the meaning set forth in Subsection 9.1(c).
“Installation Commencement Date” means the date that the Installation Work on the
System commences and Contractor provides written notice to Owner of such commencement.
“Installation Warranty” has the meaning set forth in Section 10.4.
“Installation Work” means the construction and installation of the System as set forth in
Schedule 2.
“Installment Application” has the meaning set forth in Section 3.3(b).
24
© Holland & Knight LLP – ALL RIGHTS RESERVED
“Installment Payment” has the meaning set forth in Section 3.3(b).
“kWh” means kilowatt hour.
“Labor Work” means the labor to construct the System.
“Laydown Areas” has the meaning set forth in Subsection 9.1(c).
“Liens” means any demands, charges, claims, security interests, liens, encumbrances or
stop notices of any kind or nature.
“Limited Scope Work” has the meaning set forth and is described in Schedule 2.
“Local Electric Utility” means the electric distribution company in whose service area
the Site is located.
“Local Electric Utility Approvals” has the meaning set forth in Section 5.1.
“Milestone Schedule” has the meaning set forth in Section 7.
“Modules” means the photovoltaic modules which are part of the System.
“Monitoring Equipment” has the meaning set forth in Subsection 6.3(b).
“Monthly Report” has the meaning set forth in Subsection 9.1(j).
“Notice to Proceed” means the execution of this Agreement by Owner and Contractor
and constitutes the instruction and authorization to Contractor, from Owner, to start and perform
the entire Work.
“O&M” means at least semi-annual PV module cleaning, annual electrical and
mechanical inspection, responding to maintenance calls, two basic electrical repairs,
coordinating warranty claims with third-party vendors and monitoring the electrical production
of the System, as set forth in the O&M Agreement.
“O&M Agreement” means the agreement, in form and substance identical to Schedule 9,
entered into between the Parties, concurrently with their execution of this Agreement, for
Contractor to perform the O&M for the System.
“Owner” has the meaning set forth in the preamble.
“Parking Areas” has the meaning set forth in Subsection 9.1(c).
“Parties” and “Party” have the meaning set forth in the preamble.
“Permitted Areas” has the meaning set forth in Subsection 9.1(c).
25
© Holland & Knight LLP – ALL RIGHTS RESERVED
“Person” means an individual, partnership, limited partnership, limited liability
partnership, corporation, limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, firm, or other entity, or a Governmental Authority.
“PPAs” has the meaning set forth in Subsection 9.1(d).
“Procurement/Transportation Work” has the meaning set forth in Schedule 2.
“Prudent Utility Practice(s)” means the practices, methods, and acts (including the
practices, methods, and acts engaged in or approved by a significant portion of the renewable
energy electric power generation industry in the applicable region of the United States) that, at a
particular time, in the exercise of reasonable judgment in light of the facts known or that should
reasonably have been known at the time a decision was made, would have been expected to
accomplish the desired result in a manner consistent with Applicable Law, regulation, permits,
codes, standards, equipment manufacturer’s recommendations, reliability, safety, environmental
protection, economy, good business practices and expedition. Prudent Utility Practice(s) are not
intended to be limited to the optimum practice, method or act to the exclusion of others. With
respect to the System, Prudent Utility Practice(s) includes taking reasonable steps to ensure that:
A. equipment, materials, resources, and supplies, including spare parts inventories, are
available to meet the System’s needs;
B. sufficient operating personnel are available at all times and are adequately
experienced and trained and licensed as necessary to operate the System properly and efficiently,
and are capable of responding to reasonably foreseeable emergency conditions whether caused
by events on or off the Site;
C. preventive, routine, and non-routine maintenance and repairs are performed on a basis
that is reasonably expected to result in reliable, long term and safe operation, and are performed
by knowledgeable, trained, and experienced personnel utilizing proper equipment and tools;
D. appropriate monitoring and testing are performed in a manner that is reasonably
expected to result in equipment functioning as designed;
E. equipment is not operated in a reckless manner, in violation of manufacturer’s
guidelines and warranties or in a manner unsafe to workers, the general public, or the
interconnected system or contrary Applicable Law, including any environmental laws, permits or
regulations or without regard to defined limitations such as, flood conditions, safety inspection
requirements, operating voltage, current, volt ampere reactive loading, frequency, polarity,
synchronization, and/or control system limits;
F. equipment and components meet or exceed the standard of durability that is generally
used for electric generation operations in the region and designed to function to the maximum
extent possible over the full range of ambient temperature and weather conditions reasonably
expected to occur at the Site and under both normal and emergency conditions; and
G. equipment, components, and processes are appropriately permitted with any
Governmental Authority and are operated and maintained in accordance with Applicable Law.
26
© Holland & Knight LLP – ALL RIGHTS RESERVED
“Punch List” has the meaning set forth in Subsection 6.5(e).
“REC” means renewable energy certificate units that fully comply with the Applicable
Law of the Site’s state, as in effect on the Final Completion Date.
“Roof” has the meaning set forth in Subsection 9.1(h).
“Site” has the meaning set forth in the recitals.
“Solar Incentives” means those Governmental Authority and/or Local Electric Utility
incentives set forth in Schedule 1, attached hereto.
“Staging Areas” has the meaning set forth in Subsection 9.1(c).
“Substantial Completion” has the meaning set forth in Section 6.4.
“System” means the integrated assembly of photovoltaic panels, racking and mounting
assemblies, inverters, meters, data monitoring systems, disconnects, combiners, switches, wiring
devices and wiring, more specifically described in Schedule 1 and interconnected with the Local
Electric Utility to be provided by Contractor under this Agreement.
“System Acceptance Testing” has the meaning set forth in Paragraph 6.5(b)(ii).
“System Constant” means $_.___.
“System Contract Price” has the meaning set forth in Section 3.1.
“System Performance Guaranty” has the meaning set forth in Section 10.6.
“System Warranties” has the meaning set forth in Section 10.5.
“Tariffs” has the meaning set forth in Section 3.5(b)(ii).
“Termination Deliverables” means any and all plans, drawings, calculations, designs,
agreements, commitments, awards and Approvals in both electronic and paper format prepared
or obtained through the date of the termination of this Agreement with respect to the System and
the Site.
“Warranties” means the Equipment Warranties, the Installation Warranty and the
System Warranties.
“Work” means collectively, with respect to the System: the Limited Scope of Work, the
tasks that Contractor is required to perform by Article 5 hereof, the Procurement/Transportation
Work, the Installation Work, the Commissioning Work and the Final Completion Tasks.
27
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 1
to
PV System Engineering, Procurement and Construction Agreement
DESCRIPTION OF SYSTEM
System Size in DC Watts: (the “System”)
SYSTEM COMPONENTS
Includes: All System components including:
Component Manufacturer Model
PV Modules
Racking System
Inverters
Data Monitoring System
The following constitute the Solar Incentives:
28
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 2
to
PV System Engineering, Procurement and Construction Agreement
WORK
Limited Scope Work. In connection with the provision of the System to Owner, Contractor
shall, subject to the provisions of this Agreement, perform the limited scope work (“Limited
Scope Work”), as described below, for the System upon receipt of the Notice to Proceed:
[CONTRACTOR TO INSERT]
Each of the above to be performed in accordance with Articles 5, 6 and 7 hereof.
Balance of the Work. Consistent with the Milestone Schedule attached hereto as Schedule 3,
Contractor shall perform the Work in the order and as such Work is described below:
1. PROCUREMENT/TRANSPORTATION. The following portions of the Work,
performed in the following order, are referred to collectively herein as the
“Procurement/Transportation Work” and consist of the following:
Design and engineering of System design, including required electrical and structural
stamps (collectively “Engineering”).
Submission of applications and required supporting plans and documentation for all
Approvals, including but not limited to, required variance approvals, site plan approvals
and building permits (collectively “Approval Work”);
Furnish or procure all materials, equipment, machinery, tools, consumables, labor and
transportation for the installation of the System onto the Site;
2. INSTALLATION WORK. The following portions of the Work, performed in the
following order, are referred to collectively herein as the “Installation Work” and consist
of the following:
Preparation of the Site for installation of the System, including identification of any roof
issues prior to installation;
Assembly and proper placement of the racking systems for the System;
Installation of the Modules on the applicable roofs via selected racking systems or
alternative mounting designs;
Installation and grounding of DC electrical wiring between modules;
Installation of inverters;
Installation of AC wiring from inverters to the electrical distribution system of the Local
Electric Utility;
29
© Holland & Knight LLP – ALL RIGHTS RESERVED
Installation of required DC and AC disconnect switches;
Installation of inverter monitor hardware and software.
Installation of web box, tv.
3. COMMISSIONING WORK. The following portions of the Work are referred to
collectively herein as the “Commissioning Work” and consist of the following:
Contractor commissioning the System by performing: Contractor’s standard
interconnection and inspection procedures, the interconnection procedures required by the
Approvals for that System, the interconnection procedures required by Applicable Law and by
the Local Electric Utility, commissioning and System Acceptance Testing.
4. FINAL COMPLETION TASKS. The following portions of the Work plus the portions
of the Work described in Section 6.5 hereof are referred to herein as the “Final
Completion Tasks” and include:
Completion of Commissioning Work;
Completion of the System Acceptance Testing;
Completion of any inspection required to be performed by: (i) the Local Electric Utility
and/or (ii) the municipality in which the System is located;
Receipt of a letter of acceptance from any Roof warranty provider that the Roof is
satisfactory to such warranty provider;
The issuance of the utility interconnection notice to operate;
The System’s capability of operating safely in accordance with the National Electrical
Code currently enforced at the date of Final Completion of the System, local building
codes, the Approvals for the System and all Applicable Laws;
The System being in Commercial Operation;
Contractor providing Owner with all System and System equipment-related
documentation for the operation and maintenance of the System, including but not
limited to, all operating instructions and manuals for the System and the equipment
comprising the System, all Warranties and the equipment comprising the System and the
system performance guaranties for the System.
30
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 3
to
PV System Engineering, Procurement and Construction Agreement
MILESTONE SCHEDULE*
The following is the Milestone Schedule for the System:
Milestone Milestone Date
Execution of this Agreement by both Parties
Engineering complete
Application for all Approvals to start
Installation Work
Approvals to start Installation Work obtained
Start of Installation Work
Racking system installed
Substantial Completion
Final Completion
31
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 4
to
PV System Engineering, Procurement and Construction Agreement
REPORTS, PLANS AND OTHER DOCUMENTATION REGARDING
HAZARDOUS SUBSTANCES
Contractor acknowledges and agrees that it has received complete copies of the following
reports, plans and other documentation regarding hazardous substances in, on, over or under the
Site:
1.
32
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 5
To
PV System Engineering, Procurement and Construction Agreement
FORM OF SYSTEM PERFORMANCE GUARANTY
Contractor shall provide a Performance Guaranty for the System in the form and of
the
substance set forth below:
PERFORMANCE GUARANTY
[ENTITY NAME] (“Contractor”) hereby provides this performance guaranty
(“Guaranty”) to [ENTITY NAME] (“Owner”) of the performance of that certain photovoltaic
electricity generating system (“System”), the location, description and specifications of which
are set forth in Exhibit A, attached hereto and made a part hereof.
1. Definitions.
(a) Unless otherwise expressly defined in this Guaranty, capitalized words in this
Guaranty have the definitions given to them in that certain “PV System Engineering,
Procurement and Construction Agreement” (“Agreement”) between Owner and Contractor,
dated _______________, 2016.
(b) The following terms have the following definitions in this Guaranty:
(i) “Actual Production” means, for the applicable Contract Year, the amount
of AC electricity, in kWh, that the System actually produces during that Contract Year.
(ii) “Contract Year” means each twelve (12) month period of the
Performance Guaranty Term, with the first Contract Year of the Performance Guaranty Term
commencing on the Final Completion Date and running to the date which is twelve (12) months
from that date and with each subsequent Contract Year commencing on the date following the
termination of the immediately preceding Contract Year of the Performance Guaranty Term and
running to the date which is twelve (12) months from that date.
(iii) “Estimated Annual First Year Production” means the estimated amount
of AC electricity, in kWh, that the System is estimated to produce during the first Contract Year
of the Performance Guaranty Term pursuant to the calculation provided by PV Watts Version 1
which amount is [_____________] kWh.
(iv) “Final Completion Date” means the date of the Final Completion of the
System.
33
© Holland & Knight LLP – ALL RIGHTS RESERVED
(v) “Guaranty Level means [XX] percent ([XX]%) of the Estimated Annual
First Year Production for the System as Weather Adjusted for the Performance Guaranty Term,
reduced each Contract Year by an annual degradation factor of [XX] percent ([XX] %) and
adjusted to account for any periods that the System is off-line due to a Force Majeure Event.
(vi) “Performance Guaranty Term” means the time period starting on and
including the Final Completion Date and running to and including the date that is [XX] ([XX])
years from the Final Completion Date.
(vii) “PPA Payment Rate” means the rate, in the applicable Contract Year, in
fractions of US Dollars per kWh of electricity, paid by the energy buyers to the Owner, pursuant
to the power purchase agreements between Owner and the tenants of the Site, for the electricity
generated by the System in said Contract Year.
(viii) “Production Damages” means the amount, in US Dollars calculated by
multiplying the PPA Payment Rate for the applicable Contract Year by the Production Shortfall,
if any, in kWh, for that Contract Year.
(ix) “Production Shortfall” means the difference, if any, in kWh, between the
Guaranty Level for the applicable Contract Year and the Actual Production during such Contract
Year.
(x) “Weather Adjusted” shall mean the Estimated Annual First Year
Production for the System multiplied by the ratio of the Actual Weather Year Solar Radiation
over the Typical Weather Year Solar Radiation; where (X) “Actual Weather Year Solar
Radiation” shall mean, with respect to the System for each Contract Year, the solar radiation
measured at the Site based on the actual weather data collected by the data acquisition system of
the System (or other nearby weather data reasonably selected by Owner), (Y) “Typical Weather
Year Solar Radiation” shall mean, with respect to the System for each Contract Year, an
estimation of solar radiation at the Site for such Contract Year during a typical weather year
based on TMY3 (or other long-term weather data acceptable to both Parties) and (Z) “TMY3”
means the typical meteorological year data set published by the U.S. Department of Energy’s
National Renewable Energy Laboratory (NREL), which data set contains average hourly values
of measured solar radiation, temperature, wind speed and other meteorological parameters taken
during the years of 1961-1990 and 1991-2005.
2. Contractor shall take all commercially reasonable actions, including but not
limited to, enforcement of the Equipment Warranties for the System, of which the System is a
part, described in Section 10.5 of the Agreement, to ensure that the System performs at a level
that is equal to or greater than the Guaranty Level.
3. In the event that the System does not produce AC electricity at the Guaranty
Level during a Contract Year, Contractor shall pay Production Damages to Owner for that
Contract Year.
4. This Guaranty shall become void immediately should any party other than
Contractor or a Contractor authorized party operate, maintain, or otherwise make any
34
© Holland & Knight LLP – ALL RIGHTS RESERVED
adjustments, repairs or alterations to the System, unless Contractor has defaulted under its O&M
Agreement with Owner to the extent that Owner has had to have a party other than Contractor or
a Contractor authorized party operate, maintain, or otherwise make any adjustments, repairs or
alterations to the System, in which event this Guaranty remains in full force and effect
notwithstanding said operation, maintenance, adjustments, repairs or alterations by a party other
than Contractor or a Contractor authorized party.
IN WITNESS WHEREOF and intending to be legally bound hereby, Contractor has
executed this Guaranty in favor of Owner as of date set forth below.
[ENTITY NAME]
By:
Name:
Title:
Date:
35
© Holland & Knight LLP – ALL RIGHTS RESERVED
Exhibit A
Location, Description and Specifications of System
The location, description and specifications of the System are the following:
Location Description Specifications1
1Specifications are estimated as of the Effective Date and the final specifications may vary as
permitted in the Agreement. The specifications will be final on the date the Guaranty is signed
by Contractor.
36
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 6
To
PV System Engineering, Procurement and Construction Agreement
FORM OF WAIVER AND RELEASE OF LIEN UPON INSTALLMENT
PAYMENT
OWNER: ____________________________________
GENERAL CONTRACTOR: ____________________________________
PROJECT NAME: ____________________________________
STATE OF _______________
COUNTY OF _____________
The undersigned, in consideration of the sum of $____________, hereby waives and releases its
lien and right to claim a lien for labor, services, or materials furnished through
___________________ (date of this waiver) to ________________ on the job of
___________________________to the following property (“Property”):
________________________ (Name and Address of Project). This waiver and release does not
cover any retention or labor, services or materials furnished after the date specified.
Any and all contractors, subcontractors, laborers, suppliers and materialmen that have provided
labor, material or services to the undersigned for use or incorporation into the construction of the
improvements to the Property have been paid and satisfied in full, and there are no outstanding
claims of any character arising out of, or related to, the undersigned’s activities on, or
improvements to, the Property.
This Waiver constitutes a representation by the undersigned signatory, for and on behalf of the
firm or company listed below, that the payment referenced above, once received, constitutes full
and complete payment for all work performed, and all costs or expenses incurred (including, but
not limited to, costs for supervision, field office overhead, home office overhead, interest on
capital, profit, and general conditions costs) relative to the work or improvements at the Property
as of the date of this Waiver. The undersigned hereby specifically waives, quitclaims and
releases any claim for damages due to delay, hindrance, interference, acceleration, inefficiencies
or extra work, or any other claim of any kind it may have against the Owner and its lender, any
tenant of the Owner, the Owner’s project and/or development manager (if any), the General
Contractor (if this Waiver is signed by a subcontractor or supplier), or any other person or entity
with a legal or equitable interest in the Property, as of the date of this Waiver, except as follows:
_____________________________________________.
. This Waiver is specifically made for the benefit of the Owner, Owner’s landlord,
Owner’s sub-landlord and the Owner’s lender, and any other person or entity with a legal or
equitable interest in the Property. The amount of money set forth as due and owing in the
immediately preceding Waiver dated _________, 20__, has been received, and is deemed paid in
full.
37
© Holland & Knight LLP – ALL RIGHTS RESERVED
[Signature page follows.]
In Witness Whereof, the undersigned signatory, acting for and on behalf of the firm or company
listed below and all of its laborers, subcontractors, and suppliers, has placed his hand and seal
this ____ day of _____________, 20__.
FIRM OR COMPANY:
______________________________________
By: __________________________________
Print Name:
____________________________
Its:____________________________________
Sworn to and subscribed
before me this ____ day of
_________________, 20__.
________________________
Notary Public
(NOTARY SEAL)
My Commission Expires:
_____________________
38
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 7
To
PV System Engineering, Procurement and Construction Agreement
FORM OF WAIVER AND RELEASE OF LIEN UPON FINAL INSTALLMENT
PAYMENT
OWNER: ____________________________________
GENERAL CONTRACTOR: ____________________________________
PROJECT NAME: ____________________________________
STATE OF _______________
COUNTY OF _____________
The undersigned, in consideration of final payment in the amount of $___________, hereby
waives and releases its lien and right to claim a lien for labor, services, or materials furnished to
__________________ on the job of __________________________________to the following
described property (“Property”):______________________ (Name and Address of Project).
Any and all contractors, subcontractors, laborers, suppliers and materialmen that have provided
labor, material or services to the undersigned for use or incorporation into the construction of the
improvements to the Property have been paid and satisfied in full, and there are no outstanding
claims of any character arising out of, or related to, undersigned’s activities on, or improvements
to, the Property. This Waiver is specifically made for the benefit of Owner, Owner’s lender,
Owner’s sub-landlord, Owner’s sub-landlord’s lender, Owner’s sub-landlord’s landlord and
Owner’s Owner’s sub-landlord’s landlord’s lender, and any other person or entity with a legal or
equitable interest in the Property.
This Waiver constitutes a representation by the undersigned signatory, for and on behalf of the
undersigned, that the payment referenced above, once received, constitutes full and complete
payment for all work performed, and all costs or expenses incurred (including, but not limited to,
costs for supervision, field office overhead, home office overhead, interest on capital, profit, and
general conditions costs) relative to the work or improvements at the Property. The undersigned
hereby specifically waives, quitclaims and releases any claim for damages due to delay,
hindrance, interference, acceleration, inefficiencies or extra work, or any other claim of any kind
it may have against the Owner and its lender, any tenant of the Owner, the Owner’s project
and/or development manager (if any), the General Contractor (if this Waiver is signed by a
subcontractor or supplier), or any other person or entity with a legal or equitable interest in the
Property, relative to the work or improvements at the Property.
[Signature page follows.]
39
© Holland & Knight LLP – ALL RIGHTS RESERVED
In Witness Whereof, the undersigned signatory, acting for and on behalf of the firm or company
listed below and all of its laborers, subcontractors, and suppliers, has placed his hand and seal
this ____ day of _____________, 20___.
FIRM OR COMPANY:
______________________________________
By: __________________________________
Print Name:
____________________________
Its:____________________________________
Sworn to and subscribed
before me this ____ day of
_________________, 20__.
________________________
Notary Public
(NOTARY SEAL)
My Commission Expires:
_____________________
40
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 8
To
PV System Engineering, Procurement and Construction Agreement
TENANT RESTRICTIONS – LEASES AND POWER PURCHASE
AGREEMENTS
[NOTE TO DRAFT: Attach.]
41
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 9
To
PV System Engineering, Procurement and Construction Agreement
FORM OF O&M AGREEMENT
[NOTE TO DRAFT: Attach.]
42
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 10
To
PV System Engineering, Procurement and Construction Agreement
SITE DESCRIPTION
[NOTE TO DRAFT: Attach.]
43
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 11
To
PV System Engineering, Procurement and Construction Agreement
APPLICABLE PERMITS AND APPROVALS
[NOTE TO DRAFT: Attach.]
44
© Holland & Knight LLP – ALL RIGHTS RESERVED
SCHEDULE 12
To
PV System Engineering, Procurement and Construction Agreement
TESTING AND COMMISSIONING PROGRAM
[NOTE TO DRAFT: Attach.]