HomeMy WebLinkAboutSolential Energy Solutions, LLC/Standard Solar Facility Operation and Maintenance AgreementCzTfshfzHsfdivlijobu21;32bn-Nbz42-3134
DocuSign Envelope ID: D6ED0996-282A-4E8A-B9F1-B9DFCD49288B
d) Emergencies. If Operator becomes aware of any circumstance or situation relating to the Facility that, in
the reasonable opinion of Operator, poses an imminent threat to the safety or protection of persons or property (including
but not limited to the Facility), it may take action in an effort to prevent or to mitigate any damage, injury or loss arising
therefrom and shall promptly notify Owner of any such circumstance orsituation (and the actions taken by Operator in
response thereto, if any). Any such reasonable actions taken by Operator shall be considered Additional System Services
approved by Owner inaccordance with Section 1.2(c) above.
e) Changes Related to Applicable Laws or Utility Requirements. If achange in any laws, ordinances, rules,
regulations, permits, or orders of governmental authorities, orin any rules, regulations or requirements of any utility,
requires a modification to the O&M Services, including additions thereto, Operator shall submit to Owner awritten request
to modify the O&M Services as reasonably required to respond to such achange and its impact on the O&M Services or
the Facility. Exhibit B hereto shall be modified to add such services to the Additional System Services and the Service Fees
shall be equitably adjusted to account for such Additional System Services as mutually agreed upon by the Parties; such
approval shall not be unreasonably withheld, delayed or conditioned by either Party.
f) Force Majeure Events. If a Force Majeure Event (asdefined in Section 3.3below) requires amodification
to the O&M Services, including additions thereto, Operator shall submit to Owner awritten request to modify the O&M
Services as reasonably required to respond to such aForce Majeure Event and its impact on the O&M Services or the
Facility. Exhibit B hereto shall be modified to add such services to the Additional System Services and the Service Fees
shall be equitably adjusted to account for such Additional System Services as mutually agreed upon by the Parties; such
approval shall not be unreasonably withheld, delayed or conditioned by either Party.
g) Facility Warranties. For clarity, Operator makes no representations orwarranties ofany nature or type
regarding the solar arrays and related equipment and infrastructure at the Facility or regarding operation ofthe Facility
under this Agreement (including without limitation the amount of electrical power to be generated by the Facility or the
amount of “uptime/downtime” of the Facility). However, to the extent consistent with Good Industry Practice, Operator
will use commercially reasonable efforts to perform its O&M Services inamanner that preserves any warranties applicable
to the Facility (including any warranties provided by Operator or its affiliates under any separate agreements with Owner
related to the development of the Facility or provided by third party manufacturers of the solar arrays or related equipment
and infrastructure at the Facility). OPERATOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
RELATED TO THE O&M SERVICES OR THE FACILITY, AND ANY OTHER WARRANTIES (INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE) ARE EXPRESSLY DISCLAIMED BY OPERATOR TO THE FULLEST EXTENT
PERMITTED BY LAW. Without limiting the foregoing, in no event will Operator be responsible for any acts, omissions,
damages or defects related to the Facility (including in the O&M Services) to the extent arising out of the negligent acts or
omissions ormisconduct ofOwner orits separate contractors, consultants orvendors.
h) Title. Title to all tangible parts and equipment supplied under or pursuant to this Agreement shall transfer
to Owner upon payment by Owner to Operator of the Service Fees covering such deliverables utilized at the Facility. For
clarity, Operator shall retain all rights, title and interest in its intellectual property utilized in for the performance of this
Agreement (including without limitation its means and methods of performing the O&MServices and its templates related
thereto and, if utilized at the Facility, its SolView asset management platform and related user interfaces), including patents,
copyrights and trademarks therein.
i) Facility Annual Reports. Throughout the Term, Operator shall furnish to Owner, in Operator’sthen current
standard format, annual maintenance/inspection reports for the Facility (“Annual Report”) for the twelve-month period
ending on the date that one year following the Effective Date and at the end of each subsequent one year period thereafter.
Each Annual Report shall include the following:
i) A summary of Facility operations, including the O&M Services performed;
ii) A summary of the solar conditions at the Facility and of Facility power production data;
iii) Copies of all facility inspection reports generated by Operator as a part of the performance of the O&M Services;
iv) Additional System Services proposed by Operator in accordance with Section 1.2(c) above for the following year of
the Term; and
v) Such other information as may be agreed upon by the Parties related to the Facility orthe O&M Services.
Section 1.3 Documentation of O&M Services. In addition the Annual Reports, to the extent consistent with
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Good Industry Practice, Operator will maintain usual and customary logs of the performance of the O&M Services during
the Term. A copy of such log shall be maintained at the Facility (in electronic format or otherwise) and shall be available
to Owner for review promptly upon request. At the end of the Term, acopy of such logs will be provided to Owner with
the final Annual Report.
Section 1.4 Remote Monitoring of Facility. For purposes ofdetermining when certain O&M Services may be
necessary, Operator shall reasonably monitor and evaluate the information gathered through remote monitoring ofthe
operation of the Facility. Owner shall ensure that Operator has uninterrupted access toall such data and information related
to the Facility (including Owner maintenance of power and communication services related tosuch Facility monitoring
systems).
Section 1.5 Costs and Expenses of O&M Services. Except as specifically provided to the contrary in this
Agreement, during the Term, Operator shall bear all costs and expenses for the performance of the O&M Services, including
travel and personnel expenses. The responsibility of Owner with respect to such costs and expenses is limited to thepayment
of the Service Fees, except as otherwise specifically provided in this Agreement.
Section 1.6 Operator Insurance. Operator shall atall times throughout the Term maintain in force, or cause to
be carried and maintained in force by the applicable subcontractors or vendors, insurance meeting the following
requirements:
a) Usual and customary commercial general liability insurance with policy limits of not less than $1,000,000
for each occurrence and $2,000,000 in the aggregate for bodily injury and tangible property damage and including Owner
as an additional insured (utilizing standard additional insured endorsement forms) for claims caused by Operator’snegligent
acts or omissions.
b) Usual and customary automobile liability insurance covering any vehicles used in the performance of the
O&M Services, if any, with policy limits ofnot less than $1,000,000 per accident for bodily injury and tangible property
damage.
c) Worker’s compensation insurance as required by applicable law and usual and customary employer’s
liability insurance with policy limits not less than $1,000,000 each accident, $1,000,000 each employee, and $1,000,000
policy limit.
d) If the O&M Services include any professional engineering services, usual and customary professional
liability insurance provided by the applicable subcontractor covering negligent acts, errors and omissions in the performance
of such professional services including in the O&M Services with policy limits of not less than $1,000,000 per claim and
2,000,000 in the aggregate.
Operator shall provide usual and customary certificate of insurance evidencing the coverages required under this Section
1.6 promptly following the Effective Date and thereafter asmay be reasonably requested by Owner.
Section 1.7 Operator’sIndemnity Obligation. To the fullest extent permitted by law, Operator shall indemnify
and hold harmless Owner from any actual damages, losses or expenses (including reasonable attorneys’ fees) resulting from
athird party claim for bodily injury (including death) or damage to tangible property (excluding the Facility itself or other
property insured by Owner in accordance with Section 1.8(f) below), but only tothe extent resulting from the negligent acts
or omissions of Operator (or its agents, employees, subcontractors and vendors) inthe performance of the O&M Services.
Section 1.8 General Obligations of Owner.
a) Right to Access. Operator, and its agents, employees, subcontractors and vendors, shall have the right to
access the Facility at all times in order to provide scheduled or unscheduled O&M Services and to perform related
monitoring and other tasks. Subject to the foregoing, Owner shall maintain possession, custody and control of the Facility
including without limitation the solar arrays and related equipment and infrastructure) and may institute reasonable and
usual and customary rules regarding access to the Facility (such as health and safety requirements that do not unreasonably
interfere with Operator’sability to perform the O&M Services in accordance with Good Industry Practice). In the event
that Operator determines that additional easements, rights of way or the like are necessary for the performance of the O&M
Services, Owner will use commercially reasonable efforts to secure the same. For clarity, nothing in this Agreement, nor
the performance of the O&M Services, shall cause risk of loss or damage to the Facility (including without limitation the
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solar arrays and related equipment and infrastructure) to be transferred from Owner to Operator. Owner shall maintain
physical security to protect the Facility, including complying with any critical infrastructure protection requirements, and
will ensure that the Facility solar arrays have proper unobstructed access to sunlight
b) Permits and Utility Connections. Owner shall comply with, and shall cause the Facility to comply with, all
laws, ordinances, rules, regulations, permits, and orders of governmental authorities applicable tothe Facility (including
securing and maintaining all permits and approvals necessary for the operation of the Facility). Owner also shall comply
with, and shall cause the Facility to comply with, all rules, regulations and requirements ofany utility providing services to,
or receiving energy from, the Facility (including securing and maintaining all interconnection agreements necessary for the
operation of the Facility).
c) Data Communication. Owner shall supply and maintain one data communication connection dedicated to,
and reasonably appropriate for, Operator’sremote monitoring of the Facility in accordance with Section 1.4.
d) Storage Areas. Owner shall supply and maintain at the Facility a secure area for Operator’suse in
connection with the performance of the O&M Services, including the storage of parts, tools, supplies, equipment,
documentation and electronic hardware and software.
e) Duty to Cooperate. Owner shall cooperate with Operator in taking all actions reasonably requested by
Operator with respect to the O&M Services, including scheduling downtime of the Facility for required maintenance and
utilizing commercially reasonable efforts to ensure that parties with whom Owner has agreements or relationships related
tothe Facility are available and able to perform as contemplated in this Agreement. Owner will not make any material
modifications to the Facility without prior written notice to Operator and an appropriate adjustment to the O&M Services
in accordance with Section 1.2(b) above. Owner will provide all data, information and documentation related to the Facility
as may be reasonably requested by Operator with respect to the O&M Services (including without limitation design
documents and operation and maintenance manuals related to the solar arrays and related equipment and infrastructure at
the Facility). Owner shall provide prompt written notice to Operator of any material issues or concern related to the O&M
Services or the operation of the Facility.
f) Insurance and Waiver of Subrogation. Without limiting any of the obligations or liabilities of Owner,
Owner shall at all times throughout the Term carry and maintain in force, at its own expense, all-risk property insurance on
the Facility sufficient tocover the total value thereof on areplacement cost basis plus damages arising from loss of use of
the Facility (or the inability to conduct normal operations with respect thereto). Owner will be responsible for all deductibles
and self-insured retention amounts related to policies, and Owner (and its separate contractors and consultants) waives all
rights against Operator and its subcontractors, agents, employees, consultants for damages caused by fire or other causes of
loss to the Facility, including loss of use thereof. Owner’spolicies of insurance shall not prohibit this waiver of subrogation,
and such waiver shall be effective as to aperson or entity even though that person or entity would otherwise have aduty of
indemnification, contractual or otherwise, did not pay the insurance premium (directly or indirectly), and whether or not the
person orentity had an insurable interest in the property damaged.
g) Owner’sIndemnity Obligation. To the fullest extent permitted by law, Owner shall indemnify and hold
harmless Operator (and its agents, employees, subcontractors and vendors) from any actual damages, losses or expenses
including reasonable attorneys’ fees) resulting from athird party claim for bodily injury (including death) or damage to
tangible property (including the Facility itself), but only tothe extent resulting from the negligent acts or omissions of
Owner (or its separate contractors, consultants orvendors) related to the Facility or the O&M Services. Without limiting
the foregoing, Owner’sobligations under this Section 1.8(g) includes damages arising from defects inthe Facility or the
improper use of the solar arrays and related equipment and infrastructure at the Facility by anyone other than Operator (or
its agents, employees, subcontractors and vendors).
Section 1.9 Party Representatives.
a) Owner’sRepresentative. Owner designates the person identified below Owner’ssignature acknowledging
its acceptance of this Agreement as Owner’s Representative for all matters relating to Owner’s performance under this
Agreement. The actions taken by Owner’s Representative regarding such performance shall be deemed the acts of Owner
and shall be fully binding upon Owner. Owner may, upon written notice to Operator, change the designated Owner’s
Representative to such other person as is reasonably acceptable to Operator.
b) Operator’s Representative. Operator designates the person identified below Operator’ssignature
acknowledging its acceptance of this Agreement as Operator Representative for all matters relating to Operator’s
performance under this Agreement. The actions taken by Operator’s Representative shall be deemed the acts of Operator
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and shall be fully binding upon Operator. Operator may, upon written notice to Owner, change the designated Operator’s
Representative to such other Person as is reasonable acceptable to Owner.
ARTICLE 2. SERVICE FEES
Section 2.1 InGeneral. As compensation for provision of the O&M Services by Operator (including the
Standard System Services and the Additional System Services), Owner shall pay Operator the amounts set forth in Exhibit
Cattached hereto for each year during the Term, which shall be paid in monthly on the first business day of each month (all
such fees, collectively, the “Service Fees”). Operator shall not be required to submit invoices to Owner for such Service
Fees.
Section 2.2 Late Payments. Interest on any payments due from Owner to Operator not received on the date
required by this Agreement shall bear interest atthe rate of 1% per month (or such lesser amount required by applicable
law) until received by Operator. With prior written notice to Owner, Operator shall be entitled to suspend its performance
of the O&M Services at Owner’srisk in the event of any Service Fees due from Owner are not received by Operator on the
date required by this Agreement. Operator shall be entitled to recover from Owner all costs of collection (including
reasonable attorneys’ fees) incurred in recovering past due payment from Owner.
ARTICLE 3. — TERM AND LIMITATIONS OF LIABILITY
Section 3.1 Term.
a) Subject to extensions or earlier termination as provided by this Agreement, the term of this Agreement
Term”) during which Operator will provided O&M Services for the Facility is set forth in Exhibit C.
b) The Parties may agree at any time to extend the Term for one or more additional years by stating the
amended Term and the corresponding adjustments to the Service Fees and other provisions of Exhibit C in awritten
amendment to this Agreement executed by both Owner and Operator.
c) With 90 days’ prior written notice to Owner, Operator may elect to terminate this Agreement prior to the
expiration ofthe Term, including without limitation in the event that any Force Majeure Event prohibits Operator from
performing the O&M Services during such 90 day period. In such event, Operator will use commercially reasonable efforts
toprovide to Owner such documentation and information as may be necessary for Owner to secure the O&M Services from
athird party.
d) If aParty has failed to comply with any of its material obligations under this Agreement (including without
limitation Owner’sobligation to make full and timely payment of the Service Fees), the other Party may elect to terminate
this Agreement prior to the expiration of the Term by providing 30 days’ prior written notice to the defaulting Party (unless
such default is cured within such 30 day period). In the event of such atermination for Operator’sdefault, Operator will
use commercially reasonable efforts to provide to Owner such documentation and information as may be necessary for
Owner to secure the O&M Services from athird party.
e) Operator’sright to receive aproportional amount of the Service Fees that have accrued up to the date of
termination shall not be reduced or eliminated to due to any termination of this Agreement prior to the expiration of the
Term.
Section 3.2 Limitations of Liability.
a) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TO THE FULLEST
EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR
TYPE ARISING OUT OF OR RELATED TO PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO LOST PROFITS (EXCEPT WITH RESPECT TO OPERATOR’S RIGHT TO RECEIVE THE SERVICE
FEES), TAX CREDITS, POWER PRODUCTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, LOSS OF USE OF THE FACILITY, OR BUSINESS INTERRUPTION, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR
OPERATOR’S INDEMNIFICATION OBLIGATIONS IN SECTION 1.7, TO THE FULLEST EXTENT PERMITTED
BY LAW, IN NO CIRCUMSTANCES SHALL THE AGGREGATE LIABILITY OF OPERATOR UNDER THIS
AGREEMENT (WHETHER BASED ON NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE) ARISING OUT
OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF OPERATOR OF ITS
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OBLIGATIONS UNDER THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE SERVICE FEES RECEIVED
BY OPERATOR FROM OWNER UNDER THIS AGREEMENT.
Section 3.3 Force Majeure Events. Neither Party shall be considered to be in default of its obligations under
this Agreement (except the obligations for the payment of money) when and to the extent that performance of such
obligations is prevented byany event or circumstance beyond the reasonable control of such Party (“Force Majeure Event”),
including without limitation failure or interruption of autility’sproduction, delivery or acceptance ofelectrical power;
unusual adverse weather conditions, earthquakes, tornados, hurricanes, floods, extreme wind, hail, lightening, or other acts
ofGod; war (declared or undeclared); vandalism, theft, or other criminal acts of third parties; acts of animals; civil unrest
or disturbance; terrorism; economic sanction orembargo; labor disruptions, strikes, work stoppages, orlockouts; fires or
explosions; acts or failures to act of governmental authorities (including public health and safety orders); pandemics,
epidemics or other emergencies; unusual delays in shipping or delivery; or unavailability or restricted availability on
commercially reasonably terms of parts, tools, supplies, equipment, documentation or other items necessary for performance
of the O&M Services. Ifeither Party shall rely on the occurrence ofa Force Majeure Event asa basis for being excused
from the performance of its obligations under this Agreement, inwhole or inpart, then such Party shall provide prompt
written notice to the other Party of the occurrence of the Force Majeure Event giving an estimation of its expected duration
and the probable impact on the performance of its obligations hereunder. The Parties shall use commercially reasonable
efforts to mitigate or limit the adverse impacts of any Force Majeure Event.
ARTICLE 4. MISCELLANEOUS
Section 4.1 Hazardous Materials. Operator shall not be responsible for any hazardous materials or substances
that may be located at or near the Facility (including without limitation asbestos, lead-based paint, polychlorinated biphenyl,
or other chemical, pollutant, waste or toxic substance the storage, use, handling, disposal, or release of which, or exposure
to, is restricted orregulated by any governmental authorities (“Hazardous Materials”). To the fullest extent permitted by
law, Owner shall defend, indemnify and hold harmless Operator (and its agents, employees, subcontractors and vendors)
from any claims, damages, costs orexpenses (including reasonable attorneys’ fees) arising out of or related to any Hazardous
Materials at ornear the Facility, including without limitation those related to the exposure of Operator’spersonnel thereto
or the remediation thereof.
Section 4.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws
of the State of Indiana, without regard to its choice oflaw or conflict of laws provisions.
Section 4.3 Amendments. No amendment to this Agreement shall be binding on the Parties unless set out in
writing and signed by authorized representatives ofeach ofthe Parties.
Section 4.4 No Waiver. No provision of this Agreement shall be considered waived by either Party except
when such waiver is made in writing executed by the Party so waiving and except as otherwise specifically provided by this
Agreement. The failure of either Party to insist, on one or more occasions, upon strict performance of any of the provisions
of this Agreement or to take advantage of its rights hereunder or the delay or failure in exercising totally or partially any
right or remedy under this Agreement, shall not be construed as awaiver of any such provisions or the relinquishment of
any such rights or any other rights for the future, but the same shall continue and remain infull force and effect.
Section 4.5 Successors and Assigns. Neither Party shall be entitled to assign this Agreement or any of its rights
or obligations under this Agreement, nor shall it enter into any transaction as aresult of which it may transfer, assign, charge
or dispose by any title of any of those rights and obligations, without the prior written consent of the other Party, which
shall not be unreasonably withheld, delayed or conditioned. However, either Party shall be entitled to assign its right,
obligation, title and interest in and to this Agreement to any of its affiliates or in connection with amerger or acquisition of
the Party so long as such Party’sassignee shall agree to be bound by the terms and conditions hereof. In addition, Operator
shall be entitled to retain subcontractors and other vendors to provide any portion of the O&M Services as provided in
Section 1.2 without the consent of Owner.
Section 4.6 Representations and Warranties.
a) Representations and Warranties of Owner. Owner possesses all requisite power and authority to
enter into and perform this Agreement and to carry out the transactions contemplated herein. Owner’sexecution,
delivery and performance of this Agreement have been duly authorized and this Agreement has been duly executed
and delivered and constitutes Owner’slegal, valid and binding obligation, enforceable against Owner in accordance
with its terms, except as enforceability may be limited by bankruptcy, insolvency and other legal principles
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pertaining to creditor’srights. Except as otherwise contemplated herein, no material consent or approvals are
required inconnection with the execution, delivery and performance by Owner ofthis Agreement (except such
consents and approvals obtained by Owner prior tothe Effective Date).
b) Representations and Warranties of Operator. Operator possesses all requisite power and authority
to enter into and perform this Agreement and to carry out the transactions contemplated herein. Operator’sexecution,
delivery and performance of this Agreement have been duly authorized and this Agreement has been duly executed and
delivered and constitutes Operator’slegal, valid and binding obligation, enforceable against Operator in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency and other legal principles pertaining to
creditor’srights. Except as otherwise contemplated herein, no material consent or approvals are required inconnection with
the execution, delivery and performance by Operator of this Agreement (except such consents and approvals obtained by
Operator prior to the Effective Date).
Section 4.7 Additional Documents and Acts. Each Party agrees to execute and deliver such additional
documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this
Agreement. Provisions of this Agreement that should reasonably be considered to survive the Term or termination of this
Agreement, including provisions related to indemnification, will survive the Term or termination of this Agreement.
Section 4.8 Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement
to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall
be interpreted or applied so asto make the relationship of any of the Parties that of partners, joint ventures or anything other
than independent contractors. The Parties acknowledge and agree that there are no third party beneficiaries tothis
Agreement.
Section 4.9 Notices. Any notice, request, demand or other communication required or permitted under this
Agreement, shall be deemed to be properly given by the sender and received by the addressee if made in writing and (a) if
personally delivered; (b) the following business day after deposit with areputable next-day courier service; or (c) if sent by
facsimile or electronic mail with confirmation. Notices shall be addressed as set forth below the Parties’ signatures
acknowledging their respective acceptable of this Agreement.
Section 4.10 Dispute Resolution.
Good Faith Negotiations. Inthe event that any question, dispute, difference orclaim arises outofor isin connection
with this Agreement, including any question regarding its existence, validity, performance or termination (a
Dispute”), which either Party has notified to the other, senior management personnel from both Operator and
Owner shall meet and diligently attempt in good faith to resolve the Dispute for aperiod of 30 days following one
Party’swritten request to the other Party for such ameeting. If, however, either Party refuses or fails to so meet,
or the Dispute is not resolved by negotiation, the provisions of Section 4.10(b) shall apply.
Section 4.11 Interpretation and Joint Drafting. The Parties expressly agree that this Agreement was jointly
drafted and that each had the opportunity to negotiate its terms and to obtain the assistance of counsel in reviewing its terms
prior to execution. The language in all parts of this Agreement shall be in all cases construed according to its fair meaning
and not strictly for or against any of the Parties. In the event any claim ismade by any Party relating to any conflict,
omission or ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by virtue of the
fact that this Agreement was prepared by or at the request of aparticular Party or counsel for any particular Party.
Section 4.12 Confidentiality. If either Party provides confidential or proprietary information related to this
Agreement, the Facility or the O&M Services (“Confidential Information”) to the other Party or, if inthe course of
performing under this Agreement or negotiating this Agreement, aParty learns Confidential Information ofthe other Party,
the receiving or learning Party shall, tothe fullest extent permitted by law, protect the Confidential Information from
disclosure tothird parties with the same degree of care accorded its own confidential and proprietary information, and
except as permitted in writing by the disclosing or owning Party) refrain from using such Confidential Information, except
in the negotiation, performance, and enforcement of this Agreement.
Section 4.13 Complete Agreement. This Agreement, including all attached Exhibits, which may be modified
from time to time as determined by mutual written agreement of the Parties, and which are incorporated herein by this
reference, constitutes the entire agreement ofthe Parties regarding its subject matter and supersedes all prior proposals,
agreements, or other communications between the Parties, oral or written.
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Section 4.14 Severability. If any provision of this Agreement is found unenforceable or invalid, such provision
shall not be read to render this Agreement unenforceable or invalid as awhole. In such event, such provision shall be
rectified or interpreted so as to best accomplish its objectives within the limits of applicable law.
Section 4.15 Multiple Counterparts; Execution. This Agreement and any amendments of this Agreement may
be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one
and the same instrument. The person executing this Agreement warrants that he orshe isduly authorized to do so on behalf
of the applicable Party.
Section 4.16 Non-Discrimination. Operator represents and warrants that it and all of its officers, employees,
agents, contractors and subcontractors shall comply with all laws of the United States, the State of Indiana and the City of
Carmel prohibiting discrimination against any employee, applicant for employment orother person in the provision ofall
O&M services provided under this Agreement with respect totheir hire, tenure, terms, conditions and privileges of
employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex,
handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran status.
Section 4.17 E-Verify. Pursuant to I.C. § 22-5-1.7 et seq., as the same may be amended from time totime, and
as isincorporated herein by this reference (the “Indiana E-Verify Law”), Operator is required to enroll in and verify the
work eligibility status of its newly-hired employees using the E-Verify program, and to execute the Affidavit attached
hereto as Exhibit D, affirming that it is enrolled and participating in the E-verify program and does not knowingly employ
unauthorized aliens. In support of the Affidavit, Operator shall provide the Owner with documentation indicating that it
has enrolled and is participating in the E-Verify program. Should Operator subcontract for the performance of any work
under and pursuant to this Agreement, it shall fully comply with the Indiana E-Verify Law as regards each such
subcontractor. Should the Operator or any subcontractor violate the Indiana E-Verify law, the Owner may require acure
of such violation and thereafter, if no timely cure is performed, terminate this Agreement in accordance with either the
provisions hereof or those set forth in the Indiana E-Verify Law. The requirements ofthis paragraph shall not apply
should the E-Verify program cease to exist.
Section 4.18 Debarment and Suspension.
a) Operator certifies by entering into this Agreement that neither it nor its principals nor any of its
subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from entering into this Agreement by any federal agency orby any department, agency or political
subdivision of the State of Indiana. The term “principal” for purposes of this Agreement means an officer,
director, owner, partner, key employee or other person with primary management or supervisory responsibilities,
or a person who has acritical influence on or substantive control over the operations of Operator.
b) Operator certifies that it has verified the state and federal suspension and debarment status for all
subcontractors receiving funds under this Agreement and shall be solely responsible for any recoupment, penalties
or costs that might arise from use of asuspended or debarred subcontractor. Operator shall immediately notify the
Owner if any subcontractor becomes debarred or suspended, and shall, at the Owner’s request, take all steps
required by the Owner to terminate its contractual relationship with the subcontractor for work to be performed
under this Agreement.
Section 4.19 Iran Certification. Pursuant to I.C. § 5-22-16.5, Operator certifies that, in signing this Agreement,
it does not engage in investment activities within the Country of Iran.
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IN WITNESS WHEREOF, this Agreement hasbeen executed and delivered by the duly authorized
representatives ofOwner and Operator tohave an Effective Date of \[____________________\].
CITY OF CARMEL, INDIANA Operator:
By and through its Board of Public Works and Safety Solential Energy Solutions LLC,
an Indiana limited liability company\]
BY:
By:
James Brainard, Presiding Officer
Date:
James R. Shaw
Mary Ann Burke, Member
Date: Its: ___President___________________________
Address: \[Attention: Jim Shaw, President and CEO\] Lori S. Watson, Member
Date: 13277 North Illinois Street, Suite 110\]
Carmel, Indiana 46032\] ATTEST:
Sue Wolfgang, Clerk
Date:
Owner’sRepresentative: John Duffy Operator’s Representative: Ethan Shaw
Phone: 317-571-2451 Phone: (317) 504-3656
Email: jduffy@carmel.in.gov Email: eshaw@solential.com
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EXHIBIT A
SYSTEM SERVICES
Standard System Services. Subject to the terms and conditions set forth in this Agreement, Owner elects to
receive, and Operator agrees to provide, the Standard System Services at the levels indicated below:
1. Ground Maintenance:
a) Operator will mow grass and weeds atthe Facility areas under and immediately adjacent to
the solar arrays on aregular basis, on atime and material basis when approved by the
customer.
b) Operator will spray grass and weeds at the Facility areas under and immediately adjacent to
the solar arrays, on atime and material basis when approved by the customer.
2. Ground Inspections:
a) Operator will visually inspect the Facility areas immediately surrounding the solar arrays
such as fencing, roof conditions, and drainage systems) on aregular basis (no less than
and will report any material issues discovered by Operator to Owner
promptly
b) Operator will visually inspect all code-required signage for the Facility solar arrays on a
regular basis (no less than _______________) and will report any material issues discovered
by Operator to Owner promptly
3. Annual Inspections:
a) Operator will visually inspect the inverters, modules, racking, panel boxes and wiring for the
Facility solar arrays no less than once per year and will report any material issues discovered
by Operator to Owner promptly
b) Operator will check that all solar panels are tightened in material compliance with the
manufacturer’storque specifications no less than once per year and will report any material
issues discovered by Operator toOwner promptly
c) Operator will perform usual and customary breaker safety tests in an effort to verify
functionality in accordance with Good Industry Practice no less than once per year and will
report any material issues discovered by Operator to Owner promptly
d) Operator will perform usual and customary inverter diagnostic tests in an effort to verify
functionality in accordance with Good Industry Practice no less than once per year and will
report any material issues discovered by Operator to Owner promptly
4. Operator will make reasonably available toOwner real-time performance monitoring of the Facility
solar system via Operator’sSolView asset management platform (provided as a Software as a
Service – SaaS – part of the O&M Services), including historical data (e.g., energy, power,
environment, and weather) in reports, graphs and alarms. Operator will also provide Annual Reports
and logs of O&M Services as required by the Agreement.
5. Operator will be available by telephone (_______________ local time at the Facility, Monday –
Friday) at the following number ____________________ to receive notifications related to the
operation ofthe Facility from Owner orothers.
6. Operator will provide reasonable and usual and customary troubleshooting and diagnostics services
requested by Owner related to the operation of the Facility. Operator also will provide reasonable
and usual and customary Owner advocacy by providing assistance in coordinating service visits and
warranty support from all Facility equipment suppliers. (For clarity, Operator isnot responsible for
DocuSign Envelope ID: D6ED0996-282A-4E8A-B9F1-B9DFCD49288B
performing such warranty service or for repairing or replacing the solar arrays and related equipment
and infrastructure at the Facility.)
7. _____________________________________________________________________________
8. _____________________________________________________________________________
9. _____________________________________________________________________________
10. _____________________________________________________________________________
DocuSign Envelope ID: D6ED0996-282A-4E8A-B9F1-B9DFCD49288B
EXHIBIT B
ADDITIONAL SERVICES
Additional System Services. In addition to the Standard System Services listed in Exhibit A, subject to the
terms and conditions set forth in this Agreement, Owner elects to receive, and Operator agrees to provide, the
Additional System Services at the levels indicated below:
1. Spare Parts: ______________________________________________________________________
2. Warranty Support Services: _________________________________________________________
3. Calibration of Meters: ______________________________________________________________
4. ________________________________________________________________________________
5. ________________________________________________________________________________
DocuSign Envelope ID: D6ED0996-282A-4E8A-B9F1-B9DFCD49288B
EXHIBIT C
SERVICE FEES AND TERM OF AGREEMENT
Facility: Water Plant # 1, consisting of a689.85kW Solar Array and related components located at 4915 E.
th106 Street, Carmel, IN 46033 and Hazel Dell Pumping Station, consisting of a407.34kW Solar Array and
related components located at 10575 Hazel Dell Parkway, Carmel, IN 46033.
1. Subject to adjustments made inaccordance with the terms and conditions set forth inthis Agreement,
Owner shall pay toOperator the following Service Fees for the Standard System Services:
Term Year 1 $18,000/year @ $1,500/month
Term Year 2 $18,630/year @ $1,552.50/month
Term Year 3 $19,282/year @ $1,606.83/month
Term Year 4 $19,957/year @ $1,663.08/month
Term Year 5 $20,655/year @ $1,721.25/month
Unless other agreed by the Parties, the Service Fees for the Standard System Services that may be
provided by Operator after the end of the Term will be equal to such Service Fees in effect for the
previous year ofthe Term plus 3.5%.
2. Subject to adjustments made inaccordance with the terms and conditions set forth inthis Agreement,
Owner shall pay to Operator the following Service Fees for the Additional System Services:
Term Year 1 \[$____________/year @ $__________/month\]
Term Year 2 \[$____________/year @ $__________/month\]
Term Year 3 \[$____________/year @ $__________/month\]
Term Year 4 \[$____________/year @ $__________/month\]
Term Year 5 \[$____________/year @ $__________/month\]
Unless other agreed by the Parties, the Service Fees for the Additional System Services that may be
provided by Operator after the end of the Term will be equal to such Service Fees in effect for the
previous year ofthe Term plus 3.5%.
3. Reimbursable Expenses: __________________________________________________________
4. ________________________________________________________________________________
5. ________________________________________________________________________________
stTheTermofthisshallcommenceonApril1, 2023 and shall terminate \[five\] years thereafter, subject to
extensions or earlier termination as provided by this Agreement.
DocuSign Envelope ID: D6ED0996-282A-4E8A-B9F1-B9DFCD49288B
EXHIBITD
AFFIDAVIT
James R. Shaw_________________________________, being first duly sworn, deposes
and says that he/she is familiar with and has personal knowledge of the facts herein and, if called as
a witness in this matter, could testify as follows:
1. Iam over eighteen (18) years of age and am competent to testify to the facts
contained herein.
2. Iam now and at all times relevant herein have been employed by Solential Energy
Solutions, LLC (the “Employer”)
in the position of ___President___________________________________.
3. Iam familiar with the employment policies, practices, and procedures ofthe
Employer and have the authority to act on behalf of the Employer.
4. The Employer is enrolled and participates in the federal E-Verify program and has
provided documentation of such enrollment and participation to the City of Carmel,
Indiana.
5. The Company does not knowingly employ any unauthorized aliens.
FURTHER AFFIANT SAYETH NOT.
EXECUTED on the 23rd_day of May, 2023.
Printed: __James R. Shaw______________
Icertify under the penalties for perjury under the laws of the United States of America and the State
of Indiana that the foregoing factual statements and representations are true and correct.
Printed: __James R. Shaw______________
DocuSign Envelope ID: D6ED0996-282A-4E8A-B9F1-B9DFCD49288B