OUS Energy Services Agreement _ESA_ 2008 Template by lifemate

VIEWS: 7 PAGES: 33

									                                  ENERGY
                                 SERVICES
                                AGREEMENT
                                   Dated as of _____________



                                           Between


                            _______________________________

                                              And



                                   The State of Oregon
                                     acting by and through
                      the State Board of Higher Education
                            on behalf of the Oregon University System




Energy Services Agreement                      2
                            ENERGY SERVICES AGREEMENT

This Energy Services Agreement (the “Agreement”) is made as of the ___ day of _____,
200__ (“Effective Date”) by and between _____________________, with its principal
place of business located at _____________________, _____, Oregon ______ (“Service
Provider”), and the State of Oregon acting by and through the State Board of Higher
Education on behalf of the Oregon University System with its principal place of business
located at P.O. Box 3175, Eugene, OR 97403 (“Customer”). Service Provider and
Customer are sometimes individually referred to as “Party” and collectively as the
“Parties.”

                                       RECITALS

WHEREAS, Customer owns a ___________________ facility located                            in
______________, and as further described hereto in Exhibit “A” (“Premises”);
WHEREAS, Service Provider designs, installs, operates and maintains equipment that
produces electricity from solar energy.
WHEREAS, Service Provider desires to sell, and Customer desires to purchase,
electricity generated from a solar photovoltaic generation facility (“Solar Facility”) to be
installed, operated, and maintained by Service Provider, and to be located on the
Premises;
WHEREAS, Customer desires to engage Service Provider as its exclusive provider to the
Premises of electricity generated by solar power;
[WHEREAS, Customer has applied for, and anticipates that it will receive and assign to
Service Provider, a $__________ incentive from the Energy Trust of Oregon (“Rebate”)
upon completion of the Solar Facility installation; and]
WHEREAS, concurrently with the execution and delivery of this Agreement, Service
Provider and the Customer, as owner of the Premises (the Customer in such capacity
being herein called the “Property Owner”), have entered into the Solar Easement and
License (as defined in Appendix 1 hereto) granting Service Provider an easement and
license to a portion of the Premises for the installation, maintenance, and operation of the
Solar Facility on the terms and conditions set forth in the Solar Easement and License;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
contained herein, the sufficiency of which is acknowledged by both Parties, the Parties do
hereby agree as follows:

                               ARTICLE 1 -
                 PURCHASE AND SALE OF SOLAR ELECTRICITY
Section 1.1     Solar Electricity

Customer will purchase all Solar Electricity (which term and all other capitalized terms
used in this Agreement are defined in Appendix 1 attached hereto and made a part


Energy Services Agreement                    1
hereof) supplied by the Solar Facility, up to the available output of the Solar Facility, and
whether or not Customer uses such Solar Electricity. Service Provider shall have no right
to sell Solar Electricity from the Solar Facility to anyone other than Customer, except as
provided in Section 9.1.1.

Section 1.2     Energy Charges

Subject to the provisions hereof, Customer shall pay an aggregate monthly charge equal
to the Energy Charge for all Solar Electricity delivered hereunder pursuant to Exhibit “C”
and Section 6.2 hereof. As used herein, “Energy Rate” shall mean: (i) during the period
beginning on the date Solar Electricity is first delivered to Customer hereunder and
ending on the first anniversary of the Operations Commencement Date, $_______ per
kWh, and (ii) for each year during the Term of this Agreement commencing with the year
that begins on the second anniversary of the Operations Commencement Date, the
Energy Rate per kWh shall equal ____% of the Energy Rate per kWh in effect during the
immediately preceding year.

                                      ARTICLE 2 –
                                        TERM
Section 2.1     Term

The initial term of this Agreement shall commence on the Effective Date and conclude on
the fifteenth (15) anniversary date of the Operations Commencement Date (“Initial
Term”) unless otherwise extended or modified as provided herein.

Section 2.2     Additional Extension Periods

If no Event of Default shall have occurred and be continuing and this Agreement has not
been earlier terminated in accordance with the terms hereof, Customer has the option by
delivering written notice to Service Provider at least one hundred eighty (180) days prior
to the Initial Term’s or a preceding Additional Extension Period’s conclusion, to extend
this Agreement for not more than two additional three (3) year period(s) (“Additional
Extension Periods”), commencing on the day following the conclusion of the Initial
Term or the preceding Additional Extension Period, as the case may be. If Customer
fails to provide any notice before any such one hundred eighty (180) day period,
Customer shall be deemed to have not elected to extend the Agreement for an Additional
Extension Period. As used herein, “Term” shall mean the Initial Term plus any
Additional Extension Periods.

Section 2.3     Purchase Option

Customer is hereby granted the option to purchase all, but not less than all, of the Solar
Facility then covered by this Agreement for a cash purchase price equal to the Fair
Market Value of such Solar Facility. As used herein, “Fair Market Value” shall be
determined by Service Provider on the basis of, and shall be equal to, the value which
would be obtained in an arm’s length sale transaction between informed and willing


Energy Services Agreement                    2
parties for such a Solar Facility, in use and in place for its originally intended purpose, as
is. To exercise this purchase option: (a) no Event of Default on the part of Customer
shall have occurred and be continuing; (b) this Agreement shall not have been previously
terminated; and (c) Customer must give Service Provider written notice of its intent to
exercise such purchase option, which notice must be given not more than one year and no
less than six months prior to the end of the Initial Term or the then-current Additional
Extension Period, as the case may be. Any purchase of the Solar Facility pursuant to the
purchase option granted by this Section shall occur on the day following the last day of
the Initial Term or the then-current Additional Extension Period, as the case may be, or
on such other date as the Parties may mutually agree in writing.

                                    ARTICLE 3 -
                            SOLAR EASEMENT AND LICENSE
Section 3.1     Grant of Solar Easement and License

Reference is made to the Solar Easement and License Agreement that is being executed
and delivered by the Parties concurrently with the execution and delivery of this
Agreement. The Solar Easement and License Agreement is incorporated herein by
reference.
                                       ARTICLE 4 -
         OPERATION AND MAINTENANCE OF THE SOLAR FACILITY
Section 4.1     General Responsibilities of Service Provider

4.1.1 Service Provider shall, at its sole expense, purchase and provide all equipment,
materials, supplies and labor for and construct, install, operate, maintain and repair the
Solar Facility in accordance with all laws and regulations of any applicable
Governmental Authority and the provisions of this Agreement and the Solar Easement
and License Agreement.
4.1.2 Service Provider shall be permitted to use subcontractors or agents to perform any
of its obligations under this Agreement, provided however that the use of such third
parties shall not relieve Service Provider of its obligations and responsibilities hereunder,
and Service Provider shall be responsible for the actions and performance of such third
parties. Service Provider’s choice of subcontractors shall be subject to Customer’s
advance approval, which approval will not be unreasonably withheld.
4.1.3 Service Provider shall obtain all necessary Approvals and Permits, and pay all
permit fees required in connection with its activities under this Agreement. Service
Provider shall pay all income and other taxes, surcharges and levies, including personal
property taxes, related to its ownership of or other activities respecting the Solar Facility
and its receipt of the funds set out in Sections 6.2 and 6.4, without passing these costs on
to Customer.
4.1.4 Service Provider shall provide Customer with Solar Facility production data upon
request, or permit Customer or Customer’s authorized agent to access such data via
telephone or internet.


Energy Services Agreement                     3
4.1.5     While it is the belief and position of the Parties that the project under this
Agreement is not a public works project subject to the prevailing wage rate and other
requirements of the Oregon Bureau of Labor and Industries (“BOLI”), Service Provider
shall nevertheless comply with and require its subcontractors to comply with the
prevailing wage rate and other BOLI requirements pursuant to ORS 279C.800 through
279C. 870 and the administrative rules of BOLI.

Section 4.2     General Responsibilities of Customer re Conditions Precedent

4.2.1 Customer shall reasonably assist and cooperate with Service Provider and provide
any information reasonably requested by Service Provider in the fulfillment of the
conditions precedent contained in Section 7.1 and in obtaining any required Approvals
and Permits to install the Solar Facility.

Section 4.3     Interruption of Service – Scheduled Outages

4.3.1 The interruption from time to time of Solar Electricity service to Customer may
be necessary in order to install, remove, maintain, modify or expand the Solar Facility
(“Scheduled Outages”), and may also be required in the case of an emergency
(“Unscheduled Outages”). Service Provider shall provide advance notice, by telephone
or otherwise, and consult with Customer regarding any Scheduled Outage periods, which
Service Provider shall use reasonable efforts to (i) schedule in the months of
________________; and (ii) conduct in a manner which minimizes disruption to
Customer.

Section 4.4     Interruption of Service – Unscheduled Outages

4.4.1 In the event of an Unscheduled Outage, Service Provider will use reasonable
efforts to respond within one business day following notification either by Service
Provider’s remote monitoring systems or by Customer of such Unscheduled Outage and
will effect such repairs as soon as reasonably possible to restore the Solar Facility to
operation.

Section 4.5     Premises Audits

The Service Provider shall have the right, but not the obligation, to conduct an energy
audit of the Premises at any time after the Effective Date and from time-to-time thereafter
(but no more frequently than annually) to determine the amount of Solar Electricity that
may be required by the Premises. Review of Customer’s utility bills shall be included in
such audits. Customer shall be permitted to conduct annual audits of Service Provider’s
operations at the Premises, which shall include review of such Service Provider records
as Customer reasonably requests. All such audits by the Parties shall be conducted
pursuant to commercially reasonable, mutually agreed procedures and with the
reasonable cooperation of the Party being audited.




Energy Services Agreement                   4
                                      ARTICLE 5 –
                                      METERING
Section 5.1     Metering Devices

Service Provider shall provide, own and maintain, at its expense, all meters for measuring
the Solar Electricity delivered to Customer (“Metering Devices”). All Metering Devices
shall have net metering capabilities.

Section 5.2     Inspections and Testing of Metering Devices

5.2.1 All Metering Devices shall be sealed and the seal shall only be broken by the
Service Provider when a Metering Device is to be inspected, tested, or repaired. Except
in the instance of an emergency repair, Customer shall be given reasonable prior notice
and shall have the right to be present.
5.2.2 Upon seven (7) days written notice to Customer, Service Provider, at its sole
expense, shall annually (or more frequently, if Service Provider has reason to believe
there may be a meter malfunction) inspect and test the Metering Devices. The tests shall
be conducted by independent third-parties qualified to conduct such tests. The Customer
shall have the right to be present at such tests. Upon Customer’s request, Service
Provider shall provide Customer with a copy of the results of any inspection and tests
conducted on the Metering Devices. Customer may at any time request additional testing
with respect to any Metering Devices whereupon Service Provider shall promptly
schedule a test. The cost of such additional testing shall be paid by Customer unless the
percentage of error in the Metering Devices is found to be greater than three percent (3%)
in which case Service Provider shall pay for the test. If a meter is found to be inaccurate,
it shall promptly be repaired or replaced.

Section 5.3     Adjustment for Inaccuracies

If, as a result of a test, a Metering Device is inaccurate by more than three percent (3%)
and it is not known when the Metering Device inaccuracy commenced, then the invoices
covering the period of time since the last Metering Device test shall be adjusted for the
amount of the inaccuracy on the assumption that the inaccuracy persisted during one-half
of such period. If, as a result of a test, a Metering Device is inaccurate by more than
three percent (3%) and it is known when the Metering Device inaccuracy commenced,
then the invoices covering the period of time since such time shall be adjusted for the
amount of the inaccuracy from that date. If a test shows a Metering Device is inaccurate
by three percent (3%) or less, there shall be no adjustments pursuant to this section. If a
test shows that a Metering Device is inaccurate by more than three percent (3%), then
either: (1) if the Metering Device was registering less Solar Electricity than was actually
produced during the period in question, Customer will pay Service Provider the amount
of any underpayment determined as a result of said adjustment, and (2) if the Metering
Device was registering more Solar Electricity than was actually produced during the
period in question, Service Provider will refund to Customer the amount of any
overpayment, determined as a result of said adjustment. In the event that the adjustment
is in favor of the Customer, the adjustment shall be realized by a credit against the


Energy Services Agreement                    5
amounts otherwise owing by Customer on the next Invoice rendered pursuant to Section
6.1. In the event that the adjustment is in favor of the Service Provider, the amount
owing as a result thereof shall be reflected on the next Invoice rendered pursuant to
Section 6.1 and paid by Customer along with other amounts owing as set forth in such
Invoice.

                                   ARTICLE 6 -
                              BILLING AND PAYMENT
Section 6.1     Billing

Service Provider shall read each Metering Device at the beginning of each calendar
month and send to Customer an invoice for the Energy Charge (“Invoice”) for Solar
Electricity provided to Customer during the prior calendar month (“Billing Period”). All
Invoices shall show the amount of Solar Electricity provided to the Premises, the
applicable Energy Rate, the Energy Charge, plus any applicable taxes.

Section 6.2     Payment

The price of electrical energy delivered to Customer (“Energy Charge”) will be a dollar
amount calculated by multiplying the number of kilowatt hours of electricity delivered to
Customer from the Solar Facility in a specific Billing Period multiplied by the applicable
Energy Rate for that Billing Period specified in dollars per kilowatt hour, plus other
special charges, such as any applicable federal, state and local taxes typically paid by the
end user. Payment of the Energy Charge is due within forty-five (45) days after receipt of
Service Provider’s Invoice. Any payment not made within such forty-five (45) day period
will bear interest from the date payment was originally required to be made at the lesser
of the rate of two-thirds of one percent (.66%) per month or the maximum amount
permitted by law and may, at Service Provider’s option, be declared an Event of Default
under this Agreement on the part of Customer.

Section 6.3     Disputed Payments

In the event of a good faith dispute between the Parties as to the Energy Charge charged
to Customer for any Billing Period, Customer shall pay the undisputed portion of the
Energy Charge pursuant to the terms of this Agreement notwithstanding such dispute.
Any further payments due as a result of the resolution of a dispute shall be added to the
payment of the next month’s Invoice. Any overcharge to or overpayment by Customer
will be deducted by Service Provider from the next month’s Invoice.

Section 6.4     Rebates, Grant Funding and Other Incentives

Any grants, incentives, tax credits, reduced rate financing, or other assistance or benefits
available for projects similar to the Solar Facility, from federal, state, and local
governmental authorities, utilities or other entities shall inure to the benefit of Service
Provider. Service Provider will be entitled to ownership of any solar renewable energy
certificates (RECs) and any other environmental attributes or incentives for all Solar


Energy Services Agreement                    6
Electricity produced by the Solar Facility, and Service Provider may, in its sole
discretion, retain, sell, assign or otherwise transfer such RECs and other environmental
attributes or incentives to such persons as it deems appropriate (including without
limitation the transfer or sale of some or all RECs to a utility or to the Energy Trust of
Oregon). Customer will cooperate in good faith as necessary to confirm Service
Provider’s right and title to all such RECS and other environmental attributes and
incentive and to enable Service Provider to obtain all available incentives and rebates,
including assignment to Service Provider of any incentive received by Customer, as
consistent with this Agreement.
Customer will reasonably cooperate with Service Provider in completing and filing such
applications and other documents as are necessary to permit Service Provider to receive
the Rebate for the Solar Facility of approximately $_______________. The Service
Provider’s obligations hereunder are contingent upon receipt of the Rebate. If the Rebate
is not received by Service Provider on or before ________________, Service Provider
may terminate this Agreement pursuant to Section 7.2 hereof and remove the Solar
Facility from the Premises, and neither Party shall have any further liability hereunder.
The Customer’s rights (if any) to the Rebate shall be assigned by Customer to the Service
Provider. The Initial Delivery Date is dependant upon execution of this Agreement and
Service Provider’s receipt of the assignment of the Rebate.

                                  ARTICLE 7 -
                             CONDITIONS PRECEDENT
Section 7.1     Conditions Precedent to Customer’s and Service Provider’s
Obligations

Service Provider’s and Customer’s obligations under this Agreement shall be subject to
the satisfaction of all of the following conditions precedent:
7.1.1 Service Provider shall receive from Customer in a form reasonably satisfactory to
Service Provider, and to the extent under the control of Customer: (i) all necessary
easements, licenses, and rights of way; (ii) all Rebates and Approvals and Permits; (iii)
any other documents necessary for either Party’s performance under this Agreement,; and
(iv) continuance of any Roof Warranty currently in force at the Premises. Service
provider will at its sole expense obtain third party verification by a licensed professional
engineer of the structural integrity of the Premises.
7.1.2 Service Provider reasonably satisfies itself that the transactions contemplated
hereunder (i) will not violate any Environmental Laws and Requirements; and (ii) will
not jeopardize Service Provider’s or the Solar Facility’s status as a Qualified Solar Power
Generation Facility that meets the operating and efficiency standards, ownership criteria,
and other requirements of the Public Utility Regulatory Policies Act, the Oregon Public
Utilities Commission, the Oregon Department of Energy, the Energy Trust of Oregon,
and any other applicable law.
7.1.3 If Service Provider fails to receive the Rebate on or before __________ on terms
and conditions satisfactory to Service Provider.


Energy Services Agreement                    7
Section 7.2 Good Faith Efforts to Fulfill Conditions; Termination for Failure to
Satisfy Conditions Precedent

Customer and Service Provider each covenant and agree that they will use commercially
reasonable good faith efforts to fulfill the conditions precedent set forth in Section 7.1
above. In the event the conditions precedent set forth in Section 7.1 above are not fulfill
within six (6) months from the Effective Date, then either Party may terminate this
Agreement by giving ten (10) days’ written notice of such termination to the other Party,
whereupon this Agreement shall terminate effective as of the date set forth in such notice
and neither Party shall have any further liability hereunder.


Section 7.3 Termination by Service Provider for Failure to Receive Delivery of
Solar Panels
In addition to the termination rights set forth above, Service Provider shall have the right
to terminate this Agreement with no further liability to Customer unless all of the solar
panels required to complete the installation of the Solar Facility are delivered to Service
Provider prior to _______________. In the event of such termination by Service
Provider, Customer shall have no further liability to Service Provider.


Section 7.4    Mutual Termination by the Parties
Service Provider and Customer, by mutual written agreement, may terminate this
Agreement at any time and neither Party shall have any further liability hereunder, except
as otherwise agreed in the termination agreement, and except for survival of Indemnity
Obligations under Section 17.7.

                                    ARTICLE 8 -
                                 EVENTS OF DEFAULT
Section 8.1     Events of Default

Each of the following shall constitute an “Event of Default” under this Agreement:
8.1.1. The failure by either Party to fulfill any of its material obligations hereunder
(including, without limitation, in the case of Customer, Customer's failure to make
payment of Energy Charges when due).
8.1.2 The commencement by either Party of a voluntary case of bankruptcy or
insolvency, or the consent of either Party to the appointment of, or taking possession by,
a bankruptcy trustee or similar official of any substantial part of its properties or assets, or
the making of any general assignment for the benefit of its creditors.
8.1.3 The issuance by a Court of competent jurisdiction of a decree for relief in respect
to either Party in an involuntary case under any applicable bankruptcy or insolvency law
which remains unstayed and in effect for a period of one hundred and twenty (120)
consecutive days.



Energy Services Agreement                      8
8.1.4 A closure of or cessation of operations at the Premises that results in a cessation
of electrical consumption at the Premises.

Section 8.2     Opportunity to Cure Default

In the event of any default occurring pursuant to Sections 8.1.1 or 8.1.4, the non-
defaulting Party shall provide written notice of the Event of Default to the defaulting
Party. Either Party shall have an opportunity to cure any Event of Default set forth in
Section 8.1.1 or 8.1.4 by remedying said Event of Default within sixty (60) days from
receipt of notice of default from the non-defaulting Party.

                               ARTICLE 9 -
                    REMEDIES UPON AN EVENT OF DEFAULT
Section 9.1     Remedies of Service Provider

In the event of default by Customer which is not timely cured, Service Provider may,
without an election of remedies and in addition to any other remedies provided in this
Article 9 or elsewhere in this Agreement:
9.1.1 Suspend deliveries of Solar Electricity to Customer for the balance of the Term
(including any Additional Extension Periods) and sell such energy into the local grid,
with the amount received by the Service Provider from any such sales less all expenses
incurred by Service Provider (the “Net Receipts”) in connection therewith to be credited
against the amounts owing by Customer hereunder, and recover from Customer an
amount equal to: (a) the amount that would have been payable hereunder by Customer for
such Solar Electricity less an amount equal to the Net Receipts; plus (b) interest thereon
at the rate provided for in Section 6.2 hereof; and/or
9.1.2   Exercise all remedies available at law or at equity; and/or
9.1.3 Terminate this Agreement upon ten (10) days written notice to Customer, remove
the Solar Facility within one hundred twenty (120) days of such notice, whereupon
Customer shall be liable to Service Provider for the following amounts: (a) the actual
cost incurred by Service Provider to remove the Solar Facility and Service Provider
Property from the Premises; plus (b) the Termination Fee calculated as provided herein.
The Customer acknowledges that the Termination Fee constitutes liquidated damages,
and not penalties, payable in lieu of Service Provider’s actual damages resulting from the
early termination of this Agreement. The Customer further acknowledges that the
Service Provider’s actual damages may be impractical and difficult to accurately
ascertain, and in accordance with the Customer’s rights and obligations under this
Agreement, the Termination Fee constitutes fair and reasonable damages.
For purposes hereof, “Termination Fee” shall mean an amount equal to the sum of (i)
the past due Energy Charges and other amounts then due and payable under this
Agreement, plus (ii) the expected Energy Charges to have been paid by Customer during
the remaining period of the Term (calculated based on the historical production of Solar
Electricity by the Solar Facility), plus (iii) the sum of any renewable energy certificates,
rebates, tax credits, or other incentives expected to have been received by Service


Energy Services Agreement                    9
Provider during the remaining period of the Term, including the loss of any or all of the
Rebate, federal tax credits or any other incentives that would have been received by
Service Provider but were not due to such early termination. All payments required to be
made by Customer pursuant to this Section 9.1.3 shall be paid by Customer in full within
sixty (60) days after Service Provider delivers notice to Customer of the amount due.

Section 9.2     Remedies of Customer

In the event of default by Service Provider which is not timely cured, Customer’s sole
remedy shall be to terminate this Agreement and require Service Provider, at its sole
expense, to remove all Service Provider Property from the Premises in the manner
required under the Solar Easement and License Agreement, and return the Premises to the
reasonably same condition before this Agreement was entered into, ordinary wear and
tear and casualty damage excluded.

Section 9.3     No Waiver

No waiver of any default by either Party shall be construed as a waiver of any subsequent
default and the failure to exercise any right or remedy hereunder shall not waive the right
to exercise such right or remedy thereafter.

                                     ARTICLE 10 -
                                     INSURANCE
Section 10.1 Insurance Requirements of Customer

Throughout the Term, the Customer and Service Provider shall maintain the insurance
coverage specified on Exhibit D hereto, unless Customer is self-insured. A certificate of
insurance evidencing the required coverage shall be provided to the Customer or Service
Provider upon request. Each Party shall name the other Party as an additional insured and
loss payee on all physical damage insurance policies and an additional insured on all
liability insurance policies, unless Customer is self-insured. If Service Provider is self-
insured with respect to any required insurance coverage, Service Provider shall provide to
Customer documentation of Service Provider’s self-insurance program and a report of an
independent actuary regarding the actuarial soundness and funding of such self-insurance
program.

Section 10.2 Modifications of Insurance Policies

Customer or Service Provider shall promptly provide to the other party thirty (30) days
advance written notice of any material changes to, or the proposed cancellation of, the
insurance policies required to be carried by Customer or Service Provider. Customer and
Service Provider shall also include in its required policies suitable waiver of subrogation
provisions regarding property damage at the Premises.




Energy Services Agreement                   10
                                ARTICLE 11 –
                       SHUTDOWN OF THE SOLAR FACILITY
Section 11.1 Temporary Shutdown of the Solar Facility

If, during the Term, renovations or damage to the Premises occurs for reasons other than:
        (i) a Force Majeure,
        (ii) renovations or alterations undertaken by Service Provider, or
        (iii) the negligence of Service Provider or its employees or contractors or a breach
             by Service Provider of is obligations hereunder,
and the same significantly reduces (a “curtailment”) or eliminates the production or use
of Solar Electricity from the Solar Facility or results in an Unscheduled Outage of the
Solar Facility, then Customer shall not be in default under this Agreement if:
        (a) Customer makes a good faith effort to give as much notice as possible to
            Service Provider prior to Solar Facility shutdown or curtailment.
        (b) Customer pays all costs and expenses incurred to de-install and re-install the
            Solar Facility, if required, during the temporary shutdown or curtailment
            period.
        (c) Customer pays Service Provider an amount equal to the applicable Energy
            Charges that would have been paid by Customer during the period of the
            temporary shutdown or curtailment (calculated based on the historical
            production of Solar Electricity by the Solar Facility), plus the sum of any
            renewable energy certificates, rebates, tax credits, or other incentives expected
            to have been received by Service Provider during the period of such shut
            down or curtailment, including the loss of any or all of the Rebate, federal tax
            credits, REC sales, or any other incentives that would have been received but
            were not due to such shut down or curtailment.
The Customer acknowledges that the payments required pursuant to (c) above constitutes
liquidated damages, and not penalties, payable in lieu of Service Provider’s actual
damages resulting from the temporary shut down or curtailment of the Solar Facility.
The Customer further acknowledges that the Service Provider’s actual damages may be
impractical and difficult to accurately ascertain, and in accordance with the Customer’s
rights and obligations under this Agreement, the amounts payable pursuant to (c) above
constitute fair and reasonable damages. At Service Provider’s sole option, in lieu of
making the payments required by (c) above, Customer and Service Provider may agree in
writing to extend the Term by one day for each day that the Solar Facility was shut down.

Section 11.2 Permanent Shutdown of the Solar Facility

If, during the Term and for reasons other than a Force Majeure or a breach of covenant,
negligence or misconduct by the Service Provider or its agents or employees, the Solar
Facility is permanently shut down due to renovation, damage, destruction or closure of
the Premises, Service Provider shall be entitled to the following, as applicable:



Energy Services Agreement                    11
        a. Within thirty (30) days after a permanent shutdown of the Solar Facility,
           Customer shall provide written notice to Service Provider indicating whether
           or not Customer intends to restore operation of the Premises or whether
           relocation of the Solar Facility will be pursued.
        b. If, within ninety (90) days after permanent shutdown of the Solar Facility,
           Customer and Service Provider mutually agree on an alternative location from
           which Service Provider can provide Solar Electricity to Customer, then
           Customer shall pay the costs associated with relocation of the Solar Facility.
           This alternative location shall, in the opinion of the Service Provider, have the
           potential to provide substantially similar overall system output as the original
           Premises, unless Customer and Service Provider mutually agree that this
           output level is not required.
        c. Customer and Service Provider agree that Service Provider shall be
           reimbursed for the period of Solar Facility shutdown, as though it were a
           temporary shutdown, under the payment mechanisms specified in Section
           11.1 hereof.
        d. If, within ninety (90) days after permanent shutdown of the Solar Facility,
           Customer and Service Provider have not agreed upon an alternative location
           for the Solar Facility, Service Provider may terminate this Agreement and
           receive the Termination Fee specified in Section 9.1.3.

                                     ARTICLE 12 -
                                   FORCE MAJEURE
Section 12.1 Notice of Force Majeure Events

If either Customer or Service Provider shall be prevented by Force Majeure from
performing one or more of its obligations under this Agreement (other than Customer’s
obligation to make payments for any Solar Electricity), the Party unable to perform shall
promptly notify the other Party in writing and shall keep the other Party informed of the
situation for the duration of such event. The Party giving notice shall specify in
reasonable detail the basis for the Force Majeure claim, its expected duration, and the
steps which such Party is taking to overcome it. Except as otherwise provided herein, all
of the provisions of this Agreement shall remain in full force and effect in the event of
the occurrence of an event of Force Majeure.

Section 12.2 Force Majeure Relief

Upon the receipt of a Force Majeure notice, the obligations of the Party providing the
notice requesting relief shall be reduced or suspended, during the continuance of the
Force Majeure, provided that such obligations shall be reduced only to the extent the
affected Party’s performance is adversely affected by the Force Majeure, and only to the
extent that such adverse effects cannot be mitigated by the affected Party’s diligent
efforts.
In the event a Force Majeure Event is anticipated to prevent a Party from performing its


Energy Services Agreement                   12
obligations under this Agreement for a period of three (3) months or more, the Parties
shall meet to determine the appropriate course of action. Notwithstanding the foregoing,
Customer shall not be excused by this Article 12 from its obligation to pay Service
Provider for any Solar Electricity delivered to Customer prior to the event of Force
Majeure.

                                   ARTICLE 13 -
                               DISPUTE RESOLUTION
Section 13.1 Disputes

This Article 13 shall apply to any dispute arising under or related to this Agreement
(whether arising in contract, tort or otherwise, and whether arising at law or in equity),
including (a) any dispute regarding the construction, interpretation, performance, validity
or enforceability of any provision of this Agreement or whether any Party is in
compliance with, or breach of, any provisions of this Agreement and (b) the applicability
of this Article 13 to a particular dispute. Any dispute to which this Article 13 applies is
referred to herein as a “Dispute.”

Section 13.2 Negotiation to Resolve Disputes.

If a Dispute arises, the Parties shall attempt to resolve such dispute through the following
procedure:
    (a) first, the representatives of each of the Parties shall promptly meet (whether by
        phone or in person) in a good faith attempt to resolve the Dispute;

    (b) second, if the Dispute is still unresolved after 20 days following the
        commencement of the negotiations described in Section 13.2(a), then the
        designated executive officer of each Party shall meet (whether by phone or in
        person) in a good faith attempt to resolve the Dispute; and

    (c) third, if the Dispute is still unresolved after 10 days following the commencement
        of the negotiations described in Section 13.2(b), then either Party may file a claim
        of relief in a court of competent jurisdiction in Oregon.


                                    ARTICLE 14 -
                                 INDEMNIFICATION
Section 14.1 Indemnification

To the fullest extent permitted by Oregon Law (it being understood and agreed that
Customer’s obligation under this provision is subject to and limited by Article XI, section
7 of the Oregon Constitution and the Oregon Tort Claims Act), each Party (an
“Indemnifying Party”) agrees to indemnify, defend and hold each other Party (including
each Parties’ respective officers, directors, employees and agents– collectively referred to
herein as the “Indemnified Party”) harmless, from and against any and all:


Energy Services Agreement                   13
        (a) claims, actions, costs, expenses, damages and liabilities, including reasonable
            attorneys’ fees (collectively “Liabilities”), arising out of or in connection
            with the Indemnifying Party’s (or the Indemnifying Party’s employees,
            contractors and agents) respective activities, negligent acts or omissions in the
            conduct and performance under this Agreement, including liabilities
            attributable to breach of law or violation of permits or licenses applicable to
            the Premises and/or Solar Facility, as the case may be
        (b) claims asserted by an Indemnifying Party’s creditors to any right, title or
            interest in the Premises and/or Solar Facility (as the case may be) or resulting
            from any encumbrances, liens or claims placed on the Premises and/or Solar
            Facility.
Notwithstanding the foregoing or anything expressed or implied herein or in the Solar
Easement and License to the contrary, an Indemnifying Party is excused from any
indemnity obligation to each Indemnified Party and is not required to reimburse or
indemnify any Indemnified Party for any claim to the extent such claim is due to the
negligence or willful misconduct of the Indemnified Party or its contractors. The
Indemnified Party shall promptly notify the Indemnifying Party of any notice of a claim
received that may result in a claim against the other along with a copy of any documents
received. The Parties will cooperate and consult with one another in responding to, and
defending, any such claim.
In the event the Indemnifying Party is the Service Provider, it shall have control of the
defense and settlement of the claim; however, neither Service Provider nor any attorney
engaged by Service Provider shall defend the claim in the name of the State of Oregon or
Customer, nor purport to act as legal representative of the State of Oregon or Customer,
without first receiving from the Oregon Attorney General, in a form and manner
determined appropriate by the Attorney General, authority to act as legal counsel for the
State of Oregon, nor shall Service Provider settle any claim on behalf of the State of
Oregon without the approval of the Attorney General. The State of Oregon may, at its
election and expense, assume its own defense and settlement in the event that the State of
Oregon determines that Service Provider is prohibited from defending the State of
Oregon, or is not adequately defending the State of Oregon’s interests, or that an
important governmental principle is at issue and the State of Oregon desires to assume its
own defense.

Section 14.2 No Consequential or Special Liability of Either Party

Except for the damages expressly provided in Sections 9.1.3, 11.1, 11.2 and 12.2 hereof,
the Service Provider, the Customer and their respective officers, directors, affiliates,
agents, employees, contractors or suppliers, shall not be liable for any indirect, special,
punitive, incidental, exemplary or consequential loss or damage of any nature arising out
of their performance or nonperformance under this Agreement.

Section 14.3 Survival of Indemnities

The duty to indemnify will continue in full force and effect notwithstanding the
expiration or termination of this Agreement.


Energy Services Agreement                    14
                           ARTICLE 15 -
          REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Section 15.1 Warranties and Representations of Both Parties

Each Party warrants and represents to the other that: (i) it is a legal entity, duly organized,
validly existing, and in good standing under the laws of the State of Oregon; (ii) this
Agreement constitutes a legal, valid and binding obligation enforceable in accordance
with its terms and is not in violation of any requirement of law; and (iii) the execution,
delivery and performance of this Agreement and the Solar Easement and License (A) is
within its powers, (B) has been duly authorized by all requisite action and (C) will not
violate any provision of applicable law or any agreement, commitment, certificate, or
other document to which it is a party or by which any of its assets may be bound or
affected.


Section 15.2 Customer’s Additional Representations and Warranties

15.2.1 Customer has full power and right to enter into the Solar Easement and License
and allow Service Provider the use and possession of the Solar Facility.




Energy Services Agreement                     15
                            ARTICLE 16 -
          ASSIGNMENT; RIGHTS OF SERVICE PROVIDER’S LENDER
Section 16.1 Assignment by Service Provider and Customer

16.1.1 Upon advance written notice to Customer, this Agreement may be assigned by
Service Provider and any or all of Service Provider's rights, title, and interest under this
Agreement (including without limitation any payments by Customer hereunder) may be
assigned by Service Provider; provided, however, that unless otherwise expressly agreed
thereto in writing by the Customer in a connection with an assignment by Service
Provider, any such assignment will not relieve Service Provider of any of its obligations
hereunder. Upon written consent of Service Provider, this Agreement may be assigned
by Customer to any affiliate, provided, however, that any such assignment will not
relieve Customer of any of its obligations hereunder. Any direct or indirect change of
control of Service Provider (whether voluntary or by operation of law) shall be not
deemed an assignment of this Agreement.
16.1.2 All covenants and provisions of this Agreement by and for the benefit of the
Parties hereto shall bind and inure to the benefit of their respective successors and assigns
as permitted by the provisions of this Section.
Section 16.2 Rights of Service Provider’s Lender.

The Customer acknowledges that the Service Provider will be financing the Solar
Generation System with financing accommodations from one or more financial
institutions and that Service Provider’s obligations will be secured by, among other
collateral, a pledge or collateral assignment of this Agreement, the Solar Easement and
License and a first security interest in the Solar Generation System. In order to facilitate
such necessary financing, and with respect to any such financial institutions of which the
Service Provider has notified the Customer in writing (each, a “Lender”), the Customer
agrees as set forth below. Provided, however, that Service Provider is permitted to and
shall grant a security interest in the Solar Generation System or any of the solar panels or
other equipment or components only to the extent that they are and remain personal
property and trade fixtures, and not fixtures or part of the building or real property to
which they are affixed.

16.2.1 Consent to Collateral Assignment. Service Provider shall have the right to
assign this Agreement and the Solar Easement and License as collateral for financing or
refinancing of the Solar System, and the Customer consents to the collateral assignment
by the Service Provider to the Lender of the Service Provider’s right, title and interest in
and to this Agreement and the Solar Easement and License. In addition, Customer shall
in good faith work with Service Provider and the Lender to agree upon a consent by
Customer to collateral assignment of this Agreement. Promptly upon making any such
collateral assignment of this Agreement and the Solar Easement and License, Service
Provider shall give written notice of such assignment, which notice shall specify the
name of the Lender and provide the Lender’s address to which notices hereunder shall be
sent.


Energy Services Agreement                    16
16.2.2 Lender’s Rights Following an Event of Default. Notwithstanding any contrary
term of this Agreement:

        (a) The Lender, as collateral assignee, shall be entitled to exercise, in the place
            and stead of the Service Provider, any and all rights and remedies of the
            Service Provider under this Agreement and the Solar Easement and License in
            accordance with their respective terms. Lender shall also be entitled to
            exercise all rights and remedies of secured parties generally with respect to
            this Agreement, the Solar Easement and License and the Solar Generation
            System.
        (b) The Lender shall have the right, but not the obligation, to pay all sums due
            under this Agreement and the Solar Easement and License and to perform any
            other act, duty or obligation required of the Service Provider hereunder or
            under the Solar Easement and License or cause to be cured any default or
            Event of Default of the Service Provider in the time and manner provided by
            the respective terms of this Agreement and the Solar Easement and License
            (as the case may be). Nothing herein requires the Lender to cure any default
            of the Service Provider (unless the Lender has succeeded to the Service
            Provider’s interests) to perform any act, duty or obligation of the Service
            Provider, but Customer hereby gives the Lender the option to do so.
        (c) Upon the exercise of remedies under its security interest in the Solar System,
            including any sale thereof by the Lender, whether by judicial proceeding or
            under any power of sale, or any conveyance from the Service Provider to the
            Lender, the Lender will give notice to the Customer of the transferee or
            assignee of this Agreement and the Solar Easement and License. Any such
            exercise of remedies shall not constitute an Event of Default.
        (d) Upon any rejection or other termination of this Agreement or the Solar
            Easement and License pursuant to any process undertaken with respect to the
            Service Provider under the United States Bankruptcy Code, at the request of
            Lender made within ninety (90) days of such termination or rejection, the
            Customer will enter into a new Agreement and the Solar Easement and
            License (as the case may be) with Lender on the same terms and conditions,
            except for those terms which may be required to change such as the location
            of the Premises.
16.2.3 Lender’s Right to Cure.

        (a) The Customer will not exercise any right to terminate or suspend this
            Agreement or the Solar Easement and License unless the Customer has given
            the Lender prior written notice. The Customer’s notice of an intent to
            terminate or suspend it performance hereunder or under the Solar Easement
            and License must specify the condition giving rise to such right. The Lender
            has the longer of thirty (30) Business Days from the date of receipt of any
            notice from Customer or the cure period allowed for a default of that type
            under this Agreement to cure the condition; provided that if the condition
            cannot be cured within such time but can be cured within the extended period,


Energy Services Agreement                   17
            the Lender may have up to an additional ninety (90) days to cure if the Lender
            commences to cure the condition within the thirty Business Day period and
            diligently pursues the cure thereafter. The Customer’s and Service Provider’s
            obligations under this Agreement and the Solar Easement and License will
            otherwise remain in effect and required to be fully performed during any cure
            period.
        (b) If the Lender or its assignee will acquire title to or control of the Service
            Provider’s assets and cures all defaults existing as of the date of such change
            in title or control within the time allowed by Section 16.2.3(a) above, then this
            Agreement and the Solar Easement and License will continue in full force and
            effect.
16.2.4 Notice of Defaults and Events of Default. The Customer agrees to deliver to the
Lender a copy of any notice of Service Provider's default hereunder or under the Solar
Easement and License which the Customer is delivering to the Service Provider.

                                   ARTICLE 17 -
                            MISCELLANEOUS PROVISIONS
Section 17.1 Applicable Law

This Agreement shall be interpreted and governed by the laws of the state of Oregon,
without regard to conflict of laws provisions. Any Dispute shall be resolved in
accordance with Article 13 of this Agreement.

Section 17.2 Interpretation Rules

Titles and headings are included in this Agreement for convenience only, and shall not be
used for the purpose of construing and interpreting this Agreement. Words in the
singular also include the plural and vice versa where the context requires.

Section 17.3 Severability

In the event that any provisions of this Agreement are held to be unenforceable or invalid
by any court or regulatory agency of competent jurisdiction, Customer and Service
Provider shall negotiate an equitable adjustment in the provisions of this Agreement with
a view toward effecting the purposes of this Agreement, and the validity and
enforceability of the remaining provisions hereof shall not be affected thereby.

Section 17.4 Counterparts

This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
agreement.

Section 17.5 Entire Agreement, Amendments and Waivers

This Agreement and the Solar Easement and License constitute the entire agreements


Energy Services Agreement                    18
between the Parties and supersede the terms of any previous agreements or
understandings, oral or written. Any waiver or amendment of this Agreement must be in
writing. Either Party’s waiver of any breach or failure to enforce any of the terms of this
Agreement shall not affect or waive that Party’s right to enforce any other term of this
Agreement.

Section 17.6 Non-Recourse to Individuals; Independent Contractor

17.6.1 Except as otherwise expressly provided in this Agreement, no officer, director,
employee, shareholder, or agent of either Party, or officer, director, employee,
shareholder, or agent of an affiliate or assignee of either Party, shall have any liability to
the other Party in connection with this Agreement.
17.6.2 This Agreement is intended by the Parties to be and shall constitute a service
contract. The relationship of Service Provider to Customer hereunder is that of service
provider to service recipient.
17.6.3 Except as otherwise expressly provided herein, this Agreement shall not inure to
the benefit of any Entity that is not a signatory to this Agreement.

Section 17.7    Survival    of    Obligations,     Indemnities,     Representations,     and
Warranties

Except as otherwise expressly provided herein, termination of this Agreement for any
reason shall not relieve the Parties of any obligation arising prior to such termination.
The representations, warranties and covenants of Customer and Service Provider
contained in this Agreement shall survive the termination of this Agreement. The duty of
the Parties to indemnify will continue in full force and effect notwithstanding the
expiration of this Agreement or the assignment or transfer of this Agreement or other
rights and responsibilities hereunder.

Section 17.8 Further Assurances

Either Party shall execute and deliver instruments and assurances and do all things
reasonably necessary and proper to carry out the terms of this Agreement if the request
from the other Party is reasonable.

Section 17.9 Confidential Information

Subject to the Oregon Public Records Law, each Party shall keep confidential any
Confidential Information provided by the other Party. Except to the extent a Party is
required to disclose Confidential Information in order to comply with applicable law
(including without limitation any order of any court or regulatory agency), such
Confidential Information shall not be divulged to third parties without the prior written
approval of the Party providing the Confidential Information. However, any Confidential
Information may be shown to a Party’s lawyers, lenders, contractors, and potential equity
participants who agree to be bound by this confidentiality provision; provided however,
the Party providing such Confidential Information remains responsible for its
confidentiality in the hands of any such third parties.


Energy Services Agreement                    19
Section 17.10 Tax and Regulatory Compliance; Service Provider Tax Benefits

17.10.1 Service Provider is the owner of the Solar Facility for all purposes, including in
respect of any federal, state and local income taxes. Notwithstanding the foregoing,
Customer shall be reimbursed by Service Provider for any increase in real estate taxes
that may be assessed against it as a result of the presence of the Solar Facility to the
extent such taxes are paid by Customer.
17.10.2 The Parties agree to reasonably cooperate to structure the transactions
contemplated by this Agreement to address, to the mutual benefit of the Parties, the
various tax and regulatory compliance issues associated with the Solar Facility; provided,
however, that neither Party incurs additional costs or expenses, or suffers adverse
economic effects as a result.
17.10.3 The Parties agree to cooperate to attempt to ensure that the Service Provider’s
and/or the Solar Facility’s status as a Qualified Solar Power Generation Facility continues
throughout the Term and that said Solar Facility meets the operating and efficiency
standards, ownership criteria and other requirements applicable to such a facility under
the Public Utility Regulatory Policies Act. In the event that the Solar Facility’s status as
a Qualified Solar Power Generation Facility is in any manner compromised, changed or
revoked, except as a result of change of law (Force Majeure) then Service Provider has
the right to terminate this Agreement upon thirty (30) days’ written notice with no
further obligation to Customer, other than the obligation to remove the System at Service
Provider’s cost and expense and other aspects of Service Provider’s activities associated
with termination of the Agreement. In the event of such termination, Customer shall
have no further obligation to Service Provider other than to pay for electricity delivered
to Customer up to the effective date of termination, and any indemnity obligations which
survive termination under Section 14.3.
17.10.4 Customer agrees from time-to-time during the Term and upon written request
from Service Provider to execute and deliver any instrument, release or other document
that may be reasonably required by Service Provider or any equipment supplier, vendor,
Lender and/or other Entity to Service Provider regarding ownership of Service Provider
Property, including the filing by Service Provider or such other Entity of UCC-1
statements or other documents with any Governmental Authority. If, despite the intent of
the Parties, Customer is deemed to have an interest in the Service Provider Property,
Customer hereby grants to Service Provider a security interest in the Service Provider
Property, and in all accessions, attachments and modifications thereto, and all proceeds
thereof.

Section 17.11     Incorporation of Appendixes and Exhibits

The following Appendix and Exhibits attached to this Agreement, are incorporated herein
by reference, and are made a part hereof:

                Appendix 1 - Definitions
                Exhibit A - Description of Premises



Energy Services Agreement                   20
                Exhibit B - Description of Solar Facility
                Exhibit C - Solar Electricity Energy Charge
                Exhibit D - Insurance Requirements


Section 17.12             Customer’s Limitation of Liability
Notwithstanding anything to the contrary in this Agreement, Customer’s liability for
liquidated damages, termination fees and other costs and damages is limited to the extent
required by Article XI, section 7 of the Oregon Constitution. In addition, if any costs are
payable after the end of the biennium in which this Agreement is effective, Service
Provider understands and agrees that Customer’s payment of amounts under this
Agreement is contingent on Customer receiving appropriations, limitations, allotments or
other expenditure authority sufficient to allow Customer, in the exercise of its reasonable
administrative discretion, to continue to make payments under this Agreement.

Section 17.13 Attorney Fees
In the event of litigation between the parties under this Agreement, the prevailing party in
such action shall be entitled to recover, in addition to damages, injunctive or other relief,
its actual costs and expenses, including, but not limited to, actual attorney fees, court
costs and expert witness fees. Such costs shall include attorney fees, costs and expenses
incurred at trial and upon appeal and in any bankruptcy litigation.

Section 17.14 Mediation
Both parties acknowledge and agree that participation in mediation is a prerequisite to
commencement of litigation of any disputes relating to the Agreement. Both parties
agree to exercise their best efforts in good faith to resolve all disputes through the
mediation process.

                                      ARTICLE 18 –
                                        NOTICES
Except as otherwise provided in this Agreement, or as the addressee may later specify in
a written notice, all notices or other communications hereunder shall be in writing and
deemed given if delivered personally or to a nationally recognized express mail service,
addressed as follows:
If to Service Provider:                        _______________________
                                               ______________, _____ ________
                                               Attention: ____________


If to Customer:                               Oregon University System
                                              Capital Construction, Planning & Budget
                                              P.O. Box 3175, Eugene, OR 97403



Energy Services Agreement                    21
                                  ARTICLE 19 -
                               TAX CERTIFICATION
By signature on this Agreement, the undersigned hereby certifies under penalty of perjury
that the undersigned is authorized to act on behalf of the Service Provider and that the
Service Provider is, to the best of the undersigned’s knowledge, not in violation of any
Oregon Tax Laws. For purposes of this certification, “Oregon Tax Laws” means a state
tax imposed by ORS 401.792 to 401.816, ORS Chapters 118, 314, 316, 317, 318, 320,
321 and 323; the elderly rental assistance program under ORS 310.630 to 310.706; and
local taxes administered by the Department of Revenue under ORS 305.620.


IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and
date first above written.


 __________________________________


By: _____________________________________
Title:___________________________________


STATE OF OREGON ACTING BY AND THROUGH THE
STATE BOARD OF HIGHER EDUCATION ON BEHALF
OF THE OREGON UNIVERSITY SYSTEM


 By: _____________________________________
 Title:___________________________________




Energy Services Agreement                  22
STATE OF _______________ )
                        )ss.:
COUNTY OF _____________ )




On this ____ day of __________, 20__, before me personally appeared to me known
as the _______________of State of Oregon acting by and through the State Board of
Higher Education on behalf of the Oregon University System and who executed the
within instrument, and who acknowledged the same to be in behalf of said Agency of the
State of Oregon by authority of its authorizing Oregon statutes and administrative rules
and said acknowledged said instrument to be the free act and deed of said Agency of the
State of Oregon.

  (seal)


                                                   Notary Public

                                                   ______________________________
                                                   Name
                                                   My Commission Expires:

                                                   Name
                                                   My Commission Expires:




Energy Services Agreement                 23
                                     APPENDIX 1
                            DEFINITION OF CERTAIN TERMS

“Additional Extension Periods” has the meaning ascribed to it in Section 2.2 of this
Agreement.
“Agreement” means this Energy Services Agreement.
“Approvals and Permits” means all applicable approvals, consents, franchises, permits,
licenses, certificates, interconnection approvals, inspections and authorizations required
by any utility, Governmental and non-governmental Authority, or any other Entity,
including any modifications thereto, arising out of, or related to, the design, construction,
operation, maintenance and/or removal of the Solar Facility.
“Billing Period” has the meaning ascribed to it in Section 6.1 of this Agreement.
“Building” has the meaning ascribed to it in the recitals of the Solar Easement and
License.
“Customer” has the meaning ascribed to it in the opening paragraph of this Agreement.
 “Confidential Information” means any information that one Party provides to the other
Party and that, at the time the same is provided, the providing Party designates in writing
as confidential; provided that “Confidential Information” shall not include (A)
information that was publicly available at the time of the disclosure, other than as a result
of a disclosure by a receiving Party in breach of this Agreement; (B) information that
becomes publicly available through no fault of the receiving Party after the time of the
delivery; (C) information that was rightfully in the possession of the receiving Party
(without confidential or proprietary restriction) at the time of delivery or that becomes
available to the receiving Party from a source not subject to any restriction against
disclosing such information to the receiving Party; and (D) information that the recipient
independently developed without a violation of this Agreement.

“Delivery Points” shall be described and set out in Exhibit A of this Agreement.
“Dispute” has the meaning ascribed to it in Section 13.1 of this Agreement.
“Effective Date” has the meaning ascribed to it in the opening paragraph of this
Agreement.
“Energy Charge” has the meaning ascribed to it in Section 6.2 of this Agreement.
“Energy Rate” has the meaning ascribed to it in Section 1.2 of this Agreement.
“Entity” or “Entities” means any other entity or natural person other than a Party.
“Environmental Laws and Requirements” means any applicable laws, codes, statutes,
common law(s), rules and regulations relating to actual or potential effects on the
environment or public health or any other law in effect relating to the protection of the
environment or otherwise addressing environment, health or safety issues or requirements
of, or by any Governmental Authority, or otherwise relating to noise, or to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport,
emission, discharge, release or handling of Hazardous Materials, including, but not


Energy Services Agreement                    24
limited to, the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. 9601 et. seq.), the Hazardous Materials Transportation Act (49 U.S.C.
1801, et. seq.), the Resource Conservation and Recovery Act (42 U.S.C. 6901 et. seq.),
the Toxic Substances Control Act (15 U.S.C. 2601 et. seq.), the Clean Air Act (42 U.S.C.
7401 et. seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 et. seq.) and the
Safe Drinking Water Act (42 U.S.C. 300f et. seq.), all as presently in effect, and as the
same may hereafter be amended, and any regulation issued pursuant thereto, and also
including, but not limited to, any obligations, duties or requirements arising from, or
related to, Hazardous Materials and/or relating to actual or potential effects on the
environment or public health.
“Event of Default” has the meaning ascribed to it in Section 8.1 of this Agreement.
“Force Majeure” means causes or events beyond the reasonable control of, and without
the fault or negligence of the Party claiming Force Majeure and that could not have been
avoided by commercially reasonable efforts by the claiming Party, that prevents a Party
from performing its obligations hereunder, including, but not necessarily limited to, the
following:
    (a) any act of God;
    (b) any of the following: landslide, lightning, fire, earthquake, explosion, hurricane,
        tornado, drought, flood (but not including customary weather conditions for the
        geographic area of the Solar Facility that should have been reasonably
        anticipated) and perils of the sea and air;
    (c) extortion, sabotage, theft or similar occurrence, acts of a public enemy or terrorist,
        war (declared or undeclared) or governmental intervention as a result, blockade,
        embargo, government imposed economic sanctions, insurrection, riot or civil
        disturbance;
    (d) strikes or labor disputes;
    (e) any order or judgment of any federal, state or local court, administrative agency
        or Governmental Authority issued after the Effective Date;
    (f) any delay in, or the failure by a regulatory agency or other authority to issue or
        renew, or the suspension, termination, interruption, or denial of, any permit,
        license, consent, authorization, or approval essential to the performance of this
        Agreement;
    (g) the failure to obtain any easements required for the construction, operation or
        maintenance of the Solar Facility, including any easements required from an
        Entity other than a Party hereto;
    (h) change of law;
    (i) timely delivery of solar panels, provided Service Provider has employed
        commercially reasonable efforts to cause such timely delivery to occur;

provided that “Force Majeure” shall not include the financial inability of the Customer
to make the payments to the Service Provider required hereunder.

“Governmental Authority” shall mean any federal, state or local government exercising
jurisdiction over either Party, including any agency, court or instrumentality of any such
government exercising executive, legislative, judicial, regulatory or administrative


Energy Services Agreement                    25
functions.
“Hazardous Materials” means asbestos, material containing asbestos, pollutants,
emissions, hazardous wastes, hazardous materials, contaminants, including petroleum
products, or other material or wastes that are regulated by Environmental Laws and
Requirements.
“Initial Delivery Date” means the first day of the month following the initial delivery of
Solar Electricity to the Customer.
“Initial Term” has the meaning ascribed to it in Section 2.1 of this Agreement.
“Interconnection Facilities” means all necessary utility and telecommunication lines
and conduits connecting the Solar Facility with the Premises, the systems serving the
Premises and the local electric distribution company.
“Invoice” has the meaning ascribed to it in Section 6.1 of this Agreement.
“Liabilities” has the meaning ascribed to it in Section 14.1 of this Agreement.
“Metering Devices” has the meaning ascribed to it in Section 5.1 of this Agreement.
“Operations Commencement Date” means the date that is the first day of the month
next occurring after Service Provider commences delivery of Solar Electricity to
Customer.
“Party” and “Parties” have the meanings ascribed to them in the opening paragraph of
this Agreement.
“Property Owner” has the meaning ascribed to it in the Recitals of this Agreement.
“Premises” has the meaning ascribed to it in the Recitals of this Agreement.
“Qualified Solar Power Generation Facility” means a Solar Facility that is in
compliance with Internal Revenue Service Federal Investment Tax Credit eligibility
provisions.
“Rebate” has the meaning ascribed to it in the Recitals of this Agreement.
“Roof Warranty” has the meaning ascribed to it in Article 1(f) of the Solar Easement
and License.
“Service Provider” has the meaning ascribed to it in the opening paragraph of this
Agreement.
“Service Provider Property” has the meaning ascribed to it in Article 7 of the Solar
Easement and License.
“Solar Easement and License” that certain Solar Easement and License Agreement
dated ________, 20__ between the Service Provider and the Customer.
“Solar Electricity” means all of the alternating current electricity produced by the Solar
Facility.
“Solar Electricity Requirements” means the electric load at the Premises.
“Solar Facility” means the Solar Generation System together with the rights of Service
Provider pursuant to the Solar Easement and License, and the other licenses, rights and


Energy Services Agreement                  26
privileges accorded Service Provider in this Agreement.
“Solar Generation System” means a solar photovoltaic generation system located on the
Premises to be installed by Service Provider as further described on Exhibit B attached to
this Agreement, which system also includes the Metering Devices and the
Interconnection Facilities.
“Term” has the meaning ascribed to it in Section 2.2 of this Agreement.
“Termination Fee” has the meaning ascribed to it in Section 9.1.3 of this Agreement.




Energy Services Agreement                  27
                                      EXHIBIT A

                               Description of Premises

The Premises shall include, but is not limited to the land described below and all
buildings, improvements, easements, licenses, and utility lines located on or appurtenant
to such land, including a designation of the Delivery Points.




Energy Services Agreement                  28
                                         EXHIBIT B

                            Description of Solar Generation System

The Solar Generation System consists of the following:




Energy Services Agreement                    29
                                      EXHIBIT C

                        Solar Electricity Billing (Energy Charge)

The monthly Energy Charge for Solar Electricity delivered to Customer under this
Agreement will vary from month-to-month based upon the actual amount of Solar
Electricity delivered from the Solar Generation System to Customer, and any applicable
federal, state or local taxes.
The monthly Energy Charge shall be the determined by ascertaining the number of
kilowatt hours of Solar Electricity delivered to Customer from the Solar Generation
System during the applicable Billing Period and multiplying same by the corresponding
Energy Rate, per Sections 1.2 and 6.2, as measured on an hour-to-hour basis, applicable
during said Billing Period.




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                                      EXHIBIT D

                                Insurance Requirements

Prior to the start of work, Service Provider must provide the Customer with certificates of
insurance confirming that it maintains valid insurance policies in accordance with the
specifications listed below:
    (a) Statutory Workers’ Compensation Insurance to the full limit of liability
        required by State law.
    (b) Commercial General Liability Insurance, including contractual liability,
        products and completed operations coverage, with a combined single limit of not
        less than $3,000,000 for bodily injury and property damage.
    (c) Automobile Liability Insurance covering owned, hired and non-owned vehicles
        with a combined single limit of not less than $1,000,000 for bodily injury and
        property damage.
    (d) Additional Insured and Cancellation Provisions: The commercial general
        liability insurance certificate of insurance must include a provision naming the
        Customer as additional insured and provide for not less than thirty (30) days’
        prior written notice of cancellation to the Customer.


Prior to the start of work, Customer must provide Service Provider with certificates of
insurance confirming that it maintains valid insurance policies in accordance with the
specifications listed below:
    (a) Casualty Insurance: Casualty insurance covering risk of loss of the Building
        and the Premises in an amount equal to the full replacement value of the Building
        and the Premises.
    (b) Additional Insured and Cancellation Provisions: The causaulty insurance
        certificate of insurance must include a provision naming the Service Provider as
        additional insured and provide for not less than thirty (30) days’ prior written
        notice of cancellation to the Service Provider.
    (c) Insurance Fund: Service Provider acknowledges that Customer is covered by
        the Insurance Fund created by ORS 278.425 and that this fund is sufficient to
        meet the requirements in (a) and (b) above.




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