IV.7.1 Solar Garden Subscription Agreement 25 Year Term Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
SOLAR GARDEN SUBSCRIPTION AGREEMENT
25 Year Term
This Solar Garden Subscription Agreement ("Agreement") is entered into as of the
day of , 2017 (the "Effective Date")by and between Geronimo Solar Energy,
LLC, a Minnesota limited liability company ("Operator"), and the subscribing party set forth in
the Subscriber Information table below (the "Subscriber"). In this Agreement, Operator and
Subscriber are sometimes referred to individually as a"Party"and collectively as the"Parties."
RECITALS
A. Operator, together with its affiliates, intends to develop, operate and maintain one
or more photovoltaic generation facility qualified as a "Community Solar Garden" pursuant to
Minn. Stat. § 216B.1641 ("CSG Program") (each, a "Facility") and will, through its affiliate
who shall become the "Operator" hereunder, enter into a Standard Contract for Solar Rewards
Community ("CSG Contract") with the local electric distribution company, which, for purposes
of this Agreement is Xcel Energy, Inc. and its affiliates (the"LDC').
B. The energy produced by each Facility will be delivered by Operator and its
affiliates via interconnection of each Facility to the electric grid, to the LDC, which will
calculate the monetary value of the energy received from each Facility per applicable utility tariff
and convert that amount into credits per kilowatt hour (the "Bill Credit Rate" as defined in the
CSG Contract, which shall be the "Enhanced" Bill Credit Rate as contemplated in the CSG
Program) on the bills from LDC to the subscribers of each such Facility ("Xcel Bill Credits" or
"Bill Credits").
C. Operator will, in accordance with the terms hereof, and through the administrative
process established by the LDC as approved by the Minnesota Public Utilities Commission
("MPUC'), allocate and provide a service by which subscribers may receive Xcel Bill Credits
according to their respective Allocations (as defined below).
D. Subscriber is an LDC customer and desires to receive Xcel Bill Credits in
connection with the CSG Program in proportion to its expected consumption of electricity at the
customer's site as described in the information table below ("Customer Site"). Subscriber
understands that Operator may assign this Agreement, in whole or in part, to one or more of its
affiliates that will each operate a Facility and shall become the"Operator"hereunder.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual premises,
representations, warranties, covenants, conditions herein contained, and the Exhibits attached
hereto, Subscriber and Operator agree as follows.
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
SUBSCRIBER INFORMATION
The information contained in the table below forms a part of this Agreement and
Subscriber represents and warrants that the following information regarding Subscriber is true
and correct:
A Effective Date of this , 2017
Agreement
B Name of Subscriber [•]
C Type of Entity and State of [+ ]
Formation
Subscriber's Premise(s) See Exhibit D
LDC Meter Account See Exhibit D
Number(s)
Street Address of Premise(s) See Exhibit D
County of Premise(s) See Exhibit D
Subscriber's Premise Average See Exhibit D
Annual Energy Consumption
over the Two-Year Period
Prior to the Effective Date
E Facility To be updated
F Allocation of total Facility Up to 120%of[S] kWh, to be allocated to one or more
Capacity to Subscriber Facilities consistent with this Agreement
Mailing Address for Notices to [•]
Subscriber
Email Address [•]
Copied to [•]
[Continued on next page]
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
STANDARD TERMS AND CONDITIONS
The Exhibits, including the terms and conditions contained in Exhibit C hereto, are
incorporated into this Agreement by reference.
IN WITNESS WHEREOF,the Parties have executed this Agreement as of the Effective
Date.
SUBSCRIBER
By:
Name:
Title:
GERONIMO SOLAR ENERGY,LLC
By:
Name: Jeff Ringblom
Title: Vice President
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
EXHIBIT A
Subscriber Agency Agreement and Consent Form
By signing below, the Subscriber agrees to the all of the terms and conditions contained
in this Exhibit A, the Solar Rewards Community Subscriber Agency Agreement and Consent
Form.
Subscriber's Name:
Subscriber's Signature:
Date:
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
Solar*Rewards Community
Subscriber Agency Agreement and Consent Form
The undersigned ("Subscriber")has a Subscription to the following Community Solar Garden:
Community Solar Garden Name:
Community Solar Garden Address:
Community Solar Garden Operator:
Community Solar Garden contact information for Subscriber questions and complaints:
Address (if different from above):
Telephone number:
Email address:
Web Site URL:
Subscriber Name:
Subscriber's Account Number with
Northern States Power Company:
Subscriber Service Address where receiving electrical service from
Northern States Power Company:
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
By signing this Solar Rewards Community following outlines the type of information that will be
Subscriber Agency Agreement and Consent Form, shared,and how that information will be used.
the Subscriber agrees to all of the following:
a. Subscriber's Account Information and
1. Assignment of Renewable Energy Credits Subscriber Energy Usage Data. The Subscriber
("RECs"), Energy and Capacity to Northern States authorizes Northern States Power Company to
Power Company, a Minnesota corporation. The provide the Community Solar Garden Operator (and
Subscriber agrees that the Community Solar Garden the Community Solar Garden Operator's designated
Operator has authority to assign all energy produced subcontractors and agents) with the Subscriber's
and capacity associated with the photovoltaic energy Account Information and Subscriber's Energy Usage
system at the Community Solar Garden to Northern Data as described in Section 4 above. This
States Power Company, and the Subscriber agrees information is needed to allow the Community Solar
that all energy produced, and capacity associated Garden Operator determine the extent to which the
with the photovoltaic energy system at the Subscriber is entitled to participate in the Community
Community Solar Garden shall belong to Northern Solar Garden, and to validate the amount of the Bill
States Power Company. The Subscriber also agrees Credits to be provided by Northern States Power
that the Community Solar Garden Operator has Company to the Subscriber. The current data privacy
authority to assign all RECs associated with the policies of Northern States Power Company
photovoltaic energy system at the Community Solar applicable to its Solar*Rewards Community Program
Garden to Northern States Power Company, and that provided to the Subscriber by the Community Solar
if the Community Solar Garden or a person or entity Garden Operator pursuant Section 3 above are
on its behalf has assigned the RECs to Northern attached as Exhibit 1 of this Solar*Rewards
States Power Company, then all RECs associated Community Subscriber Agency Agreement and
with the photovoltaic energy system at the Consent Form. These privacy policies include
Community Solar Garden shall belong to Northern defmitions of "Subscriber's Account Information"
States Power Company. and"Subscriber's Energy Usage Data."
2. Tax Implications. The Community Solar b. Subscriber's Subscription Information. The
Garden Operator has provided the Subscriber with a Subscriber authorizes the Community Solar Garden
statement that Northern States Power Company Operator to provide information to Northern States
makes no representations concerning the taxable Power Company identifying the Subscriber(with the
consequences to the Subscriber with respect to its Subscriber's name, service address, and account
Bill Credits to the Subscriber or other tax issues number) and detailing the Subscriber's proportional
relating to participation in the Community Solar share in kilowatts of the Community Solar Garden
Garden. and to provide additional updates of this information
to Northern States Power Company as circumstances
3. Northern States Power Company hereby change. This information is needed to allow
discloses to the Subscriber that it recognizes that not Northern States Power Company to properly apply
all production risk factors, such as grid-failure events Bill Credits for the photovoltaic energy generated by
or atypically cloudy weather, are within the the Community Solar Garden. Also,this information
Community Solar Garden Operator's control. is needed to allow Northern States Power Company
to send to the Subscriber notices or other mailings
4. Information Sharing. Participating in the pertaining to their involvement in the Solar*Rewards
Solar*Rewards Community Program will require Community Program. The Community Solar Garden
sharing Subscriber's Account Information (name, Operator shall not disclose Subscriber information in
account number, service address, telephone number, annual reports or other public documents absent
email address, web site URL, information on explicit, informed consent from the Subscriber. The
Subscriber participation in other distributed Community Solar Garden Operator will not release
generation serving the premises of the Subscriber, any Subscriber data to third parties except to fulfill
Subscriber specific Bill Credit(s)) and Subscriber's the regulated purposes of the Solar*Rewards
Energy Use Data (the past, present and future Community Program, to comply with a legal or
electricity usage attributable to the Subscriber for the regulatory requirement, or upon explicit, informed
service address and account number identified for consent from the Subscriber.
participation in the Community Solar Garden). The
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
c. Aggregate Information. Aggregate taking any steps to ensure that the Community Solar
information concerning production at the Community Garden Operator maintains the confidentiality of the
Solar Garden may be publicly disclosed to support Subscriber's Account Information, the Subscriber's
regulatory oversight of the Solar*Rewards Energy Usage or the Bill Credits received pertaining
Community Program. This includes annual reports to the Subscriber's participation in the Community
available to the public related to specific Community Solar Garden. However, Northern States Power
Solar Gardens, including but not limited to Company shall remain liable for its own
production from the Community Solar Gardens; size, inappropriate release of Subscriber's Account
location and the type of Community Solar Garden Information and Subscriber's Energy Use Data.
subscriber groups; reporting on known complaints
and the resolution of these complaints; lessons f. Duration of Consent. The Subscriber's
learned and any potential changes to the consent to this information sharing shall be ongoing
Solar*Rewards Community Program; reporting on for the Term of the Contract between the Community
Bill Credits earned and paid; and reporting on the Solar Garden Operator and Northern States Power
application process. Aggregated information will not Company, or until the Subscriber no longer has a
identify individual Subscribers or provide Subscriber- Subscription to the Community Solar Garden and the
Specific Account Information, Subscriber-Specific Community Solar Garden Operator notifies Northern
Energy Usage Data or Subscriber-specific Bill States Power Company of this fact through the CSG
Credits unless a Subscriber provides explicit Application System. Provided, however, the
informed consent. Depending on the nature of the Subscriber's consent shall also apply thereafter to all
aggregated information, however, it may still be such information of the Subscriber pertaining to that
possible to infer the amount of production attributed period of time during which the Subscriber had a
to individual Subscribers to the Community Solar Subscription to the Community Solar Garden.
Garden. The Subscriber agrees to the inclusion of its
production information in the creation of the g. Modification. The above provisions
aggregated information. The Community Solar addressing data privacy and in Exhibit 1 shall remain
Garden Operator will not use aggregated information in place until and unless other requirements are
for purposes unrelated to the Solar*Rewards adopted by the MPUC in its generic privacy
Community Program without first providing notice proceeding,Docket No.E,G999/CI-12-1344,or other
and obtaining further consent, unless the aggregated MPUC Order.Northern States Power Company shall
information is otherwise available as public file necessary revisions to its tariffs and contracts
information. The policies of Northern States Power within thirty(30)days of such Order.
Company related to sharing aggregated information
•
are part of the data privacy policies contained in the
attached Exhibit 1 of this Solar*Rewards
Community Subscriber Agency Agreement and
Consent Form and should be provided to the
Subscriber by the Community Solar Garden Operator
pursuant Section 3 above.
d. Information Requests from the MPUC or the
Department of Commerce. The Subscriber agrees
that the Community Solar Garden Operator and
Northern States Power Company are authorized to
provide any information they possess related to the
Subscriber or the Subscriber's participation in the
Community Solar Garden to the Minnesota Public
Utilities Commission ("MPUC"), the Minnesota
Department of Commerce, or the Minnesota Office
of Attorney General. This information is needed to
allow proper regulatory oversight of Northern States
Power Company and of the Solar*Rewards
Community Program.
e. Liability Release. Northern States Power
Company shall not be responsible for monitoring or
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
Exhibit 1 to Data will be collected, used and shared as part of
Solar*Rewards Community Subscriber Agency participation in the Solar*Rewards Community
Agreement and Consent Form Program.
Data Privacy Policies of Northern States Power 1. How Subscriber's Account Information and
Company Pertaining to the Solar*Rewards Energy Usage Data Will Be Exchanged.
Community Program
a. Subscriber Specific Information.
The data privacy policies of Northern States
Power Company pertaining to the Solar*Rewards Once a Subscriber has executed a Subscriber Agency
Community Program are as follows and may be Agreement and Consent Form, an ongoing data
changed from time to time as filed in the Company's exchange will occur between the Company and a
tariff or as otherwise may be authorized by the Community Solar Garden Operator (and their
Minnesota Public Utilities Commission("MPUC"): designated subcontractors and agents):
Definitions (i) The Company will disclose the following
Subscriber-specific information to the Community
Unless indicated otherwise, the same Solar Garden Operator:
definition and meaning of terms in this document are
the same as contained in the Standard Contract for • Subscriber's Account Information
Solar*Rewards Community. For ease of reference,
here are some of the specific definitions: • Subscriber's Energy Usage Data
"Company" means Northern States Power • Bill Credits
Company, a Minnesota Corporation, and its affiliates
and agents. (ii) The Community Solar Garden Operator will
disclose to the Company the following Subscriber-
"Subscribed Energy" means electricity specific information:
generated by the PV System attributable to the
Subscribers' Subscriptions and delivered to the • Subscriber's Account Information
Company at the Production Meter on or after the
Date of Commercial Operation. • Community Solar Garden Allocation for each
"Subscriber" means a retail customer of the Subscriber's Subscription stated in kW
Company who owns one or more Subscriptions of a
community solar garden interconnected with the •
Production data related to the PV System
Company. • Monthly Subscription Information
"Subscriber's Account Information"consists
of the Subscriber's name, account number, service b. Aggregated Subscriber Information.
address, telephone number, email address, web site
URL, information on Subscriber participation in Aggregated Subscriber information will be reported
other distributed generation serving the premises of as part of Permitted Public Reporting, outlined in
the Subscriber,and Subscriber specific Bill Credit(s). Section 2(b)below.
"Subscriber's Energy Usage Data" includes To be considered "aggregated" the reported
the past, present and future electricity usage information must include information attributable to
attributable to the Subscriber for the service address all Subscribers participating in a specific
and account number identified for participation in the Solar*Rewards Community program site, which
Community Solar Garden. based on program requirements will contain a
minimum of five Subscribers. Depending on the
Overview nature of the aggregated information, however, from
this information alone or in combination with other
This section addresses how Subscriber's publicly available information it may still be possible
Account Information and Subscriber's Energy Usage to infer the amount of production attributed to
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
individual Subscribers to the Community Solar include information or data requested by the MPUC
Garden. or Minnesota Department of Commerce, including
the following:
2. How Subscriber's Information Will Be
Used. • Reporting on Solar*Rewards Community
program costs, including an analysis of the
The following outlines how the Subscriber's Account deposit, application, participation and metering
Information and Subscriber Energy Usage Data will fees and further justification for these fees going
be used as part of the Solar*Rewards Community forward;
Program.
• Reporting on the Solar*Rewards Community
a. Program Management. Gardens, including but not limited to size,
location and the type of Solar*Rewards
As part of administering the Solar*Rewards Community subscriber groups;
Community program, the Solar Garden Operator and
the Company may provide information related to the • Reporting on known complaints and the
Subscriber and/or the Community Solar Garden to: resolution of these complaints;
• the MPUC • A copy of each contract signed with a
Community Solar Garden Operator, if not
• the Minnesota Department of Commerce previously filed;
• the Minnesota Office of Attorney General • Lessons learned and any potential changes to the
program;
• Other governmental or private entities as
required by law or regulation • Report on bill credits earned and paid; and the
Application process
Account Information and Subscriber's Energy Usage
Data to service providers, agents, or contracted c. Prohibited Reporting or Sharing.
agents who support the program on its behalf. The
Company prohibits these service providers from Except as otherwise provided in this document, the
using or disclosing the Subscriber's information Company will not disclose the Subscriber's Account
except as necessary to perform these specific services Information, Subscriber's Energy Usage Data or
or to comply with legal requirements. More Subscriber-specific Bill Credits to a third party
information about the Company's general privacy without first obtaining the Subscriber's written
practices is explained in its Privacy Policy available consent.
on www.xcelenergy.com.
Any requests by the Community Solar Garden
b. Permitted Public Reporting. Operator to the Company for information about a
Subscriber that is not Subscriber's Account
The Subscriber's Energy Usage Data of each Information or Subscriber's Energy Usage Data will
participating Subscriber to a Community Solar require execution of a separate written consent by the
Garden will be combined and reported in the Subscriber. Notwithstanding the previous statement,
aggregate by the Community Solar Garden Operator the Company will not provide the Community Solar
in its annual report on the Solar*Rewards Garden Operator with the Subscriber's Social
Community program. The identity of specific Security Number unless directed to do so by the
Subscribers, the specific Subscriber's Account MPUC or Minnesota Department of Commerce or
Information, Subscriber's Energy Usage Data and compelled by law or regulation.
Subscriber-specific Bill Credit will not be listed in
the public annual report unless the Subscriber has 3. Subscriber Data Access and Correction.
provided the Community Solar Garden Operator with
prior written consent. The following outlines what information is available
to the Subscriber from the Company and the
Per the requirements of the MPUC,the Company will Community Solar Garden Operator, and methods of
provide to the MPUC annual reports which will correcting any inaccuracies.
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
a. Information Available from the Company. (i) All nonrecurring(i.e.,one-time)charges;
Subscribers can contact the Company's call center to (ii) All recurring charges;
obtain information pertaining to their specific Bill
Credit attributable to their participation in (iii) Terms and conditions of service;
Solar*Rewards Community Program. The correction
of any allocation of previously-applied Bill Credits (iv) Whether any charges may increase during
among Subscribers or payments to the Community the course of service, and if so, how much advance
Solar Garden Operator for Unsubscribed Energy, notice is provided to the Subscriber;
pertaining to a particular month due to any
inaccuracy reflected in such Monthly Subscription (v) Whether the Subscriber may be required to
Information with regard to a Subscriber's sign a term contract;
Subscription in the PV System and the beneficial
share of photovoltaic energy produced by the PV (vi) Terms and conditions for early termination;
System, or the share of Unsubscribed Energy, shall
be the full responsibility of the Community Solar (vii) Any penalties that the Community Solar
Garden Operator,unless such inaccuracies are caused Garden may charge to the Subscriber;
by the Company.
(viii) The process for unsubscribing and any
Subscribers may also obtain from the Company the associated costs;
following information related to the Solar*Rewards
Community Program without obtaining written (ix) An explanation of the Subscriber data the
consent from the Community Solar Garden Operator: Community Solar Garden Operator will share with
Northern States Power Company and that Northern
• Site location States Power Company will share with the
Community Solar Garden Operator;
• Operator name
(x) The data privacy policies of Northern States
• Nameplate capacity Power Company and of the Community Solar Garden
Operator;
• Production data related to the PV system
(xi) The method of providing notice to
• Bill Credit Rate and total amount of Bill Credits Subscribers when the Community Solar Garden is out
applied to the PV System of service, including notice of estimated length and
loss of production;
• Any other information pertaining to the
Subscriber's Subscription (xii) Assurance that all installations, upgrades
and repairs will be under direct supervision of a
Other information regarding the Community Solar NABCEP-certified solar professional and that
Garden Operator known to the Company will not be maintenance will be performed according to industry
disclosed unless the Subscriber obtains prior explicit standards, including the recommendations of the
informed consent from the Community Solar Garden manufacturers of solar panels and other operational
Operator or unless directed to do so by the MPUC or components;
Minnesota Department of Commerce or compelled
by law or regulation. (xiii) Allocation of unsubscribed production;and
b. Information Available from the Community (xiv) A statement that the Community Solar
Solar Garden Operator. Garden Operator is solely responsible for resolving
any disputes with Northern States Power Company or
Subscribers and prospective subscribers can contact the Subscriber about the accuracy of the Community
the Community Solar Garden Operator to obtain the Solar Garden production and that Northern States
following information: Power Company is solely responsible for resolving
any disputes with the Subscriber about the applicable
• Future costs and benefits of the Subscription, rate used to determine the amount of the Bill Credit.
including:
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
• Copy of the contract with Northern States Power sufficient funds to operate and maintain the
Company for the Solar*Rewards Community Solar*Rewards Community Program
Program
The Community Solar Garden Operator is solely
• Copy of the solar panel warranty responsible for the accuracy of the Subscriber's share
of the Community Solar Garden production
• Description of the compensation to be paid for information forwarded to the Company, and should
any underperformance resolve with the Subscriber any dispute regarding the
accuracy of such information.
• Proof of insurance Subscribers can submit comments to the Company on
• Proof of a long-term maintenance plan the accuracy and completeness of its annual report by
contacting
• Current production projections and a description solarrewardscommunity@xcelenergy.com.
of the methodology used to develop production
4. Data Retention.
projections
• Community Solar Garden Operator contact The Company will retain the Subscriber's Account
Information, Subscriber's Energy Usage Data and
information for questions and complaints information on Bill Credits for as long as required
under applicable law.
• Demonstration to the Subscriber by the
Community Solar Garden Operator that it has
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
EXHIBIT B
Schedule of Expected Deliveries of kWh of Subscriber's Share
[Estimated pro forma; final to be provided prior to commencement of construction]
Subscriber's Share (kWh)
Year 1
Year 2
Year 3
Year 4
Year 5
Year 6
Year 7
Year 8
Year 9
Year 10
Year 11
Year 12
Year 13
Year 14
Year 15
Year 16
Year 17
Year 18
Year 19
Year 20
Year 21
Year 22
Year 23
Year 24
Year 25
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
Weather Adjustment Protocol for Expected Deliveries
For any two-year Measurement Period respecting application of the Performance
Guarantee, Expected Deliveries shall be adjusted to reflect any negative difference (shortfall)
between Expected Solar Irradiation ("ESP') and Actual Solar Irradiation ("ASI"). The ratio of
ASI to ESI for the Measurement Period shall be applied to Expected Deliveries as a weather
adjustment prior to comparing Actual Deliveries to Expected Deliveries for the purposes of the
Performance Guarantee.
The method of the weather adjustment is as follows.
1. The ESI for the Facility is 1390 KWh per square meter.
2. The ASI is to be determined by monthly pyranometer readings at the Facility. The
monthly readings are to be averaged for each of the two calendar years in the
Measurement Period.
The weather adjustment factor for the measurement period is the ratio of(i) ASI, determined per
Step 2 of this method to (ii) ESI, determined per Step 1 of this method. The Expected Deliveries
for the Measurement Period is multiplied by this factor to derive the Guaranteed Performance.
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
EXHIBIT C TO SUBSCRIPTION AGREEMENT
STANDARD TERMS AND CONDITIONS
1. Term—25 Year Term. Date, either Party may terminate this Agreement,
without liability, upon delivery of written notice to
The term of this Agreement shall commence on the the other Party.
Effective Date, and, unless terminated earlier
pursuant to the provisions hereof, shall terminate on 3.2 Allocation of Facility Capacity. Operator shall
the 25th anniversary of the Commercial Operation allocate a portion of the capacity of the Facility
Date (as defined below) (the "Term"). The Term (subject to adjustment as described herein, the
shall not be extended by virtue of any period of "Facility Capacity") to Subscriber as described in
disconnection or event of Force Majeure experienced Item F in the"Subscriber Information"table set forth
by the Facility. in this Agreement (subject to update by Operator in
connection with finalizing the Facility Capacity, the
[reserved] "Allocation"). Operator shall provide to LDC
information regarding the Allocation along with
Subscriber's name, LDC account number, and
service address("Subscriber Data").
3.3. Monthly Xcel Bill Credits. Operator shall
operate the Facility such that Subscriber shall be
entitled to receive an amount of Xcel Bill Credits
from LDC calculated on the basis of that portion of
the total kilowatt hours delivered by the Facility to
LDC which corresponds to the Allocation, and
Subscriber agrees to pay Operator for such service as
described herein. The Allocation shall be effective
for each and every LDC Production Month (as
defined in the CSG Contract) during the Term.
Operator shall notify Subscriber monthly regarding
the number of Xcel Bill Credits allocated to
Subscriber for invoicing pursuant to Section 4 of this
Agreement("Subscriber's Monthly Credits"). Thus,
where x= # of Xcel Bill Credits,y=kWh delivered
in a Production Month,and a=Allocation,x=y x a.
2. Operation of the Facility. 4. Price and Payment.
Operator shall operate the Facility during the Term so 4.1 Monthly Allocation Payment.
as to deliver all energy generated by the Facility to
LDC in accordance with the CSG Contract and For the right to receive Xcel Bill Credits from the
applicable LDC tariffs. Operator shall maintain the LDC based upon the energy generated and delivered
Facility in good working order at all times during the by the Facility each month to the LDC, Subscriber
Term, and shall operate the Facility consistent with shall pay to Operator an amount equal to the product
good custom and practice for operation of utility of (a)the corresponding Subscriber's Monthly
generating facilities. Credits,and(b)the greater of(x),the Bill Credit Rate
then applicable to Subscriber's class in the CSG
3. Xcel Bill Credits; Allocation. Program minus the Discount Amount, and (y), such
Bill Credit Rate applicable to Subscriber's class
3.1 Commercial Operation Date. Operator shall under the CSG Program as of the Effective Date (as
notify Subscriber of the Date of Commercial defined in the preamble to this Agreement)minus the
Operation of the Facility as established pursuant to Discount Amount (the "Monthly Allocation
the CSG Contract ("Commercial Operation Date"). Payment"). For purposes of this Agreement, the
In the event that the Commercial Operation Date is "Discount Amount'means one cent($0.01).
not achieved within two (2) years of the Effective
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
4.2 Invoicing and Payment. Beginning with the 7. Representations, Warranties, and
second calendar month following the Commercial Covenants.
Operation Date,Operator shall invoice Subscriber for
the Monthly Allocation Payment for Subscriber's 7.1 Mutual Representations and Warranties. Each
Monthly Credits produced since the prior invoice Party represents and warrants to the other Party:
date. Subscriber shall make its payments to Operator
no later than thirty(30) days following receipt of the 7.1.1 the Party is duly organized, validly existing,
applicable invoice. Operator shall include with each and in good standing in the jurisdiction of its
invoice, a copy of the LDC statement delivered to organization and is qualified to do business in the
Operator that indicates the kWh upon which the LDC State of Minnesota;
calculates Subscriber's Monthly Credits.
7.1.2 the Party has full legal capacity to enter into
4.3 Late Payment Fee. If any payment due under and perform this Agreement;
this Agreement is not received by Operator on or
before the date such payment is due, then Subscriber 7.1.3 the execution of the Agreement has been duly
shall pay to Operator, to the extent allowed by authorized,and each person executing the Agreement
applicable law, an additional Late Payment Fee. The on behalf of the Party has full authority to do so and
"Late Payment Fee" shall be equal to the interest to fully bind the Party;and
accrued on such unpaid amount, commencing on the
date immediately following the date such payment 7.1.4 to the best of its knowledge, there is no
was due and ending on the date such payment is litigation,action,proceeding or investigation pending
actually made to Operator,at a rate equal to the lower before any court or other Governmental Authority by,
of (i) eight percent (8%) per annum and (ii) the against, affecting or involving its ability to carry out
maximum interest rate permissible by Minnesota law. the transactions contemplated herein.
5. Records and Audits. 7.2 Representations of Operator. In addition to the
representations above, Operator represents, warrants,
5.1 Audit Requests. Upon reasonable written request and covenants to Subscriber that:
by Subscriber, Operator shall provide(a)evidence of
the accuracy of its metering equipment for the 7.2.1 Operator has, or in the ordinary course will
Facility and/or(b)such other information and records obtain, all licenses, permits and any other required
requested by Subscriber to enable Subscriber to documents to construct and operate the Facility;
verify the accuracy of the Xcel Bill Credits awarded
by the LDC to Subscriber and any other calculation 7.2.2 Operator shall perform its obligations under the
and/or measurements described in this Agreement. CSG Contract and otherwise comply with all
provisions of the Solar Rewards Community Program
5.2 Reporting Obligations. Operator shall provide to and other applicable tariffs;and
Subscriber annual reports at the end of each calendar
year containing the energy produced by the Facility, 7.2.3 except as may be required by law or regulation,
financial statements (including a balance sheet, or with Subscriber's consent, Operator will not
income statement and sources and uses of funds publicly disclose Subscriber's LDC account
statement), and the management and operatorship of information,energy usage data,or Xcel Bill Credits.
Operator. Subscriber may provide comments to
Operator on the accuracy and completeness of the 7.3 Representations of Subscriber. In addition to the
annual reports, and shall provide a copy of any such representations above, Subscriber represents,
comments to LDC. warrants,and covenants to Operator that:
6. Taxes. 7.3.1 Subscriber's average annual energy
consumption over the two year period prior to the
Subscriber shall be solely liable for sales or similar Effective Date is as set forth in Item D in the
taxes imposed by a governmental entity, if any, Subscriber Information table in this Agreement;
attributable to the sale of Credits allocated to the
Subscriber. Subscriber shall have no interest in and 7.3.2 Subscriber shall not install or procure any other
have no entitlement to claim any investment tax distributed generation resource(s) serving
credit or other tax benefits related to ownership of the Subscriber's premises to which energy is delivered
Facility.
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
by LDC under the Account set forth in Item D in the direct legal or equitable interest in the Facility or the
Subscriber Information table in this Agreement, capacity and energy from the Facility.
which resource(s), when combined with the
Allocation, may generate energy (including energy 7.4.4 LDC Standard Contract Solely Between
upon which the Xcel Bill Credits are based) Operator and the LDC. Subscriber acknowledges and
exceeding one hundred twenty percent (120%) of agrees that the LDC Standard Contract is solely
Subscriber's average annual energy consumption between Operator and the LDC,and,notwithstanding
over the twenty-four (24) months prior to such any provision therein to the contrary, does not affect
installment or procurement; the rights and obligations of the Parties hereunder.
The LDC Standard Contract requires that Operator
7.3.3 all of Subscriber's Premises are located in the (as opposed to the LDC) shall be responsible for
LDC's service territory, in the county in Minnesota answering all questions from Subscriber regarding its
set forth in Item D in the "Subscriber Information" participation in the CSG Program and the Facility.
table set forth in this Agreement, and that Subscriber Subscriber acknowledges, however, that the LDC is
is a retail electric service customer of the LDC;and responsible for resolving disputes with Subscriber
regarding any Xcel Bill Credits and the calculation
7.3.4 Subscriber is not exempt from the Solar Energy thereof; notwithstanding the foregoing, Operator
Standard under Minn. Stat. §216B.1691,Subd.2f(d). agrees to provide reasonable assistance to Subscriber,
upon Subscriber's request, in the event of any Credit
7.4 Limited Agency Relationship. dispute.
7.4.1 Subscriber appoints Operator as its authorized 7.5 Performance Guarantee. Operator hereby
agent with full power and authority to provide to guarantees that in every period of two consecutive
third parties the information expressly required by the calendar years during the Term, beginning with the
CSG Program, as contemplated in the Subscriber first full calendar year, Operator will operate the
Agency Agreement and Consent Form ("Subscriber Facility to deliver energy from the Facility to the
Agency Agreement") attached hereto as Exhibit A. LDC, with respect to Subscriber's Share, in an
Within thirty (30) days of request by Operator, amount not less than eighty-five percent (85%) of
Subscriber shall complete, execute, and deliver to Expected Deliveries(weather adjusted)which will be
Operator such Subscriber Agency Agreement. Upon set forth on Exhibit B to this Agreement (the
execution, all of the information and statements of "Guaranteed Performance") not later than the date
Subscriber provided therein shall be accurate. of commencement of construction of the Facility.
Subject to the limitations set forth in this Agreement,
7.4.2 Other than the limited agency relationship Operator shall pay Subscriber an amount equal to the
created by Section 7.4.1 and the Subscriber Agency Discount Amount per Xcel Bill Credit to the extent
Agreement, the parties acknowledge and agree that the actual number of Xcel Bill Credits received by
their respective rights and obligations under this Subscriber during any such two year period (the
Agreement are contractual in nature. Each Party "Measurement Period") is less than the number of
acknowledges and agrees that this Agreement and Xcel Bill Credits that would have been received by
any other document executed under the CSG Subscriber if the Guaranteed Performance for the
Program by either Party do not impose fiduciary entire Measurement Period (combining the Expected
obligations on the other Party. Deliveries for both calendar years) had been
achieved. Such payment shall be Subscriber's sole
7.4.3 Operator Not an Electric Utility. Subscriber remedy for default by Operator under this Section.
acknowledges that (a)Operator is not an electric Operator shall have no liability under this Section if
utility or public service company or similar entity the Facility's failure to achieve Guaranteed
that has a duty to provide service, is subject to rate Performance is due to an event of Force Majeure.
regulation, or is otherwise subject to regulation by
any governmental authority other than the CSG 8. Default.
Program as a result of Operator's obligations or
performance under this Agreement; (b)the LDC will 8.1 Events of Default. The following shall each
continue, during the term of this Agreement,to serve constitute an Event of Default by a Party:
as Subscriber's electric utility, and Operator does not
assume any obligations of a utility or public service 8.1.1 The Party fails to make any material payment
company to supply Subscriber's electric due under this Agreement within thirty (30) days
requirements; and (c)Subscriber does not have any
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
after delivery of notice from the other Party that such in equity with respect to the performance or non-
payment is overdue. performance of the other Parties hereto under this
Agreement.Notwithstanding anything to the contrary
8.1.2 The Party materially fails to perform or comply in this Agreement, under no circumstances shall
with any representation, warranty, obligation, Operator's liability under this Agreement exceed in
covenant or agreement set forth in this Agreement any one calendar year an amount equal to (i) the
and such failure continues for a period of thirty (30) Allocation percentage times (ii) $15,000. For
days after delivery of notice thereof from the other example, if the Allocation hereunder is 40%,then the
Party. limit described in the preceding sentence shall equal
40%x$15,000 or$6,000 total.
8.1.3 The Party is subject to a petition for dissolution
or reorganization,voluntary or involuntary,under the 9.2 Operator Damages due to Subscriber Breach. In
U.S.Bankruptcy Code. the event of Subscriber's breach, repudiation, Event
of Default or other nonperformance of or under this
8.2 Force Majeure. Except as specifically provided Agreement which results in the termination this
herein, if by reason of Force Majeure, a Party is Agreement, Subscriber agrees to pay the following
unable to carry out, either in whole or in part, any of sum to Operator within 30 days of written notice
its obligations herein contained, such Party shall not from Operator regarding the calculation and
be deemed to be in default during the continuation of determination thereof:
such inability, provided that: (a)the non-performing
Party, within a reasonable time after the occurrence (1) any unpaid Monthly Allocation
of the Force Majeure event, gives the other Party Payments that are due at the time of the termination
notice describing the particulars of the occurrence of this Agreement;PLUS
and the anticipated period of delay; (b)the
suspension of performance be of no greater scope and (2) the value of the total projected
of no longer duration than is required by the Force amount of Monthly Allocation Payments for the
Majeure event; (c)no obligations of the non- remaining balance of the Term;PLUS
performing Party which were to be performed prior
to the occurrence causing the suspension of (3) any other amount necessary to
performance shall be excused as a result of the compensate Operator for all the detriment
occurrence; and (d)the non-performing Party shall proximately caused by the Subscriber's failure to
use reasonable efforts to remedy the cause(s) perform its obligations under this Agreement or
preventing it from carrying out its obligations. which in the ordinary course would be likely to result
"Force Majeure" as used in this Agreement shall from such failure, as reasonably calculated by
mean an event or circumstances beyond the Operator. These costs are anticipated to include the
reasonable control of a Party and not resulting from administrative costs of procuring an alternate
the Party's negligence, including, but not limited to subscriber. Under no circumstance would these costs
fire, acts of God, earthquake, flood or other casualty include construction or material costs associated with
or accident; strikes or labor disputes; war, civil strife the Facility.
or other violence; break down of equipment,
machinery or failure of LDC electric distribution The projected amounts of Monthly Allocation
system,provided that such equipment,machinery and Payments described above shall be calculated based
systems where operated and maintained in upon the Schedule of Expected Deliveries(Exhibit B,
accordance with equipment and industry standards; hereto),and the Bill Credit Rate.
and any law, order, proclamation, regulation,
ordinance, action, demand or requirement of any The above amount shall be subject to Operator's duty
government agency or utility. An inability to make to mitigate damages as provided by applicable law
payment shall not be deemed to be an event of Force (including but not limited to payment for
Majeure hereunder. unsubscribed energy received by Operator from the
LDC), provided that any efforts by Operator to
9. Remedies; Limitation of Liability; mitigate damages caused by Subscriber's breach,
Waiver. repudiation, or termination of this Agreement shall
not waive Operator's right to recover damages from
9.1 Remedies. Subject to the limitations set forth in Subscriber.
this Agreement, the Parties each reserve and shall
have all rights and remedies available to it at law or
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
9.3 Limitation of Liability. EXCEPT AS 10.4 Liquidated Damages. In the event of a
EXPRESSLY ALLOWED HEREIN, NO PARTY termination of the CSG Contract based on Operator's
SHALL BE LIABLE TO THE OTHER PARTY breach thereof, Subscriber may terminate this
FOR SPECIAL, INDIRECT OR PUNITIVE Agreement. In that event, Operator shall pay to
DAMAGES OF ANY CHARACTER, RESULTING Subscriber, subject to the limitations set forth in this
FROM, ARISING OUT OF, IN CONNECTION Agreement, as liquidated damages, an amount equal
WITH OR IN ANY WAY INCIDENT TO ANY to the Discount Amount for each Credit expected to
ACT OR OMISSION OF A PARTY RELATED TO have been allocated to Subscriber for the calendar
THE PROVISIONS OF THIS AGREEMENT, year following termination according to the Schedule
IRRESPECTIVE OF WHETHER CLAIMS OR of Expected Deliveries, Exhibit B attached hereto.
ACTIONS FOR SUCH DAMAGES ARE BASED The Parties agree that actual damages in the event of
UPON CONTRACT, WARRANTY, termination of this Agreement as specified in this
NEGLIGENCE, STRICT LIABILITY OR ANY Section 10 would be difficult to calculate and that the
OTHER THEORY AT LAW OR EQUITY. liquidated damages specified herein are a reasonable
approximation of such actual damages.
9.4 Exclusions. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS 11. Assignment.
SECTION 9, THE LIMITATIONS OF THIS
SECTION 9 DO NOT APPLY TO A CLAIM FOR No Party shall assign or in any manner transfer this
GROSS NEGLIGENCE OR WILLFUL Agreement or any part thereof except in connection
MISCONDUCT; FOR FAILURE TO COMPLY with:
WITH LAWS; FOR INDEMNIFICATION; FOR
BREACH OF CONFIDENTIALITY OR FOR 11.1 Subscriber. Subscriber's assignment to
INTELLECTUAL PROPERTY INFRINGEMENT. a party, approved in advance by Operator, with such
approval not unreasonably withheld:(a) on the bases
10. Early Termination. of (i)creditworthiness, (ii) the party's eligibility
under the Solar Rewards Community Program, (iii)
10.1 Inability to Obtain Financing. Operator may Subscriber's payment to Operator of seven hundred
terminate this Agreement on notice thereof to fifty dollars ($750) to cover Operator's
Subscriber in the event that Operator is unable to administrative expenses associated with the transfer
obtain financing for the Facility on commercially (the "Transfer Fee"), and (iv) other factors
reasonable terms. evidencing an increase in the risk of a breach of this
Agreement, or (b)Subscriber's assignment of this
10.2 Force Majeure. If Operator fails to perform Agreement to any of its affiliates(without change of
under this Agreement due to an event of Force service address) provided that such affiliate (i)has
Majeure that lasts more than twelve (12) months or the same or better credit strength, and (ii)pays the
fails to restore the Facility to full operation at or near Transfer Fee;or
Capacity within twelve (12) months following an
event of Force Majeure causing damage to the 11.2 Operator. Operator's assignment of
Facility, Subscriber shall have the right to terminate this Agreement to: (a) any affiliate that owns or, by
this Agreement by giving Operator at least sixty(60) long-term lease, controls the Facility, (b)Operator's
days prior notice of its intent to terminate based on collateral assignment of this Agreement to any
such failure(s). Any such notice of termination shall financial institution that provides fmancing for the
be given within three (3) months of such failure(s). Facility (including a fmancial institution that enters
In the event of termination pursuant to this Section into a sale/leaseback transaction with respect to the
10.2, Operator shall pay to Subscriber, as liquidated Facility) that has agreed in writing to recognize
damages, an amount equal to the Discount Amount Subscriber's rights under this Agreement and to not
for each Credit expected to have been allocated to disturb any of Subscriber's rights hereunder upon the
Subscriber for the six month period following the foreclosure or conveyance in lieu thereof, and, in
expiration of such twelve(12)month period. connection with any collateral assignment of this
Agreement, Subscriber agrees to comply with the
10.3 Limitations on Subscriber's Right to Terminate. lender accommodations set forth below in Section
Subscriber shall have no right to terminate this 12.17 of this Exhibit C,or(c) Operator's assignment
Agreement for breach by Operator, unless otherwise of this Agreement, prior to the Commencement of
provided in this Agreement. Operations Date, to another operator/owner of a
community garden facility qualified under the Solar
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
Rewards Community Program and of the same or If to Subscriber, as set forth in Item H in the
better creditworthiness as Operator which has "Subscriber Information" table in this
sufficient capacity to accept Subscriber's Allocation. Agreement.
Without limiting the foregoing, Subscriber
understands and agrees that Operator may assign this 12.3 Severability. If any term, covenant or condition
Agreement, in whole or in part, to one or more of its in the Agreement shall, to any extent, be invalid or
affiliates that will each operate a Facility and shall unenforceable in any respect under applicable law,
become the "Operator" hereunder, and Subscriber the remainder of the Agreement shall not be affected
hereby agrees, if requested by Operator, to execute thereby, and each term, covenant or condition of the
and deliver additional Subscription Agreements in Agreement shall be valid and enforceable to the
substantially similar form to this Agreement to fullest extent permitted by applicable law, unless
evidence the portion of Subscriber's subscription to such invalidity or unenforceability frustrates or
each Facility. In addition, Subscriber acknowledges negates an essential purpose of this Agreement.
and agrees that Operator may, from time to time,
update this Agreement, including the Subscriber 12.4 Governing Law. This Agreement shall be
Information table, with specific information governed by and construed in accordance with the
regarding the Facility's identity, location, size and domestic laws of the State of Minnesota without
other related information. reference to any choice of law principles.
12. Miscellaneous. 12.5 Dispute Resolution.
12.1 LDC Disputes. Operator shall be solely 12.5.1 Amicable Settlement. The Parties shall
responsible for resolving any dispute with LDC attempt in good faith to resolve all disputes arising in
regarding the production of energy by the Facility. connection with the interpretation or application of
Subscriber shall be solely responsible for resolving the provisions of this Agreement or in connection
any dispute with LDC regarding the calculation of with the determination of any other matters arising
the Bill Credit Rate. under this Agreement by mutual agreement.
12.2 Notices. 12.5.2 Continuation of Performance. During the
pendency of any dispute hereunder, the Parties shall
12.2.1 Writing Requirement. All notices and other continue to perform their respective obligations under
formal communications which any Party may give to this Agreement.
another under or in connection with this Agreement
shall be in writing (except where expressly provided 12.5.3 Equitable Relief. Nothing in this Agreement
for otherwise), shall be deemed delivered upon shall be construed to preclude either Party from
mailing or deposit with a courier for hand delivery, seeking or obtaining urgent equitable or injunctive
and shall be sent by any of the following methods: relief from a court of law in relation to this
hand delivery; reputable overnight courier; certified Agreement.
mail,return receipt requested;or email transmission.
12.5.4 Venue and Jurisdiction. The Parties agree that
12.2.2 Addresses. Subscriber shall promptly notify the courts of the State of Minnesota and the Federal
Operator of any changes in Subscriber Data. Courts sitting therein shall have jurisdiction over any
action or proceeding arising under the Agreement to
The notices and communications shall be sent to the the fullest extent permitted by applicable law. The
following addresses: Parties waive to the fullest extent permitted by
applicable law any objection it may have to the
If to Operator: laying of venue of any action or proceeding under
this Agreement any courts described in this Section
12.5.
c/o Geronimo Energy,LLC
7650 Edinborough Way,Suite 725 12.6 Insurance. Operator agrees to obtain and
Edina,MN 55435 maintain (a)sufficient liability insurance respecting
communitysolar@geronimoenergy.com the Facility; and (b)property insurance on the
Facility in an amount not less than the full
replacement value thereof which names Subscriber as
an additional insured.
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
12.7 Indemnity. 12.9 Entire Agreement. This Agreement, and all
documents referenced herein, contain the entire
12.7.1 Mutual Indemnification. Operator and agreement between Parties with respect to the subject
Subscriber (to the extent of Subscriber's statutory matter hereof, and supersede all other understandings
limits set forth in Minn. Stat. 466.04, if and as or agreements, both written and oral, between the
applicable) shall mutually defend, indemnify and Parties relating to the subject matter hereof.
hold harmless the other Party, its affiliates and its and
their officers, directors, elected officials, employees, 12.10 No Joint Venture; Service Contract. Each
agents, successors and assigns from and against all Party will perform all obligations under this
liabilities, Losses, investigations or inquires, claims, Agreement as an independent contractor. Except as
suits,damages,costs and expenses resulting from any expressly set forth herein, nothing herein contained
third-party claim, suit, action or proceeding (each, a shall be deemed to constitute any Party a partner,
"Claim") arising out of each Party's performance or agent or legal representative of another Party or to
failure to perform as required by this Agreement, acts create a joint venture, partnership, agency or any
or omissions or any representations or warranties relationship between the Parties. The obligations of
contained in this Agreement. "Losses" means all Subscriber and Operator hereunder are individual and
losses, damages, liabilities, deficiencies, actions, neither collective nor joint in nature. Each Party
judgments, interest, awards, penalties, fines, costs or acknowledges and agrees that (i) this Agreement
expenses of whatever kind,the cost of enforcing any constitutes, and shall be treated as,a service contract,
right to indemnification hereunder. including under Section 7701(e) of the Internal
Revenue Code of 1986 and its related subparts, (ii)
12.7.2 Indemnification Procedures. The Party Subscriber will not, and no related entity of
seeking indemnification hereunder shall promptly Subscriber will, bear or incur any significant
notify the indemnifying Party in writing of any Claim financial burden if there is nonperformance by
and cooperate with the indemnifying Party at the Operator under this Agreement, as described in
indemnifying Party's sole cost and expense. The Section 7701(e)(4)(A) of the Internal Revenue Code
indemnifying Party shall immediately take control of of 1986 and its related subparts; and (iii) Subscriber
the defense and investigation of such Claim and shall does not, through this Agreement or otherwise, have
employ counsel of its choice to handle and defend the any right to operate the Facility as contemplated in
same, at the indemnifying Party's sole cost and Section 7701(e)(4)(A) of the Internal Revenue Code
expense. The indemnified Party's failure to perform of 1986 and its related subparts.
any obligations under this Section 12.7 shall not
relieve the indemnifying Party of its obligations 12.11 Amendments;Binding Effect. This Agreement
under this Agreement, except to the extent that the may not be amended, changed, modified, or altered
indemnifying Party can demonstrate that it has been unless such amendment, change, modification, or
materially prejudiced as a result of such failure. The alteration is in writing and signed by each Party to
indemnified Party may participate in and observe the this Agreement or its successor in interest. This
proceedings at its own cost and expense. Agreement inures to the benefit of and is binding
upon the Parties and their respective successors and
12.8 Compliance with Law. Operator shall comply permitted assigns.
with all laws (including common laws), ordinances,
codes, rules and regulations (collectively, "Laws") 12.12 Counterparts. This Agreement may be
regarding Operator's obligations and performance executed in counterparts, each of which shall be
under this Agreement. Operator shall obtain and deemed an original and all of which shall constitute
maintain any and all permits, licenses, bonds, one and the same agreement.
certificates and other similar approvals required in
connection with this Agreement. In the event that 12.13 Further Assurances. From time to time and at
Operator has failed to comply with any Laws or failed any time at and after the execution of this Agreement,
to obtain any and all permits, licenses, bonds, each Party shall execute, acknowledge and deliver
certificates and/or any other similar approvals required such documents and assurances,reasonably requested
in connection with this Agreement, Operator shall pay by the other for the purpose of effecting or
any fines or penalties imposed upon Subscriber as a confirming any of the transactions contemplated by
result of such failure and shall reimburse Subscriber this Agreement.
for any expenses incurred by Subscriber in responding
to such allegation. 12.14 Survival. The provisions of Sections 9,
(Remedies, Limitation of Liability; Waiver), 12.3
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
(Severability), 12.4 (Governing Law), 12.5 (Dispute 12.16.2 Exclusions from Confidential Information.
Resolution), and 12.7 (Indemnity) shall survive the Confidential Information shall not include any
expiration or earlier termination of this Agreement information, however designated, that: (a) is or
for a period of three(3)years thereafter. subsequently becomes publicly available without
either Party's breach of an obligation owed to other
12.15 No Third-Party Beneficiaries. This Agreement Party; (b) became known to either Party prior to the
is intended solely for the benefit of the Parties hereto. other Party's disclosure of such information to the
Except as expressly set forth in this Agreement, Party pursuant to the terms of this Agreement; or(c)
nothing in this Agreement shall be construed to became known to either Party from a source other
create any duty to or standard of care with reference than the other Party and was not the result of a breach
to, or any liability to, or any benefit for, any person of an obligation of confidentiality owed to the other
not a party to this Agreement. Party by said source.
12.16 Confidentiality. 12.16.3 Additional Acknowledgement.
Notwithstanding anything to the contrary in this
12.16.1 Confidential Information. Each Party agrees Section 12.16,the Parties acknowledge and agree this
that it will not disclose Confidential Information (as Agreement is governed by the Government Data
hereinafter defined), directly or indirectly, under any Practices Act, chapter 13 of Minnesota Statutes. All
circumstances or by any means (excluding data, including data that either Party informs the
disclosures to the LDC or as are required as a other is Confidential Information or otherwise non-
participant in the CSG Program), to any third person public data, shall be handled in accordance with such
without the express written consent of the other act. Under no circumstances shall Subscriber be
Party. Notwithstanding the above, a Party may required to act or not act in a manner that it
provide such Confidential Information to (i) its reasonably believes, after consultation with counsel,
officers, directors, members, managers, employees, may be in violation of such act.
agents, contractors, consultants, affiliates, lenders,
and potential assignees of the Agreement (provided 12.17 Lender Accommodations.
that such potential assignees be bound by a written
agreement or legal obligation restricting the use and 12.17.1 Collateral Assignment. Subscriber
disclosure of Confidential Information), in each case acknowledges that Operator will be financing the
whose access is reasonably necessary to the installation of the Facility either through a lessor,
negotiation and performance of this Agreement and lender or with financing accommodations from one
(ii) with respect to Operator, to Operator's or its or more financial institutions and that the Operator
Affiliates' financial partners, financial institutions, may sell or assign the Facility and/or may secure the
lenders, or their assigns ("Financing Party") and Operator's obligations by, among other collateral, a
potential Financing Parties, provided such parties are pledge or collateral assignment of this Agreement
subject to a written agreement or legal obligation and a first security interest in the Facility. In order to
restricting the use and disclosure of Confidential facilitate such sale, conveyance, or financing, and
Information. "Confidential Information" means, with respect to any such financial institutions of
(a)proprietary information of either Party, including which Operator has notified Subscriber in writing
the terms,provisions and contents of this Agreement, Subscriber agrees as follows:
(b) information marked or designated by either Party
as confidential, (c) information, whether or not in 12.17.2 Consent to Collateral Assignment. Provided
written form and whether or not designated as the Financing Party has agreed in writing to
confidential, that is known to either Party as being recognize Subscriber's rights under this Agreement
treated by the other Party as confidential, (d) and to not disturb any of Subscriber's rights
information provided to either Party by third parties thereunder upon the foreclosure or conveyance in lieu
that such Party is obligated to keep confidential, thereof, Subscriber consents to either the sale or
(including, but not limited to, either Party's credit or conveyance by Operator to a Financing Party that has
financial information and information relating to an provided fmancing of the Operator's right, title and
identified or identifiable natural person, whether or interest in the Facility and to this Agreement.
not such information is publicly available) and (e) Notwithstanding the foregoing, Operator agrees that
information developed by either Party in connection any such Financing Party will not be an entity that is
with the performance of this Agreement. debarred from doing business with any state or
federal entity, connected to organized crime, or on a
govermnent"excluded persons"list.
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
12.17.3 Notices of Default. Subscriber will deliver to Agreement pursuant to any process undertaken with
the Financing Party, concurrently with delivery respect to Operator under the United States
thereof to Operator, a copy of each notice of default Bankruptcy Code, at the request of the Financing
given by Subscriber under the Agreement, inclusive Party made within ninety (90) days of such
of a reasonable description of Operator default. termination or rejection, Subscriber shall enter into a
Subscriber will not mutually agree with Operator to new agreement with the Financing Party or its
terminate the Agreement without the written consent assignee having the same terms and conditions as this
of the Financing Party. Agreement.
12.17.4 Rights Upon Event of Default. 12.17.5 Right to Cure. Subscriber will not exercise
Notwithstanding any contrary term of this any right to terminate or suspend this Agreement
Agreement, during the continuation of an event of unless it shall have given the Financing Party prior
default by Operator under its agreements with written notice by sending notice to the Financing
Financing Party, provided that the Financing Party Party (at the address provided by Operator) of its
has agreed in writing to recognize Subscriber's rights intent to terminate or suspend this Agreement,
under the Agreement and to not disturb any of specifying the condition giving rise to such right, and
Subscriber's rights thereunder: (a) The Financing the Financing Party shall not have caused to be cured
Party, as collateral assignee, shall be entitled to the condition giving rise to the right of termination or
exercise, in the place and stead of Operator, any and suspension within thirty(30)days after such notice or
all rights and remedies of Operator under this (if longer) the periods provided for in this
Agreement in accordance with the terms of this Agreement. The Parties' respective obligations will
Agreement and the Financing Party shall also be otherwise remain in effect during any cure period;
entitled to exercise all rights and remedies of secured provided that if such Operator default reasonably
parties generally with respect to this Agreement; (b) cannot be cured by the Financing Party within such
The Financing Party shall have the right, but not the period and the Financing Party commences and
obligation,to pay all sums due under this Agreement continuously pursues cure of such default within such
and to perform any other act, duty or obligation period, such period for cure will be extended for a
required of Operator thereunder or cause to be cured reasonable period of time under the circumstances,
any default of Operator thereunder in the time and such period not to exceed an additional sixty (60)
manner provided by the terms of this Agreement. days. If the Financing Party (including any
Nothing herein requires the Financing Party to cure transferee), pursuant to an exercise of remedies by
any default of Operator under this Agreement or the Financing Party,shall acquire title to or control of
(unless the Financing Party has succeeded to Operator's assets and shall, within the time periods
Operator's interests under this Agreement) to described in this Sub-section, cure all defaults under
perform any act,duty or obligation of Operator under this Agreement existing as of the date of such change
this Agreement, but Subscriber hereby gives it the in title or control in the manner required by this
option to do so; (c)Upon the exercise of remedies Agreement and which are capable of cure by a third
under its security interest in the Facility, including person or entity, then such person or entity shall no
any sale thereof by the Financing Party, whether by longer be in default under this Agreement, and this
judicial proceeding or under any power of sale Agreement shall continue in full force and effect.
contained therein, or any conveyance from Operator
to the Financing Party (or any assignee of the
Financing Party). Any such exercise shall not
constitute a default under this Agreement; and
(d)Upon any rejection or other termination of this
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Form of Community Solar Garden Subscription Agreement as of March 2017—Govt Entities
EXHIBIT D
Table of Subscriber Information
***
60904774_1.docx
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