OPERATIONS AND MAINTENANCE AGREEMENT
This OPERATIONS AND MAINTENANCE AGREEMENT (the “Agreement”) is entered into as of this ____ day of _______________, 20___ (the “Effective Date”), by and between VCP EPC, LLC, a Connecticut limited liability company (“Vendor”), and [____________], a [____________] (“System Owner”). Each of Vendor and System Owner may be referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, Vendor has experience in the solar photovoltaic industry servicing and maintaining photovoltaic systems;
WHEREAS, System Owner wishes to engage Vendor to service and maintain the System(s) (as defined herein) at the Site(s) (as defined herein) and perform certain operations and maintenance services in connection with the System(s); and
WHEREAS, Vendor has agreed to service and maintain the System(s) on the terms and subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:
As used in the Agreement, the following terms shall have the meanings set forth below:
Access License has the meaning given in Section 2.2(i).
Affiliate means, with respect to any person, any other person directly or indirectly controlling, controlled by or under common control with such first person. For the purposes of this definition, “control” and its derivatives mean, with respect to any person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities or otherwise. “Control” may be deemed to exist notwithstanding that a person owns or holds, directly or indirectly, less than fifty percent (50%) of the beneficial equity interest in another person.
Agreement means this Operations and Maintenance Agreement as it may be amended, restated, modified, or supplemented from time to time.
Business Day means any day other than Saturday, Sunday or a legal holiday in the State of Connecticut.
Casualty Event means the damage, destruction or other property casualty or capital cost having a materially adverse effect on any System resulting from (i) a Force Majeure Event, (ii) a change in Law including the enactment or amendment of Laws subsequent to the Effective Date which Vendor could not reasonably anticipate, or (iii) any other sudden, unexpected or out of the ordinary cause that is not due to the act or omission of Vendor of any Subcontractor where the remediation of the effects thereof (a) requires the effective replacement of any parts or equipment of such System, or (b) results in the expenditure of any capital cost.
Claims has the meaning given in Section 5.1.
Confidential Information has the meaning given in Section 8.5(a).
Effective Date has the meaning given in the preamble of this Agreement.
Force Majeure Event means any circumstance not within the reasonable control, directly or indirectly, of the Party affected, which prevents or delays such Party’s performance, but only if and to the extent that (a) such circumstance, despite the exercise of due diligence, cannot be or be caused to be prevented, avoided or removed by such Party, (b) such event is not due to such Party’s negligence, recklessness or intentional misconduct and (c) such event is not the result of any failure of such Party to perform any of its obligations under this Agreement. Without limiting the generality of the foregoing, Force Majeure Events may include strikes or other labor disputes (other than strikes or labor disputes solely by employees of the Party declaring the Force Majeure Event or as a result of such Party’s failure to comply with a collective bargaining agreement), adverse weather conditions which are abnormal and which could not have been reasonably predicted and other acts of nature, riot or civil unrest, but shall not include any inability to make any payments that are due hereunder or to any third party or to procure insurance required to be procured hereunder, or economic downturns in the economy, including recessions and depressions.
Government Approval means any and all authorizations, consents, approvals, licenses, rulings, permits, tariffs, certifications, exemptions, filings, variances, orders, judgments, decrees, qualifications or requirements of, or registrations by or with any Governmental Authority relating to or required in connection with the service and maintenance of the Systems.
Governmental Authority means any Federal, state, municipal, local, territorial, or other governmental department, commission, board, bureau, agency, regulatory authority, instrumentality, judicial or administrative body, and any arbitral tribunal, including the Internal Revenue Service.
Indemnifying Party has the meaning given in Section 5.1.
Indemnitees has the meaning given in Section 5.1.
Industry Standard means the practices, methods and acts engaged in by a significant portion of the solar energy industry and, to the extent applicable, the electric generation industry that, at a particular time, in the exercise of reasonable judgment in light of the facts known or that reasonably should have been known at the time a decision was made, would have been expected to accomplish the desired result in a manner consistent with Law, reliability, safety, environmental protection, economy and expedition. “Industry Standard” is not intended to be limited to the optimum practice, method or act, to the exclusion of all others, but rather to be a spectrum of possible practices, methods or acts that would reasonably be expected to accomplish the desired result.
Insolvent means (i) the institution by or against a Party of any insolvency proceedings, whether under the United States Bankruptcy Code 11 USC §101 et seq. or any other Law, in which a Party is alleged to be insolvent or unable to pay its debts as they mature, and such proceedings (if instituted against a party) shall not have been dismissed in sixty (60) days; (ii) a Party shall admit in writing its inability to pay its debts as they mature; (iii) a Party shall give notice to any governmental body of insolvency or pending insolvency, or suspension or pending suspension of operations; or (iv) a Party shall make an assignment for the benefit of creditors or take any other similar action for the protection or benefit of creditors.
Law means (i) any statute, law, rule, regulation, code, ordinance, judgment, decree, writ, order, directive, policy, requirement of, or any binding interpretation of any of the foregoing by, any Governmental Authority, whether now or hereafter in effect or (ii) any requirements or conditions on or with respect to the issuance, maintenance or renewal of any Government Approval or applications therefor, whether now or hereafter in effect.
Maintenance Costs has the meaning set forth in Section 3.1(b).
Manuals means the operation and maintenance procedures manuals prepared from time to time by Vendor and/or the manufacturer(s) of the components of any System.
Manufacturer Warranties means the warranties for the major component parts that make up the System, which are attached hereto in Exhibit E.
System Owner has the meaning given in the preamble of this Agreement.
System Owner Representative shall mean the representative of System Owner appointed pursuant to Section 2.4(a).
Service Fee has the meaning given in Section 3.1(a).
Services means the services set forth in Exhibit A attached hereto.
Site means the site of the System(s) as described in Exhibit C attached hereto.
Subcontract means a subcontract under which Vendor subcontracts any of its obligations under this Agreement.
Subcontractor means any person to whom Vendor subcontracts any of its obligations under this Agreement, including the suppliers and any person to whom such obligations are further subcontracted of any tier.
System means the photovoltaic system(s) as detailed in Exhibit B attached hereto.
Term has the meaning given in Section 4.1(a).
Termination Notice has the meaning given in Section 4.2(c).
Vendor Competitor means any person (or any such person’s affiliates) that installs, services and maintains photovoltaic systems and competes with Vendor in the marketplace.
Vendor has the meaning given in the preamble to this Agreement.
Vendor Representative shall mean the representative of Vendor appointed pursuant to Section 2.4(b).
ARTICLE 2. SCOPE OF SYSTEM SERVICES
Section 2.1 Engagement of Vendor.
On the terms and conditions set forth in this Agreement, System Owner hereby engages Vendor to perform the Services in accordance with the terms of this Agreement and in consideration of System Owner’s payment of the Service Fee and Maintenance Costs set forth in Article 3. Vendor hereby accepts the engagement, and Vendor agrees to perform the Services in accordance with the terms of this Agreement.
Section 2.2 Responsibilities of Vendor.
(a) Services. Throughout the Term of this Agreement, Vendor shall provide the Services to System Owner and shall not knowingly take or fail to take any action that results in the release, impairment or waiver of the Manufacturer Warranties. Vendor acknowledges and agrees that it has received copies of and understands the terms and conditions of each of the Manufacturer Warranties.
(b) Subcontractors. Vendor may utilize Subcontractors for any portion of the Services, provided that: (i) Vendor may only Subcontract to persons and entities that are licensed and insured to the extent required by applicable Law and/or this Agreement and are qualified to perform the services requested; (ii) any such Subcontracts do not reduce or otherwise modify Vendor’s obligations hereunder; and (iii) Vendor shall cause any such Subcontractor to satisfy the standards of performance set forth in Section 1.2(d) hereof.
(c) Personnel. Vendor shall provide and make available as necessary all such labor and personnel as are required for the proper performance of and timely completion of the Services in conformance with the standards of performance set forth in Section 1.2(d) hereof. Vendor shall retain sole authority, control and responsibility with respect to its employees and Subcontractors in connection with the performance of its obligations hereunder.
(d) Standards of Performance. Vendor shall perform and shall cause all Subcontractors to perform the Services (i) in accordance with this Agreement and all applicable Manufacturer Warranties, and (ii) in a good, workmanlike and commercially reasonable manner in accordance with Industry Standards, applicable Laws and the Manuals.
(e) Insurance. Vendor shall procure at its own expense and maintain in full force and effect, with responsible insurance carriers that have an A.M. Best rating of A- VIII or better authorized to do business in [Insert State of Project], the following insurance in at least the minimum amounts specified: (1) Workers’ compensation insurance covering Vendor’s employees as required by law and employer’s liability insurance with a limit of $1,000,000; (2) Commercial General Liability written on an occurrence basis with a combined single limit of at least $1,000,000 per occurrence and $2,000,000 in the aggregate, including premises and operations liability, products and completed operations liability, blanket contractual liability, personal injury liability, bodily injury and “broad form” property damage coverage, explosion and collapse hazard coverage; if coverage includes an aggregate limit, that limit should be at least $2,000,000; and (c) Excess Liability Insurance with a single limit of at least $5,000,000 per occurrence and in the aggregate, in excess of the limits of insurance provided above; coverage shall be “following form” of the underlying general liability policy. If the policy shall be written on a “claims made” basis then the policy shall include 1) a retroactive date that is no later than the maintenance start date, and 2) any time a policy written on a claims made basis is not renewed or the retroactive date changed, the Provider shall obtain or cause to obtain the broadest “tail” or extended reporting coverage commercially available. The Vendor shall name the System Owner, their affiliates and financing parties as Additional Insured.
(f) Title. Title and risk of loss to all items, parts, materials and equipment supplied to System Owner under or pursuant to this Agreement shall transfer automatically to System Owner upon the installation of such items, parts, material and equipment by Vendor at the applicable Site. Any components that may be removed from a System as a result of replacement pursuant to this Agreement shall immediately become the property of Vendor.
(g) Books and Records. Vendor shall maintain and, upon System Owner’s reasonable request and if in Vendor’s possession and not in System Owner’s possession, provide System Owner with complete copies of operating logs, records and reports documenting the Services.
(h) Casualty Event. Notwithstanding anything to the contrary herein, if a Casualty Event occurs, Vendor shall not be required to perform Services related to the Casualty Event (excluding emergency situations that pose an imminent threat to bodily harm), the Parties shall promptly work in good faith to reach an agreement regarding such Casualty Event and System Owner shall be solely responsible for all replacement or other costs, charges, fees, taxes, insurance and any and all other expenses to the extent related to or arising out of such Casualty Event. The Parties shall meet to discuss in good faith the effect on the performance of Services caused by the Casualty Event. For the avoidance of doubt, any mutually agreed upon Services related to or arising out of the Casualty Event shall not be included in the Service Fee hereunder.
(i) Access to Site. System Owner acknowledges and confirms that it owns the Site(s) upon which the System(s) is located. Vendor and any of its Subcontractors shall perform the Services so as not to interfere with access to, use of, or occupation of each Site. During the performance of the Services, System Owner hereby grants Vendor a royalty-free license for access to the Site(s) from a public road or access route and use of the Site(s), as reasonably necessary, during the Term (and for any renewal periods as provided for herein), to allow Vendor to perform the Services, including ingress and egress rights to the Site(s) for Vendor and its employees, contractors and subcontractors and access to electrical panels and conduits to perform the Services (the “Access
License”). The Access License shall give Vendor a non-exclusive right to the footprint where the System(s) is located (which Vendor and System Owner shall mutually agree upon) as well as portions of the Site(s) that are reasonably required by Vendor in order to perform the Services, provided that Vendor’s use of the Site(s) shall not interfere with System Owner’s normal operations on the Site(s). The Access License is granted to Vendor only for the purpose stated herein and for no other purpose. Nothing contained in this Agreement shall be construed to create an easement in favor of Vendor. System Owner and its authorized representatives shall at all times have access to and the right to observe the Services, but shall not interfere with or handle any Vendor equipment without written authorization from Vendor.
Section 2.3 General Obligations of System Owner.
(i) Site. System Owner shall provide access to the Site for Vendor and for its authorized agents, employees or Subcontractors for the performance of Services in accordance with the terms of this Agreement. System Owner shall not bring any Vendor Competitors onto the Site without the prior written consent of Vendor, not to be unreasonably withheld; provided, however, that such consent shall not be required if: (a) an emergency situation exists that requires the immediate attention of a person or business that performs services similar to those described herein to be performed by Vendor, and Vendor is unable to provide its own response; or (b) Vendor is in default under this Agreement beyond any applicable notice, grace or cure period.
(ii) Access to Data. Subject to the nondisclosure obligations set forth in Section 8.5 of this Agreement, System Owner shall provide access to the monitoring and data acquisition system used at the Site(s) to record and log data at regular intervals from the System(s). Data and screens shall be made available to Vendor through a web portal or other direct access. Vendor shall have the right to use any such data for its own purposes and for the purposes of this Agreement. Such data, once gathered by Vendor, shall be the property of Vendor, and such data shall not be subject to any restriction regarding the use or disclosure of such data by System Owner, by any other law or regulation, or by anything otherwise contained in this Agreement.
(b) Duty to Cooperate. System Owner shall cooperate with Vendor in taking all actions reasonably requested by Vendor to ensure that parties with whom System Owner has agreements or relationships that are essential to the Services are available and able to perform as requested. System Owner shall be directly responsible for all utility, interconnection, and transmission costs of the System(s).
(c) Suspension of Services. Certain Services may be suspended for the duration of System Owner’s failure to materially satisfy any of the responsibilities set forth in this Section 2.3, but only to the extent such failure directly prevents Vendor from performing such Services.
(d) Insurance. System Owner shall maintain the following insurance coverages in full force and effect either through insurance policies or acceptable self-insured retentions: Commercial General Liability Insurance with limits of not less than $2,000,000 general aggregate, $1,000,000 per occurrence, and System Owner shall carry adequate property loss insurance on the System(s).
Section 2.4 Party Representatives.
(a) System Owner Representative. System Owner designates, and Vendor agrees to accept, ___________________ as System Owner Representative for all matters relating to System Owner’s performance under this Agreement. The actions taken by System Owner Representative regarding such performance shall be deemed the acts of System Owner and shall be fully binding on System Owner. System Owner may, upon written notice to Vendor pursuant to Section 8.7, change the designated System Owner Representative.
(b) Vendor Representative. Vendor designates, and System Owner agrees to accept, Steven DeNino, as Vendor Representative for all matters relating to Vendor’s performance of the Services. The actions
taken by Vendor Representative shall be deemed the acts of Vendor and shall be fully binding on Vendor. Vendor’ may, upon written notice to System Owner pursuant to Section 8.7, change the designated Vendor Representative.
ARTICLE 3. SERVICE FEE AND MAINTENANCE COSTS
Section 3.1 Payments.
(a) Service Fee. During the Term, as compensation for provision of the Services and the operation and maintenance of each System by Vendor, System Owner shall pay Vendor an annual service fee as set forth on Exhibit C hereof (the “Service Fee”). The initial billing period shall commence the first day of the first month of the Term and end on the first anniversary thereof.
(b) Reimbursement of Maintenance Costs Outside of the Services. During the Term, System Owner may, at their sole and absolute discretion, require Vendor to perform work outside of the Services, including corrective maintenance work and emergency maintenance work. System Owner shall reimburse Vendor for any actual costs and expenses incurred by Vendor in performing any work outside of the Services. Any Vendor’s time shall be billed at a rate of: (i) One Hundred Dollars ($100.00) per hour for an electrician solar technician; (ii) Seventy-Five Dollars ($75.00) per hour for a non-electrician solar technician; (iii) Sixty Dollars ($60.00) in administration fees per visit; and (iv) reimbursement for all travel expenses; provided, however, that in the event Vendor is engaged to perform such work outside of the Services, and Vendor must perform such work outside normal business hours, the hourly rates for Vendor’s time listed above shall be increased (i) time and a half (1.5x) for any work performed on nights or weekends, and (ii) double time (2x) for any work performed on holidays. Reimbursement shall be made on a time and materials basis. To the extent that Vendor engages Subcontractors to perform such work outside the Services, System Owner shall reimburse Vendor for reasonable costs incurred under such Subcontracts. All such costs to be reimbursed pursuant to this Section 3.1(b) are “Maintenance Costs.”
Section 3.2 Payment. In accordance with Section 3.1 of this Agreement, Vendor shall provide System Owner with an invoice setting forth the applicable Service Fee for the upcoming year, and System Owner shall pay such invoice in accordance with this Section 3.2. For any Maintenance Costs for work performed outside of the Services, Vendor shall provide System Owner with an invoice after the completion of such work, setting forth the Maintenance Costs for such work, and System Owner shall pay such invoice in accordance with this Section 3.2. System Owner shall pay Vendor all undisputed amounts within fifteen (15) days from System Owner’s receipt of the invoice. Overdue payment obligations of System Owner hereunder shall accrue interest each day beyond the date when due at the lesser of (i) an annual interest rate equal to the rate published by the Wall Street Journal as the “prime rate” on the date on which such interest begins to accrue plus two percent (2%), determined for each obligation to pay interest, at the time such obligation arises, and (ii) the maximum rate permitted by applicable Law.
Section 3.3 Disputed Payments and Dispute Resolution.
(a) If System Owner disputes any portion of an invoice, System Owner shall provide written notice to Vendor indicating the reason System Owner is withholding any amount and shall pay the undisputed portion of the invoice in accordance with this Article 3. If written notice of a dispute is not received within thirty (30) days after the delivery of an invoice, such invoice may not be disputed thereafter.
(b) The Parties shall attempt in good faith to resolve all disputes arising in connection with the interpretation or application of the provisions of this Agreement or in connection with the determination of any other matters arising under this Agreement by mutual agreement. Any disputes which cannot be settled amicably by the Parties shall be resolved in Connecticut through arbitration, and judgment upon any award may be entered in any court having jurisdiction. The arbitration proceedings shall (i) take place in Connecticut, (ii) be conducted in accordance with the arbitration rules of CPR Rules, (iii) consist of a single arbitrator experience in and knowledgeable of construction generally and solar system operation and maintenance in particular. Vendor and System Owner will endeavor to mutually select an arbitrator, but if unable to do so, then either may apply to a court of
competent jurisdiction in Connecticut by summary proceeding to appoint an independent and neutral arbitrator, and the decision of the court shall be final and binding.
(c) At least ten (10) Business Days before the arbitration hearing, the Parties shall exchange and provide to the arbitrator written proposals for the relief requested, with respect to each issue subject to arbitration, together with a summary of the facts and/or law as applicable, supporting such request. Any time prior to the close of the arbitration hearing, the Parties remain free to exchange revised written proposals to settle one or more matters under consideration by the arbitrator, which will supersede all prior proposals.
(d) In rendering a decision or award hereunder, the arbitrator shall be bound by all provisions of this Agreement and shall have no authority or power to enter an award which is in conflict with any of the provisions of this Agreement, as interpreted in accordance with the rules of contractual construction then in effect in the jurisdiction designated in Section 8.1. The decision or award must be in writing and must contain findings of fact and, if applicable, conclusions of law, on which it is based. Absent fraud, collusion, mistake or manifest error, such decision or award and any findings of fact shall be final. Any decision or award of the arbitrator may be enforced or confirmed in a court of competent jurisdiction.
(e) Each Party shall bear its own costs and expenses in any arbitration proceeding and shall share equally the costs of the arbitrator.
(f) Unless otherwise agreed in writing, Vendor shall carry on the Services during any arbitration proceedings, and System Owner shall continue to make payments to the Vendor in accordance with this Agreement.
(g) Nothing in this Section 3.3 shall be construed to preclude either Party from seeking or obtaining urgent equitable or injunctive relief from a court of law in relation to this Agreement.
ARTICLE 4. TERM
Section 4.1 Term.
(a) The term of this Agreement (“Term”) shall commence on the Effective Date and shall continue for a period of [____________] years thereafter and shall thereupon, and in each successive year thereafter, automatically renew for successive one (1) year periods unless System Owner gives written notice to Vendor, not less than thirty (30) days prior to the expiration hereof, of its intention to terminate this Agreement in which event this Agreement shall not renew. Upon termination of the Term and payment in full of the Service Fee due for such period, neither Party shall have any further rights or obligations to the other hereunder, other than those that survive the termination of this Agreement.
(b) In the event of early termination pursuant to Section 4.2, to the extent that (a) the value (the sum of the Service Fee accrued but not paid and any applicable Maintenance Costs) of Services completed on the date of termination exceeds that for which the Vendor has been paid pursuant to Section 3.1 or (b) System Owner’s payments made pursuant to Section 3.1 exceed the value (the sum of the Service Fee accrued but not paid and any applicable Maintenance Costs) of the Services completed on the date of termination, then Vendor or System Owner, as applicable, may make a claim that such amount should be netted against or aggregated with all other amounts owed under this Agreement. All other rights and remedies of the Parties shall not be affected by this Section 4.1.
Section 4.2 Termination for Cause.
(a) By System Owner. System Owner may terminate this Agreement in the event of any of the following:
(i) Vendor becomes Insolvent; or
(ii) Vendor is in breach of any material term of this Agreement and (a) such breach remains uncured for thirty (30) days after written notice from System Owner of the breach is received by Vendor, or (b) Vendor fails to diligently commence cure within such thirty (30) day period and if a longer cure period is demonstrably required, thereafter fails to diligently complete such cure. Notwithstanding the foregoing, no such cure period shall exceed ninety (90) days.
(b) By Vendor. Vendor may terminate this Agreement in the event of any of the following:
(i) System Owner fails to pay to Vendor any amounts due under this Agreement (other than any amounts which are the subject of a bona fide dispute) within ten (10) calendar days of written notice of such failure from Vendor to System Owner; or
(ii) System Owner is in breach of any material term of this Agreement and (a) such breach remains uncured for fifteen (15) days after written notice from Vendor of the breach is received by System Owner, or (b) System Owner fails to diligently commence cure within such fifteen (15) day period and if a longer cure period is demonstrably required, thereafter fails to diligently complete such cure. Notwithstanding the foregoing, no such cure period shall exceed ninety (90) days; or
(iii) System Owner becomes Insolvent.
(c) A notice of termination given pursuant to the foregoing provisions of this Section 4.2 (the “Termination Notice”) shall specify in reasonable detail the circumstances giving rise to the Termination Notice. Except to the extent otherwise provided herein, this Agreement shall terminate on the date specified in the Termination Notice, which date shall not be earlier than the date upon which the applicable Party is entitled to effect such termination as provided above. Upon termination of this Agreement, the Parties shall have all remedies and rights available to them as a result of such termination subject to any limitations on liability and other provisions of this Agreement. Termination of this Agreement shall not affect any rights or obligations as between the Parties which may have accrued prior to such termination or which expressly or by implication are intended to survive termination whether resulting from the event giving rise to termination or otherwise, including the right to claim due payment of any Service Fee and/or Maintenance Costs accrued through the termination date.
(d) In the event of the destruction, or substantial destruction, of a System or in the event of the taking of all or any substantial portion of a System by eminent domain or similar process, System Owner shall have the right to terminate this Agreement by delivering thirty (30) days written notice thereof to Vendor and termination shall be effective after such time period without any further rights or obligations to either Party hereunder, other than any rights or obligations as between the Parties which may have accrued prior to such termination or which expressly or by implication are intended to survive the termination of this Agreement.
ARTICLE 5. INDEMNITIES
Section 5.1 Mutual Indemnity. To the fullest extent permitted by Law, each Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party and its officers, directors, members, employees, agents, affiliates, representatives, successors and permitted assigns (“Indemnitees”) from and against any and all claims, demands, suits, liabilities, proceedings, actions, causes of action, losses, expenses, damages, fines, penalties, court costs and reasonable attorneys’ fees (collectively, “Claims”) arising out of personal injury, third party property damage and any and all liabilities, fines and penalties imposed by any Governmental Authority, in each case to the extent they are caused by an action or inaction of the Indemnifying Party or any of its partners, officers, directors, members, agents or Subcontractors, anyone directly or indirectly employed by any of them, or anyone for whose acts they may be liable, and arise or result from or are occasioned by or in connection with: (a) the Indemnifying Party’s breach of any of its representations, warranties, covenants or other obligations under this Agreement; (b) any negligent, grossly negligent, reckless or intentionally wrongful act or omission to act by the Indemnifying Party, any subcontractor of the Indemnifying Party, anyone directly or indirectly employed by any of
them, or anyone for whose acts they may be liable; or (c) violations of Laws by the Indemnifying Party, any subcontractor of the Indemnifying Party, anyone directly or indirectly employed by any of them, or anyone for whose acts they may be liable. This indemnification, defense and hold harmless obligation shall not be limited by insurance coverages and shall survive the termination or expiration of this Agreement. This indemnification, defense and hold harmless obligation shall not be limited with respect to third party claims by insurance coverages or the provisions of Article 7 and shall survive the termination or expiration of this Agreement.
Section 5.2 Notice. Each Party shall promptly notify the other Party of any Claims or threatened Claims in respect of which it is or may be entitled to indemnification under this Article 5. Such notice shall be given as soon as reasonably practicable after the relevant Party becomes aware of the Claims or threatened Claims.
ARTICLE 6. FORCE MAJEURE
Section 6.1 Force Majeure Event.
(a) Neither Party shall be liable for the failure to comply with any of their respective obligations under this Agreement (other than the obligation to make payments when due) to the extent, and for the period, that such failure results from a Force Majeure Event. The Party claiming a Force Majeure Event shall make all commercially reasonable efforts, necessary to cure, mitigate or remedy the effects of the Force Majeure Event.
(b) As soon as reasonably practicable following the date of commencement of any Force Majeure Event, if any Party desires to invoke such Force Majeure Event as the reason for such Party’s failure to perform, it shall promptly (but not later than ten (10) Business Days after learning of such Force Majeure Event), advise the other Party in writing of such date, describing the Force Majeure Event and reasonable alternative measures that the affected Party has taken and proposes to take in order to avoid the effect of such Force Majeure Event on such Party’s ability to fulfill its obligations under this Agreement and to mitigate the consequences thereof, and the nature and expected duration of such Force Majeure Event.
ARTICLE 7. LIMITATION OF LIABILITY
Section 7.1 Waiver of Certain Damages.
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY HERETO NOR ANY OF THEIR RESPECTIVE PARTNERS, OFFICERS, DIRECTORS, MEMBERS, AGENTS, SUBCONTRACTORS, VENDORS OR ANY OF THEIR EMPLOYEES SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT, WHETHER SUCH LOSS OR DAMAGE ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, STATUTE OR OTHERWISE, INCLUDING LOSS OF REVENUES, LOSS OF PROFIT, COST OF CAPITAL, LOSS OF GOODWILL, INCREASED OPERATING COSTS OR ANY OTHER SPECIAL DAMAGES; PROVIDED, THAT THE FOREGOING EXCLUSION SHALL NOT APPLY TO (A) CLAIMS OF PERSONS NOT A PARTY TO THIS AGREEMENT FOR WHICH A PARTY IS ENTITLED TO INDEMNIFICATION PURSUANT TO ARTICLE 4, (B) BREACHES OF CONFIDENTIALITY OBLIGATIONS OR (C) CLAIMS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. THE PARTIES FURTHER AGREE THAT THE WAIVERS AND DISCLAIMERS SET FORTH ABOVE SHALL SURVIVE THE EXPIRATION, TERMINATION OR CANCELLATION OF THIS AGREEMENT.
Section 7.2 Limitation of Liability.
Notwithstanding any provision in this Agreement to the contrary, it is specifically understood and agreed that there shall be absolutely no personal liability on the part of any of the officers, directors or members of the Parties for the payment of any amounts due hereunder, or the performance of any obligations hereunder, and each Party shall
look solely to the assets of the other Party for the satisfaction of each and every remedy of such Party in the event of any breach by the other Party. In furtherance of the foregoing, each Party agrees that it shall neither seek nor obtain, nor be entitled to seek or obtain, any deficiency or other judgment against any of the officers, directors or members of the other Party for any action or inaction on the part of any member or its respective officers, employees, controlling persons, executives, directors, agents, authorized representatives or affiliates, and such Party therefore releases such persons from such claims.
Section 7.3 No Other Duties.
Vendor shall have no implied duties or obligations hereunder other than as explicitly set forth herein. Vendor may rely upon any communication from or on behalf of System Owner by System Owner Representative, not only as to its validity and effectiveness, but also as to the truth and accuracy of any information contained therein, which Vendor shall in good faith believe to be genuine; provided that no such communication shall serve to limit or waive Vendor’s obligations hereunder, except as may be specifically set forth therein.
ARTICLE 8. MISCELLANEOUS
Section 8.1 Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Connecticut without giving effect to the conflict of law principles thereof. The Parties hereby irrevocably submit to the non-exclusive jurisdiction of any state or federal court in the State of Connecticut with respect to any action or proceeding arising out of or relating to this Agreement and consent to the service of process in any manner permitted by Connecticut law. Each Party irrevocably and unconditionally waives trial by jury in any action, suit or proceeding relating to a dispute and for any counterclaim with respect thereto and submits to dispute resolution consistent with the dispute resolutions terms set forth in Section 3.3 of this Agreement.
Section 8.2 Entire Agreement; Amendments. This Agreement contains the whole contract between the Parties with respect to the subject matter herein and supersedes any previous agreement between them covering the same subject matter. No amendment to this Agreement shall be binding on the Parties unless set out in writing, expressed to vary this Agreement, and signed by authorized representatives of each of the Parties.
Section 8.3 No Waiver. No provision of this Agreement shall be considered waived by either Party except when such waiver is made in writing. The failure of either Party to insist, on one or more occasions, upon strict performance of any of the provisions of this Agreement or to take advantage of its rights hereunder or the delay or failure in exercising totally or partially any right or remedy under this Agreement, shall not be construed as a waiver of any such provisions or the relinquishment of any such rights or any other rights for the future, but the same shall continue and remain in full force and effect.
Section 8.4 Successors and Assigns.
(a) This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assigns.
(b) Except as otherwise provided in this Section 8.4, neither Party may assign this Agreement or any of its rights, interests, or obligations under this Agreement without the prior written approval of the other Party; provided that:
(i) System Owner may assign this Agreement and any rights or obligations hereunder to any lender or investor in System Owner or any System as collateral security; and
(ii) A Party may assign this Agreement or any of its rights, interests or obligations under this Agreement, in whole or in part, to an Affiliate of such Party, and System Owner may assign this Agreement or any of its rights, interests or obligations under this Agreement, in whole or in part, to any successor in interest or
any successor to ownership of any System, in either case without such written approval of the other Party; provided, further, that if either Party so assigns any such rights, interests or obligations under this Agreement pursuant to this Section 8.4(b)(ii), such assignment shall not release such Party from any obligation or liability under this Agreement and the assignee shall execute and deliver to the other Party an assignment and assumption agreement in form and content reasonably satisfactory to the other Party.
(iii) Any purported assignment in contravention of this Section 8.4 shall be void and without effect.
Section 8.5 Nondisclosure.
(a) Except as required under Sections 8.5(b) and 8.5(c) of this Agreement or for the performance of its obligations under this Agreement, each Party shall hold in confidence all documents relating to the design, financing, construction and ownership of the Systems, drawings, plans, know how, discoveries, production methods, trade secrets and proprietary information of the other Party or relating to the Systems or the Services (the “Confidential Information”). Neither Party may publish or otherwise disclose any Confidential Information or use any Confidential Information for its own purposes other than as may be required by it or its professional advisers, potential or actual lenders or investors, or potential or actual Subcontractors to perform its obligations or to assert its rights under this Agreement without the disclosing Party’s prior written consent. Each Party further agrees that it will not disclose the Confidential Information to any Subcontractors, vendors, contractors and employees unless such persons have entered into appropriate nondisclosure agreements relative to such Confidential Information prior to the receipt thereof. To the extent reasonably required, Confidential Information may be made available to potential debt and equity investors and their respective advisors as necessary, who shall be made aware of this confidentiality provision and the confidential nature of the Confidential Information. The Parties agree to be responsible and legally liable under this Agreement for the actions, uses and disclosures of Confidential Information of all their respective representatives, investors and advisors.
(b) The provisions of this Section 8.5 shall not apply to information within any one of the following categories or any combination thereof: (a) information that was in the public domain prior to the receiving Party’s receipt or that subsequently becomes part of the public domain by publication or otherwise, except by the receiving Party’s action in violation of this Section 8.5; (b) information that the receiving Party can reasonably demonstrate was in its possession prior to receipt thereof from the disclosing Party through no wrongful act of the receiving Party or its directors, officers, employees, agents, representatives and Subcontractors and not otherwise subject to an obligation of confidentiality; (c) information obtained by receiving Party from a third party who did not receive same, directly or indirectly, from disclosing Party and which was obtained without (to the receiving Party’s knowledge) a breach by such third party of an obligation of confidentiality; or (d) information which the receiving Party can reasonably demonstrate is independently developed by receiving Party without use of or reference to disclosing Party’s Confidential information.
(c) Either Party, if required by Law or in the course of administrative or judicial proceedings to disclose Confidential Information, may disclose such Confidential Information notwithstanding the provisions of this Section 8.5; provided, that the Party making the disclosure shall disclose only such Confidential Information as is necessary, in the determination of its counsel, to comply with such Law or such administrative or judicial proceeds and shall immediately notify the other Party of the requirement and the terms thereof and shall cooperate to the maximum extent practicable to minimize the disclosure of Confidential Information. The Party disclosing such Confidential Information shall use reasonable efforts, at the other Party’s cost, to obtain proprietary or confidential treatment of such Confidential Information by the third party to whom the Confidential Information is disclosed, and to the extent such remedies are available, shall use reasonable efforts to seek protective orders limiting the dissemination and use of the Confidential Information. Moreover, this Agreement does not alter the rights of either Party to object to the rule, regulation, order or proceedings requiring such disclosure.
(d) At any time upon the request of disclosing Party, receiving Party shall promptly deliver to disclosing Party or destroy if so directed by disclosing Party (with such destruction to be certified by receiving Party)
all documents (and all copies thereof, however stored) furnished to or prepared by receiving Party that contain Confidential Information and all other documents in receiving Party’s possession that contain or that are based on or derived from Confidential Information; provided, that the receiving Party may retain one (1) copy of such Confidential Information solely for the purpose of complying with its audit and document retention policies; and provided further, that all such retained Confidential Information shall be held subject to the terms and conditions of this Agreement.
(e) Notwithstanding the return or destruction of all or any part of the Confidential Information, the confidentiality provisions set forth in this Agreement shall nevertheless remain in full force and effect with respect to Confidential Information until the date that is five (5) years after the end of the Term.
Section 8.6 Relationship of the Parties.
(a) Independent Contractor. Vendor shall perform and execute the provisions of this Agreement as an independent contractor, and none of Vendor, its Subcontractors, or any of their respective employees or agents shall be deemed for any purpose to be an agent, servant, employee, or representative of System Owner. Vendor shall have no power or authority to execute contracts on behalf of System Owner or otherwise bind System Owner, nor shall Vendor represent itself as having such power or authority. Vendor shall have control over the details of the Services and the manner in which the Services are to be accomplished. Vendor shall be solely responsible for all Services means, methods, techniques, sequences, and procedures for coordinating all parts of the Services. Vendor shall implement and utilize its internal control measures and systems to the extent Vendor deems them necessary or appropriate for the successful completion of the Services.
(b) Relationship. Nothing contained in this Agreement shall be construed to create the relationships of employer and employee or franchisor-franchisee, between Vendor and System Owner, or to make either Party a partner, joint venturer, fiduciary or co- employer of the other. The employees of each Party shall not be deemed to be the employees of the other for any purpose. The Parties shall not have the authority to bind one another.
Section 8.7 Notices. Any written notice, direction, instruction, request or other communication required or permitted under this Agreement shall be deemed to have been duly given on the date of receipt or refusal, as the case may be, and shall be delivered (a) personally to the Party to whom notice is to be given, (b) by a recognized overnight receipted delivery service, to the Party to whom notice is to be given, or (c) to the Party to whom notice is to be given, by first class registered or certified mail, return receipt requested, postage prepaid, and addressed to the addressee at the address stated opposite its name below, or at the most recent address specified by written notice given to the other Party in the manner provided in this Section 8.7.
System Owner: _______________________ _______________________ _______________________ Attn: ___________________
VCP EPC, LLC
c/o Verogy 150 Trumbull Street, 4th Floor
Hartford, CT 06103
Attn: Legal Department
Section 8.8 Construction. In this Agreement, unless the context requires otherwise, the singular includes the plural and the plural the singular, words importing any gender include the other gender; references to
statutes, sections or regulations are to be construed as including all statutory or regulatory provisions consolidating, amending, replacing, succeeding or supplementing the statute, section or regulation referred to; the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation” or “but not limited to” or words of similar import; references to Articles, Sections (or subdivisions of Sections), Exhibits, Annexes or Schedules are to those of this Agreement unless otherwise indicated; references to agreements and other contractual instruments shall be deemed to include all exhibits and appendices attached thereto and all subsequent amendments and other modifications to such instruments, and references to persons include their respective successors and permitted assigns. The Recitals are incorporated in and are a part of this Agreement. All Exhibits and Schedules annexed to this Agreement are incorporated in and are a part of this Agreement.
Section 8.9 Severability. The provisions contained in each section, subsection and clause of this Agreement shall be enforceable independently of each of the others and their validity shall not be affected if any of the others are invalid. If any of those provisions is void but would be valid if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid.
Section 8.10 Multiple Counterparts. This Agreement and any amendments of this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
Section 8.11 Remedies. Except as expressly provided in this Agreement, no remedy conferred by any provision of this Agreement in respect of any breach or non-observance of any of its terms is intended to be exclusive of any other remedy which is otherwise available at Law, in equity, by statute or otherwise, and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by either Party shall not constitute a waiver by such Party of the right to pursue any other available remedies.
Section 8.12 Survival. Notwithstanding any provisions herein to the contrary, any provisions necessary to give effect to the intent of the Parties hereunder after the termination or expiration of this Agreement shall survive in full force the termination or expiration of this Agreement, including the obligations set forth in Article 5 (Indemnities), Article 7 (Limitation of Liability), Section 8.1 (Governing Law), Section 8.3 (No Waiver), and Section 8.11 (Remedies).
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[Signature Page to Operations and Maintenance Agreement]
IN WITNESS WHEREOF, the Parties have executed this Operations and Maintenance Agreement as of the Effective Date.
VENDOR: SYSTEM OWNER: VCP EPC, LLC [_____________________]
By: _______________________________ By: _______________________________
Name: _____________________________ Name: _____________________________
Title: ______________________________ Title: ______________________________
1. Preventative Maintenance Services:
(a) Annual array inspection and verification in conformance with this Exhibit A and in substantially the form provided in the Operation and Maintenance Report attached hereto as Exhibit D.
(b) Annual inverter inspection and verification in conformance with this Exhibit A and in substantially the form provided in the Operation and Maintenance Report attached hereto as Exhibit D.
(c) Annual field inspection in conformance with this Exhibit A and in substantially the form provided in the Operation and Maintenance Report attached hereto as Exhibit D.
2. Monitoring Services:
(a) Vendor shall monitor the performance of the System through access to System Owner’s monitoring software, which System Owner will provide to Vendor.
(b) While monitoring System performance, Vendor shall notify System Owner of any perceived deficiencies or problem areas in the performance of the System and recommend any suggested corrective maintenance work or emergency maintenance work. For the avoidance of doubt, any corrective maintenance work or emergency maintenance work that is suggested by Vendor and subsequently requested by System Owner to be performed by Vendor would be considered work outside of the Services, and would be subject to the provisions of Maintenance Costs as detailed in Section 3.1(b).
In performing the Services, Vendor shall conform to the following Statement of Work:
Solar Array Service & Maintenance Statement of Work
1. VENDOR’S DUTIES AND SYSTEM OWNER’S GENERAL EXPECTATIONS
1.1 Vendor shall perform the Services as designated in this Agreement.
1.2 Vendor shall follow all procedures outlined in this Agreement.
1.3 Vendor shall perform all Services in a safe and professional manner and comply with all applicable federal and state safety regulations, including any jurisdiction having such authority guidelines.
1.4 All of Vendor’s service personnel shall be properly trained, qualified, and certified by the Vendor or any jurisdiction having authority over such certification.
1.5 Vendor’s employees shall, at all times, be under the direct control of a supervisor whose responsibility it is to ensure that their employees perform all duties in accordance with the standards set forth in this Agreement.
1.6 Vendor must maintain all applicable licenses, permits, and/or other federal, state, and local approvals for providing Services, including any additional permits as required by any jurisdiction having authority. Any and all fees for any of the above shall be the sole responsibility of the Vendor.
1.7 Services that will be sub-contracted to third-party vendors must meet same level of assurance and auditing requirements as the Vendor.
1.8 When equipment installations and/or repairs require inspections by authorities having jurisdiction over such installations and or repairs, Vendor must coordinate and ensure inspections have been performed.
1.9 Vendor shall perform all of the Services in such a manner so as to not unreasonably interfere with System Owner’s business operations at the Site(s).
1.10 Vendor service vehicles shall not block drive lanes, truck docks, fire lanes, or entrances or exits.
1.11 Vendor shall be responsible for determining the specific techniques for providing the Services, including any storage, transportation, and disposal of wastes.
1.12 It is the responsibility of the Vendor to ensure that all debris and materials generated in connection with this Agreement are collected, transported, and disposed of in accordance with all applicable federal, state, and local laws.
1.13 Vendor shall not store extra parts or tools at any Site.
1.14 Vendor shall provide full warranty coverage for all work performed. The warranty shall include all parts, labor, and return travel. This warranty shall extend for one (1) year from the date such work was performed. It will be the Vendor’s financial responsibility to cover any costs related to rectifying the original Service. The costs can include Vendor performed labor, trip charge and any parts provided to complete the work. If the System Owner determines that a warranty claim is necessary, System Owner shall send written notice to Vendor regarding such warranty claim and describing the defective work, equipment or materials that are the subject of such claim. System Owner shall send written notice to Vendor within fifteen (15) days of System Owner’s discovery of the condition giving rise to such claim; provided, however, failure to provide such written notice during such period shall not preclude System Owner from making any such warranty claim during the warranty period described in this paragraph.
1.15 Vendor will provide all service-related documentation to System Owner upon request. Documentation will include labor reports, parts, part pricing, service tickets/logs, and photographs, as applicable, that System Owner deems as necessary for management of the service contract.
1.16 Vendor will maintain all service records for a minimum of one (1) year after termination of this Agreement, or longer as may be required by applicable federal, state, and local laws or regulations.
1.17 Vendor shall provide on a monthly basis (but only during a month in which any work is actually performed) an accurate description of all work performed, including location, time and date, equipment serviced, and service description.
2. HOURS OF SERVICE AND SCHEDULING:
2.1.1 Preventive maintenance services shall be performed at a time and date mutually agreeable to System Owner and Vendor.
2.1.2 In the event that Vendor is engaged by System Owner to perform any corrective maintenance work or emergency maintenance work, which is considered work outside of the Services, Vendor must be able to perform these services three hundred sixty-five (365) days a year and be able to perform before and
after-hours service, if this is requested by System Owner. This includes evenings, weekends and holidays for corrective maintenance work and emergency maintenance work.
2.2.1 For preventative maintenance work, Vendor shall contact the System Owner, by phone or e-mail, a minimum of five (5) Business Days prior to the start of such Services. If contact was made prior to five (5) Business Days, Vendor shall confirm the schedule with System Owner a minimum of two (2) days prior to the start of such Services.
2.2.2 In the event that Vendor is engaged by System Owner to perform any corrective maintenance work or emergency maintenance work, which is considered work outside of the Services, Vendor and System Owner will mutually agree on a time and date to perform such work outside of the Services.
SITE LIST AND SERVICE FEE
SYSTEM SIZE (kW DC)
OPERATIONS AND MAINTENANCE REPORT
PV Module Warranty
PV Module Warranty