HomeMy WebLinkAboutCity Council Workshop Packet 4-06-16Falcon Heights City Council Workshop
City Hall 2077 W Larpenteur Ave. 6:30 p.m.
AGENDA
Wednesday, April 6, 2016
1)North Suburban Communications Commission (CTV) Strategic Planning
2)TIES-Telecommunication Shelter
3)Community Solar Garden Update
If you have a disability and need accommodation in order to attend this
meeting, please notify City Hall 48 hours in advance between the hours of
8:00 a.m. and 4:30 p.m. at 651-792-7600. We will be happy to help.
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REQUEST FOR COUNCIL ACTION
Families, Fields and Fair __________________________
The City That Soars!
Item North Suburban Cable Commission (CTV) Strategic Planning
Description As part of its strategic planning process, the Board of Directors of CTV North
Suburbs is looking at the services they provide. They want to ensure that, over
the next few years, They are meeting the needs of their constituents as
effectively and efficiently as possible.
They appreciate the opportunity to have an informal conversation with the
City Council about the video programming and technical services we provide
to the city and to the residents of Falcon Heights. They are also seeking input
from the Council of the other member cities, from the three school boards and
from community organizations and agencies with whom they have
worked. Their facilitator, Barbara Raye, the Executive Director of the Center for
Policy, Planning and Performance, will be leading the discussion with you.
They have prepared some material to help the Council understand the North
Suburban Communications Commission and CTV North Suburbs, their
sources of funding, and information on our primary services –
programming/video production and training. They have also pulled out key
findings from the two telephone surveys that were conducted on our behalf
last year. (A list of programs produced last year and the complete survey
reports are also attached for those who want more detail.)
NSCC/CTV would also like the Council to think about the following questions
once they have reviewed the informational material provided:
1.Do you have any general questions about CTV that are not addressed in the
materials?
2.Of the services that CTV provides for local government, i.e., the city, which
do you think are the most valuable?
3.What additional services or programs could CTV offer that would enhance
civic engagement and transparency in local government?
Meeting Date April 6, 2016
Agenda Item Workshop #1
Attachment Strategic Planning Materials
Submitted By Sack Thongvanh, City Administrator
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4.Of the services that CTV provides for the community, which do you think
are the most valuable?
5.What additional services or programs could CTV offer to improve the sense
of community or enhance the skills/knowledge that residents gain through our
educational and community programming?
6. What services and/or programs should CTV no longer provide?
7.What changes would you like to see in the next three to four years?
Budget Impact This will have an impact on future budgets and the long range financial plan.
Attachment(s) •Strategic Planning Documents
Action(s)
Requested
No action required.
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REQUEST FOR COUNCIL ACTION
Families, Fields and Fair __________________________
The City That Soars!
Item TIES-Telecommunication Shelter
Description The City has received a request from Patrick Lynch of Arvig Network Services
for the construction of a telecommunication shelter in the southwest corner to
TIES’s property.
Due to the size (120 square feet and less) of the building, it is regulated by City
Code instead of Building Code. This means it is solely at the discretion of the
City. This also brings a host of issues that will need to be address in the future
due to regulation requirements to have consistency throughout the City.
Budget Impact The impact on the budget would be insufficient.
Attachment(s) • Company Profile
• Proposed Building Site
• Construction Plans
• Example from the City of Albertville
Action(s)
Requested
Staff is seeking direction on how proceed with the application. There are two
methods of approve. Either by the City Council or the City Administrator.
Meeting Date April 6, 2016
Agenda Item Workshop #2
Attachment Supporting Documents
Submitted By Sack Thongvanh, City Administrator
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Making the Connection
Advanced broadband technology
that brings the world together.
888.99.ARVIG | arvig.com888.99.ARVIG | arvig.com
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• Security Systems for homes and
businesses, including cameras, access
control and home automation products
• Managed Voice Solutions
• Managed Services
• Business Telephone Systems
• Communication and Data Wiring
• Website Development
• Digital Advertising
• Directory yellow pages advertising,
including online and mobile
opportunities
• Computer repair services by
certified experts
• Call answering services and business
support services provided by Time
Communications, the call center
company Arvig purchased in 2009.
• Construction services boring, plowing,
trenching, splicing, dozer work, backhoe
work, and other construction needs for
Arvig and other businesses throughout
the region.
Diverse Product Extensions
Meet the Needs of 21st Century Businesses
Over the past decade, Arvig has focused on diversifying as the needs of our customers have
evolved along with technology. Today, in addition to our Internet, Television and Telephone
services, we bring industry leading solutions to our customers, including:
It's All Here
Established in 1950, Arvig has grown from a small,
family-owned East Ottertail Telephone Company to
one of the largest independent telecommunications
and broadband providers in the nation. Over the
past 65 years, the company’s leaders have been
progressive risk-takers, delivering cutting-edge
technology to residential and business customers.
Reinvesting in technology and network operations
allows us to continue to deliver next-generation
communications services to a growing number of
communities throughout Minnesota.
Arvig’s diverse product portfolio has broadband
and broadband-related services at the core of
everything we do:
• High-speed Internet—up to 1 Gig
• Ethernet
• Managed Voice-VoIP and Hosted PBX
• Television, including IPTV and all
the top channels, movie channels,
HD service, DVR, Pay-Per-View and
Stingray music
• Telephone service, long distance and
a wide variety of feature that help
simplify our customers’ lives
2009Began aggressive
diversification strategy
with purchase of Time
Communications
1Gb
1950 Perham Telephone
Company established
1952-1968 Added multiple exchanges and changed
name to East Ottertail Telephone Company
1994 Offered
dial-up
Internet
1999 Introduced
high-speed
Internet
2002 Became an
employee-
owned
company
2013 Purchased Security Plus Alarms
Launched Gig Central in Melrose,
Minnesota’s first Gig City
2014 Completed construction of fiber/data
transport infrastructure in Minneapolis, St. Paul,
Rochester and St. Cloud and expanded further
into North Dakota with business services
1986Began providing
cable television Eagan
Perham
2012Purchased All State
Communications
2015 Added 89 miles to our fiber network
in downtown Minneapolis, St. Paul
and the greater metro area.
1988Began offering cellular
telephone service
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Board of Directors
Allen R. Arvig*, President
David R. Arvig*, Vice President
Carmen Arvig*, Secretary
Rick Vyskocil, Treasurer
David Pratt, Director
Marvin Ward*, Director
Ashley Arvig*, Director
*Denotes family member. Other family members are employed in non-management roles.
Leadership
The Arvig leadership team sets the strategic direction for the
company and guides its progress:
Allen R. Arvig, President and CEO
David Arvig, Vice President and COO
Staci Malikowski, CFO
David Schornack, Director of Sales and Business Development
Andy Klinnert, Director of Network Operations
Lori Meader, Director of Human Resources
Mark Birkholz, Director of Southern Markets
Shaun Carlson, Director of Information Technology
Lisa Greene, Senior Manager, Marketing
Employee Ownership
Arvig became an ESOP (Employee Stock Ownership Plan) company in 2002, and 37% of Arvig is now employee-owned.
Arvig’s employee-owners are committed to achieving the company’s vision—to be the Best service provider anywhere.
Arvig customers can receive support, education, and technical assistance around the clock, every day of the year.
Arvig contributes financially to a wide variety of organizations in the communities we serve. Arvig employees live in the
communities we serve and are active participants in local civic and community organizations.
Our Customers
Arvig’s portfolio of customers includes brands like:
• 702 Communications
• Bell State Bank
• Central Minnesota Credit Union
• Fairview Health Systems
• Jostens
• KLN Companies
• Menards
• Minnesota State Colleges and Universities
• RDO
• Sanford Health
• State of Minnesota
• T-Mobile
• Titan Machinery
• Verizon
• Woodcraft Industries
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Arvig By The Numbers
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74 of 107
REQUEST FOR COUNCIL ACTION
Families, Fields and Fair __________________________
The City That Soars!
Item Community Solar Garden Update
Description We have received our cost saving analysis from Geronimo Energy. Based on
our demand load, we can expect a potential savings of $23,730.27 over 25 years
with an allocation of 100,740 kwh. The City of Falcon Heights would retain $.01
per kilo watt hour that is produced by Geronimo Energy. I am currently
trying to confirm numbers with Geronimo Energy and Xcel Energy. There
seems to be some confusion with energy used and energy produced at the City
Hall Building.
I had initial conversation with Doug Wester solar representative from
Geronimo Energy and a representative from Xcel and both cannot clarify the
numbers for City Hall. I would like to get my questions answered before the
City moves forward with the proposal. Due to the complexity of the City Hall
building and the current solar panels on the roof, I would like to be accurate
with the information provided by Geronimo Energy and Xcel Energy before we
commit to a twenty-five (25) year agreement.
Budget Impact Involvement in the program with help reduce energy cost and provide a
benefit to Xcel’s power grind with solar energy production.
Attachment(s) • Geronimo Energy Cost Savings Analysis
• Generic Agreement
Action(s)
Requested
No action required, but expected approve in the next two months.
Meeting Date April 6, 2016
Agenda Item Workshop #3
Attachment Cost Saving Analysis and Agreement
Submitted By Sack Thongvanh, City Administrator
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nty or adjacen
roximately 100
ever we have a
like to provide
per kWh.
gradation facto
201,480 kWh
mount of allocat
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| F 952.98
nual Total
2,014.80
2,004.73
1,994.70
1,984.73
1,974.81
1,964.93
1,955.11
1,945.33
1,935.60
1,925.93
1,916.30
1,906.72
1,897.18
1,887.70
1,878.26
1,868.87
1,859.52
1,850.22
1,840.97
1,831.77
1,822.61
1,813.50
1,804.43
1,795.41
1,786.43
47,460.53
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78 of 107
Form Owner Subscription Agreement January 2016
1
SOLAR GARDEN SUBSCRIPTION AGREEMENT
This Solar Garden Subscription Agreement (“Agreement”) is entered into as of the []
day of [], 20[] (the “Effective Date”) by and between [Community Solar Garden], a []
limited liability company (“Owner”), and [], a [] (the “Subscriber”). In this Agreement, Owner and Subscriber are sometimes referred to individually as a “Party” and collectively as the “Parties.”
RECITALS
A. Owner intends to develop, own, operate and maintain a photovoltaic generation
facility qualified as a “Community Solar Garden” pursuant to Minn. Stat. 216B.1641 (“CSG Program”) to be located at [] (the “Facility”) and has entered or will enter into a Standard
Contract for Solar Rewards Community (“CSG Contract”) with the local electric distribution
company (the “LDC”). The designed capacity of the Facility shall be approximately 1000 kWAC
(subject to adjustment as described herein, the “Facility Capacity”);
B. The energy produced by the Facility will be delivered by Owner to the LDC via interconnection of the Facility to the electric grid, and the LDC will calculate the monetary value
of the energy received from the Facility per the applicable utility tariff and convert that amount
into credits per kilowatt hour (the “Bill Credit Rate” as defined in the CSG Contract) on the bills
from LDC to the subscribers to the Facility (“Credits”);
C. Owner 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 sell the right to receive Credits to its subscribers according to their
respective Allocations (as defined below);
D. Subscriber is an LDC customer ([] Premise. No. []) and desires to purchase
Credits from Owner in proportion to its expected consumption of electricity at [], [], Minnesota [] (“Customer Site”).
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual premises,
representations, warranties, covenants, conditions herein contained, and the Exhibits attached
hereto, Subscriber and Owner agree as follows.
1. Term. The term of this Agreement shall commence on the Effective Date and, unless terminated earlier pursuant to the provisions hereof, shall terminate on the 25th
anniversary of the Commercial Operation Date (as defined below) (the “Term”). The Term shall
not be extended by virtue of any period of disconnection or event of Force Majeure experienced
by the Facility.
2. Operation of the Facility.
a. Owner shall operate the Facility during the Term so as to deliver all
energy generated by the Facility to LDC in accordance with the CSG Contract and applicable
LDC tariffs.
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2
b. Owner shall maintain the Facility in good working order at all times
during the Term, and shall operate the Facility in a manner reasonably intended to maximize the
amount of Credits allocable to Subscriber, consistent with good custom and practice for
operation of utility generating facilities.
3. Sale and Purchase of Credits; Allocation.
a. Owner shall promptly notify Subscriber of the date commercial operation
of the Facility commences as established pursuant to the CSG Contract (“Commercial Operation
Date”). In the event that the Commercial Operation Date is not achieved by December 31, 2017,
and any of the following events or circumstances occur, either Party may terminate this Agreement, without liability, upon delivery of notice of termination to the other Party:
i. after timely application to the LDC (or other applicable distribution
service provider whose system the Facility connects to deliver energy (the “Distribution
Provider”) and commercially reasonable efforts to secure interconnection services, Owner has
not received written confirmation and evidence that interconnection services will be available for the energy generated by the Facility at the Facility Capacity; or
ii. the LDC or another party with the authority to do so disqualifies
Owner or the Facility from participating in the CSG Program.
b. Owner shall allocate a portion of Facility Capacity to Subscriber equal to
[] percent ([] %) of Facility Capacity (the “Allocation”). Owner shall provide to LDC the Allocation along with Subscriber’s name, LDC account number(s), and service address(es) (“Subscriber Data”).
c. Owner shall sell to Subscriber and Subscriber shall purchase from Owner,
the right to receive an amount of Credits calculated on the basis of that portion of the total
kilowattac hours delivered by the Facility to LDC which corresponds to the Allocation. The Allocation shall be effective for each and every LDC Production Month (as defined in the CSG Contract) during the Term. Owner shall post Credits to Subscriber’s account monthly for
invoicing pursuant to Section 4 of this Agreement (“Subscriber’s Monthly Credits”). Thus,
where x = number of Subscriber’s Monthly Credits, y = kilowattac hours delivered in an LDC
Production Month, and a = Allocation, x = y * a.
4. Price and Payment.
a. For the right to receive Subscriber’s Monthly Credits generated by the
Facility each month, Subscriber shall pay to Owner an amount equal to the product of (i) the
corresponding Subscriber’s Monthly Credits, and (ii) the Bill Credit Rate then applicable to the
LDC’s Solar Rewards Community Program minus one cent ($.01) (the “Monthly Allocation Payment”).
b. Beginning with the second calendar month following the Commercial
Operation Date, Owner shall invoice Subscriber for the Monthly Allocation Payment for the
Credits posted to Subscriber’s account since the prior invoice date. Subscriber shall make its
payments to Owner no later than thirty (30) days following receipt of the applicable invoice.
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3
Owner shall include with each invoice, a copy of the LDC statement delivered to Owner that
indicates the kWhAC upon which the LDC calculates the Credit to Subscriber.
5. Records and Audits.
a. Upon request by Subscriber, Owner shall provide (i) reasonable evidence of the accuracy of its metering equipment for the Facility and/or (ii) such other information and records reasonably requested by Subscriber to enable Subscriber to verify the accuracy of the
Credits awarded by the LDC and any other calculation and/or measurements described in this
Agreement.
b. Owner shall provide reports to Subscriber (i) monthly, containing the energy produced by the Facility, and (ii) annually, containing an audited financial statement of Owner, and a current statement of management, financing parties, and operatorship of Owner.
Subscriber may provide comments to Owner on the accuracy and completeness of the annual
reports, and shall provide a copy of any such comments to LDC.
c. As required by Minnesota Statutes, section 16C.05, subdivision 5, the records, books, documents, and accounting procedures and practices of CSGI and of any subcontractor of CSGI relating to work performed pursuant to this Agreement shall be subject to
audit and examination by the Subscriber and the Legislative Auditor or State Auditor as
described in such subdivision. CSGI and any subcontractor of CSGI shall permit, upon
reasonable advance written notice, the Subscriber or its designee to inspect, copy, and audit its accounts, records, and business documents at any reasonable time during regular business hours, as they may relate to the performance under this Agreement. Audits conducted by the Subscriber
under this provision shall be in accordance with generally accepted auditing standards.
6. Taxes.
a. Subscriber shall be solely liable for sales or similar taxes imposed by a governmental entity, if any, attributable to the sale of Credits allocated to the Subscriber.
b. Subscriber shall have no interest in and have no entitlement to claim any
investment tax credit or other tax benefits related to the construction, ownership, operation or
maintenance of the Facility.
7. Representations, Warranties and Covenants.
a. Each Party represents and warrants to the other Party:
i. The Party is duly organized, validly existing, and in good standing
in the jurisdiction of its organization and is qualified to do business in the State of Minnesota;
ii. The Party has full legal capacity to enter into and perform this
Agreement;
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4
iii. The execution of the Agreement has been duly authorized, and
each person executing the Agreement on behalf of the Party has full authority to do so and to
fully bind the Party; and
iv. To the best of its knowledge, there is no litigation, action, proceeding or investigation pending before any court or other Governmental Authority by,
against, affecting or involving its ability to carry out the transactions contemplated herein.
b. Owner represents, warrants, and covenants to Subscriber:
i. Owner has, or in the ordinary course will obtain, all licenses,
permits and any other required documents to construct and operate the Facility;
ii. Owner shall perform its obligations under the CSG Contract and
otherwise comply with all provisions of the CSG Program and other applicable tariffs.
iii. Except as specifically provided for in this Agreement and may be
required by law or regulation, or with Subscriber’s consent, Owner will not publicly disclose
Subscriber’s LDC account information, energy usage data, or Credits.
c. Subscriber represents, warrants, and covenants to Owner:
i. Subscriber’s average annual energy consumption for its
subscribing account(s) over the two year period prior to the Effective Date is [] kWhac;
ii. Subscriber shall not install or procure any other distributed
generation resource(s) serving Subscriber’s premises to which energy is delivered by LDC under Account No. [], which resource(s), when combined with the Allocation, may generate energy
(including energy upon which the Credits are based) exceeding one hundred twenty percent
(120%) of Subscriber’s average annual energy consumption over the twenty-four (24) months
prior to such installment or procurement.
iii. Within thirty (30) days of request by Owner, Subscriber shall complete, execute, and deliver to Owner the Subscriber Agency Agreement in the form attached hereto as Exhibit A. Upon execution, all of the information and statements of Subscriber
provided therein shall be accurate.
iv. Subscriber understands and agrees it will have no interest in or
entitlement to (a) benefits or derivatives of “Unsubscribed Energy” or “RECs” associated with the Facility as each is defined in the CSG Contract; and (b) incentives under the MN Department
of Commerce’s Made in Minnesota program and LDC’s Solar Rewards program associated with
the Facility.
8. Performance Guarantee. Owner hereby guarantees that in every period of two
consecutive calendar years during the Term, beginning with the first full calendar year, Owner will provide Credits from operation of the Facility in an amount not less than ninety percent
(90%) of Expected Deliveries (weather adjusted) which will be set forth on Exhibit B hereto (the
“Guaranteed Performance”) not later than the date of commencement of construction of the
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Facility. Owner shall pay Subscriber one cent ($.01) per Credit to the extent the actual number
of Credits purchased by Subscriber during any such two year period (the “Measurement
Period”) is less than the Guaranteed Performance for the entire Measurement Period (combining
the Expected Deliveries for both calendar years). Such payment shall be Subscriber’s sole remedy for default by Owner under this Section 8. Owner shall have no liability under this
Section 8 if the Facility’s failure to achieve Guaranteed Performance is due to an event of Force
Majeure.
9. Default and Force Majeure.
a. Events of Default. The following shall each constitute an Event of Default by a Party:
i. The Party fails to make any payment due under this Agreement
within thirty (30) days after delivery of notice from the other Party that such payment is overdue.
ii. The Party materially fails to perform or comply with any material
representation, warranty, obligation, covenant or agreement set forth in this Agreement and such failure continues for a period of thirty (30) days after delivery of notice thereof from the other
Party.
iii. The Party is subject to a petition for dissolution or reorganization,
voluntary or involuntary, under the U.S. Bankruptcy Code or any state law (including
appointment of a receiver or assignment for the benefit of creditors), which is not terminated within sixty (60) days of commencement.
b. Force Majeure. Except as specifically provided herein, if by reason of
Force Majeure, a Party is unable to carry out, either in whole or in part, any of its obligations
herein contained, such Party shall not be deemed to be in default during the continuation of such
inability, provided that: (i) the non-performing Party, within a reasonable time after the occurrence of the Force Majeure event, gives the other Party notice describing the particulars of the occurrence and the anticipated period of delay; (ii) the suspension of performance be of no
greater scope and of no longer duration than is required by the Force Majeure event; (iii) no
obligations of the non-performing Party which were to be performed prior to the occurrence
causing the suspension of performance shall be excused as a result of the occurrence; and (iv) the non-performing Party shall use reasonable efforts to remedy the cause(s) preventing it from carrying out its obligations. “Force Majeure” as used in this Agreement shall mean an event or
circumstances beyond the reasonable control of a Party, which was not reasonably foreseeable
and not resulting from the Party’s negligence, gross negligence or intentional acts, including, but
not limited to fire, acts of God, earthquake, flood or other casualty or accident; break down or failure of the Distribution Provider’s electric distribution system; serial equipment defect; strikes or labor disputes; war, civil strife or other violence; and any law, order, proclamation, regulation,
ordinance, action, demand or requirement of any government agency or utility. Force Majeure
does not include the lack of funds, inability to make a payment or general change in the economy
or particular markets.
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10. Remedies; Limitation of Liability; Waiver.
a. Remedies. Subject to the limitations set forth in this Agreement, the
Parties each reserve and shall have all rights and remedies available to it at law or in equity with
respect to the performance or non-performance of the other Parties hereto under this Agreement. Under no circumstances shall Owner’s liability under this Agreement exceed, in any one calendar year, an amount equal to (i) the Allocation percentage times (ii) $15,000; provided,
however that such limitation shall not apply to damages arising out of the sale or allocation by
Owner to a third party of the Credits allocated and committed to Subscriber hereunder. For
example, if the Allocation is 40%, then the limit described in the preceding sentence shall equal 40% x $15,000 or $6,000 total.
b. Owner Damages. In the event of Subscriber’s breach, repudiation, or
termination of this Agreement in violation of the provisions hereof, Owner shall be entitled to
recover from Subscriber (subject to Owner’s duty to mitigate damages including its duty to try
and find a replacement subscriber): (i) the unpaid Monthly Allocation Payments due at the time of termination; and (ii) Owner’s actual, reasonable, and verifiable damages resulting from
Subscriber’s breach. Any post-termination Monthly Allocation Payments that may qualify as
damages under this section, will be calculated based upon the Schedule of Expected Deliveries
of Credits (Exhibit B, hereto), and the Bill Credit Rate at the time of Subscriber’s breach of this
Agreement.
c. Limitation of Liability. EXCEPT AS EXPRESSLY ALLOWED
HEREIN, NO PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL,
INDIRECT OR PUNITIVE DAMAGES OF ANY CHARACTER, RESULTING FROM,
ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY INCIDENT TO ANY ACT
OR OMISSION OF A PARTY RELATED TO THE PROVISIONS OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER CLAIMS OR ACTIONS FOR SUCH DAMAGES ARE
BASED UPON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY
OTHER THEORY AT LAW OR EQUITY.
d. Exclusions. NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN THIS SECTION 10, THE LIMITATIONS OF THIS SECTION 10 DO NOT APPLY TO A CLAIMS FOR (i) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (ii) FAILURE TO COMPLY WITH LAWS, (iii) INDEMNIFICATION, (iv) BREACH OF CONFIDENTIALITY
OR (v) INTELLECTUAL PROPERTY INFRINGEMENT.
11. Early Termination.
a. Owner may terminate this Agreement on notice thereof to Subscriber in the event that Owner is unable to obtain financing or adequate subscriptions for the Facility on
commercially reasonable terms on or before December 31, 2017.
b. If Owner fails to perform under this Agreement due to an event of Force
Majeure that lasts more than twelve (12) months or fails to restore the Facility to full operation at
Capacity within twelve (12) months following an event of Force Majeure causing damage to the Facility, Subscriber shall have the right to terminate this Agreement by giving Owner at least
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sixty (60) days prior written notice of its intent to terminate based on such failure(s). Any such
notice of termination shall be given within three (3) months of such failure(s). In the event of
termination pursuant to this Section 11(b), Owner shall pay to Subscriber, as liquidated damages,
one cent ($.01) for each Credit expected to have been allocated to Subscriber for the six month period following the expiration of such twelve (12) month period.
c. In the event (i) the CSG Contract is terminated based on Owner’s breach
thereof or (ii) Owner materially breaches its obligations of performance in this Agreement and
such breach is not cured within thirty (30) days after Owner receives written notice of such
breach from Subscriber (provided, however, that if such breach is not capable of being cured within such thirty-day period and Owner has commenced and diligently continued actions to
cure such breach within such thirty-day period, the cure period shall be extended to 180 days, so
long as Owner is making diligent efforts to do so), then Subscriber may terminate this
Agreement as provided in this Section 11. In the event of a termination by Subscriber described
in the preceding sentence, Owner shall pay to Subscriber, as liquidated damages, one cent ($.01) for each Credit expected to have been allocated to Subscriber for the calendar year following
termination according to the Schedule of Expected Deliveries, Exhibit B.
d. The Parties agree that actual damages in the event of termination of this
Agreement as specified in Sections 11(b) and 11(c), would be difficult to calculate and that the
liquidated damages specified herein are a reasonable approximation of such actual damages.
12. Assignment. No Party shall assign or in any manner transfer this Agreement or
any part thereof except in connection with (a) Subscriber’s assignment to a party approved in
advance by Owner, with such approval not unreasonably withheld, on the bases of (i)
creditworthiness, (ii) the party’s eligibility under the Solar Rewards Community Program, (iii)
Subscriber’s payment to Owner of seven hundred fifty dollars ($750) to cover Owner’s administrative expenses associated with the transfer (the “Transfer Fee”) and (iv) other factors
evidencing an increase in a material risk of a breach of this Agreement, (b) Owner’s assignment
of this Agreement to any Affiliate that owns or, by long-term lease, controls the Facility,
provided that such Affiliate has the same or better credit strength and has agreed in writing to
recognize Subscriber’s rights under this Agreement and to comply with the terms of this Agreement; (c) Owner’s collateral assignment of this Agreement to any financial institution that
provides financing for the Facility (including a financial institution that enters into a
sale/leaseback transaction with respect to the Facility) that has agreed in writing to recognize
Subscriber’s rights under this Agreement and to comply with the terms of this Agreement upon
the foreclosure or conveyance in lieu thereof, and, in connection with any collateral assignment of this Agreement, Subscriber agrees to comply with the lender accommodations set forth
in Exhibit C to this Agreement; (d) Owner’s assignment of this Agreement, prior to the
Commencement of Operations Date, to another operator/owner of a community garden facility,
in the same County and qualified under the Solar Rewards Community Program which has
sufficient capacity to accept Subscriber’s Allocation, has the same or better credit strength, and agrees in writing to recognize Subscriber’s rights under this Agreement and to comply with the terms of this Agreement; or (e) Subscriber’s assignment of this Agreement to any of its Affiliates
or successor entity if the Minnesota legislature reassigns responsibility for the services provided
by Subscriber(without change of service address) provided that such Affiliate or successor entity
has the same or better credit strength and pays the Transfer Fee.
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13. Miscellaneous.
a. LDC Disputes. Owner shall be solely responsible for resolving any
dispute with LDC regarding the production of energy by the Facility. Subscriber shall be solely
responsible for resolving any dispute with LDC regarding the calculation of the Bill Credit Rate.
b. Notices.
i. All notices and other formal communications which any Party may
give to another under or in connection with this Agreement shall be in writing (except where
expressly provided for otherwise), shall be deemed delivered upon mailing, deposit with a
courier for hand delivery, or electronic transmission, and shall be sent by any of the following methods: hand delivery; reputable overnight courier; certified mail, return receipt requested; or
email transmission.
ii. Subscriber shall promptly notify Owner of any changes in
Subscriber Data.
The notices and communications shall be sent to the following addresses:
If to Owner:
Owner
c/o BHE Renewables, LLC
Program Manager – MN Community Solar Gardens
1850 N. Central Ave. Suite 1025 Phoenix, AZ 85004
Phone: 515-252-6677
Email: BHERenewables@bherenewables.com
If to Subscriber:
[]
c. Severability. If any term, covenant or condition in the Agreement shall, to
any extent, be invalid or unenforceable in any respect under Applicable Law, the remainder of
the Agreement shall not be affected thereby, and each term, covenant or condition of the
Agreement shall be valid and enforceable to the fullest extent permitted by Applicable Law, unless such invalidity or unenforceability frustrates or negates an essential purpose of this Agreement.
d. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Minnesota without reference to any choice of
law principles.
e. Dispute Resolution.
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i. Amicable Settlement. 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.
ii. Continuation of Performance. During the pendency of any dispute
hereunder, the Parties shall continue to perform their respective obligations under this
Agreement.
iii. Equitable Relief. Nothing in this Agreement 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.
iv. Venue and Jurisdiction. The Parties agree that the courts of the
State of Minnesota and the Federal Courts sitting therein shall have jurisdiction over any action
or proceeding arising under the Agreement to the fullest extent permitted by Applicable Law.
v. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
f. Insurance. With respect to the services provided pursuant to this Agreement, CSGI shall at all times during the term of this Agreement and beyond such term when so required have and keep in force the following insurance coverages and limits:
i. Commercial General Liability on an occurrence basis with
contractual liability coverage:
General Aggregate $2,000,000 Products—Completed Operations Aggregate $2,000,000 Personal and Advertising Injury $1,500,000
Each Occurrence—Combined Bodily Injury and
Property Damage $1,500,000
ii. Workers’ Compensation and Employer’s Liability:
Workers’ Compensation Statutory
(If CSGI is based outside the state of Minnesota, coverage must comply
with Minnesota Law).
iii. Employer’s Liability. Bodily injury by:
Accident—Each Accident $500,000
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Disease—Policy Limit $500,000
Disease—Each Employee $500,000
An umbrella or excess policy over primary liability insurance coverages is an acceptable
method to provide the required insurance limits.
The above establishes minimum insurance requirements. It is the sole responsibility of
CSGI to determine the need for and to procure additional insurance which may be needed in
connection with this Agreement. Upon written request, CSGI shall promptly submit copies of
insurance policies to Subscriber.
iv. CSGI shall not commence work until it has obtained required insurance and filed with Subscriber a properly executed Certificate of Insurance establishing
compliance. The certificate(s) must name Subscriber as the certificate holder and as an additional
insured for the liability coverage(s) for all operations covered under this Agreement. CSGI shall
furnish to Subscriber updated certificates during the term of this Agreement as insurance policies
expire.
g. Compliance with Law. Owner shall comply with all applicable laws
(including common laws), ordinances, codes, tariffs, rules and regulations (collectively, “Laws”)
regarding Owner’s obligations and performance under this Agreement. Owner shall obtain and
maintain any and all permits, licenses, bonds, certificates and other similar approvals required in
connection with this Agreement. In the event of an allegation that Owner has failed to comply with any Laws or failed to obtain any and all permits, licenses, bonds, certificates and/or any other
similar approvals required in connection with this Agreement, Owner shall pay any fines or
penalties imposed upon Subscriber as a result of such failure and shall reimburse Subscriber for
any expenses (including attorneys’ fees) incurred by Subscriber in responding to such allegation.
h. Entire Agreement. This Agreement, and all documents referenced herein, contain the entire agreement between Parties with respect to the subject matter hereof, and
supersede all other understandings or agreements, both written and oral, between the Parties
relating to the subject matter hereof.
i. No Joint Venture. Each Party will perform all obligations under this
Agreement as an independent contractor. Nothing herein contained shall be deemed to constitute any Party a partner, agent or legal representative of another Party or to create a joint venture,
partnership, agency or any relationship between the Parties. The obligations of Subscriber and
Owner hereunder are individual and neither collective nor joint in nature.
j. Amendments; Binding Effect. This Agreement may not be amended,
changed, modified, or altered unless such amendment, change, modification, or alteration is in writing and signed by each Party to this Agreement or its successor in interest. This Agreement
inures to the benefit of and is binding upon the Parties and their respective successors and
permitted assigns.
k. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which shall constitute one and the same agreement.
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l. Further Assurances. From time to time and at any time at and after the
execution of this Agreement, each Party shall execute, acknowledge and deliver such documents
and assurances, reasonably requested by the other for the purpose of effecting or confirming any
of the transactions contemplated by this Agreement.
m. Survival. The provisions of Sections 10, (Remedies, Limitation of
Liability; Waiver), 13(c) (Severability), 13(d) (Governing Law), 13(e) (Dispute Resolution), and
13(g) (Indemnity) and 13(p) (Confidentiality) shall survive the expiration or earlier termination
of this Agreement.
n. No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the Parties hereto. Except as expressly set forth in this Agreement, nothing in this
Agreement shall be construed to create any duty to or standard of care with reference to, or any
liability to, or any benefit for, any person not a party to this Agreement.
o. Confidentiality. Each Party agrees that it will not disclose Not Public
Data (as hereinafter defined), directly or indirectly, under any circumstances or by any means (excluding disclosures to the LDC or as are required as a participant in the CSG Program), to any third person without the express written consent of the other Party unless such disclosure is
permitted by the Minnesota Government Data Practices Act, Minn. Stat. ch. 13, or required by
applicable Law. “Not Public Data” means, not public data as defined in Minnesota Statutes §
13.02, subd. 8a (2014).
p. Data Practices.
i. Consistent with Minnesota Statutes, section 13.05, subdivision 6, if
any data on individuals is made available to Owner by the Subscriber under this Agreement,
Owner will administer and maintain any such data in accordance with Minnesota Statutes,
Chapter 13 (the “Minnesota Government Data Practices Act”), and any other statutory provisions applicable to the data. If and to the extent that Minnesota Statutes, section 13.05,
subdivision 11, is applicable to this Agreement, then: (A) all of the data created, collected,
received, stored, used, maintained, or disseminated by Owner in performing this Agreement are
subject to the requirements of the Minnesota Government Data Practices Act; (B) Owner must
comply with those requirements as if it were a government entity; and (C) the remedies in Minnesota Statutes, section 13.08 apply to Owner.
ii. Consistent with Minnesota Statutes, section 13.055, if “private data
on individuals,” “confidential data on individuals” or other “not public data” are provided to or
made accessible to Owner by the Subscriber, Owner must: (A) have safeguards to ensure private
or confidential data on individuals or other not public data are only accessible or viewable by Owner employees and agents whose work assignments in connection with the performance of
this Agreement reasonably require them to have access to the data; (B) immediately notify the
Subscriber of any unauthorized access by Owner employees and agents, and unauthorized access
by third parties; (C) fully cooperate with Subscriber investigations into any breach in the security
of private or confidential data on individuals or other not public data that may have occurred in connection with Owner’s access to or use of the data; and (D) fully cooperate with the Subscriber
in fulfilling the notice and reporting requirements of Minnesota Statutes, section 13.055. The
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penalties in Minnesota Statutes, section 13.09 governing unauthorized acquisition of not public
data apply to Owner and Owner employees and agents. If Owner is permitted to use a
subcontractor to perform Owner’s work under this Agreement, Owner shall incorporate these
data practices provisions into the subcontract.
iii. If Owner receives a request to release data referred to in this
section, Owner must immediately notify the Subscriber. The Subscriber will give Owner
instructions concerning the release of the data to the requesting party before the data is released.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
SUBSCRIBER
By:
Name:
Title:
Owner
By:
Name:
Title:
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EXHIBIT A
Subscriber Agency Agreement and Consent Form
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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 BHE Renewables, LLC
and complaints:
Address (if different from above): 1850 N. Central Avenue, Suite 1025, Phoenix, AZ 85004
Telephone number: 515-281-6677
Email address: BHERenewables@bherenewables.com
Web Site URL: http://www.bherenewables.com/
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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By signing this Solar Rewards Community Subscriber Agency Agreement and Consent
Form, the Subscriber agrees to all of the following:
1. Assignment of Renewable Energy Credits (“RECs”), Energy and Capacity to
Northern States Power Company, a Minnesota corporation. The Subscriber agrees that the Community Solar Garden Operator has authority to assign all energy produced and capacity
associated with the photovoltaic energy system at the Community Solar Garden to Northern
States Power Company, and the Subscriber agrees that all energy produced, and capacity
associated with the photovoltaic energy system at the Community Solar Garden shall belong to
Northern States Power Company. The Subscriber also agrees that the Community Solar Garden Operator has authority to assign all RECs associated with the photovoltaic energy system at the
Community Solar Garden to Northern States Power Company, and that if the Community Solar
Garden or a person or entity on its behalf has assigned the RECs to Northern States Power
Company, then all RECs associated with the photovoltaic energy system at the Community Solar
Garden shall belong to Northern States Power Company.
2. Tax Implications. The Community Solar Garden Operator has provided the
Subscriber with a statement that Northern States Power Company makes no representations
concerning the taxable consequences to the Subscriber with respect to its Bill Credits to the
Subscriber or other tax issues relating to participation in the Community Solar Garden.
3. Northern States Power Company hereby discloses to the Subscriber that it recognizes that not all production risk factors, such as grid-failure events or atypically cloudy weather, are within the Community Solar Garden Operator's control.
4. Information Sharing. Participating in the Solar*Rewards Community Program
will require sharing Subscriber's Account Information (name, account number, service address,
telephone number, email address, web site URL, information on Subscriber participation in other distributed generation serving the premises of the Subscriber, Subscriber specific Bill Credit(s))
and Subscriber's Energy Use Data (the past, present and future electricity usage attributable to
the Subscriber for the service address and account number identified for participation in the
Community Solar Garden). The following outlines the type of information that will be shared,
and how that information will be used.
a. Subscriber's Account Information and Subscriber Energy Usage Data.
The Subscriber authorizes Northern States Power Company to provide the Community
Solar Garden Operator (and the Community Solar Garden Operator's designated
subcontractors and agents) with the Subscriber's Account Information and Subscriber's
Energy Usage Data as described in Section 4 above. This information is needed to allow the Community Solar Garden Operator determine the extent to which the Subscriber is entitled to participate in the Community Solar Garden, and to validate the amount of the
Bill Credits to be provided by Northern States Power Company to the Subscriber. The
current data privacy policies of Northern States Power Company applicable to its
Solar*Rewards Community Program provided to the Subscriber by the Community Solar Garden Operator pursuant Section 3 above are attached as Exhibit 1 of this Solar*Rewards Community Subscriber Agency Agreement and Consent Form. These
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privacy policies include definitions of “Subscriber's Account Information” and
"Subscriber's Energy Usage Data."
b. Subscriber's Subscription Information: The Subscriber authorizes the
Community Solar Garden Operator to provide information to Northern States Power Company identifying the Subscriber (with the Subscriber's name, service address, and account number) and detailing the Subscriber's proportional share in kilowatts of the
Community Solar Garden and to provide additional updates of this information to
Northern States Power Company as circumstances change. This information is needed to
allow Northern States Power Company to properly apply Bill Credits for the photovoltaic energy generated by the Community Solar Garden. Also, this information is needed to allow Northern States Power Company to send to the Subscriber notices or other mailings
pertaining to their involvement in the Solar*Rewards Community Program. The
Community Solar Garden Operator shall not disclose Subscriber information in annual
reports or other public documents absent explicit, informed consent from the Subscriber. The Community Solar Garden Operator will not release any Subscriber data to third parties except to fulfill the regulated purposes of the Solar*Rewards Community
Program, to comply with a legal or regulatory requirement, or upon explicit, informed
consent from the Subscriber.
c. Aggregate Information. Aggregate information concerning production at the Community Solar Garden may be publicly disclosed to support regulatory oversight
of the Solar*Rewards Community Program. This includes annual reports available to the
public related to specific Community Solar Gardens, including but not limited to
production from the Community Solar Gardens; size, location and the type of
Community Solar Garden subscriber groups; reporting on known complaints and the resolution of these complaints; lessons learned and any potential changes to the
Solar*Rewards Community Program; reporting on Bill Credits earned and paid; and
reporting on the application process. Aggregated information will not identify individual
Subscribers or provide Subscriber-Specific Account Information, Subscriber-Specific
Energy Usage Data or Subscriber-specific Bill Credits unless a Subscriber provides explicit informed consent. Depending on the nature of the aggregated information,
however, it may still be possible to infer the amount of production attributed to individual
Subscribers to the Community Solar Garden. The Subscriber agrees to the inclusion of
its production information in the creation of the aggregated information. The Community
Solar Garden Operator will not use aggregated information for purposes unrelated to the Solar*Rewards Community Program without first providing notice and obtaining further
consent, unless the aggregated information is otherwise available as public information.
The policies of Northern States Power 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
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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 taking any steps to ensure that the Community Solar
Garden Operator maintains the confidentiality of the Subscriber's Account Information,
the Subscriber's Energy Usage or the Bill Credits received pertaining to the Subscriber's participation in the Community Solar Garden. However, Northern States Power
Company shall remain liable for its own inappropriate release of Subscriber's Account
Information and Subscriber's Energy Use Data.
f. Duration of Consent. The Subscriber's consent to this information sharing
shall be ongoing for the Term of the CSG Contract between the Community Solar Garden Operator and Northern States Power Company, or until the Subscriber no longer has a Subscription to the Community Solar Garden and the Community Solar Garden Operator
notifies Northern States Power Company of this fact through the CSG Application
System. Provided, however, the Subscriber's consent shall also apply thereafter to all
such information of the Subscriber pertaining to that period of time during which the Subscriber had a Subscription to the Community Solar Garden.
g. Modification. The above provisions addressing data privacy and in
Exhibit 1 shall remain in place until and unless other requirements are adopted by the
MPUC in its generic privacy proceeding, Docket No. E,G999/CI-12-1344, or other
MPUC Order. Northern States Power Company shall file necessary revisions to its tariffs and contracts within thirty (30) days of such Order.
Subscriber's Name:
Subscriber's Signature:
Date:
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Exhibit 1 to Solar*Rewards Community Subscriber Agency Agreement and Consent Form
Data Privacy Policies of Northern States Power Company Pertaining to the Solar*Rewards
Community Program
The data privacy policies of Northern States Power Company pertaining to the
Solar*Rewards Community Program are as follows and may be changed from time to time as
filed in the Company's tariff or as otherwise may be authorized by the Minnesota Public Utilities
Commission ("MPUC"):
Definitions
Unless indicated otherwise, the same definition and meaning of terms in this document
are the same as contained in the Standard Contract for Solar*Rewards Community. For ease of
reference, here are some of the specific definitions:
“Company” means Northern States Power Company, a Minnesota Corporation, and its
affiliates and agents.
“Subscribed Energy” means electricity generated by the PV System attributable to the Subscribers' Subscriptions and delivered to the Company at the Production Meter on or after the
Date of Commercial Operation.
“Subscriber” means a retail customer of the Company who owns one or more
Subscriptions of a community solar garden interconnected with the Company.
“Subscriber’s Account Information” consists of the Subscriber's name, account number, service address, telephone number, email address, web site URL, information on Subscriber
participation in other distributed generation serving the premises of the Subscriber, and
Subscriber specific Bill Credit(s).
“Subscriber's Energy Usage Data” includes the past, present and future electricity usage attributable to the Subscriber for the service address and account number identified for participation in the Community Solar Garden.
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Overview
This section addresses how Subscriber's Account Information and Subscriber's Energy
Usage Data will be collected, used and shared as part of participation in the Solar*Rewards
Community Program.
1. How Subscriber's Account Information and Energy Usage Data Will Be Exchanged
a. Subscriber Specific Information
Once a Subscriber has executed a Subscriber Agency Agreement and Consent Form, an
ongoing data exchange will occur between the Company and a Community Solar Garden
Operator (and their designated subcontractors and agents):
(i) The Company will disclose the following Subscriber-specific information to the
Community Solar Garden Operator:
• Subscriber's Account Information
• Subscriber's Energy Usage Data
• Bill credits
(ii) The Community Solar Garden Operator will disclose to the Company the
following Subscriber-specific information:
• Subscriber's Account Information
• Community Solar Garden Allocation for each Subscriber's Subscription stated
in kW
• Production data related to the PV System
• Monthly Subscription Information
b. Aggregated Subscriber Information
Aggregated Subscriber information will be reported as part of Permitted Public
Reporting, outlined in Section 2(b) below.
To be considered "aggregated" the reported information must include information
attributable to all Subscribers participating in a specific Solar*Rewards Community program
site, which based on program requirements will contain a minimum of five Subscribers.
Depending on the nature of the aggregated information, however, from this information alone or
in combination with other publicly available information it may still be possible to infer the amount of production attributed to individual Subscribers to the Community Solar Garden.
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2. How Subscriber's Information Will Be Used
The following outlines how the Subscriber's Account Information and Subscriber Energy
Usage Data will be used as part of the Solar*Rewards Community Program.
a. Program Management
As part of administering the Solar*Rewards Community program, the Solar Garden
Operator and the Company may provide information related to the Subscriber and/or the
Community Solar Garden to:
• the MPUC
• the Minnesota Department of Commerce
• the Minnesota Office of Attorney General
• Other governmental or private entities as required by law or regulation
Account Information and Subscriber's Energy Usage Data to service providers, agents, or contracted agents who support the program on its behalf. The Company prohibits these service
providers from using or disclosing the Subscriber's information except as necessary to perform
these specific services or to comply with legal requirements. More information about the
Company's general privacy practices is explained in its Privacy Policy available on www.xcelenerqy.com.
b. Permitted Public Reporting
The Subscriber's Energy Usage Data of each participating Subscriber to a Community
Solar Garden will be combined and reported in the aggregate by the Community Solar Garden
Operator in its annual report on the Solar*Rewards Community program. The identity of specific Subscribers, the specific Subscriber's Account Information, Subscriber's Energy Usage Data and Subscriber-specific Bill Credit will not be listed in the public annual report unless the
Subscriber has provided the Community Solar Garden Operator with prior written consent.
Per the requirements of the MPUC, the Company will provide to the MPUC annual
reports which will include information or data requested by the MPUC or Minnesota Department of Commerce, including the following:
• Reporting on Solar*Rewards Community program costs, including an analysis of
the deposit, application, participation and metering fees and further justification
for these fees going forward;
• Reporting on the Solar*Rewards Community Gardens, including but not limited to size, location and the type of Solar*Rewards Community subscriber groups;
• Reporting on known complaints and the resolution of these complaints;
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• A copy of each contract signed with a Community Solar Garden Operator, if not
previously filed;
• Lessons learned and any potential changes to the program;
• Report on bill credits earned and paid; and the
• Application process
c. Prohibited Reporting or Sharing
Except as otherwise provided in this document, the Company will not disclose the Subscriber's Account Information, Subscriber's Energy Usage Data or Subscriber-specific Bill
Credits to a third party without first obtaining the Subscriber's written consent.
Any requests by the Community Solar Garden Operator to the Company for information
about a Subscriber that is not Subscriber's Account Information or Subscriber's Energy Usage Data will require execution of a separate written consent by the Subscriber. Notwithstanding the previous statement, the Company will not provide the Community Solar Garden Operator with
the Subscriber's Social Security Number unless directed to do so by the MPUC or Minnesota
Department of Commerce or compelled by law or regulation.
3. Subscriber Data Access and Correction
The following outlines what information is available to the Subscriber from the Company and the Community Solar Garden Operator, and methods of correcting any inaccuracies.
a. Information Available from the Company
Subscribers can contact the Company's call center to obtain information pertaining to
their specific Bill Credit attributable to their participation in Solar*Rewards Community Program. The correction of any allocation of previously-applied Bill Credits among Subscribers or payments to the Community Solar Garden Operator for Unsubscribed Energy, pertaining to a
particular month due to any inaccuracy reflected in such Monthly Subscription Information with
regard to a Subscriber's Subscription in the PV System and the beneficial share of photovoltaic
energy produced by the PV System, or the share of Unsubscribed Energy, shall be the full responsibility of the Community Solar Garden Operator, unless such inaccuracies are caused by
the Company .
Subscribers may also obtain from the Company the following information related to the
Solar*Rewards Community Program without obtaining written consent from the Community
Solar Garden Operator:
• Site location
• Operator name
• Nameplate capacity
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• Production data related to the PV system
• Bill Credit Rate and total amount of Bill Credits applied to the PV System
• Any other information pertaining to the Subscriber's Subscription
Other information regarding the Community Solar Garden Operator known to the
Company will not be disclosed unless the Subscriber obtains prior explicit informed consent
from the Community Solar Garden Operator or unless directed to do so by the MPUC or
Minnesota Department of Commerce or compelled by law or regulation.
b. Information Available from the Community Solar Garden Operator
Subscribers and prospective subscribers can contact the Community Solar Garden
Operator to obtain the following information:
• Future costs and benefits of the Subscription, including:
i. All nonrecurring (i.e., one-time) charges;
ii. All recurring charges;
iii. Terms and conditions of service; iv. Whether any charges may increase during the course of service, and if so,
how much advance notice is provided to the Subscriber;
v. Whether the Subscriber may be required to sign a term contract; vi. Terms and conditions for early termination;
vii. Any penalties that the Community Solar Garden may charge to the
Subscriber;
viii. The process for unsubscribing and any associated costs;
ix. An explanation of the Subscriber data the Community Solar Garden
Operator will share with Northern States Power Company and that Northern States Power Company will share with the Community Solar
Garden Operator;
x. The data privacy policies of Northern States Power Company and of the
Community Solar Garden Operator;
xi. The method of providing notice to Subscribers when the Community Solar
Garden is out of service, including notice of estimated length and loss of
production;
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xii. Assurance that all installations, upgrades and repairs will be under direct
supervision of a NABCEP-certified solar professional and that
maintenance will be performed according to industry standards, including the recommendations of the manufacturers of solar panels and other
operational components;
xiii. Allocation of unsubscribed production; and
xiv. A statement that the Community Solar Garden Operator is solely
responsible for resolving any disputes with Northern States Power
Company or the Subscriber about the accuracy of the Community Solar
Garden production and that Northern States Power Company is solely
responsible for resolving any disputes with the Subscriber about the applicable rate used to determine the amount of the Bill Credit.
• Copy of the contract with Northern States Power Company for the Solar*Rewards Community Program
• Copy of the solar panel warranty
• Description of the compensation to be paid for any underperformance
• Proof of insurance
• Proof of a long-term maintenance plan
• Current production projections and a description of the methodology used to
develop production projections
• Community Solar Garden Operator contact information for questions and
complaints
• Demonstration to the Subscriber by the Community Solar Garden Operator that it
has sufficient funds to operate and maintain the Solar*Rewards Community
Program
The Community Solar Garden Operator is solely responsible for the accuracy of the Subscriber's share of the Community Solar Garden production information forwarded to the
Company, and should resolve with the Subscriber any dispute regarding the accuracy of such
information.
Subscribers can submit comments to the Company on the accuracy and completeness of its annual report by contacting solarrewardscommunity@xcelenergy.com.
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4. Data Retention
The Company will retain the Subscriber's Account Information, Subscriber's Energy
Usage Data and information on Bill Credits for as long as required under applicable law.
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EXHIBIT B
Schedule of Expected Deliveries of Credits
[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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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 (“ESI”) 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.
3. 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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EXHIBIT C
Lender Accommodations
Subscriber acknowledges that Owner may be financing the installation of the Facility either
through a lessor, lender or with financing accommodations from one or more financial institutions and that Owner may sell or assign the Facility and/or may secure Owner’s
obligations by, among other collateral, a pledge or collateral assignment of this Agreement and a
first security interest in the Facility. In order to facilitate such sale, conveyance, or financing,
and with respect to any such financial institutions of which Owner has notified Subscriber in
writing Subscriber agrees as follows:
(a) Consent to Collateral Assignment. Provided the Financing Party has agreed in writing to
recognize Subscriber’s rights under this Agreement and to comply with the terms of the
Agreement with respect to any of Subscriber’s rights thereunder upon the foreclosure or
conveyance in lieu thereof, Subscriber consents to either the sale or conveyance by Owner to a
Financing Party that has provided financing of Owner’s right, title and interest in the Facility and to this Agreement.
(b) Notices of Default. Subscriber will deliver to the Financing Party, concurrently with
delivery thereof to Owner, a copy of each notice of default given by Subscriber under the
Agreement, inclusive of a reasonable description of Owner default. Subscriber will not mutually
agree with Owner to terminate the Agreement without the written consent of the Financing Party.
(c) Rights Upon Event of Default. Notwithstanding any contrary term of this Agreement,
during the continuation of an event of default by Owner under its agreements with Financing
Party, provided that the Financing Party has agreed in writing to recognize Subscriber’s rights
under the Agreement and to not disturb any of Subscriber’s rights thereunder:
i. The Financing Party, as collateral assignee, shall be entitled to exercise, in the place and stead of Owner, any and all rights and remedies of Owner under this Agreement in accordance with the terms of this Agreement and the Financing Party shall also be entitled to
exercise all rights and remedies of secured parties generally with respect to this Agreement.
ii. The Financing Party shall have the right, but not the obligation, to pay all sums
due under this Agreement and to perform any other act, duty or obligation required of Owner thereunder or cause to be cured any default of Owner thereunder in the time and manner provided by the terms of this Agreement. Nothing herein requires the Financing Party to cure
any default of Owner under this Agreement or (unless the Financing Party has succeeded to
Owner’s interests under this Agreement) to perform any act, duty or obligation of Owner under
this Agreement, but Subscriber hereby gives it the option to do so.
iii. The exercise of remedies under its security interest in the Facility, including any sale thereof by the Financing Party, whether by judicial proceeding or under any power of sale
contained therein, or any conveyance from Owner to the Financing Party (or any assignee of the
Financing Party), shall not constitute a default under this Agreement.
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iv. Upon any rejection or other termination of this Agreement pursuant to any
process undertaken with respect to Owner under the United States Bankruptcy Code or any
similar state law, at the request of the Financing Party made within ninety (90) days of such
termination or rejection, Subscriber shall enter into a new agreement with the Financing Party or its assignee having the same terms and conditions as this Agreement.
(d) Right to Cure.
i. Except for termination pursuant to Section 3(a) of the Subscription Agreement in
connection with a failure to achieve commercial operation by December 31, 2017, Subscriber
will not exercise any right to terminate or suspend this Agreement unless it shall have given the Financing Party prior written notice by sending notice to the Financing Party (at the address
provided by Owner) of its intent to terminate or suspend this Agreement, specifying the
condition giving rise to such right, and the Financing Party shall not have caused to be cured the
condition giving rise to the right of termination or suspension within thirty (30) days after such
notice or (if longer) the periods provided for in this Agreement. The Parties respective obligations will otherwise remain in effect during any cure period; provided that if such Owner
default reasonably cannot be cured by the Financing Party within such period and the Financing
Party commences and continuously pursues cure of such default within such period, such period
for cure will be extended for a reasonable period of time under the circumstances, such period
not to exceed additional sixty (60) days.
ii. If the Financing Party (including any transferee), pursuant to an exercise of
remedies by the Financing Party, shall acquire title to or control of Owner’s assets and shall,
within the time periods described in Sub-section (d)(i) above, cure all defaults under this
Agreement existing as of the date of such change in title or control in the manner required by this
Agreement and which are capable of cure by a third person or entity, then such person or entity shall no longer be in default under this Agreement, and this Agreement shall continue in full
force and effect.
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