Professional Documents
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Operation and Maintenance Agreement Solar
Operation and Maintenance Agreement Solar
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Date
TABLE OF CONTENTS
Article I DEFINITIONS.................................................................................................... 1
Article IX INSURANCE...................................................................................................... 9
9.01 Insurance Provisions ............................................................................................... 9
9.02 Notification ........................................................................................................... 10
Article X NOTICES.......................................................................................................... 10
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12.01 Dispute Resolution................................................................................................ 12
12.02 Continued Prosecution of the Work...................................................................... 12
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OPERATION AND MAINTENANCE SERVICES AGREEMENT
RECITALS
WHEREAS, Operator has the capability to perform maintenance on the System and
Owner wishes to engage Operator as an independent contractor during the Term of this
Agreement for the purpose of performing maintenance services on the System, pursuant to the
terms and conditions set forth herein;
ARTICLE I
DEFINITIONS
As used in this Agreement, all capitalized terms have the respective meanings given to
them in this Agreement and in the Schedule of Definitions attached as Exhibit B.
ARTICLE II TERM;
EXCLUSIVITY
The term of this Agreement shall commence upon the date upon which the local utility
has provided permission to operate the System (the “Commercial Operation Date”), and, unless
terminated earlier in accordance with the terms and conditions hereof, shall continue until the
ten-year anniversary of the Commercial Operation Date (the “Term”); provided, that Operator
shall not be obligated to perform any Services with respect to the System until the Commercial
Operation Date for the System has occurred.
During the Term, Operator shall be the exclusive provider of operation and maintenance
services for the System and, except in an Emergency, Owner shall not perform, or permit the
performance of, any repair, maintenance or operation activities, on or related to the System by
any other provider without Operator’s prior written consent; provided that without Operator’s
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consent, Owner may perform any repair, maintenance or operation activities on the System other
than the Services or any Additional Services agreed to by the parties.
OF SERVICES
3.01 Services.
During the Term of this Agreement, Operator shall perform the services set forth in
Exhibit C (the “Services”). For the avoidance of doubt, Operator’s Services shall not include
any of the items set forth on Exhibit D (“Excluded Services”). Upon completion of any Services,
Operator shall notify Owner in writing by delivering a standard service call report.
From time to time as mutually agreed by the Parties, Owner may request that Operator
provide other services related to the System(s) beyond the scope of the Services, (the “Additional
Services”). The terms and conditions of any Additional Services shall be set forth in a written
work order signed by both Parties. If communications from Owner indicate that a System
requires maintenance, repair or service that would constitute an Additional Service (for example,
as a result of vandalism, remodeling or roofleaks not caused by the System), Operator shall have
no obligation to complete the service required, except in the event of an Emergency as set forth
in Section 3.05. Prior to undertaking any such Additional Services, Operator may require Owner
to agree in advance in writing to pay Operator at specified rates on a time and materials basis for
such Additional Services. Operator’s labor rates, hours of work, and minimum hours for
Additional Services are set forth in Exhibit F (“Labor Rates”). Except to the extent set forth in
such work order, the general terms and conditions of this Agreement shall apply to any
Additional Services.
Operator shall perform the Services in accordance with (i) the terms of this Agreement,
(ii) all applicable Laws and Applicable Permits, (iii) all applicable warranties and guarantees
provided by manufacturers, suppliers or Subcontractors, (iv) all manufacturer’s maintenance
instructions and specifications and (v) the requirements of any insurance policies maintained by
Operator with respect to the Systems.
Operator shall provide all tools and equipment needed to perform the Services and all
consumables used in connection with rendering the Services. Operator shall procure, at Owner’s
expense, all replacement parts, components and equipment attached to, part of or constituting a
System (together, the “Replacement Components”) necessary for the performance of the
Services during the Term; provided, however, if any such Replacement Components are required
as a result of Operator’s failure to perform its obligations under this Agreement, then Operator
shall procure such Replacement Components at Operator’s expense. To the extent available,
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Operator will file warranty claims on behalf of Owner for any Replacement Component under
warranty.
3.05 Emergencies.
In the event of any Emergency, Operator shall take such action as may be reasonable and
necessary to prevent, avoid or mitigate injury, damage or loss to the System and shall, as soon as
possible, report any such incident, including Operator’s response thereto, to Owner. If Operator
isn’t immediately available, Owner may take such action as may be reasonable and necessary to
prevent, avoid, or mitigate injury, damage or loss to the System, and shall inform Operator in
writing of the specific mitigation actions undertaken within five days of such actions.
Except in the event of an Emergency, Operator shall perform its operation and
maintenance services on the Systems at the Site, and may perform certain monitoring and
component inspection services off-site, during Operator’s regular business hours.
During the Term, Operator shall maintain the system monitoring equipment set forth on
Exhibit E at the Site, or such other monitoring equipment as is otherwise provided by Owner
from time to time (“System Monitoring Equipment”). Operator shall use commercially
reasonable efforts to ensure and monitor the internet connectivity of the System Monitoring
Equipment such that data regarding the performance of and output from the System shall be
communicated electronically to Operator on a continuous basis. Operator agrees to notify Owner
within four hours in the event any outages or other material issues arise from the System or the
System Monitoring Equipment. The System Monitoring Equipment shall be inspected and tested
by Operator at least annually at its sole cost and expense, or upon the request of either Party at
such Party’s sole cost and expense, in accordance with the testing protocols set forth in Exhibit
E.
Subject to any requirements of applicable Law and the terms of this Agreement, Owner
shall provide Operator and its Subcontractors, agents and employees with reasonable access to
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the System and the Site during reasonable times -as required for the performance of Operator’s
duties under this Agreement. Operator will use reasonable efforts to schedule normal, routine
maintenance in advance with the owner, landlord or property manager of each Site. Operator
shall notify site staff when they arrive to perform work.
ARTICLE IV
Operator acknowledges and agrees that it will not bring Hazardous Materials to the Site,
or if Operator determines such Hazardous Materials are necessary, Operator will notify Owner
prior to bringing any such Hazardous Materials to the Site. To the extent Hazardous Materials at
the Site results, due to acts of Operator, in contamination or deterioration of water or soil at a
level exceeding permissible levels established by any Governmental Authority having
jurisdiction over such contamination, then Operator shall advise Owner (and the applicable
regulatory agency if required by applicable Law) and, at Operator’s sole cost and expense,
promptly take any and all action necessary to clean up such contamination or deterioration if
required by applicable Law or as a condition to the issuance or continuing effectiveness of any
permit which relates to the System.
4.02 Personnel.
4.03 Liens.
Operator shall not, as a consequence of its own acts or acts of its suppliers and
Subcontractors, suffer or permit liens or encumbrances to attach to the System or the Site.
ARTICLE V
Owner shall pay Operator an annual fee per calendar year for Owner’s performance of
the Services during the Term in the amounts set forth on Exhibit A (the “Annual Fee”).
Beginning with the second Annual Fee due under this Agreement, the Annual Fee shall increase
by 2% per calendar year. The Annual Fee for the System shall be paid by Owner in advance on
or before the first day of each calendar year during the Term, provided that the first Annual Fee
with respect to the System will be due and payable on or before the Commercial Operation Date
of such System.
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5.02 Invoiced Fees.
Any Additional Services provided by Operator shall be paid within 30 days of the invoice
date, unless provided otherwise in the work order for such Additional Services. Replacement
Components shall be invoiced separately and shall be paid within 30 days of the invoice date.
All invoiced payments made by Owner to Operator under this Article V shall be paid by check or
electronic transfer of funds at Owner’s discretion, to Operator at an account designated in writing
by Operator.
If there is a dispute about any amount invoiced by Operator, the undisputed amount shall
be paid pursuant to Section 5.02, and any disputed amount which is ultimately determined to
have been payable shall be paid immediately upon such resolution, along with interest in
accordance with the provisions of Section 5.04.
Any amounts due under this Agreement, other than disputed payments that are
determined to have been properly withheld by Owner, if not timely paid by the Party from whom
they are due, shall bear interest at the per annum rate equal to the prime rate, as published in the
Wall Street Journal from time to time, plus 2% annually (or such lower rate as is the maximum
rate permitted by applicable Law), prorated on the basis of a 365-day year from the date that
such amount was due.
ARTICLE VI
Each Party represents and warrants to the other Party that the following representations
are true and correct at and as of the Effective Date:
(a) It is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its formation;
(b) The execution, delivery and performance of this Agreement are within its
powers, have been duly authorized by all necessary action and do not violate any of the
terms and conditions in its governing documents, any contracts to which it is a party or
any Law, rule, regulation, order or the like applicable to it; and
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ARTICLE VII
An “Event of Default” means, with respect to either Party, the occurrence of any
of the following during the Term:
(b) Except for an obligation to make payment when due, the failure to
perform any material covenant or obligation set forth in this Agreement (except to the
extent constituting a separate Event of Default or to the extent excused by a Force
Majeure) if such failure is not remedied within 30 days after Notice of such failure (or
such shorter period as may be specified below), which Notice sets forth in reasonable
detail the nature of the failure; provided that, if such failure is not reasonably capable of
being cured within the 30 day cure period specified above, the Party shall have such
additional time (not exceeding an additional 45 days) as is reasonably necessary to cure
such failure, so long as such Party promptly commences and diligently pursues such cure;
(c) A Party fails to make when due any payment in a material amount
(including not making when due any material portion of the payment) required under this
Agreement and such failure is not cured within fifteen Business Days after Notice of such
failure;
7.02 Remedies.
If an Event of Default shall have occurred, there will be no opportunity for cure
except as specified in Section 7.01. The non-defaulting Party shall have the right:
(a) to designate by Notice, a day, no earlier than 20 calendar days after the
Notice is effective, for the early termination of this Agreement;
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(b) to immediately suspend performance under this Agreement; and
(c) to pursue all remedies available at law or in equity against the defaulting
Party (including monetary damages), except to the extent that such remedies are limited
by the terms of this Agreement.
ARTICLE VIII
FORCE MAJEURE
Notwithstanding any other provision of this Agreement, each Party’s obligations under
this Agreement shall be suspended by any Force Majeure if and to the extent that such Party is
prevented or delayed from performing by reason of the Force Majeure; provided, however, that
(a) the suspension of performance shall be of no greater scope and of no longer duration than is
necessarily caused by the Force Majeure and required by any remedial measures, (b) no
obligations of any Party that arose before the occurrence of such causes shall be excused as the
result of the occurrence, and (c) each Party shall use commercially reasonable efforts to remedy
its inability to perform. If the performance by either Party of its obligations under this
Agreement is affected by any Force Majeure, such Party shall notify the other Party within 5
business days after the initial occurrence of the claimed Force Majeure of the nature, the extent
thereof, timely evidence reasonably sufficient to establish that the occurrence constitutes Force
Majeure as defined in this Agreement, and the anticipated length of time that the Force Majeure
will prevent the Party’s performance under this Agreement. When the claiming Party is able to
resume performance of its obligations under this Agreement, it shall give the other Party prompt
Notice to that effect.
ARTICLE IX
INSURANCE
During the Term, Operator shall, at its sole cost and expense, procure and maintain, or
cause to be procured and maintained, the following insurance coverages with an insurance
company or companies rated at least “A-” by A.M. Best Company and be responsible for its
Subcontractors maintaining sufficient limits of the appropriate insurance coverage consistent
with industry practice.
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(b) Business Auto.
9.02 Notification.
Each Party shall notify the other of any casualty and keep the other Party timely apprised
of insurance claim proceedings.
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ARTICLE X
NOTICES
All notices permitted or required to be given under this Agreement (“Notices”) shall be in
writing and shall be deemed duly given when and only when: (i) if sent by overnight or
international courier service, confirmation of receipt by the recipient is confirmed by such
service, (ii) received by the recipient, if delivered by personal delivery or mail, (iii) when
received, if sent by facsimile with confirmation of successful transmission or (iv) when
transmitted, if sent by e-mail, so long as a copy of such e-mail notice is delivered immediately
thereafter by overnight or international courier service, personal delivery or facsimile. All
Notices shall be delivered or sent to the Parties at their respective addresses or numbers shown
below or to such other addresses or numbers as a Party may designate by prior Notice given in
accordance with this provision to the other Party:
(a) If to Owner:
XXXXXXXXXXXXXXX
(b) If to Operator:
XXXXXXXXXXXXXXXXXX
ARTICLE XI
LIMITATION OF LIABILITIES
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OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF
ANY OF ASG’S OBLIGATIONS UNDER THIS AGREEMENT, OR THE USE OF THE
SERVICES BY OR ON BEHALF OF OWNER, OR ANY OTHER THIRD PARTY, SHALL
BE SOLELY FOR OWNER’S DIRECT DAMAGES.
RESOLUTION
In case of any Dispute, Operator shall continue to diligently perform the Services and any
Additional Services, so long as Owner continues to make payments to Operator for those
Services and Additional Services that are not the subject of dispute.
ARTICLE XIII
Title to all Replacement Components and other items purchased or obtained by Operator
hereunder for the System(s) shall pass immediately to and vest in the Owner when paid for by
the Owner. A copy of all materials and documents related to the maintenance history of the
System and any manuals and warranties related to the System shall be delivered to Owner upon
expiration or termination of this Agreement.
ARTICLE XIV
MISCELLANEOUS
14.01 Execution.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same Agreement. The
counterparts of this Agreement and the schedules and exhibits hereto, may be executed and
delivered by facsimile or other electronic signature by any of the Parties to any other Party and
the receiving Party may rely on the receipt of such document so executed and delivered by
facsimile or other electronic means as if the original had been received.
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14.02 Amendments.
14.03 Headings.
The headings herein have been inserted for convenience of reference only and shall not in
any manner affect the construction, meaning or effect of anything herein contained nor govern
the rights and liabilities of the Parties.
14.04 Assignment.
Either Party may assign this Agreement to an Affiliate with the prior written consent of
the other Party, which shall not be unreasonably withheld, conditioned or delayed if the non-
assigning Party has been provided with proof to its reasonable satisfaction that the proposed
assignee: (a) has experience in operating and maintaining solar photovoltaic systems, greater than
or equal to that of the assigning party; and (b) has the financial capability and credit rating equal
to or greater than that of the assigning Party; and (c) has the ability to maintain the System and
provide the Services provided pursuant to this Agreement in the manner required by this
Agreement and provides all applicable warranties that it shall do so. Upon notice to the other
Party this Agreement may be assigned in connection with any merger, consolidation or sale of all
or substantially all of the assets or equity interests of such Party without the consent of the other
Party. Either party may pledge this Agreement or make a collateral assignment in connection
with obtaining financing. Any other assignment shall require the prior written consent of the
other Party, which consent shall not be unreasonably withheld.
This Agreement shall be binding upon and inure to the benefit of the Parties, and their
respective successors and assigns, to the extent that assignment is permitted hereunder.
Except as may be specifically agreed in writing, the failure by any Party to insist in any
one or more instances upon the strict performance of any one or more of the provisions of this
Agreement or to exercise any right herein contained or provided by law or equity, shall not be
construed as, or constitute in any way, a waiver, modification or relinquishment of the
performance of such provision or right(s), or of the right to subsequently demand such strict
performance or exercise such right(s), and all such rights shall continue unchanged and remain in
full force and effect.
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14.08 Severability.
If any provision of this Agreement shall be held void, voidable, invalid or inoperative, no
other provision of this Agreement shall be affected as a result thereof, and, accordingly, the
remaining provisions of this Agreement shall remain in full force and effect as though such void,
voidable, invalid or inoperative provision had not been contained herein. To the extent that any
provision is held void, voidable, invalid or inoperative, the Parties shall negotiate an equitable
adjustment in the provisions of this Agreement with a view toward effecting the purpose of this
Agreement, and the validity and enforceability of the remaining provisions, or portions or
applications thereof, shall not be affected thereby.
14.09 Construction.
14.10 Relationship.
Operator shall act as an independent contractor of Owner with respect to the performance
of its obligations hereunder. Neither Operator nor its Affiliates, employees, Subcontractors,
vendors or suppliers, or the employees of any such parties employed in connection with this
Agreement shall be deemed to be agents, representatives, employees, or servants of Owner.
Operator shall not have the right or authority to assume, create or incur any liability or
obligation, express or implied, against, in the name of, or on behalf of Owner. This Agreement
is not intended to create, and shall not be construed to create, a relationship of partnership or an
association of profit between Owner and Operator.
This Agreement contains the entire agreement between the Parties with respect to the
subject matter hereof, and supersedes any and all prior and contemporaneous written and oral
agreements, proposals, negotiations, warranties, guarantees, understandings and representations
pertaining to the subject matter hereof.
14.12 Confidentiality.
Each Party agrees to keep the terms of this Agreement and the other agreements
contemplated hereby strictly confidential and to not use or disclose to any other Person any non-
public documents or other information that relates directly or indirectly to this Agreement;
provided that either Party may disclose the terms of this Agreement to (a) any Affiliate, advisor,
agent, representative, employee or Subcontractor, and (b) any third party
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considering providing capital or financing to, or merging with or acquiring all or substantially all
of the assets of, either of the Parties hereto or as required by law. The confidentiality obligations
set forth in this Section 14.12 shall survive the termination or expiration of this Agreement for a
period of two years.
14.13 Publicity.
Each Party shall use its reasonable efforts to implement the provisions of this Agreement,
and for such purpose each, at the request of the other, shall, without further consideration,
promptly execute and deliver or cause to be executed and delivered to the other such
assignments, consents or other instruments in addition to those required by this Agreement, in
form and substance satisfactory to the other, as the other may reasonably deem necessary or
desirable to implement any provision of this Agreement.
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IN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have
caused this Operation and Maintenance Services Agreement to be executed by their duly
authorized officers as of the date first written above.
By:
Name:
Title:
CLIENT NAME
By:
Name:
Title:
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EXHIBIT A
INCREASES 2% ANNUALLY
A-1
EXHIBIT B
SCHEDULE OF DEFINITIONS
The terms defined in this Schedule of Definitions shall include the plural as well as the
singular and the singular as well as the plural. Except as otherwise indicated, all the agreements
or instruments herein defined shall mean such agreements or instruments as the same may from
time to time be supplemented or amended or the terms thereof waived or modified to the extent
permitted by, and in accordance with, the terms thereof. When used in the Agreement (as
defined below), unless otherwise defined therein, the following terms shall have the respective
meanings set forth below:
“Additional Services” shall have the meaning set forth in Section 3.02.
“Annual Fee” shall have the meaning set forth in Section 5.01.
“Affiliate” means, with respect to any Person, any other Person, who (a) such first Person
directly or indirectly, in whole or in part, owns, is owned by or is in common ownership with, or
(b) such first Person directly or indirectly controls, is controlled by or is under common control
with.
“Applicable Permits” means each and every material national, autonomic, regional and
local license, authorization, certification, filing, recording, permit or other approval with or of
any Governmental Authority, including, without limitation, any agreement, consent or approval
from or with any other Person that is required by any applicable Law or that is otherwise
necessary for the performance of the Services.
“Bankrupt” means with respect to any entity, such entity: (a) files a petition or otherwise
commences, authorizes or acquiesces in the commencement of a proceeding or cause of action
under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or
commenced against it that is not dismissed within 60 days; (b) makes an assignment or any
general arrangement for the benefit of creditors; (c) otherwise becomes bankrupt or insolvent
(however evidenced); (d) has a liquidator, administrator, receiver, trustee, conservator or similar
official appointed with respect to it or any substantial portion of its property or assets; or (e) Is
generally unable to pay its debts as they fall due.
“Business Day” means any day except a Saturday, Sunday or federal holiday.
“Effective Date” has the meaning set forth in the introductory paragraph of this
Agreement.
“Emergency” means an event occurring at any Site, or any adjoining property, that (a)
poses actual or imminent risk of (i) serious personal injury, or (ii) material physical damage to
the System, and (b) requiring, in the good faith determination of Operator or Owner, immediate
preventative or remedial action.
B-1
“Event of Default” shall have the meaning set forth in Article VII.
“Force Majeure” means any occurrence that was not anticipated as of the Effective Date
that: (a) in whole or in part: (i) delays a Party’s performance under this Agreement; (ii) causes a
Party to be unable to perform its obligations; or (iii) prevents a Party from complying with or
satisfying the conditions of this Agreement; (b) is not within the control of that Party; and (c) the
Party has been unable to overcome by the exercise of due diligence, including an act of God,
flood, drought, earthquake, storm, fire, pestilence, lightning and other natural catastrophes,
epidemic, war, riot, civil disturbance or disobedience, terrorism, sabotage, strike or labor dispute,
or actions or inactions of any Governmental Authority.
“Law” or “Laws” means any statute, law, treaty, convention, rule, regulation, ordinance,
code, permit, enactment, injunction, order, writ, decision, authorization, judgment, decree or
other legal or regulatory determination or restriction issued, adopted, administered or
implemented by a court or Governmental Authority, including any of the foregoing that are
enacted, amended, or issued after the Effective Date; or any binding interpretation of the
foregoing.
“Operator” shall have the meaning given thereto in the introductory paragraph of this
Agreement, and its successors and permitted assigns, if any.
“Owner” shall have the meaning given thereto in the introductory paragraph of the
Agreement, and its permitted successors and assigns, if any.
“Replacement Components” shall have the meaning set forth in Section 3.04.
B-2
“Services” shall have the meaning set forth in Section 3.01.
“Site” shall have the meaning set forth in the Recitals hereto.
“System” shall have the meaning set forth in the Recitals hereto.
“System Monitoring Equipment” shall have the meaning set forth in Section 3.07.
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EXHIBIT C
SERVICES
During the Term, and for the Annual Fees, Operator shall perform the following services
on the System:
Background
The System will be installed with an Internet-based Data Acquisition System (DAS). The DAS
will have the capability to send alarms identifying low power to remote locations.
Scope of Work
a. Electrical Maintenance
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iv. Record operational data from inverters and meters
d. AC Disconnect
a. Preventive Maintenance.
C-2
iii. Operator shall perform module cleaning at a frequency to be
determined by the ongoing monitoring of the System such that the
effect on production is no more than 5%, but not less often than
twice a year.
C-3
EXHIBIT D
EXCLUDED SERVICES
2. Parts or equipment that were not specified in the Master Engineering, Procurement and
Construction Agreement entered into by the Parties, and installed by Operator or its
Subcontractors.
3. In the event that any manufacturer of materials, equipment or similar items relating to the
System is not able or willing to honor its product warranty to owner, Operator shall not
be responsible for the costs of any such manufacturer’s components.
E-1
EXHIBIT E
A revenue grade monitoring system will be used to provide the actual kWh production data from
the System. On an annual basis the monitoring system will be tested by Operator at its sole cost
and expense to verify that it is operating as intended. Automatic e-mail alerts will be setup at the
time of System commissioning, which will send alerts if the System goes offline at any time for
any reason. Owner will be notified of alerts and Operator will acknowledge the alerts and
respond with a reason for the alert or an action plan to continue to monitor for changes or
troubleshoot the problem.
E-1
[EXHIBIT F
LABOR RATES