EX-10.13 8 filename8.htm EXECUTION VERSION OPERATION AND MAINTENANCE AGREEMENT between NRG Energy Services LLC and NRG Solar Borrego I LLC Dated as of August 1, 2012 Page
Exhibit 10.13
EXECUTION VERSION
OPERATION AND MAINTENANCE AGREEMENT
between
NRG Energy Services LLC
and
NRG Solar Xxxxxxx I LLC
Dated as of August 1, 2012
TABLE OF CONTENTS
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1. |
DEFINITIONS AND RULES OF INTERPRETATION |
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1.1 |
Definitions |
1 |
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1.2 |
Rules of Interpretation |
9 |
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2. |
TERM, EXPIRATION AND TERMINATION |
9 | |
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2.1 |
Initial Term; Renewal Terms |
9 |
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2.2 |
Early Termination by Either Party |
10 |
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2.3 |
Early Termination by Owner |
10 |
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2.4 |
Early Termination by Operator |
10 |
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2.5 |
Rights and Duties Upon Termination |
10 |
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2.6 |
Final Settlement |
11 |
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3. |
SCOPE OF WORK |
11 | |
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3.1 |
Standard of Performance |
11 |
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3.2 |
Management of Employees |
11 |
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3.3 |
Duties of Operator Prior to Project Substantial Completion |
11 |
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3.4 |
Specific Duties of Operator During Operations |
12 |
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3.5 |
Emergency |
15 |
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3.6 |
Notification to Owner |
15 |
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3.7 |
Safety |
16 |
4. |
CHANGE ORDERS |
16 | |
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5. |
OPERATOR’S AUTHORITY; SUBCONTRACTING; PARTS |
17 | |
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5.1 |
Operator’s Authority |
17 |
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5.2 |
Subcontracts |
17 |
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5.3 |
Parts |
18 |
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6. |
COOPERATION |
18 | |
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6.1 |
General |
18 |
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6.2 |
Owner Representative |
18 |
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6.3 |
Actions by Owner |
18 |
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6.4 |
Operator Representative |
18 |
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6.5 |
Actions by Operator |
18 |
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6.6 |
Access to Information and Plant; Special Assistance |
19 |
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7. |
OWNER’S RESPONSIBILITIES |
19 | |
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7.1 |
Responsibilities of Owner |
19 |
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8. |
COMPENSATION AND PAYMENTS |
20 | |
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8.1 |
Compensation |
20 |
TABLE OF CONTENTS
(continued)
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8.2 |
Invoices and Reconciliation |
20 |
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8.3 |
Cash Requirements |
20 |
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8.4 |
Cash Neutral |
21 |
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8.5 |
Interest on Delinquent Funds |
21 |
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8.6 |
No Waiver |
21 |
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9. |
COMPLIANCE WITH LAWS AND PERMITS |
21 | |
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9.1 |
Requirements of Law Generally |
21 |
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9.2 |
Hazardous Materials Management |
21 |
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9.3 |
Compliance with Permits |
22 |
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10. |
ALLOCATION OF RISKS AND LIABILITY |
22 | |
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10.1 |
General Indemnity by Operator |
22 |
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10.2 |
General Indemnity by Owner |
22 |
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10.3 |
Cooperation Regarding Claims |
23 |
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10.4 |
Limitations of Liability |
23 |
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11. |
CONSEQUENTIAL DAMAGES; DISCLAIMER |
23 | |
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12. |
INSURANCE |
24 | |
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12.1 |
Operator’s Insurance |
24 |
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12.2 |
Owner’s Insurance |
24 |
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13. |
FORCE MAJEURE |
24 | |
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13.1 |
Excused Performance; Duty to Mitigate |
24 |
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13.2 |
Obligations to Pay Monies |
24 |
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13.3 |
Notice of Force Majeure Event |
24 |
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13.4 |
Notice of Cessation of Force Majeure Event |
25 |
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14. |
BOOKS AND RECORDS |
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15. |
INTELLECTUAL PROPERTY |
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16. |
EVENTS OF DEFAULT |
25 | |
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16.1 |
Operator Defaults |
26 |
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16.2 |
Owner Defaults |
26 |
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16.3 |
Event of Default Remedies |
27 |
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17. |
ASSIGNMENT |
27 | |
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17.1 |
Assignment |
27 |
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17.2 |
Financing Cooperation |
27 |
TABLE OF CONTENTS
(continued)
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18. |
TITLE TO MATERIALS |
28 | |
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19. |
MISCELLANEOUS |
28 | |
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19.1 |
Notices |
28 |
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19.2 |
Severability |
28 |
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19.3 |
Confidentiality |
28 |
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19.4 |
Successors and Assigns |
30 |
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19.5 |
Governing Law |
30 |
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19.6 |
Entire Agreement; Conflicts |
31 |
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19.7 |
No Partnership Created |
31 |
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19.8 |
No Third Party Rights |
31 |
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19.9 |
Counterparts |
31 |
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19.10 |
No Liens |
31 |
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20. |
[RESERVED] |
31 | |
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21. |
OPERATOR REPRESENTATIONS AND WARRANTIES |
31 | |
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22. |
OWNER REPRESENTATIONS AND WARRANTIES |
32 | |
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23. |
SURVIVAL |
33 |
EXHIBIT LIST
Exhibit A |
Plant Description | |
Exhibit B |
Monthly Report Components | |
Exhibit C |
Insurance | |
Exhibit D-1 |
Preliminary Annual Maintenance Plan | |
Exhibit D-2 |
Estimated Five Year Budget | |
Exhibit E |
Compensation Terms | |
Attachment 1 |
Table E-1 - Details of Positions and Functions Included in Basic Corporate Overhead Expense | |
Attachment 2 |
Availability | |
Exhibit F |
OEM Manuals | |
Exhibit G |
Project Agreements | |
Exhibit H |
Additional Pre-Project Substantial Completion Work Details | |
Exhibit I |
Owner and Operator Representatives | |
Exhibit J |
Permits | |
OPERATION AND MAINTENANCE AGREEMENT
This OPERATION AND MAINTENANCE AGREEMENT (as amended from time to time, the “Agreement”) is being entered into by and between NRG Energy Services LLC, a Delaware limited liability company (“Operator”), and NRG Solar Xxxxxxx I LLC, a Delaware limited liability company (“Owner”), as of August 1, 2012 (the “Effective Date”). Each of the Owner and the Operator are sometimes hereinafter designated as a “Party,” and they are collectively designated as the “Parties.”
A. Owner owns that certain 26 MW solar power generation plant located in Xxxxxxx Springs, California, as further described in Exhibit A (the “Plant”).
B. Owner desires to hire Operator to operate and maintain the Plant in accordance with the terms of this Agreement.
C. Operator desires to operate and maintain the Plant for Owner in accordance with the terms of the Agreement.
Accordingly, in consideration of the mutual covenants herein, and intending to be legally bound hereby, Owner and Operator hereby agree as follows:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1 Definitions. The following capitalized terms, when used herein (and in the Appendices attached hereto), shall have the meanings specified in this Section 1.1.
“Adjustment Payment” has the meaning specified in Exhibit E.
“Affiliate” means, with respect to a Person, any entity which, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” (including with correlative meanings, the terms “controlled by” and “under common control with”), when used with respect to a Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning specified in the Preamble.
“Annual Maintenance Plan” means an annual plan for operation and maintenance of the Plant that is approved by Owner pursuant to Section 3.4.12, as the same may be revised from time to time pursuant to a Change Order. Each Annual Maintenance Plan shall be substantially in the same form as the Annual Maintenance Plan for 2012 attached hereto as Exhibit D-1.
“Annual O&M Budget” means a budget detailed by month of anticipated revenues and anticipated expenditures of the Owner with respect to the Plant and execution of the Annual Maintenance Plan, such budget to include debt service, proposed distributions, maintenance, repair and operation expenses (including reasonable allowance for contingencies), capital expenditures, costs and expenses related to the purchase of parts or other personal property of any nature necessary or useful to the operation, maintenance, service or repair of the Plant, management expenses and fees, taxes, insurance premiums, reserves and all other anticipated operating costs for each applicable fiscal year of Owner for the Plant.
“Annual Profit Fee” has the meaning specified in Exhibit E.
“Applicable Law” means any law, ordinance, statute, regulation, decision, ruling, or other similar requirement issued by any Governmental Authority (including CAISO) having jurisdiction over a Party or the Plant, including actions by regulatory and judicial agencies or tribunals, as the same may be modified, amended or repealed from time to time, including all Environmental Laws and the U.S. Federal Corrupt Practices Act.
“Associated Parties” means the directors, officers, partners, shareholders, members, managers, trustees, employees, Affiliates, controlling Persons, representatives and agents (including financial advisors, attorneys and accountants) of any Party or Person.
“Basic Corporate Overhead Expense” has the meaning specified in Exhibit E.
“Books and Records” has the meaning specified in Section 14.
“Business Day” means any day other than a Saturday, Sunday, public holiday under the Applicable Laws of the State of California or other day on which banking institutions in California are authorized or required by Applicable Law to be closed.
“CAISO” means the California Independent System Operator Corporation or successor entity.
“Capital Improvement Expenses” has the meaning specified in Exhibit E.
“Change Order” has the meaning specified in Section 4.
“Change of Law” means the enactment, re-enactment, adoption, promulgation, amendment, modification, repeal or other change of any Applicable Law after the Effective Date affecting the Work or the Plant; provided, however, a change in the interpretation or application of any Applicable Law by any Governmental Authority after the Effective Date shall not be considered a “Change of Law” unless the interpretation was a formal published interpretation by the applicable Governmental Authority.
“Claims” means, collectively, all claims, demands, actions, suits or proceedings (judicial, governmental or otherwise) asserted, threatened or filed against a Person, and any fines, penalties, losses, liabilities, damages and expenses incurred by such Person as a result thereof, including reasonable attorneys’ fees and costs of investigation, litigation, settlement and judgment, and any contractual obligations of such Person to provide indemnity for any such
claims, demands, actions, suits or proceedings, fines, penalties, losses, liabilities, damages and expenses to any other Person.
“Compensation” means the amount to be paid to Operator by Owner, as determined pursuant to Exhibit E.
“Confidential Information” has the meaning specified in Section 19.3.1.
“Contingency” means the budgeted amount identified as “Contingency” in the Annual Maintenance Plan to be determined by Owner and Operator as provided in Section 3.4.12.
“CPI” means the “United States City Average All Items for All Urban Consumers (CPI-U, 1982-84=100)” published by the Bureau of Labor Statistics of the U.S. Department of Labor. If the publication of the Consumer Price Index of the U.S. Bureau of Labor Statistics is discontinued, comparable statistics on the purchasing power of the consumer dollar published by a responsible financial periodical reasonably agreed by Operator and Owner shall be used for making such computations.
“Day” means a calendar day; provided, however, that, if any period of Days referred to in this Agreement shall end on a Day that is not a Business Day, then the expiration of such period shall be automatically extended until the end of the first succeeding Business Day.
“Direct Labor Expenses” has the meaning specified in Exhibit E.
“Direct Operating Expenses” has the meaning specified in Exhibit E.
“Disclosing Party” has the meaning specified in Section 19.3.1.
“Early Termination Costs” means the actual reasonable out of pocket costs incurred by Operator arising out of or relating to an early termination of this Agreement, as agreed by the Parties (such agreement not to be unreasonably withheld, delayed or conditioned) and which may include expenses of demobilization, the reassignment or severance of Plant Personnel, and the discontinuance of support functions which have performed Work and for which Operator has not already received Compensation during the Term of this Agreement, including all costs related to transitioning the Operator’s role to a new operator, including costs for terminating Subcontractors that are not assigned to Owner, costs for terminating any employees of Operator that are not retained by Owner or the new Operator and operating costs incurred by Operator arising from or as a result of the termination, assistance with the transfer of Permits and for costs arising from or as a result of the termination, acquisition or assignment of software and other licenses, data file and record system conversions, the purchase of supplier inventories maintained for the benefit of the Plant, training and instruction of the new operator’s personnel, to the extent not already paid for by Owner as part of the Direct Operating Expenses or Capital Improvement Expense.
“Effective Date” has the meaning specified in the Recitals.
“Emergency” means any event or circumstance which (a) requires prompt action, and (b) in the reasonable opinion of a prudent operator, could be expected to have an adverse effect on the Plant, endanger the health or safety of any Person, or cause significant damage to property.
“Environmental Allocation” has the meaning specified in the Exhibit E.
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to (i) the environment, (ii) the preservation or reclamation of natural resources, (iii) the management, environmental release or threatened environmental release of any hazardous substance or (iv) health and safety matters, including the California Environmental Quality Act, California Public Resource Code §§ 21000 et seq.; Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq.; the Resource Conservation and Recovery Act, as the same may be amended from time to time, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq.; the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq.; the Endangered Species Act, 16 U.S.C. §§ 1531 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.; the Clean Air Act, 42 U.S.C. §§ 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C. §§ 1801 et seq. and the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq.; and any state and local counterparts or equivalents, in each case as amended from time to time.
“EPC Agreement” means that certain Engineering, Procurement and Construction Agreement between EPC Contractor and Owner, dated as of November 30, 2011.
“EPC Contractor” means Sunora.
“Event of Default” means, with respect to Owner, an Owner Event of Default and with respect to Operator, an Operator Event of Default.
“Financing” means any development, bridge, construction, direct or indirect tax equity, lease equity, and/or permanent equity and/or debt financing or refinancing of (including any prospective sale-leaseback transaction), or any other extension of credit for, the development, construction, ownership, leasing, operation or maintenance (including working capital) of the Plant, whether that financing or refinancing takes the form of private debt or equity, public debt or equity or any other form.
“Financing Agreements” means any agreement entered into by Owner evidencing a Financing (and any documents relating to or ancillary to the foregoing).
“Financing Party” means any Person providing Financing and any trustee or agent acting on any such Person’s behalf, and their successors and assigns.
“Fiscal Year” means a calendar year beginning on January 1st and ending on December 31st.
“Force Majeure Event” means any event or circumstance or combination of events or circumstances that (i) adversely affects, prevents or delays any Party (including such Party’s Subcontractors) in the performance of its obligations hereunder, (ii) is beyond the reasonable control of the affected Party, and (iii) is the type of event customarily recognized as a force majeure event including earthquake, fire, flood, hurricane, storm, tornado, or other act of God, civil disturbance, war (declared or not), terrorism, hostilities, blockade, revolution, regional or national strike, insurrection or riot that prevents the affected Party from securing requisite equipment, supplies, materials or labor or otherwise performing its obligations (other than the payment of money). Material, equipment, labor or supply price escalation shall not be considered a Force Majeure Event. Economic hardship including lack of money or credit resulting in the inability to make payments shall not be considered a Force Majeure Event. For clarity, Change of Law and the inability to obtain Financing for the Plant shall not be considered a Force Majeure Event.
“Forecast Budget” has the meaning specified in Section 3.4.12.
“Foreign Asset Control Regulations” has the meaning given such term in Section 21(e).
“Governmental Authority” means any federal, state, local, municipal or other governmental, regulatory, administrative, judicial, public or statutory instrumentality, court or governmental tribunal, agency, commission, authority, body or entity, or any political subdivision thereof, having legal jurisdiction over the matter or Person in question.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Indemnified Party” has the meaning specified in Section 10.3.
“Initial Term” has the meaning specified in Section 2.1.
“Intellectual Property” or, interchangeably, “IP”, shall mean all intellectual property and similar proprietary rights held by any Person in any jurisdiction, including all such rights in and to (i) computer software or hardware, whether or not copyrightable, including all databases, source codes, object codes, programs, applications, tables, models, repositories, specifications and documentation; (ii) original works of authorship, whether copyrightable or not, copyrights, and all renewals, modifications, translations thereof, and any Moral Rights relating thereto; (iii) patents; (iv) trademarks, service marks, brand names, certification marks, trade dress, assumed names, trade names and other indications of origin; and (v) know-how and other business information, trade secrets, ideas, concepts, methodologies, processes, development tools, techniques, inventions, innovations, diagrams, sketches, drawings, models, manuals, photographs, calculations, maps, notes, reports, data, models, samples and documentation, in each case to the extent proprietary, confidential and not in the public domain.
“Licensed Materials” means the drawings, specifications, documents, designs, plans or software prepared by or on behalf of Operator and/or the Subcontractors in connection with or used in the performance of Operator’s obligations hereunder.
“Materials” means any and all material, equipment, and supplies, including consumable supplies, tools, spare parts and office supplies, necessary for the performance of the Work.
“Moral Rights” shall mean certain rights of authors of original works subject to copyright, including but not limited to all rights of integrity, paternity, attribution, disclosure and withdrawal with respect to any original work, and any other rights that may be known or referred to as “moral rights.”
“NOVs” has the meaning specified in the Exhibit E.
“OEM Manuals” means the manuals attached hereto as Exhibit F.
“Operating Year” has the meaning specified in Exhibit E.
“Operator” has the meaning specified in the Preamble.
“Operator Event of Default” has the meaning specified in Section 16.1.
“Operator Indemnified Party” means Operator, its successors and assigns, and each of their Associated Parties.
“Operator Related Parties” means Operator and its Affiliates, and their respective members, shareholders, partners, directors, officers and employees.
“Operator Representative” has the meaning specified in Section 6.4.
“Overtime” has the meaning specified in Exhibit E.
“Owner” has the meaning specified in the preamble.
“Owner Event of Default” has the meaning specified in Section 16.2.
“Owner Indemnified Party” means Owner, the Financing Parties, each of their successors and assigns, each of their Associated Parties.
“Owner Representative” has the meaning specified in Section 6.2.
“Paid Absences” has the meaning specified in Exhibit E.
“Party” or “Parties” has the meaning specified in the Preamble.
“Payroll Additives” has the meaning specified in Exhibit E.
“Payroll Taxes” has the meaning specified in Exhibit E.
“Permit” means the permission granted by any Governmental Authority to do an act that would otherwise be impermissible, including all licenses, permits, consents, authorizations, approvals, ratifications, certifications, registrations, exemptions, variances, exceptions and similar consents granted or issued by any Governmental Authority, and, with respect to the Plant, the Permits set forth on Exhibit J.
“Permitted Excess Expenditures” means expenditures that do not exceed ten percent, (10%) when considered individually, of the amount allocated for such expenditures, or five percent (5%) when considered in the aggregate of the entire amount of the applicable Annual O&M Budget.
“Person” means an individual, corporation, partnership, limited liability company, trust, unincorporated association, joint venture, joint-stock company, Governmental Authority, or any other entity.
“Plant” has the meaning specified in the Recitals.
“Plant Budget Allocation” has the meaning specified in the Exhibit E.
“Plant Control Systems” means remote monitoring systems used by Operator in compliance with Prudent Operating Practices, which may include a SCADA System and/or “Solar Field Integrated Control” systems.
“Plant Availability Allocation” has the meaning specified in the Exhibit E.
“Plant Personnel” means the personnel of Operator or its Affiliates or the Subcontractors of any of them who are assigned to the Plant on a full time basis to perform the Work.
“Post-Project Substantial Completion Work” has the meaning specified in Section 3.4.
“PPA” means the Power Purchase and Sale Agreement between Owner and San Diego Gas and Electric Company, a California corporation (“SDG&E”), dated as of January 25, 2011, as amended.
“Pre-Project Substantial Completion Work” has the meaning specified in Section 3.3.
“Project Agreements” means the agreements listed on Exhibit G.
“Project Records” means all records relating to the Plant accumulated, prepared or maintained by the Operator per request of or for Owner as part of the Work under this Agreement during the Term, whether prepared on paper, stored electronically, or by any other media.
“Project Substantial Completion” has the meaning set forth in the EPC Agreement.
“Prudent Operating Practices” means any of the practices, methods and acts engaged in or approved by a significant portion of the photovoltaic solar power generation industry in the United States during the relevant time period, or any of the practices, methods and acts which, in
the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good electric power generation practices, reliability, safety and expedition. Prudent Operating Practices is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to refer to a range of acceptable practices, methods and acts.
“Receiving Party” has the meaning specified in Section 19.3.1.
“Reconciliation Amount” has the meaning specified in Section 8.2
“Recordable Injury or Illness” means any injury or illness that, in accordance with the California Occupational Safety and Health Act of 1973, as amended, and the CalOSHA standards at 8 CCR 14300 - 14300.48, is required to recorded on an employer’s Cal/OSHA Form 300.
“Renewal Term” has the meaning specified in Section 2.1.
“Requirements” has the meaning specified in Section 3.1.
“Safety Allocation” has the meaning specified in the Exhibit E.
“Salary and Wages” has the meaning specified in Exhibit E.
“SCADA System” means the Plant’s remote control and monitoring system, including central computer and remote PC system.
“Site Rules” means those reasonable rules, regulations and procedures related to the safe performance of the work and security of the site developed by Operator for Owner’s review and approval.
“Straight Time” has the meaning specified in Exhibit E.
“Subcontractor” means subcontractor, consultant or supplier.
“Sunora” means Sunora Energy Solutions I LLC, a Delaware limited liability company.
“Support Personnel” means the personnel of Operator or its Affiliates or the contractors of any of them who are assigned, as their principal work location, to work sites other than the Plant. The Direct Labor Expenses of Support Personnel while working on a project for the Plant are billed directly to Owner. Support Personnel may perform Work on a part time basis. Table E-1 of Exhibit E provides a matrix of the positions and functions in the Support Personnel classification and the positions and functions included in the Basic Corporate Overhead Expense. Support Personnel shall not include Plant office personnel.
“Term” means the Initial Term and any Renewal Terms.
“Work” means the duties and obligations of Operator required under this Agreement, including the Post-Project Substantial Completion Work and the Pre-Project Substantial Completion Work.
1.2 Rules of Interpretation.
(a) Whenever the context may require, any pronoun used in this Agreement includes the corresponding masculine, feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs include the plural and vice versa.
(b) As used in this Agreement, accounting terms not defined in this Agreement shall have the respective meanings given to them under generally accepted accounting principles in the United States of America.
(c) The words “hereof,” “herein,” “hereunder,” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Except as expressly set forth herein, a reference to a Section, an Article, an Exhibit or a Schedule means a Section in, an Article of, an Exhibit to or a Schedule to, this Agreement.
(d) The terms “include,” “includes” and “including” shall be construed as followed by the words “without limitation.”
(e) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or Applicable Law defined or referred to herein (or provision thereof) means such agreement, instrument or Applicable Law (or provision thereof) as from time to time amended, supplemented or otherwise modified and includes references to all attachments thereto and provisions incorporated therein.
(g) Any references to a Person are also to its successors and permitted assigns and, in the case of any Governmental Authority, shall be construed as including a reference to any Governmental Authority succeeding to its functions and capacities.
(h) The descriptive headings of all Articles and Sections of this Agreement are formulated and used for convenience only and are not be deemed to affect the meaning or construction of any such Article or Section.
(i) All Exhibits, Appendices and Schedules attached hereto are incorporated herein and made a part hereof.
2. TERM, EXPIRATION AND TERMINATION.
2.1 Initial Term; Renewal Terms. This Agreement shall be for an initial term of five (5) years commencing on the Effective Date (the “Initial Term”). Upon expiration of the Initial Term, the term of this Agreement shall automatically be extended in one (1) year increments
(each, a “Renewal Term”), unless either Party delivers written notice of termination to the other Party no later than 180 days prior to the expiration of the Initial Term or the applicable Renewal Term, as the case may be.
2.2 Early Termination by Either Party. This Agreement may be terminated by either Party upon thirty (30) Days’ prior written notice to the other Party upon the occurrence and continuation of an Event of Default by the other Party which remains uncured beyond all applicable notice and cure periods, subject, however, to any and all the rights of Financing Parties hereunder. In the event of termination pursuant to this Section 2.2, Section 2.3, Section 2.4 or Section 16, Owner shall pay to Operator to the extent not yet paid:
2.2.1 All Direct Operating Expenses and Capital Improvement Expenses incurred by Operator that have not been paid or reimbursed by Owner through the effective date of termination;
2.2.2 Any Basic Corporate Overhead Expenses and Annual Profit Fees earned but not paid through the effective date of termination (provided that, if such termination is due to an Operator Event of Default, Operator shall forfeit any Annual Profit Fees earned after the Event of Default giving rise to such termination); and
2.2.3 Unless such termination is due to an Operator Event of Default or pursuant to Section 2.4, Operator’s Early Termination Costs.
2.3 Early Termination by Owner. In addition to its right to terminate this Agreement pursuant to Section 2.2, Owner may terminate this Agreement for its convenience, subject to the prior written consent of each Financing Party, by providing Operator not less than 180 days’ prior written notice of the effective date of termination. Owner will also be entitled to terminate this Agreement by delivery of thirty (30) days’ written notice of termination to the Operator (i) if the existence of a Force Majeure Event continues for more than one hundred twenty (120) days or if the cumulative aggregate duration of Force Majeure Event exceeds one hundred fifty (150) days or (ii) in the event of the destruction, condemnation or other loss of all or substantially all of the Plant without reconstruction or repair so as to effectively terminate the operation of the entire Plant permanently.
2.4 Early Termination by Operator. In addition to its right to terminate the Agreement pursuant to Section 2.2, Operator may terminate this Agreement if Operator ceases to be an Affiliate of any member of Owner; provided that termination pursuant to this Section 2.4 shall be effective 180 days after written notice of such termination is received by Owner.
2.5 Rights and Duties Upon Termination. On the effective date of expiration or termination of this Agreement by Owner or Contractor, Owner shall assume and become responsible for the operation and maintenance of the Plant, including entering into new contracts with third parties for the provision of goods and services. If the Plant is to continue in operation, Owner and Operator shall cooperate with each other and with any new operator to achieve an orderly transition, including (a) if permitted by the terms of the applicable contract or by the contractual counterparty, the assignment to Owner or its designee of all contracts relating to the Plant entered into by Operator, and (b) to the extent assignable, the transfer to Owner or its
designee of all Permits required by a Governmental Authority to be held in Operator’s name as a proxy for the Owner.
2.6 Final Settlement. Within three (3) months after the effective date of expiration or termination of this Agreement, Operator shall provide to Owner a settlement statement which reconciles all payments received from Owner with fees and expenses compensable to Operator in accordance with this Agreement. Owner shall pay the amount owed to Operator as shown on the settlement statement within thirty (30) Days of receipt of the settlement statement, and such amount shall be subject to audit in accordance with Section 14. The Parties shall use reasonable commercial efforts to complete the audit and reach mutual agreement on all matters related to the settlement statement within three months after it is presented to Owner.
3. SCOPE OF WORK.
3.1 Standard of Performance. During the Term, Operator shall perform the Work in accordance with the OEM Manuals, Annual Maintenance Plan, Prudent Operating Practices, Applicable Law, all applicable Permits, the Site Rules, the Project Agreements and the other requirements of this Agreement (the “Requirements”). If there are any conflicts between or among the standards of performance derived from the Requirements, Operator shall promptly notify Owner of the conflict, and Operator shall request Owner’s instructions as to how to reconcile the conflict. The Parties shall cooperate and negotiate in good faith to make such modifications to this Agreement to the extent such a modification is necessary to resolve the conflict.
3.2 Management of Employees. The exclusive management, direction and control of Plant Personnel, Support Personnel and any other employees of Operator shall always reside in Operator. Subject to compliance with the Requirements, Operator shall complete the Work according to Operator’s own means and methods, which shall be in the exclusive charge and control of Operator.
3.3 Duties of Operator Prior to Project Substantial Completion. Prior to Project Substantial Completion, Operator shall perform the following activities (“Pre-Project Substantial Completion Work”):
3.3.1 Operator shall familiarize itself with the Plant, review all relevant Plant related agreements, prepare operations and maintenance plans and manuals conforming to the OEM Manuals (to the extent such OEM Manuals are available) and all other specific operation and maintenance manuals received from major equipment vendors, prepare training procedures, provide adequately trained Plant Personnel and Support Personnel, assist with plant commissioning and the acceptance and performance tests under the supervision, direction and control of the EPC Contractor and other major equipment suppliers pursuant to the respective Project Agreements, and prepare for operation and maintenance of the Plant and conduct of the Post-Project Substantial Completion Work following Project Substantial Completion. The Pre-Project Substantial Completion Work shall also include the work described in Exhibit H attached hereto.
3.3.2 No later than three months before the expected date of Project Substantial Completion, Operator shall submit the final Annual Maintenance Plan for the first Operating Year for approval by Owner. The preliminary Annual Maintenance Plan is set forth in Exhibit D-1.
3.4 Specific Duties of Operator During Operations. Following Project Substantial Completion, Operator shall perform the following activities with respect to the operating Plant in conformity with the Annual Maintenance Plan (the “Post-Project Substantial Completion Work”):
3.4.1 Supervise and manage the day-to-day operation of the Plant, Plant Personnel and Support Personnel, and provide contractual administration on behalf of Owner with respect to any other contractor of Owner performing any function or services at or in connection with the Plant in accordance with the terms and conditions of applicable purchase orders and contracts. If Operator becomes aware of any breach or failure of any other contractor of Owner in the performance of its duties or obligations under any purchase order or contract, Operator shall provide prompt written notice of the same to Owner. Owner shall be responsible for taking any legal or other action necessary to cause its other contractors to comply with their obligations or responsibilities.
3.4.2 Provide training required to enable Operator’s employees to obtain, develop or maintain the skills and techniques necessary to enable Operator to perform its obligations under this Agreement in accordance with the Requirements.
3.4.3 Repair and maintain the Plant, including all scheduled and unscheduled maintenance and repairs required to keep the Plant in safe and efficient operating condition. Operator shall conduct scheduled outages for periodic maintenance as provided for in the Annual Maintenance Plan. Operator shall diligently conduct repair efforts related to unplanned outages and restore the Plant to operation as soon as is reasonably practicable in accordance with Prudent Operating Practices. At the reasonable request of Owner, Operator shall use all reasonable efforts to reschedule any previously scheduled outage and minimize any attendant costs to Owner.
3.4.4 Provide all engineering and technical services required to support the operation and maintenance of the Plant. In connection therewith, Operator shall use, and shall be entitled to reasonably rely on, the most recent technical data and other information (including any Intellectual Property) which Owner has furnished to Operator.
3.4.5 Provide environmental services in accordance with Section 9.2 as required to support operation and maintenance of the Plant in a manner consistent with all Requirements, including all Permits and the requirements of cognizant Governmental Authorities, and in accordance with all Applicable Laws, including obtaining and maintaining such Permits as are required by a Governmental Authority to be in Owner’s name (to the extent possible and lawful, otherwise Permits shall be held in Operator’s name) and documenting use, on-site storage, and coordination of disposition of Hazardous Materials and wastes in accordance with applicable Environmental Laws. Operator shall assist Owner in obtaining and maintaining any Permits, registrations or
authorizations necessary for operation of the Plant that are required by a Governmental Authority to be held in Owner’s name.
3.4.6 Operate and maintain the Plant in a manner consistent with the Requirements, including with respect to personnel safety and equipment protection.
3.4.7 Maintain records of the operations and maintenance of the Plant (including operating logs and other information required by the PPA), maintain financial books and records relative to the costs of operating and maintaining the Plant in accordance with U.S. generally accepted accounting principles, consistently applied, and make such records available for inspection by Owner or any designees of Owner during normal business hours.
3.4.8 Provide to Owner within fifteen (15) Business Days after the end of each month a report in respect of Direct Operating Expenses and Capital Improvement Expenses, comparing the actual expenses to the approved Annual Maintenance Plan’s Annual O&M Budget for the preceding month and for the applicable year through the end of such preceding month.
3.4.9 Use commercially reasonable efforts to secure and enforce all warranties (including any availability or other performance guarantees) for Materials and services purchased for the Plant and administer any Claims related thereto, including those provided by any Subcontractor of Operator.
3.4.10 Provide security and property management services, such as janitorial, landscaping, weed abatement, road maintenance, drainage control, perimeter fence repairs, gate maintenance and building maintenance services, in accordance with Prudent Operating Practices.
3.4.11 Provide to Owner by the fifteenth (15th) Business Day of each month a report for the prior month based on the components set forth in Exhibit B. Operator shall also provide to Owner any other information regarding the operation and maintenance of the Plant reasonably requested by Owner. Upon the reasonable request of Owner, Operator’s Representative shall meet with Owner to discuss the performance of the Work and operation of the Plant.
3.4.12 On or before October 1st of each calendar year, prepare and submit to Owner a proposed Annual Maintenance Plan for approval by Owner. This plan shall include the following items as further described below.
· Planned outages for the following year in the form required under the PPA;
· The proposed Annual O&M Budget for next calendar year;
· The Forecast Budget (as defined below); and
· Support for the Annual O&M Budget and the Forecast Budget.
The proposed Annual O&M Budget for the next calendar year will be based on Operator’s assessment of the Work to be performed during such year and the proposed means of performing such Work in accordance with the Requirements. The proposed Annual O&M Budget shall include line item budget appropriations for Direct Operating Expenses, Capital Improvement Expenses, the recommended amount for the Contingency, expenses of Operator’s Subcontractors and anticipated cash flow requirements for such year.
In addition, as part of the Annual Maintenance Plan the Operator shall also provide a Forecast Budget for the following five years (the “Forecast Budget”). As support of the Annual O&M Budget and the Forecast Budget, the Operator shall provide descriptions of Operator’s underlying assumptions relating to, and Operator’s recommendations regarding, scheduled and unplanned outages (as set forth in Exhibit D-1)), major maintenance and capital repairs, and improvements and additions, which are included in such proposed Annual Maintenance Plan.
Owner shall indicate in writing its comments on the proposed Annual Maintenance Plan, and submit any recommended changes thereto, within fifteen (15) Days after its receipt of the proposed Annual Maintenance Plan; provided that Owner may submit changes to planned outage schedule after such date if Owner receives comments from SDG&E under the PPA after such date. Operator shall confer with Owner about such comments or recommended changes and submit a revised Annual Maintenance Plan (accompanied by a written statement of Operator’s reasons for accepting or rejecting any such comments or recommended changes) promptly following receipt of such comments or recommended changes. This process shall continue until the Annual Maintenance Plan is approved. If Owner fails to approve an Annual Maintenance Plan for any calendar year prior to the commencement of such year, the Parties shall use the prior year’s Annual Maintenance Plan with respect to Direct Operating Expenses and other expenses less than $100,000 per project item, including Capital Improvement Expenses, until a new Annual Maintenance Plan is agreed, except that the Annual O&M Budget for the prior year shall be increased annually for inflation (but not decreased for deflation) based on the CPI.
Operator shall operate and maintain the Plant in accordance with the Annual Maintenance Plan approved by Owner for the period in question. Operator shall make recommendations to Owner with respect to budget and scope adjustments that may be required to maintain overall compliance with the Annual Maintenance Plan, and Owner may consider such recommendations in its sole discretion.
3.4.13 Operator shall maintain a continuous improvement program (including steps to maintain improvement of budget development and outage management processes) that is designed to target improving Plant performance metrics such as reliability and availability. Operator shall also make system performance enhancement recommendations as part of the performance reporting process for any changes, adjustments or modifications that should be made to Plant.
3.4.14 Operator shall continuously monitor the Plant remotely through the SCADA System. If Operator detects an alarm or error message or observes that a piece of equipment is not operating properly in the course of such monitoring, it shall take such actions remotely through the SCADA System or at the Plant as are reasonably necessary to respond to such alarm or error message, including effecting remote resets, when possible, or by performing manual resets at the Plant, in each case, as soon as reasonably practicable. Promptly after taking any such actions, Operator shall make its personnel at the Plant and Owner aware of the existence and nature of such actions and the related error or alarm codes. Operator shall also provide analytical services to analyze generation shortfalls, including the cause of such shortfall and propose resolutions for equipment operating below expected standards of operation.
3.4.15 Administer all Project Agreements and other service contracts relating to the operation and/or maintenance of the Plant, including the following with regard to Owner’s obligations under the PPA: communications with or related to CAISO including notices of emergencies and outages required to be provided to CAISO, provide accounting and reports of electric production in connection with the power sales, provide all planned outage and forced outage notifications to SDG&E required under the +PPA and all forecasts of energy and Plant availability required to be delivered to SDG&E under the PPA.
3.4.16 Perform any such additional services related to the operation, maintenance, renewals, replacements, additions and retirements pertaining to the Plant as Owner, by written notice to Operator, requests Operator to undertake and as Operator agrees in writing to undertake.
3.5 Emergency. In the event of any Emergency, Operator shall perform the following (and, unless such Emergency is caused by Operator’s acts or omission, shall be entitled to reimbursement for all reasonable costs, expenses and obligations incurred in connection therewith):
3.5.1 Operator shall take immediate and diligent action in accordance with Applicable Laws and Prudent Operating Practice to attempt to prevent such threatened damage, injury or loss and, as necessary, mitigate to the greatest extent reasonably practicable such damage, injury or loss;
3.5.2 Operator shall notify all third parties, including fire departments, government agencies, and national response centers, as required by Applicable Law; and
3.5.3 Operator shall notify the Owner’s Representative of any emergency, by telephone, facsimile or electronic mail, as soon as practicable following the occurrence of such Emergency given the circumstances, which notice shall include detail with respect to any action being taken or instigated by Operator in response thereto.
3.6 Notification to Owner. Upon obtaining knowledge thereof, Operator shall promptly deliver Notice of each of the following to Owner’s Representative:
3.6.1 Any pending or threatened litigation, claim, dispute, action, investigation or proceeding by any Person concerning the Plant or the Work;
3.6.2 Any refusal or threatened refusal to grant, renew, or extend any existing Permit, or any pending or threatened litigation, claim, dispute, action or proceeding that might adversely affect the granting, renewal or extension of any relevant Permit;
3.6.3 Copies of any outage or other notifications required to be delivered to CAISO or SDG&E under Section 3.4.15;
3.6.4 Any incidents at the Plant resulting in death, lost time injury or serious injury to any individual, with written notice to follow within twenty-four (24) hours;
3.6.5 Any discovery of Hazardous Materials at the Plant that are not already recorded on the logs Operator is required to maintain in accordance with Applicable Law and previously notified to Owner or any incident the occurrence of which might reasonably require Operator to provide notification to a Governmental Authority under Applicable Law or Permits or which otherwise may reasonably be expected to result in any regulatory liability to Owner; and
3.6.6 Any other event or circumstance that reasonably could be expected to adversely impact the operation of the Plant in any material manner including labor disputes, material violation of any Applicable Laws or Permits, or material damage to any of the major pieces of equipment comprising the Plant.
3.7 Safety. Operator shall take reasonable safety and other precautions consistent with Prudent Operating Practices to protect persons and property from damage, injury or illness arising out of the performance of the Work. Operator shall prepare for Owner’s review and approval a safety manual that shall incorporate the following elements: (i) identification of the Person(s) responsible to implement and enforce the safety program; (ii) identification of safety hazards and correction procedures; (iii) requirements for safety meetings and safety training procedures; (iv) procedures for documenting safety infractions; and (v) general safety regulations and procedures. Operator shall maintain in form and content reasonably acceptable to Owner statistics regarding jobsite accidents, injuries and illnesses at the Plant as required by Applicable Law, which shall be available for inspection by and submitted to Owner upon its written request.
4. CHANGE ORDERS. If Owner and Operator agree that Operator’s scope of responsibilities under this Agreement shall be or has been increased or, consistent with Prudent Operating Practices, decreased, or if it appears to either Party that a change is required to the Annual Maintenance Plan to conform the Annual Maintenance Plan to actual circumstances or events, Owner and Operator may in their respective discretion agree upon such amendments to this Agreement, or the Annual Maintenance Plan, as the case may be. Such amendments shall be reflected in a document executed by both Owner and Operator (a “Change Order”). Without limiting the generality of the foregoing, if Owner and Operator agree that Operator’s costs of performing the Work are materially increased as a result of any change in Applicable Law, any change to any agreement, instrument or document referred to herein relating to the Plant or any expenditures or services required of Operator in connection with any cooperation provided under
Section 6.1 that would not otherwise be required to operate or maintain the Plant, in each case occurring after the date hereof, occurring as a result of actions outside Operator’s control, and affecting the scope of Operator’s responsibilities under this Agreement, then Owner and Operator shall agree upon an equitable adjustment to the Basic Corporate Overhead Expense and/or an adjustment to Operator’s Compensation whereby Operator shall be entitled, upon submission of proper invoices and supporting documentation, to be reimbursed for such increased costs and shall reflect such adjustment in a written Change Order. In addition and without limiting the generality of the foregoing, if Operator’s costs of performing the Work are materially increased as a result of any expenditures or services required of Operator in connection with any cooperation provided under Section 6.1 in furtherance of the contracts listed in such section that would not otherwise be required to operate or maintain the Plant, then Owner and Operator shall agree upon an equitable adjustment to the Basic Corporate Overhead Expense and/or an adjustment to Operator’s compensation whereby Operator shall be entitled, upon submission of proper invoices and supporting documentation, to be reimbursed for such increased costs and shall reflect such adjustment in a written Change Order. If any such change in scope is initiated by Operator, Operator shall notify Owner of its estimate of the increased costs caused by such change in scope at or prior to the time the relevant Change Order is submitted to Owner for approval.
5. OPERATOR’S AUTHORITY; SUBCONTRACTING; PARTS.
5.1 Operator’s Authority. Operator shall have the authority to procure and make expenditures for such items, parts, materials and services as are deemed necessary by Operator in completing the Work, provided that such procurement and expenditures comply with the Annual Maintenance Plan, the Requirements, and the other terms and conditions of this Agreement. In doing so, Operator shall keep Owner timely informed and obtain Owner’s prior approval for any expenditures that are not set forth in the Annual Maintenance Plan or that do not qualify as Permitted Excess Expenditures. Operator shall not require Owner’s prior approval, and Owner shall reimburse Operator for, any Permitted Excess Expenditures. Notwithstanding the foregoing, during an Emergency or other unexpected contingency, Operator is authorized to make such expenditures and take such other actions, whether budgeted or not, as Operator shall determine to be reasonably necessary in order to comply with this Agreement, applicable Permits, Applicable Laws or to otherwise protect the Plant, individuals or other property and to maintain the Plant in a safe condition consistent with Prudent Operating Practices. If any such unbudgeted costs and expenditures are incurred, Operator shall promptly notify Owner of such action, specifying the particulars of the events giving rise to such costs and expenditures, and shall promptly submit a revision to the Annual Maintenance Plan to encompass the costs and expenditures incurred, as well as those expected to be incurred, as a result of such Emergency or other unexpected event, and such costs and expenditures reasonably incurred shall be reimbursed in accordance with Exhibit E.
5.2 Subcontracts. No subcontract entered into by Operator shall prohibit or restrict assignment of such agreement by Operator to Owner. Operator shall not be relieved of any of its obligations or liabilities under this Agreement by reason of any subcontract and shall be responsible for the acts and omissions of its Subcontractors in their performance of the Work to the same extent as if such acts and omissions were performed or made by Operator.
5.3 Parts. Operator may not, in performing the Work, procure and employ used, non-OEM or reverse engineered equipment and parts without the express approval and permission of Owner. Materials, equipment and parts procured by Operator shall comply with all Requirements including any conditions required to maintain warranties covering the Plant or any portion or component thereof in effect, and shall be inspected and tested by Operator in accordance with Prudent Operating Practices and any obvious defects shall be noted and handled appropriately.
designation shall have been previously revoked) may be conclusively relied upon by Owner as having been authorized by Operator.
7.1 Responsibilities of Owner. Owner shall be responsible for the following:
(a) Providing Operator and its Subcontractors with access to and within the Plant at all times and without prior notice as reasonably necessary for Operator to perform the Work;
(b) If Owner brings third parties onto the Plant site, Owner shall comply, and be responsible for each third party’s compliance, with the safety requirements of the Plant site and any operating or other procedures or protocols related to the Plant. Owner shall not give Plant access to any competitor of the vendor supplying the major generation equipment to the Plant, without first obtaining Operator’s consent;
(c) All communications regarding power sales (except as specified in Section 3.4.15), contracting regarding power sales, and bidding regarding power sales;
(d) Providing all facilities and infrastructure required for Operator’s and its Subcontractors’ performance of the Work;
(e) Obtaining all Permits or licenses required by a Governmental Authority to be in Owner’s name which are necessary to enable Operator or its Subcontractors to operate and maintain the Plant;
(f) Water supply, telephone service, public address system, local data network, in—plant radio system, water and waste disposal (other than
Hazardous Materials) and all other utilities as deemed desirable by mutual agreement of Owner and Operator for the execution of the Work;
(g) Providing Operator with reasonably prompt written notice of any changes in the expected date of Project Substantial Completion when compared to that set forth in the schedule for such event set forth in the EPC Agreement; and
(h) Providing Operator with copies, within a reasonable time period following any request from Operator, of any agreements or other documentation the review of which is part of Operator’s Work hereunder.
8.3.1 If at any time during any month Operator requires additional sums from Owner for unanticipated expenses in excess of 10% over the amounts for Direct Operating Expenses and Capital Improvement Expenses pre-funded by Owner in
accordance with Section 8.2, Operator shall promptly notify Owner. Subject to Section 5.1, Owner shall pay by electronic funds transfer the amount of such shortfall to Operator by the later to occur of (a) fifteen (15) Business Days after receipt of such notice, or (b) as soon as allowed by the Financing Agreements.
8.3.2 Operator shall not be under any obligation to use its own funds to pay any Subcontractors or vendors any amounts included in the Compensation that have not been paid by Owner and shall be indemnified by Owner, beginning on the Effective Date, for Claims suffered by Operator as a result of Owner’s failure to provide funds in accordance with this Section 8.
9. COMPLIANCE WITH LAWS AND PERMITS.
the Plant (other than as permitted by applicable Environmental Laws). Owner shall indemnify, defend, and hold harmless the Operator Indemnified Parties from and against any Claims arising from (i) unpermitted releases of Hazardous Materials into the air, soil, surface water or groundwater at the Plant caused by Owner or any its representatives, employees or agents (excepting Operator, its representatives, employees, agents, contractors or Subcontractors including any Plant Personnel or Support Personnel) or (ii) Hazardous Materials existing at the Plant site prior to the date Contractor mobilizes to the Plant site. Operator shall defend, indemnify and hold the Owner Indemnified Parties harmless against, and shall reimburse Owner for any Claims resulting from or related to any unpermitted releases of Hazardous Materials into the air, soil, surface water or groundwater at or from the Plant caused by the acts or omissions of Operator, its representatives, employees, agents, contractors or Subcontractors (including any Plant Personnel or Support Personnel), except for Hazardous Materials existing at the Plant site prior to the date Contractor mobilizes to the Plant site. The amount of any indemnity payable under this Section 9.2 shall be reduced by the amount of all net insurance proceeds received by the indemnified parties in respect of the occurrence of the event giving rise to the indemnification obligation hereunder.
10. ALLOCATION OF RISKS AND LIABILITY.
10.1 General Indemnity by Operator. Operator shall indemnify, defend and hold harmless the Owner Indemnified Parties from and against any and all Claims of whatsoever kind or character, that could be brought by Operator or that are brought by any of Operator’s directors, officers, managers or employees or by any Person other than Owner or any of its Affiliates (other than Operator), including reasonable attorneys’ fees and expenses, for injury or death of persons or physical loss of or damage to property of Persons arising from (1) Operator’s (including it employees’ or agents’) fraud, gross negligence or willful misconduct, (2) claims from Governmental Authorities related to the failure of Operator or any Operator Related Party to pay taxes for which any such party is responsible, or (3) the violation of any Applicable Law by Operator or any Operator Related Party, except to the extent such injury, death, loss or damage arises from: (i) the fraud, gross negligence or willful misconduct of any Owner Indemnified Party; or (ii) the breach of this Agreement by Owner; or (iii) the violation of any Applicable Law by any Owner Indemnified Party.
The amount of any such indemnity payable by the Operator shall be reduced by the amount of all net insurance proceeds received by the Owner Indemnified Parties in respect of the occurrence of the event giving rise to the indemnification obligation hereunder.
property of Persons, arising from (1) the fraud, gross negligence or willful misconduct of any Owner Indemnified Party, (2) claims from Governmental Authorities related to the failure of any Owner Indemnified Party to pay taxes for which any such party is responsible, or (3) the violation of any Applicable Law by any Owner Indemnified Party, except to the extent such injury, death, loss or damage arises from: (i) the fraud, gross negligence or willful misconduct of any Operator Related Party or any Operator Subcontractor of any tier in connection with performance of the Work; or (ii) the breach of this Agreement by the Operator; or (iii) the violation of any Applicable Law by Operator’s Related Parties or Operator’s Subcontractors of any tier.
The amount of any such indemnity payable by the Owner shall be reduced by the amount of all insurance proceeds received by the Operator Indemnified Party in respect of the occurrence of the event which gave rise to the indemnification obligation hereunder.
communications rendering it not reasonably practicable to give notice within the applicable time limit specified herein, then the Party claiming a Force Majeure Event shall give such notice as soon as reasonably practicable after the reinstatement of communications, but not later than five (5) Days after the reinstatement of such communications.
(a) Owner shall not, without the prior written consent of Operator, use the Licensed Materials or Operator IP, in relation to any project other than the Plant or for any expansion of the Plant; and
(b) Owner may use such Licensed Materials and Operator IP solely for and to the extent required for the operation, maintenance, repair and service of the Plant.
The Licensed Materials covered by the license set forth in this Article 15 are inseparable from the Materials and Work being furnished pursuant to this Agreement. As a result, this license, and all rights and obligations contained in this license, (i) shall continue with respect to the Plant for so long as the Plant remains in service and (ii) shall transfer with any transfer of the Plant or any portion thereof to any Person. All copies, but not the Intellectual Property therein, of the
Licensed Materials that are provided to Owner by Operator or its Subcontractors in connection with the performance of the Work shall become the property of Owner.
16.1.1 Except as otherwise expressly addressed in this Section 16.1, Operator is in material breach of its obligations or its representations and warranties under this Agreement and such material breach continues uncured for thirty (30) Days after receipt of written notice from Owner, provided that Operator’s cure period may be extended for such breaches not reasonably susceptible to cure within thirty (30) Days and Operator commences to cure such breach within such thirty (30) Day period and thereafter continuously and diligently pursues the cure of the breach to completion;
16.1.2 Operator assigns this Agreement and its obligations hereunder, except as permitted under Section 17.1;
16.1.3 Operator terminates its existence (except in the case of merger or other corporate reorganization to the extent permitted under the Financing Agreements) or voluntarily commences or acquiesces to bankruptcy, insolvency, reorganization, stay, moratorium or similar debtor-relief proceedings; or shall have become insolvent or generally does not pay its debts as they become due, or admits in writing its inability to pay its debts, or makes an assignment for the benefit of creditors; or
16.1.4 Insolvency, receivership, reorganization, bankruptcy, or similar proceedings shall have been commenced against Operator and such proceedings remain undismissed or unstayed for a period of ninety (90) Days.
16.2.1 Owner fails to pay to Operator any payment required under this Agreement that is not in dispute, and such failure continues for thirty (30) Days after receipt of written notice of such failure;
16.2.2 Except as otherwise expressly addressed in this Section 16.2, Owner is in material breach of its obligations or its representations and warranties under this Agreement and such material breach continues uncured for thirty (30) Days after receipt of written notice from Operator, provided that Owner’s cure period may be extended for such breaches not reasonably susceptible to cure within thirty (30) Days and Owner commences to cure such breach within such thirty (30) Day period and thereafter continuously and diligently pursues the cure of the breach to completion;
16.2.3 Owner terminates its existence (except in the case of merger or other corporate reorganization to the extent permitted under the Financing Agreements) or voluntarily commences or acquiesces to bankruptcy, insolvency, reorganization, stay,
moratorium or similar debtor-relief proceedings, or shall have become insolvent or generally does not pay its debts as they become due, or admits in writing its inability to pay its debts, or makes an assignment for the benefit of creditors; or
16.2.4 Insolvency, receivership, reorganization, bankruptcy, or a similar proceeding shall have been commenced against Owner and such proceeding remains undismissed or unstayed for a period of ninety (90) Days.
such legal opinions at the expense of Owner as may reasonably be requested in connection with any collateral assignment and consent.
designs, drawings, specifications, techniques, models, data, documentation, manuals, source code, object code, diagrams, flow charts, research, development, processes, procedures, know-how, manufacturing, development or marketing techniques and materials, development or marketing timetables, strategies and development plans, business plans, customer, supplier or personnel names and other information related to customers, suppliers or personnel, pricing policies and financial information, and other information of a similar nature, whether or not reduced to writing or other tangible form (provided the requirements of the preceding sentence are satisfied), and any other trade secrets. In no event, shall Confidential Information include (a) information known to Receiving Party prior to obtaining the same from Disclosing Party (provided that such knowledge did not involve a breach of confidentiality obligations by any Person from whom such knowledge was directly or indirectly obtained) as reflected by the written records of Receiving Party; (b) information in the public domain at the time of disclosure by Disclosing Party; (c) information obtained by Receiving Party from a third party rightfully in the possession of such information and who did not receive same, directly or indirectly, from Disclosing Party; or (d) information approved for public release by express prior written consent of an authorized officer of Disclosing Party.
19.3.2 Use of Confidential Information.
government or regulatory filings, including filings with any regulating authorities covering the relevant financial markets; (iii) to its attorneys, accountants, financial advisors or other agents that require such information in connection with their work; (iv) to actual and prospective lenders, investors and other financing sources and their advisors, in each case to the extent necessary or advisable in connection with any Person obtaining financing for the Plant; (v) in connection with an actual or prospective merger or acquisition or similar transaction involving such Party or the parent entity of such Party, (vi) in the case of disclosures by Operator, to its Subcontractors (of any tier), and (vii) in the case of disclosures by Owner, Affiliates of Owner and any Person that has an equity interest in the Plant. In each of cases (iii) through (vii) above, the Disclosing Party shall obtain from the third party to whom it seeks to disclose or to whom it has disclosed Confidential Information a binding confidentiality undertaking in writing agreeing to keep and use such information in confidence that is substantially similar to the undertakings of the Parties in this Article XIV (provided that no such agreement in writing shall be required from third parties who are in any event bound by legal or professional ethical obligations to maintain such confidentiality).
19.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of California, exclusive of any conflict of laws provisions that would apply the laws of another jurisdiction.
20. [RESERVED]
(a) The Operator is a limited liability company duly organized in the State of Delaware, qualified to conduct business in the States of Delaware and California and validly existing and in respect of which no action relating to insolvency or liquidation has, to the knowledge of the Operator, been taken.
(b) The execution, delivery and performance of this Agreement by the Operator have been duly authorized by all necessary action on the part of the Operator and do not and will not require the consent of (i) any trustee or holder of any indebtedness or other obligation of the Operator or (ii) any other Person that is not a Governmental Authority (other than any such consents which have already been obtained by the Operator).
(c) This Agreement has been duly executed and delivered by the Operator. This Agreement constitutes the legal, valid, binding and enforceable obligation of the Operator, subject to any applicable principles of equity or other similar law.
(d) No governmental authorization, approval, order, license, permit, franchise or consent, and no registration, declaration or filing with any Governmental Authority is required on the part of the Operator in connection with the execution, delivery and performance of this Agreement, except those which have already been obtained or which the Operator anticipates will be obtained in a timely manner and in the ordinary course of performance by the Operator and the Owner of this Agreement.
(e) The execution, delivery and performance of this Agreement by Operator will not conflict with, result in the breach of, constitute a default under or accelerate performance required by any of the terms of its certificate of formation, limited liability company agreement or any Applicable Laws or any covenant, agreement, understanding, decree or order to which it is a party or by which it or any of its properties or assets is bound or affected.
(f) There are no actions, suits, proceedings or investigations pending or, to Operator’s knowledge, threatened against Operator at law or in equity before any court or other Governmental Authority or any arbitration panel, which individually or in the aggregate may result in any material adverse effect on its business, properties or assets or its condition, financial or otherwise, or in any impairment of its ability to perform its obligations under the Agreement.
(a) The Owner is a limited liability company duly organized in the State of Delaware, qualified to conduct business in the States of Delaware and California and validly existing and in respect of which no action relating to insolvency or liquidation has, to the knowledge of the Owner, been taken.
(b) The execution, delivery and performance of this Agreement by the Owner have been duly authorized by all necessary action on the part of the Owner and do not and will not require the consent of any trustee or holder of any indebtedness or other obligation of the Owner or any other party to any other agreement with the Owner (other than any such consents which have already been obtained by the Owner).
(c) This Agreement has been duly executed and delivered by the Owner. This Agreement constitutes the legal, valid, binding and enforceable obligation of the Owner, subject to any applicable principles of equity or other similar law.
(d) No governmental authorization, approval, order, license, permit, franchise or consent, and no registration, declaration or filing with any Governmental Authority is required on the part of the Owner in connection with the execution, delivery and performance of this Agreement, except those which have already been obtained or which the Owner anticipates will be timely obtained in the ordinary course of performance by the Operator and the Owner of this Agreement.
(e) The execution, delivery and performance of this Agreement by Owner will not conflict with, result in the breach of, constitute a default under or accelerate performance required by any of the terms of its certificate of formation, limited liability company agreement or any Applicable Laws or any covenant, agreement, understanding, decree or order to which it is a party or by which it or any of its properties or assets is bound or affected.
(f) There are no actions, suits, proceedings or investigations pending or, to Owner’s knowledge, threatened against Owner at law or in equity before any court or other Governmental Authority or any arbitration panel, which individually or in the aggregate may result in any material adverse effect on its business, properties or assets or its condition, financial or otherwise, or in any impairment of its ability to perform its obligations under the Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Operation and Maintenance Agreement to be effective as of the date first above written.
OPERATOR:
NRG Energy Services LLC,
a Delaware limited liability company
By: |
/s/ Xxxx X Xxxx |
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Name: |
Xxxx X Xxxx |
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Title: |
President |
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OWNER:
NRG Solar Xxxxxxx I LLC,
a Delaware limited liability Company
By: |
/s/ Xxxxxxx Xxxxxx |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Vice President |
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[Signature Page to O&M Agreement]