Exhibit 10.1
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WINDSYSTEM CONSTRUCTION AGREEMENT
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By and Between
ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-C,
a California Limited Partnership
And
ZOND CONSTRUCTION CORPORATION IV,
a California corporation
as of
November 4, 1985
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TABLE OF CONTENTS
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Section Heading Page
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1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. CONSTRUCTION OF TURBINES, RELATED
TURBINE EQUIPMENT AND POWER SUBSTATION . . . . . . . . . . . . . . . . 3
3. OTHER OBLIGATIONS OF ZCC IV . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Labor, Materials, Etc. . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Subcontractors . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Construction Safety . . . . . . . . . . . . . . . . . . . . . . . . 4
3.4 Requirements of Authorities . . . . . . . . . . . . . . . . . . . . 5
3.5 Certain Amounts Payable by ZCC IV . . . . . . . . . . . . . . . . . 5
3.6 Mechanics' Liens . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.7 Protection of Persons and Property . . . . . . . . . . . . . . . . . 6
3.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.9 Clean Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.10 Interconnection . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.11 Compliance With Other Agreements . . . . . . . . . . . . . . . . . . 7
3.12 Sales Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4. COMPLETION DATES AND TITLE TRANSFER . . . . . . . . . . . . . . . . . . 7
4.1 Completion Date and Obligation to Purchase . . . . . . . . . . . . . 7
4.2 Title Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5. PAYMENT TO ZCC IV FOR CONSTRUCTION . . . . . . . . . . . . . . . . . . 9
5.1 Fixed Contract Price . . . . . . . . . . . . . . . . . . . . . . . . 9
5.2 Payment of Contract Price . . . . . . . . . . . . . . . . . . . . . . 9
5.3 Withholds by the Partnership . . . . . . . . . . . . . . . . . . . 10
6. WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.1 Warranties of Manufacturer . . . . . . . . . . . . . . . . . . . . 11
6.2 Five Year Warranty of ZCC IV . . . . . . . . . . . . . . . . . . . 11
6.3 Warranties of Contractors . . . . . . . . . . . . . . . . . . . . . 12
6.4 No Production Guarantee . . . . . . . . . . . . . . . . . . . . . . 13
6.5 Warranty Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . 13
6.6 Single Purpose Entity . . . . . . . . . . . . . . . . . . . . . . . 13
7. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8. DAMAGE OR DESTRUCTION OF THE TURBINES,
RELATED TURBINE EQUIPMENT OR POWER SUBSTATION
PRIOR TO COMPLETION . . . . . . . . . . . . . . . . . . . . . . . . 14
8.1 Damage or Destruction Insured . . . . . . . . . . . . . . . . . . . 14
8.2 Damage or Destruction Not Insured . . . . . . . . . . . . . . . . . 14
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TABLE OF CONTENTS (Con't)
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Section Heading Page
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9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.1 Special Event of Termination . . . . . . . . . . . . . . . . . . . 15
9.2 Other Events of Termination . . . . . . . . . . . . . . . . . . . . 15
9.3 Remedies Upon Occurrence of
Other Events of Termination . . . . . . . . . . . . . . . . . . . 16
10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10.1 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . 16
10.2 Assignment and Transfer
to Other Parties . . . . . . . . . . . . . . . . . . . . . . . . 16
10.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10.4 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10.5 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.6 Patents, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.7 Documentation . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.8 No Partnership, Etc.. . . . . . . . . . . . . . . . . . . . . . . . 17
10.9 Dedication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.10 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . 18
10.11 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.13 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.14 Partial Invalidity . . . . . . . . . . . . . . . . . . . . . . . . 18
10.15 Headings, References and Exhibits . . . . . . . . . . . . . . . . . 19
10.16 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10.17 Entire Agreement; Amendments . . . . . . . . . . . . . . . . . . . 19
Exhibits Attached
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Exhibit A - Location Plan
Exhibit B - Legal Description of the Operating Site
Exhibit C - Form of Turbine Completion Certificate and Xxxx of
Sale
Exhibit D - Form of Power Substation Completion Certificate
and Xxxx of Sale
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WINDSYSTEM CONSTRUCTION AGREEMENT
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THIS WINDSYSTEM CONSTRUCTION AGREEMENT ("Agreement") is made by and between
ZOND WINDSYSTEM PARTNERS, LTD. SERIES 85-C, a California limited partnership
("the Partnership"), and ZOND CONSTRUCTION CORPORATION IV, a California
corporation ("ZCC IV"), as of the 4th day of November, 1985. Unless otherwise
defined herein, terms appearing in initially capitalized letters shall have the
same meaning as that set forth in the Confidential Private Placement Memorandum
of the Partnership (the "Memorandum") dated November 4, 1985.
WHEREAS:
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A. The Partnership desires to purchase from ZCC IV a system of constructed
and operational Turbines, Related Turbine Equipment and the Power Substation all
on the terms and conditions of this Agreement; and
B. ZCC IV desires to construct the Turbines, the Related Turbine Equipment
pertaining thereto and the Power Substation in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, the Partnership and ZCC IV agree as follows:
1. DEFINITIONS
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As used in the Agreement, the following terms shall have the following
designated meaning:
1.1 "Admission Date" shall mean the date on which the Limited Partners
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are admitted to the Partnership.
1.2 "Agreement" shall mean this Windsystem Construction Agreement.
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1.3 "Authorities" shall mean all applicable Federal, state, municipal
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and local agencies or governmental bodies having jurisdiction over the
Operating Site and the construction contemplated by this Agreement which shall
include, without limitation, any applicable agency or government body of The
City of Santa Clara, California or the County of Alameda, California.
1.4 "Contractor" shall mean any person or entity retained by ZCC IV
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(including Zond acting as general contractor) in connection with the assembly,
installation and construction of the Turbines, the Related Turbine Equipment and
the Power Substation.
1.5 "Contract Price" shall mean the total price payable by the
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Partnership to ZCC IV for the purchase of (i) the Required Number of
Turbines, (ii) the Related Turbine Equipment and (iii) the Power Substation
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which are to be constructed and installed pursuant to the provisions of this
Agreement, and which shall equal the product of the Required Number of Turbines
and $160,000.
1.6 "Location Plan" shall mean the site plans prepared by ZCC IV,
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designating the specific locations within the Operating Site upon which the
Turbines will be constructed pursuant to this Agreement, copies of which are
attached hereto as Exhibit A, as such Location Plan may be amended from time to
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time by ZCC IV prior to the date of the purchase of the Turbines by the
Partnership hereunder.
1.7 "Location Sites" shall mean up to 200 of those certain sites which
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are set forth in the Location Plan, upon which ZCC IV shall designate the
Required Number of Turbine to be constructed, as such sites may change from
time to time as determined by ZCC IV.
1.8 "Operating Site" shall mean the real property located in Alameda
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County, California, more fully described on the attached Exhibit B.
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1.9 "PG&E" shall mean Pacific Gas and Electric Company.
1.10 "Partnership" shall mean Zond Windsystem Partners, Ltd. Series
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85-C, a California limited partnership.
1.11 "Power Agreement" shall mean The Pacific Gas and Electric Company
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Standard Offer No. 4 Power Purchase Agreement for Long Term Energy and Capacity
executed on December 31, 1984 by Wind Developers, Inc. and on January 17, 1985
by PGE, which was assigned to Zond on October 5, 1985, and which was assigned by
Zond to the Partnership.
1.12 "Power Substation" shall mean the 20MW power substation constructed
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and installed by ZCC IV at the Operating Site.
1.13 "Related Turbine Equipment" shall mean the concrete pad upon which
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each Turbine is situated; the insulated wire cable connecting each Turbine to an
intermediate step-up transformer; and the aggregate number of intermediate
step-up transformers necessary to step up the voltage of the electricity
produced by the Required Number of Turbines to the level required by the Power
Substation; and the insulated wire cable connecting such transformers to the
Power Substation.
1.14 "Required Number of Turbines" shall mean the total number of
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Turbines required to be purchased by the Partnership hereunder, up to 200
Turbines, pursuant to the provisions of Section 2 below.
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1.15 "Turbines" shall mean the Vestas Model V17 wind turbine generator,
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each having a rated capacity of 100KW, and each being equipped with two
generators, a controller and a supporting steel lattice tower.
1.16 "Series C Purchase Notes" shall mean any note(s) given by the
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Partnership to ZCC IV in partial payment for the Turbines, Related Turbines
Equipment and Power Substation purchased hereunder.
1.17 "Vestas" shall mean Vestas Energy A/S, a Danish corporation.
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1.18 "VNA" shall mean Vestas North America Limited, a California
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corporation.
1.19 "Wind Park Easement Agreement" shall mean the Wind Park Easement
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Agreement between Zond and the Partnership.
1.20 "Wind Power Generating Facility Warranty Agreement" shall mean that
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certain Wind Power Generating Facility Warranty Agreement between Vestas and any
purchaser designated in accordance with the provisions of Section 5.2 thereof
and acknowledged by VNA, a copy of which is attached as Exhibit C to the Wind
Turbine Generator Purchase Agreement.
1.21 "Windsystem Management Agreement" shall mean the Windsystem
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Management Agreement between Zond and the Partnership.
1.22 "Wind Turbine Generator Purchase Agreement" shall mean that certain
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1985 Wind Turbine Generator Purchase Agreement between VNA and Zond.
1.23 "ZCC IV" shall mean Zond Construction Corporation IV, a California
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corporation and a wholly owned subsidiary of Zond.
1.24 "Zond" shall mean Zond Systems, Inc., a California corporation.
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2. CONSTRUCTION OF TURBINES, RELATED TURBINE EQUIPMENT
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AND POWER SUBSTATION
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Upon execution and delivery of this Agreement by the Partnership, ZCC IV
agrees to commence construction of the Turbines, the Related Turbine Equipment
and the Power Substation and to pursue construction diligently to completion in
accordance with the provisions of this Agreement.
ZCC IV shall construct, and the Partnership shall purchase from ZCC IV at
the Contract Price pursuant to and on the terms hereof:
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(a) 200 Turbines (the "Required Number of Turbines") which shall
be located on the Location Sites determined by ZCC IV; provided,
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however, that if the maximum number of Regular Units in the
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Partnership necessary to enable the Partnership to purchase 200
Turbines have not been subscribed for and fully paid on the
Admission Date, the following Required Number of Turbines shall
be determined in the following manner: 25 Turbines plus such
number of Turbines as the Partnership shall specify upon a date
which is not later than 10 days after the Admission Date. The
Required Number of Turbines shall in any event be constructed on
those sites constituting a portion of the Location Sites as
determined by ZCC IV;
(b) the Related Turbine Equipment pertaining to the Required
Number of Turbines purchased pursuant to clause (a) above; and
(c) the Power Substation.
3. OTHER OBLIGATIONS OF ZCC IV
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3.1 Labor, Materials, Etc.
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ZCC IV agrees to furnish, at its sole cost, all labor, materials,
tools, permits, insurance, transportation, equipment, supervision and all other
matters necessary to commence and complete the construction of the Required
Number of Turbines, the Related Turbine Equipment pertaining thereto and the
Power Substation, all in accordance with this Agreement.
3.2 Subcontractors
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ZCC IV shall employ only competent and experienced Contractors
and shall not employ any unfit person or Contractor not skilled in discharging
its obligations hereunder. ZCC IV shall at all times maintain competent
supervision of, and enforce strict discipline and good order among, its
employees and Contractors. The Partnership hereby acknowledges and consents
to the Construction Agreement between ZCC IV and Zond dated as of November 4,
1985 pursuant to which Zond has agreed to construct for purchase by ZCC IV the
Turbines, the Related Turbine Equipment and the Power Substation.
3.3 Construction Safety
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ZCC IV shall monitor the construction on a continuing basis to
assure that all of ZCC IV's operations (including the activities of the
Contractors) under this Agreement are conducted in a safe manner and in full
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compliance with all such applicable published requirements of the Occupational
Safety and Health Administration under the Occupational Safety and Health Act
of 1970 (the "OSHA requirements") and all applicable published requirements of
the California Occupational Safety and Health Administration under the
California Health and Safety Act (the "CAL-OSHA requirements"). Any failure to
strictly comply with such OSHA requirements or CAL-OSHA requirements will be
deemed a material breach of contract such as to justify the Partnership's right
to immediately remove ZCC IV from the performance of its construction
obligations under this Agreement. If, as a result of the actions or conduct of
ZCC IV or its Contractors, the Partnership should become a party to or
otherwise involved in OSHA proceedings of any kind related to OSHA requirements
or in CAL-OSHA proceedings of any kind related to CAL-OSHA requirements, ZCC IV
will promptly pay upon demand any attorneys' fees, costs of corrective action
and other costs incurred by the Partnership as a result thereof.
3.4 Requirements of Authorities
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ZCC IV acknowledges that it has inspected and accepted the
Operating Site and existing conditions, has examined and understands the
Location Plan and is familiar with all laws, regulations, codes, ordinances
and rules pertinent to the construction contemplated in this Agreement. In
connection with the construction of the Required Number of Turbines, the Related
Turbine Equipment pertaining thereto and the Power Substation, ZCC IV shall
provide all items required by the Authorities, shall obtain all approvals and
permits required by the Authorities and shall observe and comply with all
requirements of the Authorities. If any approvals or permits or requirements of
the Authorities are inconsistent with the Location Plan or any provisions of
this Agreement, the approvals or permits or requirements of the Authorities
shall control and all obligations in connection therewith shall be at the sole
cost of ZCC IV.
3.5 Certain Amounts Payable by ZCC IV
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3.5.1 Charges. ZCC IV shall promptly pay, and shall use all cash
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payments received from the Partnership under this Agreement to pay, all valid
charges for labor (including fringe benefits), equipment and materials used in
the construction and installation of (i) the Required Number of Turbines, (ii)
the Related Turbine Equipment pertaining thereto and (iii) the Power Substation
including, without limitation, contributions to fringe benefit trusts required
by any collective bargaining agreements to which ZCC IV is a party or by which
ZCC IV is bound. ZCC IV shall not use any such cash payments for any other
purpose until payment in full of all such valid charges.
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3.5.2 Fees and Taxes. ZCC IV shall pay when due all Federal,
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state, county, municipal or local taxes, fees, permit fees, charges, licenses
or assessments pertaining to the construction and installation contemplated in
this Agreement, including without limitation withholding and similar employee
taxes, and shall hold the Partnership harmless from any liability in connection
with the preceding.
3.6 Mechanics' Liens
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At all times from the date of this Agreement until and including
the date of the purchase thereof by the Partnership hereunder, ZCC IV shall
keep the (i) Required Number of Turbines, (ii) the Related Turbine Equipment
pertaining thereto (iii) the Power Substation, (iv) the Location Sites and
(v) the Operating Site free from all claims and liens arising out of labor and
materials furnished by ZCC IV and its Contractors, and shall indemnify and
hold the Partnership free and harmless from any cost or expense on account of
the assertion of any such claim or lien.
3.7 Protection of Persons and Property
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ZCC IV shall take (and shall cause its Contractors to take) every
practicable precaution not to damage or injure any persons or property in the
performance of its duties under this Agreement.
3.8 Insurance
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At all times from the date of this Agreement until the date of the
purchase thereof by the Partnership hereunder, ZCC IV, at its sole cost, shall
obtain and maintain or cause to be maintained the property damage and business
interruption insurance coverage substantially identical to the policy No. SFC
1980487 issued by Continental Insurance Company covering the Required Number
of Turbines, the Related Turbine Equipment pertaining thereto and the Power
Substation.
3.9 Clean Up
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Upon completion of the construction of the Required Number of
Turbines, the Related Turbine Equipment pertaining thereto and the Power
Substation, ZCC IV, at its sole cost, shall remove all construction debris and
surplus material from the Operating Site.
3.10 Interconnection
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ZCC IV, at its sole cost, shall cause the interconnection of the
Required Number of Turbines and the Power Substation with the PG&E power
transmission system.
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3.11 Compliance With Other Agreements
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In constructing the Required Number of Turbines, the Related
Turbine Equipment pertaining thereto and the Power Substation, ZCC IV shall
comply with all requirements of the Power Agreement and the Wind Park Easement
Agreement and the Project Loan.
3.12 Sales Taxes
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ZCC IV shall be solely responsible for and shall pay any sales
taxes which may be owing any applicable governmental agency in connection with
the construction and delivery to the Partnership of the Required Number of
Turbines, the Related Turbine Equipment pertaining thereto and the Power
Substation.
4. COMPLETION DATES AND TITLE TRANSFER
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4.1 Completion Date and Obligation to Purchase
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The construction of a Turbine shall be deemed to be completed on
the date which is the latest to occur of (i) the date upon which such Turbine is
certified to be operational by Vestas or one of its authorized representatives,
which include VNA and Zond and (ii) the date upon which the Power Substation is
certified by ZCC IV or Zond to be operational. ZCC IV shall use its best efforts
to complete construction of the Required Number of Turbines, the Related Turbine
Equipment pertaining thereto and the Power Substation and place the Turbines in
service by December 27, 1985 but no later than December 29, 1985.
In the event that on the Admission Date (i) the construction of 25
or more, but less than all, of the Required Number of Turbines and the Related
Turbine Equipment pertaining thereto has been so completed, (ii) the
construction of the Power Substation has been certified by ZCC IV or Zond to be
operational and (iii) PG&E has provided its written approval for the design and
operation of the interconnection facilities under the Power Agreement (to the
extent such approval is required by the Power Agreement), the Partnership shall
purchase on the Admission Date that number of Turbines whose construction has
been then completed, together with the Related Turbine Equipment pertaining
thereto and the Power Substation. Thereafter, the Partnership shall purchase
additional Turbines, and the Related Turbine Equipment pertaining thereto, in
such numbers as the parties may agree upon the completion of the construction
of such Turbines.
Anything above to the contrary notwithstanding, the Partnership
shall not be obligated to purchase any Turbines or Related Turbine Equipment
pertaining thereto (i) greater than the Required Number of Turbines and the
Related Turbine Equipment pertaining thereto, (ii) whose construction is not
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completed by, and which are not ready to be immediately placed in service by,
December 29, 1985, (iii) if in the event that the Power Substation has not
been certified by ZCC IV or Zond to be operational by, and is not ready to be
immediately placed in service by, December 29, 1985; (iv) unless at the time
of such purchase there shall be in effect insurance substantially in the form
described in the Memorandum under the caption "Windsystem Insurance - Systems
Performance Policies"; and (v) unless at the time of such purchase, the Wind
Park Easement Agreement and the Windsystem Management Agreement are each in
effect.
Upon purchase of Turbines and the Related Turbine Equipment
pertaining thereto, ZCC IV shall transfer good and marketable title thereto by
executing and delivering to the Partnership a Turbine Completion Certificate
and Xxxx of Sale substantially in the form of Exhibit C attached hereto
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("Turbine Completion Certificate"). The Partnership shall accept such
completion and transfer by executing an acknowledgment of the Turbine
Completion Certificate as provided therein. ZCC IV hereby represents to the
Partnership that ZCC IV's execution and delivery of each Turbine Completion
Certificate affirms that Vestas, VNA or Zond has certified the Turbines
specified thereon as operational pursuant to the provisions of Section 3 of
the Wind Power Generating Facility Warranty Agreement. In the same manner,
ZCC IV shall transfer title to the Power Substation to the Partnership, and
certify to the Partnership that the Power Substation is operational, by
executing and delivering to the Partnership a Power Substation Completion
Certificate and Xxxx of Sale substantially in the form of Exhibit D attached
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hereto (the "Power Substation Completion Certificate").
4.2 Title Transfer
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Title to the Turbines, the Related Turbine Equipment pertaining
thereto and the Power Substation, which the Partnership acquires in accordance
with this Agreement, shall pass from ZCC IV to the Partnership upon completion
in accordance with Section 4.1 and execution of the Turbine Completion
Certificate and the Power Substation Completion Certificate, as the case may
be, by ZCC IV and the Partnership, but not earlier than the Admission Date,
free and clear of any encumbrances, liens, security interests or other charges
(including, without limitation, any of the preceding of ZCC IV, Zond, VNA or
Vestas or any lender to any of them), except any of the preceding which are
created in writing by, or with the written consent of, the Partnership. ZCC IV
shall indemnify and hold the Partnership free and harmless against all such
encumbrances, liens, security interests and other charges (except any of the
preceding which are created in writing by, or with the written consent of, the
Partnership) and any damages, costs, charges and expenses (including, without
limitation, reasonable attorneys' fees) incurred by the Partnership in
connection therewith.
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ZCC IV agrees to indemnify and hold the Partnership harmless on an
after-tax basis against any loss or delay in the Partners' ability to claim tax
benefits derived from the ownership of Turbines, Related Turbine Equipment
pertaining thereto and the Power Substation purchased by the Partnership
hereunder which results from the taking or omitting to take any action by ZCC IV
or any of its Contractors which would cause the Turbines to be deemed to have
been placed in service prior to the date on which title to such Turbines and the
Related Turbine Equipment pertaining thereto passes from ZCC IV to the
Partnership.
5. PAYMENT TO ZCC IV FOR CONSTRUCTION
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5.1 Fixed Contract Price
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The Contract Price is a fixed price. The Partnership shall not be
liable to pay more to ZCC IV than the Contract Price, and the Partnership
shall not be entitled to a reduction in the Contract Price if such cost of
construction is less than the Contract Price.
5.2 Payment of Contract Price
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5.2.1 Payment by the Partnership. On the Admission Date, the
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Partnership shall pay ZCC IV that portion of the Contract Price in full
payment for the number of Turbines then purchased pursuant to Section 4.1
above, together with the Related Turbine Equipment pertaining thereto and the
Power Substation which is equal to the product of $160,000 and the number of
Turbines then purchased. Such payment shall be made at the time of the
execution of the related Turbine Completion Certificate and the Power
Substation Completion Certificate by ZCC IV. Upon each purchase of additional
Turbines and the Related Turbine Equipment pertaining thereto in accordance
with the provisions of Section 4.1 above, the Partnership shall pay that
portion of the Contract Price, in full payment for such Turbines and the
Related Turbine Equipment pertaining thereto, which is equal to the product of
$160,000 and the number of Turbines then purchased. Such payment shall be made
at the time of the execution of the related Turbine Completion Certificate by
ZCC IV and the Partnership.
Forty-nine and one-half percent (49.5%) of the Contract Price
payable upon each purchase of Turbines shall be paid in cash, by check or by
wire transfer, with the balance of the Contract Price being represented by
a Series C Purchase Note or Series C Purchase Notes, each of which shall be in
such form as the parties shall agree. Each Series C Purchase Note shall bear
interest, compounded semiannually, at the greater of (i) 10.75% per annum and
(ii) the lowest rate then in effect to avoid imputed interest under the Internal
Revenue Code of 1954, as amended, and the regulations thereunder, and shall be
secured by such Turbines, the Related Turbine Equipment pertaining thereto,
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the Power Substation, and by such other collateral as the Partnership and ZCC IV
shall agree, all as set forth in a security agreement executed by the
Partnership and ZCC IV.
5.2.2 No Waiver. No payment to ZCC IV shall constitute
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acceptance or approval of any defective construction previously performed by
ZCC IV. The Partnership has the right to pay for construction that is
defective without correction of the defect and may back-charge ZCC IV the
amount of the loss sustained due to the defect and to deduct such amounts from
payments thereafter becoming due to ZCC IV.
5.3 Withholds by the Partnership
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The Partnership shall be entitled to establish reasonable
reserves from payments due or becoming due to ZCC IV under the following
conditions:
5.3.1 Defects. ZCC IV's failure to correct or cause to be
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corrected defective work.
5.3.2 Subcontractor Claims. Receipt of information that
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Contractors or other persons entitled to do so have filed, or have threatened
to file, mechanics' liens or stop notice claims due to ZCC IV's failure to make
payments which due to such Contractors or persons.
5.3.3 Damages. Damage by ZCC IV or its employees or by
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Contractors to the Required Number of Turbines, the Related Turbine Equipment
pertaining to, or the Power Substation purchased by the Partnership hereunder.
5.3.4 Inspection. Failure of ZCC IV's construction to pass any
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required inspections.
5.3.5 Unauthorized Changes. Construction or attempted
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construction of an item different from that required by this Agreement unless
ordered in writing by the Partnership.
5.3.6 Claims Against ZCC IV. Should the Partnership still have a
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claim remaining against ZCC IV after offsetting against amounts owed under the
Windsystem Management Agreement or the Wind Park Easement Agreement, the
Partnership may make a claim against amounts owing to ZCC IV under this
Agreement; provided that under no circumstances may the Partnership offset such
claim or any other claim against amounts owing to ZCC IV under any Series C
Purchase Note.
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6. WARRANTIES
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6.1 Warranties of Manufacturer
--------------------------
Prior to the execution of any Turbine Completion Certificate by
ZCC IV and the Partnership and as a condition of the Partnership's obligation
to purchase the Turbines covered thereby, ZCC IV (i) shall cause the
Partnership to be designated as the "Purchaser" under Section 5.2 of the Wind
Power Generating Facility Warranty Agreement, so that all warranties in the Wind
Power Generating Facility Warranty Agreement shall run to, and in favor of, the
Partnership, with respect to the number of Turbines covered thereby and (ii)
shall cause Zond to assign and transfer to the Partnership, for the benefit of
the Partnership, all representations and warranties made by VNA in the Wind
Turbine Generator Purchase Agreement.
6.2 Five Year Warranty of ZCC IV
----------------------------
(a) ZCC IV hereby represents and warrants to and agrees with, the
Partnership that, for a period of five years after the date of a Turbine
Completion Certificate with respect to any Turbines which are purchased by the
Partnership hereunder, that all such Turbines, and all Related Turbine Equipment
pertaining thereto, shall have been constructed under this Agreement in a good
and workmanlike manner. During each such five-year warranty period, ZCC IV, at
its sole cost, shall provide for field inspection of the particular portion of
the Turbines to verify failure, establish probable cause and determine what
corrective action is required. ZCC IV, at its sole cost, shall cause all
corrective action to be taken as soon as possible if such action is required
because of the breach by ZCC IV of its representation, warranty and agreement
contained in this Section; provided, however, that ZCC IV shall have no
obligations under this Section 6.2 with respect to any Turbine or the Related
Turbine Equipment pertaining thereto, which is moved from its original Location
Site other than by ZCC IV or with the written consent of ZCC IV, or if repair or
replacement thereof is required as the result of: (i) repair, maintenance,
alteration or modification of such Turbine, or Related Turbine Equipment
pertaining thereto, by persons other than Zond, Zond-authorized personnel or
other persons using procedures approved by Zond or its authorized representative
(provided that Zond shall then be ready, willing and able to make such repair,
maintenance, alteration or modification to the reasonable satisfaction of the
Partnership); (ii) misuse, neglect or abuse, accident or alteration; (iii)
normal wear or tear; (iv) causes beyond the reasonable control of ZCC IV
(including, without limitation, acts of nature such as floods, earthquakes and
storms); or (v) any occurrence or event insured against pursuant to either that
certain Blanket Performance and Resource Policy Number ZPM 017468 issued by
-11-
California Union Insurance Company or that certain "all-risk" property damage
policy issued by Continental Insurance Company (Policy No. SFC 2980487),
whether or not such policies are in effect.
(b) ZCC IV hereby represents and warrants to, and agrees with the
Partnership that (1) for a period of five years from the date of the Power
Substation Completion Certificate, the Power Substation shall have been
installed in a good and workmanlike manner. In addition, ZCC IV shall assign to
the Partnership any warranties made to ZCC IV by the manufacturers of the
components of the Power Substation. During each of the aforementioned five-year
warranty periods, ZCC IV, at its sole cost, shall provide for field inspection
of the Power Substation to verify failure, establish probable cause and
determine what corrective action is required. ZCC IV, at its sole cost, shall
cause all corrective action to be taken as soon as possible if such action is
required because of the breach by ZCC IV of its representation, warranty and
agreement contained in this Section; provided, however, that ZCC IV shall have
no obligations under this Section 6.2 with respect to the Power Substation or
any of its components which is moved from its original Location Site other than
by ZCC IV or with the written consent of ZCC IV, or if repair or replacement
thereof is required as the result of: (i) repair, maintenance, alteration or
modification of such Power Substation or any of its components by persons other
than Zond, Zond-authorized personnel or other persons using procedures approved
by Zond or its authorized representative (provided that Zond shall then be
ready, willing and able to make such repair, maintenance, alteration or
modification to the reasonable satisfaction of the Partnership); (ii) misuse,
neglect or abuse, accident or alteration; (iii) normal war or tear; (iv) causes
beyond the reasonable control of ZCC IV (including, without limitation, acts of
nature such as floods, earthquakes and storms); or (v) any occurrence or event
insured against pursuant to either that certain Blanket Performance and Resource
Policy Number ZPM 017468 issued by California Union Insurance Company or that
certain "all-risk" property damage policy issued by Continental Insurance
Company (Policy No. SFC 2980487), whether or not such policies are in effect.
(c) IN NO EVENT SHALL ZCC IV BE LIABLE FOR ANY LOST PROFITS OR INCIDENTAL
OR CONSEQUENTIAL DAMAGES AS A RESULT OF THE BREACH OF ANY REPRESENTATION,
WARRANTY OR AGREEMENT CONTAINED HEREIN.
6.3 Warranties of Contractors
-------------------------
ZCC IV shall obtain from all Contractors, and shall assign to the
Partnership, all warranties of the Contractors against defects in materials and
workmanship to the extent such warranties are obtainable and transferable. ZCC
IV shall reasonably assist the Partnership in enforcing any such warranties.
-12-
6.4 No Production Guarantee
-----------------------
In no event shall any provisions of this Agreement be construed as
a guaranty or warranty by ZCC IV that the Turbines will generate any minimum
amount of electricity in any particular period.
6.5 Warranty Disclaimer
-------------------
EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 6, ZCC IV DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
TURBINES, THE RELATED TURBINE EQUIPMENT OR THE POWER SUBSTATION.
6.6 Single Purpose Entity
---------------------
ZCC IV hereby represents to the Partnership that it was formed for
the sole purpose of entering into and performing under this Agreement and the
transactions contemplated herein or in the Memorandum and that it will engage in
no other activities other than those contemplated hereby and those necessary to
maintain its legal existence and good standing as a corporation, to maintain its
records in the normal course of business or such activities as may be required
under the Project Loan.
7. INDEMNIFICATION
---------------
In addition to any other obligations of ZCC IV under this Agreement
(including, without limitation, ZCC IV's obligations to provide insurance), ZCC
IV shall indemnify and hold the Partnership free and harmless against all
claims, demands, liabilities, proceedings, damages, costs, charges and expenses
(including, without limitation, reasonable attorneys' fees) resulting from or
attributable to the negligent act or omission of ZCC IV, its affiliates or its
employees or its Contractors or resulting from or attributable to any activity,
work or things done, permitted or suffered by ZCC IV, its affiliates or its
employees or its Contractors in, on or about the Operating Site or elsewhere or
resulting from or attributable to any failure of ZCC IV, to perform its
obligations under this Agreement; provided, however, that nothing herein
-------- -------
contained shall be deemed to render ZCC IV liable for or to indemnify the
Partnership against any liability or damages to the extent attributable to or
resulting from the negligent acts or omissions of the Partnership or its agents
or authorized representatives (which for purposes of this Agreement do not
include ZCC IV, its affiliates or its Contractors).
The Partnership agrees to indemnify and hold ZCC IV free and
harmless against any and all actions, claims, losses, damages, injuries,
liabilities, costs, charges and expenses of any kind or nature (including the
-13-
attorneys' fees of ZCC IV incurred by ZCC IV in the proper performance of its
duties under this Agreement) to the extent resulting from or attributable to
the fault or neglect of the Partnership.
8. DAMAGE OR DESTRUCTION OF THE TURBINES, RELATED TURBINE EQUIPMENT OR
-------------------------------------------------------------------
POWER SUBSTATION PRIOR TO COMPLETION
------------------------------------
8.1 Damage or Destruction Insured
-----------------------------
Should all or any portion of the Required Number of Turbines, the
Related Turbine Equipment pertaining thereto, or the Power Substation be
damaged or destroyed prior to execution of a Completion Certificate by ZCC IV
and the Partnership with respect to such Turbines, the Related Turbine Equipment
pertaining thereto or the Power Substation, with or without the fault or neglect
of ZCC IV or any of its employees or agents or Contractors, and the damage or
destruction is covered by any of the insurance policies described in Section
3.8, the Partnership shall have the option to either (i) terminate this
Agreement with respect to the damaged or destroyed Turbines, the Related Turbine
Equipment pertaining thereto or the Power Substation and have no further
liability therefore to ZCC IV hereunder, in which event ZCC IV shall be paid all
insurance proceeds pertaining to such Turbines, the Related Turbine Equipment
pertaining thereto or the Power Substation, or (ii) direct ZCC IV to cause the
repair and restoration of such Turbines, the Related Turbine Equipment
pertaining thereto or the Power Substation utilizing all insurance proceeds
pertaining to such Turbines, the Related Turbine Equipment pertaining thereto or
the Power Substation and with any cost in excess of such proceeds to be paid for
by ZCC IV. In the event the Partnership directs ZCC IV to cause such repair and
restoration, ZCC IV shall commence forthwith such repair and restoration and
complete same as soon as possible and in any event not later than 90 days after
the date the Partnership so directs ZCC IV.
8.2 Damage or Destruction Not Insured
---------------------------------
Should all or any portion of the Turbines, the Related Turbine
Equipment pertaining thereto, or the Power Substation be damaged or destroyed
prior to execution of a Completion Certificate with respect to such Turbines,
the Related Turbine Equipment pertaining thereto, or the Power Substation
with or without the fault or neglect of ZCC IV or any of its employees or agents
or Contractors, and the damage or destruction is not covered by any of the
insurance policies described in Section 3.8 (provided that such non-coverage by
such insurance policies shall not have resulted from ZCC IV's failure to obtain
such insurance or to make required and timely premium payments upon such
insurance), the Partnership shall have the option to either (i) terminate this
Agreement with respect to the damaged or destroyed Turbines, the Related Turbine
-14-
Equipment pertaining thereto, or the Power Substation and have no obligation
to acquire the same or (ii) direct ZCC IV to cause the repair and restoration
of such Turbines, the Related Turbine Equipment pertaining thereto, or the
Power Substation with the cost thereof to be paid for by the Partnership;
provided, however, that the per Turbine cost of such repair or restoration shall
-------- -------
in no event exceed $160,000. In the event the Partnership directs ZCC IV to
cause such repair and restoration, ZCC IV shall commence forthwith such repair
and restoration and complete the same as soon as possible and in any event not
later than 90 days after the date the Partnership so directs ZCC IV.
9. TERMINATION
-----------
9.1 Special Event of Termination
----------------------------
If the minimum number of Partnership Units required to be sold
has not been subscribed for and the offering is terminated, the Partnership
thereafter may terminate this Agreement by written notice to ZCC IV. In the
event of such termination, neither the Partnership no ZCC IV shall have any
obligations whatsoever (other than as set forth in Section 6 of this Agreement,
which obligations shall survive the termination of this Agreement) to the
other and ZCC IV shall be entitled to retain all Turbines, the Related Turbine
Equipment, pertaining thereto and the Power Substation then constructed or in
the process of construction.
9.2 Other Events of Termination
---------------------------
In addition to any other termination rights in this Agreement, the
Partnership may, by giving at least 72 hours prior written notice to ZCC IV,
specifying the reason therefor, terminate this Agreement for any of the
following causes:
9.2.1 Default. If ZCC IV fails to perform its obligations
-------
substantially in accordance with the terms of this Agreement and, after 72
hours prior written notice from the Partnership specifying the nature of the
alleged default, fails to cure such default (or, in the case of a default
which cannot with due diligence be cured within a period of 72 hours, if ZCC
IV fails to proceed promptly to prosecute the curing of such default with all
due diligence).
9.2.2 Dissolution. If ZCC IV dissolves or the legal existence of
-----------
ZCC IV is terminated, unless a successor entity reasonably satisfactory to the
Partnership agrees to be bound by and to perform all of the duties and
obligations of ZCC IV under this Agreement.
-15-
9.3 Remedies Upon Occurrence of Other Events of Termination
-------------------------------------------------------
Should the Partnership terminate this Agreement as provided in
Section 9.2, such termination of this Agreement shall be without prejudice to
any other rights or remedies which either the Partnership or ZCC IV may have
against the other.
10. MISCELLANEOUS
-------------
10.1 Time of the Essence
-------------------
Time for performance by ZCC IV of each and all of its obligations
under this Agreement is of the essence.
10.2 Assignment and Transfer to Other Parties
----------------------------------------
Neither ZCC IV nor the Partnership shall transfer or assign this
Agreement or any benefit or interest herein, without the prior written consent
of the other, which consent shall not be unreasonably withheld; provided,
however, that ZCC IV may collaterally assign its rights under this Agreement
as security for loans made by unaffiliated lenders which are incurred for the
purpose of meeting its obligations hereunder and ZCC IV is authorized to
subcontract any portion of its duties under this Agreement to a third party
who shall be reasonably acceptable to the Partnership or to delegate its
obligations hereunder, in the ordinary course of its business, without reducing
the scope of ZCC IV's undertakings, obligations and commitments to the
Partnership. The Partnership hereby acknowledges that ZCC IV has appointed Zond
as general contractor to ZCC IV for the construction of the Turbines, the
Related Turbine Equipment and the Power Substation pursuant to the terms of a
certain Construction Agreement between Zond and ZCC IV, and consents to Zond's
acting as general contractor pursuant thereto.
10.3 Notices
-------
Any notice permitted or required to be given to either party shall
be deemed to have been given upon personal delivery or on the second business
day after the date of deposit in the United States mail, first-class registered
or certified, postage prepaid, addressed to the party for whom intended at the
address appearing on the signature page of this Agreement, or at such other
address of which notice has been given as provided by this Section.
10.4 Waiver
------
Neither party hereto shall be deemed to have waived any of its
rights or remedies hereunder unless such waiver be in writing and signed by
said party or its duly authorized representative, and then only to the extent
-16-
specifically set forth therein. A waiver of one event shall not be construed as
constituting a bar or waiver of any right or remedy with respect to a
subsequent event.
10.5 Attorneys' Fees
---------------
If either the Partnership or ZCC IV brings any action or
proceeding for the enforcement, protection or establishment of any right or
remedy under this Agreement or for the interpretation of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees
and costs in connection with such action or proceeding, whether or not taxable,
as awarded by the trier of fact in such action or proceeding.
10.6 Patents, Etc.
------------
The construction of the Turbines, the Related Turbine Equipment
and the Power Substation shall not be construed as granting to the
Partnership any license or other right therein or to any patent, copyright,
trademark or other similar proprietary right now or hereafter applicable
thereto. ZCC IV hereby indemnifies and holds the Partnership free and harmless
against any and all actions, claims, losses, damages, injuries, liabilities,
costs, charges and expenses of any kind or nature (including the attorneys' fees
of the Partnership) resulting from any claim or infringement of any patent,
copyright, trademark or other proprietary right now or hereafter applicable to
the Turbines, the Related Turbine Equipment or the Power Substation based upon
the Partnership's ownership and operation thereof.
10.7 Documentation
-------------
All documentation with respect to the Turbines which is furnished
to the Partnership is solely for the Partnership's internal use. All such
documentation shall be maintained in a safe place by the Partnership and the
Partnership shall take appropriate measures to prevent the unauthorized
disclosure thereof.
10.8 No Partnership, Etc.
--------------------
The relationship of the Partnership and ZCC IV under this
Agreement is that of independent contractors. Nothing in this Agreement shall
be deemed to constitute the Partnership or ZCC IV a partner of the other. The
employees and any Contractors of ZCC IV in performing the obligations of ZCC
IV under this Agreement shall not be deemed to be the agents or employees or
Contractors of the Partnership, and ZCC IV hereby assumes all responsibility for
the acts or omissions of such employees and Contractors.
-17-
10.9 Dedication
----------
The undertakings of ZCC IV in this Agreement are for the sole
benefit of the Partnership and nothing in this Agreement shall constitute
the dedication of ZCC IV's or the Partnership's property or services to the
public nor affect ZCC IV's or the Partnership's status as an independent entity
and not as a public utility.
10.10 Further Assurances
------------------
Each party agrees to do, execute, acknowledge and deliver all and
every such further acts, assurances, documents and instruments as may be
reasonably requested by the other to effect the purpose and intent of this
Agreement. The parties further agree to cooperate with any lenders to each
other and to provide such information and to take such actions as such
lenders may reasonably request in connection with this Agreement.
10.11 Binding Effect
--------------
This Agreement shall be binding upon the parties and their
respective permitted assignees, successors-in-interest and legal
representatives.
10.12 Governing Law
-------------
The terms and provisions of this Agreement shall be construed in
accordance with the laws of the State of California.
10.13 Interpretation
--------------
The Partnership and ZCC IV agree that the terms and provisions of
this Agreement embody their mutual intent and that they are not to be construed
more liberally in favor of, nor more strictly against, any party hereto.
10.14 Partial Invalidity
------------------
If any term or provision of this Agreement, or the application
thereof to any person or circumstance shall, to any extent, be invalid or
enforceable, the remainder of this Agreement or the application of such term or
provision to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby, and each remaining term
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
-18-
10.15 Headings, References and Exhibits
---------------------------------
The headings contained in this Agreement are for purposes of
reference and convenience only and shall not limit or otherwise affect the
meaning of this Agreement. Unless otherwise indicated, all references to
Sections are to Sections in this Agreement. All exhibits attached to this
Agreement are incorporated herein by this reference.
10.16 Counterparts
------------
This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which, when taken together, shall
constitute one and the same instrument.
10.17 Entire Agreement; Amendments
----------------------------
This Agreement supersedes all previous agreements, understandings,
negotiations and proposals between the Partnership and ZCC IV relating to the
subject matter of this Agreement. This Agreement may not be altered or amended
except by an instrument in writing signed by ZCC IV and the Partnership. ZCC IV
and the Partnership each acknowledge and agree that no representation, warranty
or inducement has been made to it regarding the subject matter of this Agreement
which is not expressly set forth in this Agreement.
-19-
IN WITNESS WHEREOF, the parties have executed this Windsystem Construction
Agreement as set forth below.
"ZCC IV"
------
ZOND CONSTRUCTION CORPORATION IV,
a California corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Dated: November 10, 1985 By /s/ Xxxxx X. Xxxxxxxx
----------------- -----------------------------
XXXXX X. XXXXXXXX
Senior Vice President -
General Counsel
"PARTNERSHIP"
-----------
ZOND WINDSYSTEM PARTNERS, LTD.
SERIES 85-C,
A California Limited
Partnership
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By its authorized General
Partner:
Zond Windsystems Management
Corporation V, A California
Corporation
Dated: November 10, 1985 By /s/ Xxxxx X. Xxxxxxxx
----------------- -----------------------------
XXXXX X. XXXXXXXX
Senior Vice President -
General Counsel
-20-
GUARANTY
--------
The undersigned corporation hereby guarantees the performance of Zond
Construction Corporation IV under the Windsystem Construction Agreement between
Zond Construction Corporation IV and Zond Windsystem Partners, Ltd. Series 85-C
to which this Guaranty is attached.
ZOND SYSTEMS, INC.,
a California corporation
Dated: November 10, 1985 By /s/ Xxxxx X. Xxxxxxxx
----------------- -----------------------------
XXXXX X. XXXXXXXX
Senior Vice President -
General Counsel
-21-
LOCATION PLAN
-------------
SEE EXHIBIT A
to the
Construction Agreement Between
Zond Systems, Inc.
And Zond Construction Corporation IV
Exhibit A
to the
Windsystem Construction Agreement
A-1
EXHIBIT B
---------
LEGAL DESCRIPTION OF THE OPERATING SITE
---------------------------------------
B-1
EXHIBIT I
"PREMISES"
The land described in that Deed from Xxxxxxx X. Xxxxxx, xx.xx., to the City of
Santa Xxxxx dated January 5, 1983 and recorded as Instrument No. 83-010601 in
Alameda County Official Records on January 20, 1983 and referred herein is
described as follows:
All that real property in the County of Alameda, State of California, described
as follows:
PARCEL 1:
The south one-half of section 21, township 2 south, range 3 east, Mount
Diablo Base and Meridian, according to the official plat of said land filed
in the District Land Office.
Excepting therefrom the past, present and future interest reserved by the
Central Pacific Railroad Company in the grant deed recorded November 19,
1883 in Book 261 of Deeds, Page 184, Series No. 5-7019, Alameda county
Records.
Also excepting therefrom that portion described in the deed to the Western
Pacific Railway Company, a California corporation, recorded December 7,
1905, in Book 1076 of Deeds, Page 406, Series No. L-1500, Alameda County
Records.
Also excepting therefrom that portion described in the deed to X. X.
Xxxxxxx, recorded July 8, 1907, in Book 1390 of Deeds, Page 64, Series No.
L-69077, Alameda County Records.
Also excepting therefrom that portion described in the deed to the County
of Alameda, recorded January 4, 1915, in Book 2311 of Deeds, Page 109,
Series No. P-83238, Alameda County Records.
I-1
PARCEL 2:
A non-exclusive easement and right of way on, over, under and across the
following described real property for use as a roadway for vehicles of all
kinds, pedestrians and animals, for water, gas, oil and sewer pipe lines,
and for telephone, electric light and power lines, together with all
necessary poles or conduits to carry said lines, to wit:
A strip of land 30 feet wide, the center line of which is described as
follows:
Beginning at a point on the westerly line of those lands conveyed to
Xxxxxxx X. Xxxxx, by Decree of Partial Distribution, dated September 30,
1949, recorded in Book 5901 of official records of Alameda County at Page
37 thereof, Series No. AD/66898, said point being on the section line
between Section 20 and 21, T.2S., R.3 E., M.D.B.6M., south 456 feet from
the apparent northwest corner of the southwest quarter of said section 21
as said corner is defined by the fence corner, thence north 41 degrees 26
minutes west 492.7 feet to the southeasterly right of way line of County
Road No. 818, also known as Altamont Pass Road, being a portion of the
southeast quarter of Section 20, Township 2 south, Range 3 east, Mount
Diablo Base and Meridian.
PARCEL 3:
The north one half of Section 28, Township 2 south, Range 3 east, Mount
Diablo Base and Meridian, according to the official plat of said land filed
in the District Land Office.
Assessor's Parcel Nos. 099B-6275-002-01 (affects portion of parcel 1),
099B-6275-002-02 (affects portion of parcel 1), 099B-6275-002-03, (affects
remainder of parcel 1), 099B-6500-001 (affects parcel 3)
X-0
XXXXXXX 0
XXXX XX XXXXX XXXXX
CITY LAND - LEASE AREA
ROONEY PROPERTY
[MAP]
EXHIBIT C
---------
FORM OF TURBINE COMPLETION CERTIFICATE AND XXXX OF SALE
-------------------------------------------------------
ZOND CONSTRUCTION CORPORATION IV ("ZCC IV") hereby certifies to ZOND
WINDSYSTEM PARTNERS, LTD. SERIES 85-C (the "Partnership") that the construction
and installation of the (i) Turbines whose serial numbers are listed on the
attached Annex 1, and (ii) the Related Turbine Equipment pertaining thereto, a
description of which is set forth on such Annex 1, was completed on ,
-----------
1985 (the "Completion Date") in accordance with Section 4.1 of the Windsystem
Construction Agreement between the Partnership and ZCC IV ("Construction
Agreement"). ZCC IV further certifies to the Partnership that such Turbines have
not been placed in service as of the date hereof.
KNOW ALL MEN BY THESE PRESENTS: That for and in consideration of payments
made by the Partnership to ZCC IV pursuant to the Construction Agreement and
other good and valuable consideration, receipt of which is hereby acknowledged,
ZCC IV hereby sells, assigns and transfers to the Partnership all of ZCC IV's
right, title and interest (i) in and to the Turbines and all components thereof,
and (ii) in and to the Related Turbine Equipment pertaining thereto (together
with all rights of ZCC IV in respect of the warranties or other claims against
the manufacturer or vendor to ZCC IV of the Turbines and the Related Turbine
Equipment pertaining thereto), to have and to hold for itself and for its
successors and assigns to their own use and benefit forever.
ZCC IV hereby warrants to the Partnership that the Turbines, all components
of the Turbines and the Related Turbine Equipment pertaining thereto, are, as of
the date hereof, free from any mortgage, pledge, lien, charge, encumbrance,
lease or security interest (other than the Series C Purchase Note(s) made by the
Partnership in favor of ZCC IV and issued in respect of the purchase of the
Turbines, the Related Turbine Equipment pertaining thereto and the Power
Substation as contemplated by the Construction Agreement, or such other
interests as have been approved by the Partnership) and that ZCC IV has full
right, title and authority as to all persons to sell the same as aforesaid; and
ZCC IV hereby covenants with the Partnership that ZCC IV will, to the extent of
the foregoing warranty, warrant and defend all such components against the
claims and demands of all persons.
ZCC IV hereby warrants to the Partnership that all amounts due and payable
as of the date hereof to any other party or ZCC IV with respect to the Turbines
and the Related Turbine Equipment pertaining thereto have been duly paid and no
further amounts are owed or will be owing to any party or ZCC IV with respect
thereto.
C-1
IN WITNESS WHEREOF, ZCC IV has caused this instrument to be executed this
day of , 1985.
---- ----------------
"ZCC IV"
------
ZOND CONSTRUCTION CORPORATION IV,
a California corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By
-----------------------------------
The Partnership hereby accepts the Turbines and the Related Turbine
Equipment pertaining thereto, described above, and the passage of title thereto,
all as set forth above; provided, however, that by doing so, the Partnership
does not waive any rights or remedies it may have against ZCC IV or others under
the Construction Agreement or otherwise.
"PARTNERSHIP"
-----------
ZOND WINDSYSTEM PARTNERS, LTD.
SERIES 85-C
a California Limited Partnership
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By its authorized General Partner:
Zond Windsystems Management
Corporation IV,
a California corporation
Dated: By
----------------- ---------------------------------
C-2
EXHIBIT D
---------
FORM OF POWER SUBSTATION COMPLETION CERTIFICATE
-----------------------------------------------
AND XXXX OF SALE
----------------
ZOND CONSTRUCTION CORPORATION IV ("ZCC IV") hereby certifies to ZOND
WINDSYSTEM PARTNERS, LTD. SERIES 85-C (the "Partnership") that the construction
and installation of the Power substation was completed on , 1985 (the
-----------
"Completion Date") in accordance with Section 4.1 of the Windsystem Construction
Agreement between the Partnership and ZCC IV ("Construction Agreement"). ZCC IV
further certifies to the Partnership that the Power Substation has not been
placed in service as of the date hereof.
KNOW ALL MEN BY THESE PRESENTS: That for and in consideration of payments
made by the Partnership to ZCC IV pursuant to the Construction Agreement and
other good and valuable consideration, receipt of which is hereby acknowledged,
ZCC IV hereby sells, assigns and transfers to the Partnership all of ZCC IV's
right, title and interest in and to the Power Substation (together with all
rights of ZCC IV in respect of the warranties or other claims against the
manufacturer or vendor to ZCC IV of the Power Substation to have and to hold for
itself and for its successors and assigns to their own use and benefit forever.
ZCC IV hereby warrants to the Partnership that the Power Substation is, as
of the date hereof, free from any mortgage, pledge, lien, charge, encumbrance,
lease or security interest (other than the Series C Purchase Note(s) made by the
Partnership in favor of ZCC IV and issued in respect of the purchase of the
Turbines, the Related Turbine Equipment pertaining thereto and the Power
substation as contemplated by the Construction Agreement, or such other
interests as have been approved by the Partnership) and that ZCC IV has full
right, title and authority as to all persons to sell the same as aforesaid; and
ZCC IV hereby covenants with the Partnership that ZCC IV will, to the extent of
the foregoing warranty, warrant and defend all such components against the
claims and demands of all persons.
ZCC IV hereby warrants to the Partnership that all amounts due and payable
as of the date hereof to any other party or ZCC IV with respect to the Power
Substation, have been duly paid and no further amounts are owed or will be owing
to any party or ZCC IV with respect thereto.
D-1
IN WITNESS WHEREOF, ZCC IV has caused this instrument to be executed this
day of , 1985.
---- -------------------
"ZCC IV"
------
ZOND CONSTRUCTION CORPORATION IV
a California corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By
-------------------------------
The Partnership hereby accepts the Power Substation, described above, and
the passage of title thereto, all as set forth above; provided, however, that by
doing so, the Partnership does not waive any rights or remedies it may have
against ZCC IV or others under the Construction Agreement or otherwise.
"PARTNERSHIP"
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ZOND WINDSYSTEM PARTNERS, LTD.
SERIES 85-C,
a California Limited Partnership
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
By its authorized General Partner:
Zond Windsystems Management
Corporation IV,
a California corporation
Dated: By
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D-2
