Interstate Power and Light Company Power Purchase AgreementMasterpiece on the Mississippi
Dubuque
kital
All- America City
II 111!
2012
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Power Purchase Agreement Between the City of Dubuque and Interstate
Power and Light Company
DATE: March 12, 2013
City Attorney Barry Lindahl recommends City Council approval of a Power Purchase
Agreement between the City of Dubuque and Interstate Power and Light Company.
Interstate Power will purchase the excess energy from solar panels installed on the
Municipal Services Building by Eagle Point Energy — 1, LLC.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
brit44 krt., italy,
Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
THE CITY OF
DUB E MEMORANDUM
Masterpiece on the Mississippi
BARRY LINDAHL
CITY ATTORNEY
To: Michael C. Van Milligen
City Manager
DATE: March 8, 2013
RE: Power Purchase Agreement Between the City of Dubuque and Interstate
Power and Light Company
On October 3, 2011, the City of Dubuque entered into a License Agreement Regarding
Solar Photovoltaic Equipment with Eagle Point Energy — 1, LLC (Eagle Point). The
purpose of the License Agreement is to allow Eagle Point to install, operate, and
maintain a solar panel array on the Municipal Services Building and to allow the City to
lease the solar photovoltaic equipment and own any and all power generated by the
equipment at a cost to the City that is estimated to be less than the historical cost of
power to the City from other sources for the operation of the Municipal Services
Building.
Because the City may have surplus energy generated by the solar photovoltaic
equipment in excess of the City's needs at the Municipal Services Building, Interstate
Power and Light Company (Interstate) is willing to purchase the excess energy subject
to the terms and conditions of the attached Power Purchase Agreement. The
Agreement covers the purchase and sale of the energy, metering and billing, the
general obligations of the City and Interstate, and other general requirements. The
Agreement includes a guaranteed price for the energy purchased for the five years of
the contract.
I recommend that the Power Purchase Agreement be submitted to the City Council for
consideration and approval.
BAL:tls
Attachment
cc: Don Vogt, Public Works Director
Dave Heiar, Economic Development Director
John Klostermann, Street & Sewer Maintenance Supervisor
F: \USERS \tsteckle \Lindahl \Eagle Point Solar- Maintenance Garage - PowerPurchaseAgeement\ MVM_ PowerPurchaseAgreement _030813.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944
TELEPHONE (563) 583 -4113 / FAX (563) 583 -1040 / EMAIL balesq @cityofdubuque.org
PPA
POWER PURCHASE AGREEMENT
This Power Purchase Agreement ("Agreement") is entered into this day of
2013, by and between Interstate Power and Light Company ("Buyer"), an Iowa corporation, and City of
Dubuque, Iowa, an Iowa municipal corporation and political subdivision of the State of Iowa ( "Seller ").
RECITALS
1. Seller has, on October 3, 2011, entered into a License Agreement Regarding Solar Photovoltaic
Equipment, or "Equipment Lease." Utilizing the equipment referenced in that Equipment Lease,
Seller operates at its premises, a solar generating facility (the "Solar Generating Facility ") located in
Dubuque County, Iowa with a Committed Nameplate Capacity (as defmed below) of 175 kW.
2. Buyer is a rate regulated electric utility and is engaged in the supply of electricity to the public.
3. Seller may, from time -to -time, have surplus Energy generated by the Solar Generating Facility above
its own needs in the form of Delivered Energy (as defmed below).
4. Buyer is willing to purchase, and Seller is willing to sell, all of the Delivered Energy of the Solar
Generating Facility, subject to the terms and conditions and at the negotiated, mutually acceptable
Guaranteed Prices set forth in this Agreement. Buyer's obligation to pay the Guaranteed Prices for
the Delivered Energy arises out of this Agreement and does not arise out of and is not affected by
PURPA or any substantially similar legislation.
NOW THEREFORE, in consideration of these premises and the mutual promises set forth below, Seller
and Buyer agree as follows:
1.1
AGREEMENT
ARTICLE I - DEFINITIONS
Agreement: Agreement means this Purchase Power Agreement, which sets the terms for the sale
and purchase of Delivered Energy, and all of its appendices, as well as any written and signed
amendments to this Agreement as may be made from time to time by the Parties.
1.2 Buyer: Interstate Power and Light Company and its successors and permitted assignees.
1.3 Buyer Green Tariff: Any tariff promulgated by Buyer pursuant to which customers purchase
electricity, which is generated by renewable Energy methods.
1.4 Buyer System: The electric power generation, transmission, substation and distribution facilities
used to deliver energy from the Interconnection Facilities to the Buyer's load, which shall include,
without limitation, the circuit reinforcements, extensions, and associated terminal facility
reinforcements or additions required to complete interconnection with the Solar Generating Facility.
1.5 Capacity: The output potential a machine or system can produce or carry under specified conditions.
The capacity of generating equipment is generally expressed in kW or MW. In terms of transmission
lines, capacity refers to the maximum power flow a line is capable of carrying under specified
conditions. Capacity is also referred to as 'capability" in the electric power industry and, for the
purposes of this Agreement, the terms are synonymous.
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1.6 Commencement: When (1) construction of the Interconnection Facilities are completed, if not
already completed; (2) Seller has obtained all necessary Permits to delivery Delivered Energy to
Buyer; and (3) Seller and Buyer agree that all conditions of this Agreement have been satisfied for
Seller to deliver the Delivered Energy to Buyer.
1.7 Commencement Date: The first calendar day following the effective date of this Agreement that
Seller is able to deliver Delivered Energy to Buyer.
1.8 Committed Nameplate Capacity: Total maximum designed power output of the Solar Generating
Facility.
1.9 Contractual Obligations: As to either party, any provision of any security issued by it or any
agreement, instrument or undertaking to which such party is a party or by which it or any of its
property is bound.
1.10 Delivered Energy: The quantity of surplus Energy actually delivered by Seller from the Solar
Generating Facility to the Point of Interconnection during the times when Energy produced by the
Solar Generating Facility is greater than Seller's internal consumption of Energy. Delivered Energy
shall be measured by the "out" channel of a two - channel meter at the Point of Interconnection, or by
a separate meter at the Point of Interconnection measuring the flow of Energy from the Solar
Generating Facility to the Point of Interconnection.
Emergency: Any condition or situation which (i) endangers or might endanger life or property or (ii)
affects or might affect Buyer's ability, or the ability of any participant of RRC or MISO, to maintain
safe, adequate, and continuous electric service to Buyer's customers or the customers of any
participant of RRC or MISO, respectively.
1.12 Energy: The amount of electricity either used or generated over a period of time, as expressed in
units of kWh or MWh.
1.13 Environmental Attributes: All current and future attributes of an environmental or other nature,
known or unknown at the time of this Agreement, including allowances, certificates, emission credits
and all other credits, offsets, green tags and all other tags, and all similar rights issued, recognized,
created or otherwise arising from the solar energy used by the Solar Generating Facility, the Solar
Generating Facility, the generation of Energy using solar energy, and the sale and delivery of
Delivered Energy to Buyer, including all rights to report ownership of the Environmental Attributes
to any person or entity, under Section 1605(b) of the Energy Policy Act of 1992 or otherwise.
Environmental Attributes include but shall not be limited to those that are created by regulations,
statutes, or other governmental action enacted before, on, or after the effective date of this
Agreement. Environmental Attributes include but shall not be limited to those that can be used to (1)
claim responsibility for the reduction of emissions or pollutants, (2) claim ownership of emission or
pollutant reduction rights, and (3) claim reduction or avoidance of emissions or pollutants.
Emissions and pollutants include, but are not limited to acid rain precursors, carbon dioxide, carbon
monoxide, chlorinated hydrocarbons, greenhouse gases, mercury, metals, methane, nitrogen oxides,
nitrogen - oxygen compounds, ozone precursors, particulate matter, sulfur dioxide, toxic air
pollutants, other carbon and sulfur compounds, and similar pollutants or contaminants of air, water
or soil, under any governmental, regulatory or voluntary program, including but not limited to the
United Nations Framework Convention on Climate Change and related Kyoto Protocol or other
program. Environmental Attributes exclude PTCs, Iowa Renewable Energy Tax Credit, Production
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Incentives, and any and all other tax credits or tax benefits associated with the ownership or
operation of the Solar Generating Facility or the production of electricity using solar energy.
1.14 Environmental Law: Any federal, state and local laws including statutes, regulations, rulings,
orders, administrative interpretations and other governmental restrictions and requirements relating
to the discharge of air pollutants, water pollutants or process waste water or otherwise relating to the
environment or hazardous substances as amended from time to time.
1.15 Environmental Liability: Any and all liability arising under, resulting from or imposed by any
Environmental Law.
1.16 FERC: Federal Energy Regulatory Commission and its successor organization, if any.
1.17 Financier: Any Person providing money or extending credit (including any capital lease) to Seller
for (i) the construction, term or permanent financing of the Solar Generating Facility; or (ii) working
capital or other ordinary business requirements for the Solar Generating Facility. "Financier" shall
not include common trade creditors of Seller.
1.18 Force Majeure: Force Majeure shall have the meaning set forth in Section 6.1.
1.19 Governmental Authority: Any nation or government, any state or other political subdivision
thereof, whether foreign or domestic, including, without limitation, any municipality, township and
county, and any entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including, without limitation, any corporation or other
entity owned or controlled by any of the foregoing.
1.20 Grid Energy: The quantity of Energy delivered by the local utility to the Point of Interconnection
for use by Seller or the Solar Generating Facility during the time when the Station Auxiliary Power
is greater than the Solar Generating Facility Power. Grid Energy is typically measured by the "in"
channel of a two- channel meter at the Point of Interconnection, or by a separate meter at the Point of
Interconnection measuring the flow of Energy to the Solar Generating Facility.
1.21 Guaranteed Price: A price expressed in dollars per MWh set forth in Appendix A and used as the
basis for determining payments by Buyer to Seller for Delivered Energy.
1.22 IEEE: Institute of Electrical and Electronic Engineers and its successor organization, if any.
1.23 Interconnection Agreement: The agreement between Seller and Interconnection Provider pursuant
to which those parties set forth the terms and conditions for interconnection of the Solar Generating
Facility to the Interconnection Provider's System.
1.24 Interconnection Facilities: All the facilities installed in accordance with the Interconnection
Agreement for the purpose of interconnecting the Solar Generating Facility to the Interconnection
Provider's System, including, but not limited to, transformers and associated equipment, relay and
switching equipment, and safety equipment.
1.25 Interconnection Provider: The Person that owns and operates the transmission lines and other
equipment and facilities through which the Delivered Energy is physically delivered to Buyer at the
Point of Interconnection.
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1.26 Interconnection Provider's System: The transmission and subtransmission facilities and
Interconnection Facilities by which the Interconnection Provider provides interconnection with and
receives the Delivered Energy from the Solar Generating Facility at the Point of Interconnection.
1.27 Iowa Renewable Energy Tax Credits: Tax credits that may be available as of the date of this
Agreement, and as may become available in the future, in connection with the purchase and sale of
renewable energy from eligible renewable energy facilities pursuant to Chapter 476B or 476C of the
Iowa Code and any substantially similar or successor provision.
1.28 kW: Kilowatt.
1.29 kWh: Kilowatt hour.
1.30 MISO: Midwest Independent Transmission System Operator, Inc. and its successor organization, if
any.
1.31 MISO OATT: The MISO Open Access Transmission and Energy Markets Tariff, including the
resource adequacy requirements of Module E, as amended from time to time.
1.32 MVA: Mega volt - amperes.
1.33 MW: Megawatt.
1.34 MWh: Megawatt hour.
1.35 New Joint Transmission Authority: Any independent service organization, independent
transmission company or other Person which is created subsequent to the date of this Agreement and
which is empowered or authorized to accredit, plan, coordinate, operate, regulate or otherwise
manage any or all of the transmission assets of the Buyer System, whether in place of or in addition
to RRC or MISO.
1.36 NERC: North American Electric Reliability Corporation or any successor organization thereto.
1.37 Parties: Buyer and Seller, and their respective successors and permitted assignees.
1.38 Party: Buyer or Seller, and their respective successors and permitted assignees.
1.39 Permits: All state, federal, and local authorizations, certificates, permits, licenses and approvals
required by any Governmental Authority for the construction, operation and maintenance of the
Solar Generating Facility.
1.40 Person: An individual, partnership, corporation (including a business trust), limited liability
company, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority, or other entity.
1.41 Point of Interconnection: The point on the electrical system where the Solar Generating Facility is
physically interconnected with the Interconnection Provider's System, where the ownership of
physical equipment changes, and where title to and risk of loss for the Delivered Energy are
transferred from Seller to Buyer. The Point of Interconnection is described in Appendix B.
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1.42 Power Quality Standards: The Power Quality Standards established by NERC, RRC, IEEE
standards, MISO, National Electric Safety Code, the National Electric Code, and their respective
successor organizations or codes as they may be amended from time to time and consistent with
Prudent Electric Industry Practice.
1.43 Prudent Electric Industry Practice: Those methods and that equipment, as changed from time to
time, that are commonly used and accepted in electrical engineering and operations to operate
electric equipment lawfully and with safety, dependability and efficiency, including, but not limited
to, the requirements of the National Electric Safety Code, the National Electrical Code, IEEE
Standards, RRC Procedures, NERC standards and procedures, MISO, and any governmental code or
regulations.
1.44 PTC: The federal production tax credit or any substantially similar successor provision that is
available as of the date of this Agreement, and as becomes available in the future, for the production
of electricity from solar energy pursuant to 26 U.S.C. § 45.
1.45 PURPA: The Public Utility Regulatory Policy Act of 1978, as such is amended from time to time,
and as implemented by FERC regulations and state and federal statutes and rules, as amended from
time to time.
1.46 Qualifying Facility or QF: A qualifying facility as defined by PURPA, 16 U.S.C. §824a -3, and the
implementing regulations of FERC, 18 C.F.R. Part 292, and their successor provisions, including
Section 713 of the Energy Policy Act of 1992.
1.47 Regional Reliability Council(s) or RRC(s)" shall mean any of the applicable NERC Regional
Reliability Councils or any other RRC to which Buyer chooses to join, and any successor
organization(s).
1.48 RRC(s) Procedures: Those procedures and guidelines established by the RRC(s) or its committees
that are applicable to Buyer's system operations or the Facility, as amended from time to time.
1.49 Requirements of Law: Collectively, the organizational or governing documents of Seller and any
United States federal or state law, treaty, franchise, rule, regulation, order, writ, judgment,
injunction, decree, award or determination of any court or other Governmental Authority, in each
case applicable to or binding upon Seller or any of its property or to which Seller or any of its
respective properties are subject.
1.50 Seller: City of Dubuque, Iowa and any successor or permitted assignee.
1.51 Site: The real property on which the Solar Generating Facility and associated Interconnection
Facilities are located, including any related easements. The legal description of the Site is set forth
in Appendix C. Seller's public works operations ( "Public Works Operations ") are located on the
Site.
1.52 Solar Generating Facility: The generation and transmission facilities built for the generation of
solar powered Energy operated by Seller. The Solar Generating Facility is described in the Recitals
and the associated equipment is owned/leased by Seller and located on the Site.
1.53
Solar Generating Facility Power: Power produced directly from the Solar Generating Facility as it
is created and before it is used or delivered for any other purposes, such as for Station Auxiliary
Power.
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1.54 Station Auxiliary Power: Energy used by Seller to operate the Solar Generating Facility. It also
includes Solar Generating Facility power usage, line losses, transformer losses, and all other power
sinks from power creation by the Solar Generating Facility to the Point of Interconnection.
1.55 Term: The period of time during which this Agreement is in effect as specified in Section 2.1.
1.56 Unavailable or Unavailability: A physical state in which the Solar Generating Facility is not
capable of providing Delivered Energy, or in which any other equipment or facility is not physically
capable of performing its intended purpose.
ARTICLE II
PURCHASE AND SALE
2.1 Term
The Term of this Agreement shall commence upon execution by authorized representatives of both
Parties and shall continue until the end of the fifth year after the Commercial Operation Date.
Buyer's obligation to purchase the Delivered Energy of the Solar Generating Facility shall be
effective on the Commencement Date.
2.2 Sale and Purchase
(a) Seller agrees to sell the Delivered Energy and to deliver the Delivered Energy at the Point of
Interconnection during the Term, subject to the terms of this Agreement. Buyer agrees to purchase
the Delivered Energy and to accept delivery of the Delivered Energy at the Point of Interconnection
during the Term, subject to the terms of this Agreement. Notwithstanding anything in this
Agreement to the contrary, Seller shall retain all rights associated with the Environmental Attributes,
including the benefit of any tax treatment associated with ownership of the Environmental
Attributes. Seller shall not contract to sell any Delivered Energy from the Solar Generating Facility
to any Person other than Buyer for the Term and Seller acknowledges that Buyer is entitled to
receive all Delivered Energy from the Solar Generating Facility during the Term. Notwithstanding
the foregoing, Seller has no obligation to provide any Delivered Energy to Buyer. Buyer shall
purchase all Delivered Energy from the Solar Generating Facility for the purchase price listed in
Appendix A.
(b) No fuel other than solar energy will be used to produce Energy from the Solar Generating
Facility for this Agreement.
2.3 Guaranteed Price
On and after the Commencement Date, Buyer shall pay Seller for Delivered Energy at the
Guaranteed Price and time periods set forth in Appendix A. Buyer and Seller agree that no
additional compensation shall be payable to Seller for the Capacity associated with the Delivered
Energy delivered to Buyer hereunder, and that Seller is not entitled to a separate price or payment for
the Capacity of the Solar Generating Facility.
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2.4 Tax Credits
Seller is responsible to apply and qualify for the PTC, Iowa Renewable Energy Tax Credits and any
other production tax credits, tax related benefits or payments or other tax related assistance, grants,
benefits or credits which might be available to Seller or the Solar Generating Facility from any
Governmental Authority; and Buyer agrees that Seller is entitled to receive any such tax related
credits, benefits, assistance, or grants. Seller and Buyer agree that the Guaranteed Prices set forth in
Appendix A are not subject to adjustment or amendment due to Seller's receipt, or failure to receive,
any such credits, assistance, benefits or grants, in whole or in part, after the date of this Agreement.
2.5 Committed Nameplate Capacity
Seller agrees that the Committed Nameplate Capacity shall be 175 kW as of the Commencement
Date, and that the Committed Nameplate Capacity shall include only Capacity produced from solar
energy at the Solar Generating Facility.
2.6 Title and Risk of Loss
Title to and risk of loss with respect to the Delivered Energy delivered to Buyer by Seller in
accordance with this Agreement shall pass from Seller to and vest in Buyer when the Delivered
Energy is delivered to the Point of Interconnection. Until title passes, Seller shall be deemed in
exclusive control of the Delivered Energy from the Solar Generating Facility and shall be
responsible for any injury or damage caused thereby. After title passes, Buyer shall be deemed to be
in exclusive control of the Delivered Energy and shall be responsible for any injury or damage
caused thereby. Seller agrees to assist Buyer at no additional cost, as reasonably requested by Buyer
or as may be required in order to obtain timely and adequate documentation of Buyer's good title to
the Delivered Energy from Seller. Seller agrees to indemnify, defend and hold Buyer harmless from
any Seller or third party claims or actions relating to Buyer's entitlement to, use of, or good title to
the Delivered Energy.
2.7 Environmental Attributes; Tax Credits
Seller shall acquire all present and future rights, titles and interest in any and all Environmental
Attributes and the value thereof for the Term of this Agreement. Seller shall retain all present and
future rights, titles and interest in any PTCs, Iowa Renewable Energy Tax Credits, and in any present
or future federal, state or local tax credits, tax exemptions or other tax benefits attributable to the
installation of the Solar Generating Facility or the production of Energy therefrom, such as sales tax
exemptions relating to equipment installed as part of the Solar Generating Facility or property tax
exemptions or credits. Buyer acknowledges and agrees that it has no rights, title or interests in or to
any Environmental Attributes or Tax Credits associated with the Solar Generating Facility Power
and releases and waives any claims thereto.
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ARTICLE III
METERING AND BILLING
3.1 Metering Requirements
PPA
The transfer of Delivered Energy between Seller and Buyer shall be measured by metering
equipment at the Point of Interconnection described in Appendix B. Such meters shall be provided,
installed, owned, tested, maintained and operated in accordance with the terms of the Interconnection
Agreement. In the event that the Point of Interconnection described in Appendix B differs from the
Point of Interconnection as finally defined in the Interconnection Agreement, the definition in the
Interconnection Agreement shall prevail.
3.2 Billing
Buyer shall read the meter at the end of each calendar month of the Term, and provide to Seller via
e -mail by the 15th of the following month, an invoice based upon the meter data for Delivered
Energy and the Guaranteed Price terms of this Agreement.
3.3 Payment
Buyer's payment to Seller for Delivered Energy shall be made by electronic transfer of funds within
twenty (20) days from the date of the invoice. Buyer shall make payments to a bank account as
designated from time to time by Seller or, if authorized by Seller, by Financier. If such due date falls
on a weekend or legal holiday, such due date shall be the next day not a weekend or legal holiday.
Buyer shall be entitled to conclusively presume, without any liability whatsoever, that the payment
information furnished by Seller (including name, financial institution, account numbers, payee, etc.)
is accurate. In no event will Buyer be required to pay any bill more than once where the invoice was
first paid in accordance with Seller's instructions. Payments made after the due date shall be
considered late and shall bear interest on the unpaid balance at an annual rate equal to one - and -a -half
(1.5 %) percent plus the average daily prime rate as determined from the "Money Rates" section of
the Midwest Edition of the Wall Street Journal for the days of the late payment period. The days of
the late payment period include the number of days elapsed from and including the day after the due
date, to and including the payment date. Interest shall be computed on the basis of a 365 -day
calendar year. In the event this index is discontinued or its basis is substantially modified, the Parties
shall agree on a substitute equivalent index.
ARTICLE IV
SELLER'S OBLIGATIONS
During the Term of this Agreement, Seller hereby agrees to be bound by and to perform the following
affirmative obligations:
4.1 Operation of the Solar Generating Facility
At Seller's sole expense, Seller shall:
(a) operate the Solar Generating Facility in accordance with Prudent Electric Industry Practice
and the schedule set forth in the Interconnection Agreement.
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(b) seek, obtain, maintain, comply with and, as necessary, renew and modify from time to time
the Permits and all other permits, licenses, easements, rights -of -way, releases, certificates or other
authorizations that are required by any Requirement of Law or Governmental Authority to operate
the Solar Generating Facility and, to the extent necessary as prerequisites, on an as available basis,
deliver Delivered Energy to Buyer consistent with the terms of this Agreement, but excluding any
Governmental Authority approval for which Buyer is responsible pursuant to Sections 5.1, 5.2 and
5.3 below. Upon Seller's request, Buyer shall use commercially reasonable efforts to assist Seller in
obtaining the foregoing, provided that Seller shall reimburse Buyer for all out -of- pocket costs
incurred by Buyer for such assistance. In the event Seller fails to reimburse Buyer for these out -
pocket- costs, Buyer may deduct these out -of- pocket costs from any and all amounts owed Seller
under this Agreement.
(e) operate, maintain, and repair the Solar Generating Facility in accordance with this
Agreement, all Requirements of Law, Contractual Obligations, Permits, RRC Procedures, the
requirements of any New Joint Transmission Authority, the requirements of MISO and in
accordance with Prudent Electric Industry Practice.
(d) comply with RRC Procedures and MISO and NERC procedures and the requirements of any
New Joint Transmission Authority and cooperate with all reasonable requests by Buyer relating to
Buyer's compliance with RRC Procedures and MISO and NERC procedures and the requirements of
any New Joint Transmission Authority, including any amendments to, or changed requirements.
(e) negotiate and enter into an agreement with Interconnection Provider and, if applicable,
MISO to interconnect with Interconnection Provider's System so as to enable the delivery of Energy
from the Solar Generating Facility to the Point of Interconnection.
(f) operate and maintain the Solar Generating Facility consistent with RRC, NERC, MISO, any
New Joint Transmission Authority and other applicable requirements.
(g) use it commercially reasonable efforts to notify Buyer in advance of all scheduled outages of
the Solar Generating Facility that may adversely affect Buyer.
4.2 General Obligations
(a) Seller, during the Term of this Agreement, shall pay all present or future federal, state,
municipal, or other lawful taxes or fees applicable to Seller or the Solar Generating Facility by
reason of the sale of the Delivered Energy under this Agreement provided, however, that Buyer shall
pay any future federal, state or municipal tax imposed upon wholesale purchasers of energy such as
Buyer, with respect to the Delivered Energy sold under this Agreement.
(b) Seller shall obtain, in its own name and at its own expense, any and all pollution or
environmental credits or offsets necessary to operate the Solar Generating Facility in compliance
with the Environmental Laws. Seller agrees to execute an Indemnity Agreement in the form set forth
in Appendix D in favor of Buyer to protect Buyer against any Environmental Liability relating to or
arising from the Site and the Solar Generating Facility.
(e) Unless otherwise agreed by the Parties, Seller shall provide its own Station Auxiliary Power
from the output of its on -site generator when it is operating. Seller shall be responsible for obtaining
Grid Energy at no additional expense to Buyer. The Seller will purchase Grid Energy from the Solar
Generating Facility's appropriate local utility at the utility's applicable rates.
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(d) Seller shall keep complete and accurate operating and other records and all other data
reasonably necessary for the purposes of proper administration of this Agreement, including such
records as may be required by any Governmental Authority, RRC (in the form required by RRC),
MISO, Buyer, the Parties and as otherwise required by Prudent Electric Industry Practice. Buyer
shall provide Seller with reasonable notice of any Buyer's specific requirements, however Seller shall
not be responsible to keep records Buyer is required to maintain or provide.
(e) Seller shall continue to (i) to the extent applicable, preserve, renew and keep in full force and
effect its organizational existence and good standing, and take all reasonable action to maintain all
Permits, rights, privileges, licenses, and franchises necessary or desirable in the ordinary course of its
business; and (ii) comply with all Contractual Obligations and Requirements of Law.
(f) Subject to the confidentiality provisions of Section 11.11, Seller shall provide to Buyer such
other information regarding permitting, engineering, construction, condition and operations of the
Solar Generating Facility as Buyer may reasonably request solely for Buyer's compliance with
regulatory matters as a regulated utility. Seller shall not be required to undertake any new analysis
regarding the permitting, engineering, construction, condition and operations of the Solar Generating
Facility to respond to any request by Buyer. Except to the extent required by any Governmental
Authority, Buyer shall maintain such information in confidence and shall not disclose any
information provided by Seller under this Agreement to any other Person, including any affiliate of
Buyer, without the prior written consent of Seller.
4.3 Merger
Omitted.
4.4 Sale of Solar Generating Facility Assets
Except in the event of the repair, replacement or substitution of parts and equipment in the ordinary
course of business with respect to the Solar Generating Facility or as otherwise provided in Section
11.1, Seller shall not lease, sell, agree to sell, convey or otherwise transfer (in one or a series of
related transactions) any of its interest or title in any portion of its Solar Generating Facility assets to
a third party for the purpose of operating a solar generating facility on the Site, including but not
limited to, leasehold and easement interests, now owned or hereafter acquired, without Buyer's prior
written consent, which shall not be unreasonably withheld or delayed. In the event Buyer consent to
any such lease, sale, agreement to sell, conveyance, or other transfer or disposition, Seller shall
remain liable for its obligations under this Agreement except to the extent the transferee expressly
agrees in writing to assume such obligations in their entirety. In the event of any lease, sale,
conveyance or other transfer or disposition of the Solar Generating Facility, the transferee must
accept in writing the obligations of Seller with respect to the configuration of meters and related
equipment and the billing arrangements reflected in this Agreement and the Interconnection
Agreement.
4.5 Parties' Cooperation
Seller and Buyer agree to cooperate in any application or proceeding relating to approval of this
Agreement before a regulatory commission, agency or any other Governmental Authority, including,
but not limited to, the provision of information in its possession, custody or control necessary to
complete such applications or to respond to requests from relevant Governmental Authorities or
other parties.
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4.6 Unavailability
Seller shall use commercially reasonable efforts to operate and maintain the Solar Generating
Facility so as to minimize Solar Generating Facility Unavailability. Seller shall not be responsible
for outages or other Unavailability due to a Force Majeure, Unavailability of the Interconnection
Provider's System or other necessary transmission or distribution facilities on Buyer's side of the
Point of Interconnection. Buyer shall not be obligated to pay for Delivered Energy that Seller fails to
deliver to the Point of Interconnection.
ARTICLE V
BUYER OBLIGATIONS
5.1 Buyer System Improvements
Improvements and enhancements to the Buyer System that are necessary to provide a safe and
reliable transmission and delivery system after the addition of the Solar Generating Facility to the
Buyer System shall be addressed in the Interconnection Agreement.
5.2 RRC Approvals
Any approvals and authorizations required from MISO, RRC or FERC necessary for Seller to
interconnect with the Buyer System at the Point of Interconnection and to meter and deliver the
Energy from the Point of Interconnection to the Buyer System shall be addressed in the
Interconnection Agreement. Buyer shall be solely responsible for transmission and delivery of the
Delivered Energy from the Point of Interconnection to any other location on the Buyer System, or
beyond the Buyer System, at Buyer's expense.
5.3 Buyer Green Tariff Approvals
Buyer shall be responsible for obtaining all approvals and authorizations, if any, required from a
regulatory commission, agency, or any other Governmental Authority for any Buyer Green Tariff.
Buyer agrees that the obligations of this Agreement are not conditioned upon its receipt of any such
approval or authorization. Buyer shall be solely responsible for compliance with and administration
of any Buyer Green Tariff, and Seller shall have no obligations to Buyer or its customers arising
from or related to the operation, implementation or administration of any Buyer Green Tariff.
5.4 Buyer's Cooperation
Buyer agrees to cooperate with Seller in any applications that Seller is making for tax credits, grants
or assistance as described in Section 2.4. Buyer's obligation shall consist only of providing
nonproprietary information in its possession, custody or control necessary to complete any such
applications, and responding to requests from the relevant Governmental Authorities or other parties.
Buyer shall use it commercially reasonable efforts to notify Seller in advance of all scheduled
outages of Buyer System that may adversely affect Seller.
5.5 Record Keeping
Buyer shall keep complete and accurate operating and other records and all other data reasonably
necessary for the purposes of proper administration of this Agreement, including such records as
may be required by any Governmental Authority, RRC (in the form required by RRC), MISO, Seller,
the Parties and as otherwise required by Prudent Electric Industry Practice. Seller shall provide
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Buyer with reasonable notice of any Seller's specific requirements, however Buyer shall not be
responsible to keep records Seller is required to maintain or provide.
5.6 Buyer System
Buyer shall operate, maintain, and repair the Buyer System in accordance with this Agreement, all
Requirements of Law, Contractual Obligations, Permits, RRC Procedures, the requirements of any
New Joint Transmission Authority, the requirements of MISO and in accordance with Prudent
Electric Industry Practice.
ARTICLE VI
FORCE MAJEURE
6.1 Force Ma•eure
(a) It is understood that at times unavoidable delays or interruptions in delivery or performance
result from causes which may reasonably be beyond the control of the affected Party or its
contractors or subcontractors, which the affected Party could not have avoided or cannot overcome
through the exercise of reasonable due diligence, including, but not limited to: Acts of providence,
fires, floods, tornadoes, sabotage, unavoidable accidents, riots, strikes, slowdowns, lockouts, and acts
of war or terrorism, a Force Majeure event on the Interconnection Provider's System as defined in
the Interconnection Agreement to the extent it causes the Solar Generating Facility to be physically
incapable of delivering Energy or Buyer from receiving Energy from the Solar Generating Facility at
the Point of Interconnection, or a Force Majeure event (as defined in the MISO OATT) on the
regional transmission system to the extent it causes Buyer to be unable to accept delivery of Energy
from the Solar Generating Facility at the Point of Interconnection. Notwithstanding the foregoing,
"Force Majeure" shall not include the following conditions: (i) late delivery to a Party of machinery,
equipment, materials or spare parts, unless such late delivery, itself, is caused by an event of Force
Majeure; (ii) a delay in the performance of any contractor unless such delay is caused by an Event of
Force Majeure; (iii) normal wear and tear or random flaws in materials or breakdowns in equipment;
(iv) inclement weather ordinarily experienced in the area of the Site; or (v) changes in the market
conditions or governmental action or weather conditions that affect the cost of Seller's supply of
Energy from the Solar Generating Facility or Buyer's economics to purchase the Delivered Energy.
(b) The performance of each Party under this Agreement may be subject to interruptions or
reductions due to a Force Majeure condition; provided, that, (i) the non - performing Party gives the
other Party prompt written notice describing the particulars of the event of the Force Majeure; (ii) the
suspension of performance is of no greater scope and of no longer duration than is required by the
Force Majeure. Both Parties shall in good faith use such effort as is reasonable under all the
circumstances known to that Party affected by the Force Majeure condition at the time to remove or
remedy the cause(s) and mitigate the inability to perform. However, the obligation to use such
reasonable effort shall not be interpreted to require resolution of labor disputes by acceding to
demands of the opposition when such course is inadvisable in the discretion of the Party having such
difficulty.
6.2 Remedial Action
A Party shall not be liable to the other Party if the Party is prevented from performing its obligations
hereunder due to a Force Majeure condition. The Party rendered unable to fulfill an obligation by
reason of a Force Majeure condition shall take all action necessary to remove such inability with all
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due speed and diligence. The nonperforming Party shall be prompt and diligent in attempting to
remove the cause of its failure to perform, and nothing herein shall be construed as permitting that
Party to continue to fail to perform after said cause has been removed. If such Force Majeure
condition continues for twelve (12) consecutive months without being remedied, either Party may
terminate this Agreement upon prior written notice, provided that, in such event, neither Party shall
be liable to the other Party for any damages pursuant to Section 7.4(a).
6.3 Notice
In the event of any delay or nonperformance resulting from Force Majeure, the Party suffering the
Force Majeure condition shall, as soon as practicable, but no later than five (5) days after the
commencement of the Force Majeure condition, notify the other Party in writing of the nature, cause,
date of commencement thereof, and the anticipated extent of any delay or interruption in
performance.
ARTICLE VII
TERMINATION/DEFAULT /REMEDIES
7.1 Events of Default by Buyer
The following shall each constitute an Event of Default by Buyer:
(a) After the Commencement Date, Buyer fails to purchase or accept delivery of Delivered
Energy for any reason other than a Force Majeure condition, curtailment or other instruction
by MISO or an Emergency.
(b) Buyer breaches any other curable material obligation under this Agreement, and fails to cure
such breach within thirty (30) days after written notification of breach by Seller.
(e)
Buyer breaches any other material obligation under this Agreement not previously
enumerated in this section.
7.2 Events of Default by Seller
The following shall each constitute an Event of Default by Seller:
(a) After the Commencement Date, the Solar Generating Facility is Unavailable to provide
Energy for ninety (90) consecutive days or one hundred (100) non - consecutive days in any
three hundred sixty -five (365) day period for any reason other than a Force Majeure
condition.
(b) Seller breaches any curable material obligation under this Agreement and fails to cure the
breach within thirty (30) days after written notification of the breach by Buyer.
(c) Seller breaches any other obligation under this Agreement not previously enumerated in this
section.
7.3 Termination
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(a) In the event the defaulting Party fails to cure the Event of Default within the period for
curative action under Sections 7.1 or 7.2, as applicable, or upon the occurrence of an incurable Event
of Default the non - defaulting Party may terminate this Agreement by notifying the defaulting Party
in writing of the decision to terminate and the effective date of the termination.
(b) Upon termination of this Agreement, Buyer shall have no future or further obligation to
purchase the Delivered Energy of the Solar Generating Facility or to make any payment whatsoever
under this Agreement, except for payments or obligations arising or accruing prior to the effective
date of termination and Seller shall have no future or further obligation to deliver the Delivered
Energy of the Solar Generating Facility to Buyer, except for obligations arising or accruing prior to
the effective date of termination. After the effective date of termination, this Agreement shall not be
construed to provide any residual value to either Party or any successor or any other Person, for
rights to, use of, or benefits from the Solar Generating Facility or Buyer System.
7.4 Other Damages
(a) For all claims, causes of action and damages, the Parties shall be entitled to the recovery of
actual direct damages allowed by law unless otherwise limited by this Agreement. Neither the
enumeration of Events of Default in Sections 7.1 and 7.2, or the termination of this Agreement by a
non - defaulting Party pursuant to Section 7.3(a), shall limit the right of a non - defaulting Party to
rights and remedies available at law, including, but not limited to, claims for breach of contract or
failure to perform by the other Party and for direct damages incurred by the non - defaulting Party as a
result of the termination of this Agreement.
(b) Except as otherwise specifically and expressly provided in this Agreement, neither Party
shall be liable to the other Party under this Agreement for any indirect, special, incidental,
consequential damages, including but not limited to, loss of use, loss of revenue, loss of profit,
interest charges, cost of capital, or claims of its customers to which service is made. In the event
Buyer breaches this Agreement by refusing or failing to accept deliveries of Delivered Energy, the
Parties acknowledge that the payments that would otherwise have been made by Buyer to Seller for
such deliveries, and the value of any associated lost tax credits constitute direct and not
consequential damages.
7.5 Indemnification
Seller, to the extent permitted by law, and Buyer agree to defend, indemnify, and hold each other,
and their respective officers, directors, employees, and agents, harmless from and against all claims,
demands, losses, liabilities, and expenses (including reasonable attorneys' fees) (collectively
"Damages ") for personal injury or death to Persons and damage to each other's physical property or
facilities or the property of any other Person or corporation to the extent arising out of, resulting
from, or caused by the negligent acts, errors, or omissions or willful misconduct of the indemnifying
Party. Furthermore, each Party, to the extent permitted by law, shall defend, indemnify, and hold the
other harmless from and against all damages that are or were incurred or suffered by the indemnified
Party and which relate to the indemnifying Party's breach or failure to perform any of the covenants,
agreements, obligations, representations, or warranties contained in this Agreement. Nothing in this
section shall relieve Seller or Buyer of any liability to the other for any breach of this Agreement.
This indemnification obligation shall apply notwithstanding any negligent acts, errors or omissions
or willful misconduct of the indemnitees but the indemnifying Party's liability to pay Damages to the
indemnified Party shall be reduced in proportion to the percentage by which the indemnitees'
negligent acts, errors or omissions or willful misconduct caused the Damages. Neither Party shall be
indemnified for its Damages resulting from its sole negligence or willful misconduct.
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ARTICLE VIII
DISPUTE RESOLUTION
8.1 Dispute
An authorized representative of a Party may submit a claim, dispute or other controversy arising out
of, or relating to, this Agreement which an authorized representative of a Party does not believe can
be resolved by the Parties' authorized representatives (hereinafter collectively referred to as a
"Dispute ") to a Senior Officer from each Party for resolution by mutual agreement between the
Senior Officers. Any agreed determination by the Senior Officers shall be final and binding upon the
Parties. However, if the Senior Officers do not arrive at a mutual decision as to the Dispute within
ten (10) days (or such longer time as the Parties agree) after notice to each Party of the Dispute,
either Party may commence legal proceedings to resolve such Dispute in accordance with
Section 8.2.
8.2 Jurisdiction, Venue, Waiver of Jury Trial
Each of the Parties hereby agrees that any legal proceedings shall be submitted to a court of
competent jurisdiction located in the State of Iowa. Each Party hereto irrevocably waives, to the
fullest extent permitted by applicable law, any objection which it may have or hereafter have to the
personal jurisdiction of such court or the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been brought in an
inconvenient forum and agrees that it will not file any motion or assert any defense in any such
proceeding that is inconsistent with the foregoing waivers and consent. EACH OF THE PARTIES
HERETO HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER DOCUMENTS ENTERED INTO IN CONNECTION HEREWITH.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
9.1 Seller Representations and Warranties:
Seller represents and warrants to Buyer, upon which representations and warranties Buyer relies, as
follows:
(a) that it is a city, duly organized, validly existing, and in good standing under the laws of the
State of Iowa; that it is authorized to conduct business in the State of Iowa; that it has the power and
authority to enter into and perform this Agreement; and that the execution, delivery and performance
of this Agreement has been duly authorized by all necessary limited liability company action.
Further, Seller covenants that, during the Term of this Agreement, it shall remain a duly organized
and validly existing legal entity with authority to conduct business in the State of Iowa and shall
have the power and authority to perform this Agreement; and
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(b) that from the execution of this Agreement to expiration of the Term, the Solar Generating
Facility and Seller's Interconnection Facilities shall be operated and maintained in accordance with
Applicable Laws, and this Agreement and the Interconnection Agreement; and
(e) that, to the best of Seller's knowledge, no suit, action or arbitration in legal, administrative or
other proceeding is pending or has been threatened against Seller that would affect the validity or
enforceability of this Agreement or the ability of Seller to fulfill its commitments hereunder, or that
would, if adversely determined, have a material adverse effect on the business or financial condition
of Seller; and
(d) that the execution, delivery, and performance of this Agreement by Seller will not result in a
breach of, default under, or violation of any Law, or the provisions of any authorization or in a
breach of, default under or in violation of any provision of its certificate of formation or other
organizational documents or any promissory note, indenture, or any evidence of indebtedness or
security therefore, lease, contract or other agreement by which it or its property is bound; and
(e) that this Agreement constitutes a legal, valid and binding obligation, enforceable against
Seller in accordance with its terms, except as the enforcement of such terms may be limited by
applicable bankruptcy, reorganization, insolvency or similar laws affecting the enforcement of
creditors rights generally; and
(f) that it is entitled to, it has, and it will have good title to the Delivered Energy to be purchased
by Buyer under this Agreement; that it is entitled to transfer good title to all such Delivered Energy
to Buyer under this Agreement; and that it will, for the Term of this Agreement, transfer good title to
all the Delivered Energy to Buyer.
9.2 Buyer Representations and Warranties:
follows:
Buyer represents and warrants to Seller, upon which representations and warranties Seller relies, as
(a) that it is a corporation, duly organized, validly existing, and in good standing under the laws
of the States of Iowa and Minnesota; that it has the power and authority to enter into and perform this
Agreement; and that the execution, delivery and performance of this Agreement has been duly
authorized by all necessary corporate action. Further, Buyer covenants that, during the Term of this
Agreement, it shall remain a duly organized and validly existing legal entity with authority to
conduct business in the States of Iowa and Minnesota shall have the power and authority to perform
this Agreement; and
(b) that, to the best of Buyer's knowledge, no suit, action or arbitration in legal, administrative
or other proceeding is pending or has been threatened against Buyer that would affect the validity or
enforceability of this Agreement or the ability of Buyer to fulfill its commitments hereunder, or that
would, if adversely determined, have a material adverse effect on Buyer's performance of this
Agreement; and
(e) that the execution, delivery, and performance of this Agreement by Buyer will not result in a
breach of, default under, or violation of any Law, or the provisions of any authorization or in a
breach of, default under or in violation of any provision of its articles of incorporation or bylaws or
any promissory note, indenture, or any evidence of indebtedness or security therefore; and
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(d) that this Agreement constitutes a legal, valid and binding obligation, enforceable against
Buyer in accordance with its terms, except as the enforcement of such terms may be limited by
applicable bankruptcy, reorganization, insolvency or similar laws affecting the enforcement of
creditor's rights generally.
ARTICLE X
FERC STANDARD OF REVIEW, MOBILE SIERRA WAIVER
10.1 Absent the agreement of all Parties to the proposed change, the standard of review for
changes to any rate, charge, classification, term or condition of this Agreement, whether proposed by
a Party (to the extent that any waiver in subsection (b) below is unenforceable or ineffective as to
such Party), a non -party or FERC acting sua sponte, shall solely be the "public interest" application
of the `just and reasonable" standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas
Service Corp. 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co. 350
U.S. 348 (1956) and clarified by Morgan Stanley Capital Group, Inc. v. Public Util. Dist. No. 1 of
Snohomish 554 U.S. (2008) ( the "Mobile- Sierra" doctrine).
10.2 In addition, and notwithstanding the foregoing section 10.1, to the fullest extent permitted by
applicable law, each Party, for itself and its successors and assigns, hereby expressly and irrevocably
waives any rights it can or may have, now or in the future, whether under §§ 205 or 206 of the
Federal Power Act or otherwise, to seek to obtain from FERC by any means, directly or indirectly
(through complaint, investigation or otherwise), and each hereby covenants and agrees not at any
time to seek to so obtain, an order from FERC changing any section of this Agreement specifying the
rate, charge, classification, or other term or condition agreed to by the Parties, it being the express
intent of the Parties that, to the fullest extent permitted by applicable law, neither Party shall
unilaterally seek to obtain from FERC any relief changing the rate, charge, classification, or other
term or condition of this Agreement, notwithstanding any subsequent changes in applicable law or
market conditions that may occur. In the event it were to be determined that applicable law
precludes the Parties from waiving their rights to seek changes from FERC to their market -based
power sales contracts (including entering into covenants not to do so) then this section 10.2 shall not
apply, provided that, consistent with section 10.1, neither Party shall seek any such changes except
solely under the "public interest" application of the 'just and reasonable" standard of review and
otherwise as set forth in section 10.1.
ARTICLE XI
MISCELLANEOUS
11.1 Assignment
(a) Neither this Agreement nor any rights and obligations of this Agreement may be assigned by
either Party without the prior written consent of the other Party. Notwithstanding the foregoing, (1)
Buyer may assign this Agreement without such consent in the event of merger, consolidation or sale
of substantially all of its assets, provided written notice of such assignment is provided to Seller
within thirty (30) days after such assignment and (2) Seller may assign this Agreement without such
consent to any Financier as security for financing required to construct and operate the Solar
Generating Facility. Buyer shall not be required to enter into collateral assignments of this
Agreement except as provided by this Section 11.1. Subject to the terms and conditions of this
Agreement, Buyer shall, upon prior written request by Seller, execute a consent and agreement with
respect to a collateral assignment hereof in favor of any Financier in a form acceptable to Buyer,
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provided (i) Seller shall reimburse Buyer for all reasonable expenses incurred by Buyer in
connection therewith, including reasonable attorneys' fees, and (ii) that Buyer's duty to make factual
statements or representations in such consent and agreement shall be contingent upon the
truthfulness and accuracy of such statement or representations at the time the consent and agreement
is delivered. In the event Seller fails to reimburse Buyer for its reasonable expenses, including
reasonable attorneys' fees, Buyer may deduct its reasonable expenses, including reasonable
attorneys' fees from any and all amounts owed Seller under this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, no consent agreement or
consent to assignment shall constitute a modification to this Agreement unless the Parties otherwise
agrees in writing in their reasonable discretion. To the extent Buyer agrees to provide any opinion of
counsel (which may be outside counsel to Buyer) for the benefit of the Financiers in connection with
such agreements, Seller agrees that Buyer's costs and expenses incurred in connection with the
preparation, negotiation and delivery of such opinion shall be for the account of Seller or the
Financiers, and shall not be for the account of Buyer.
(c) Any purported assignment of this Agreement in the absence of the required consent shall be
void.
11.2 Notices
(a) Any notice, demand, request, or communication required or authorized by this Agreement
shall be delivered either by hand, facsimile, overnight courier or mailed by certified mail, return
receipt requested, with postage prepaid, to Buyer as follows:
Interstate Power and Light Company, c/o Alliant Energy
Attn: Distributed Resources Hotline
200 ls` Street SE
PO Box 351
Cedar Rapids IA 52406 -0351
Telephone: 1- 800 - 972 -5325
and to Seller as follows:
City of Dubuque Iowa
50 W. 13th Street
Dubuque IA 52001
(563) 589 -4393
Attn: City Manager
Cc: City Attorney
(b) The designation and titles of the person to be notified or the address of such person may be
changed at any time by written notice delivered in the manner set forth in this Section 11.3. Delivery
of any such notice, demand, request, or communication shall be deemed delivered on receipt if
delivered by hand as indicated by the receiving Party's signature if by overnight delivery service
such as Federal Express or UPS, or as shown by a confirmation message from a facsimile machine
log or receipt and three days after deposit by the sending Party, in the U.S. Mail, postage prepaid, if
delivered by courier or U.S. mail or other means of delivery with confirmation of receipt.
11.3 Captions
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All titles, subject headings, section titles and similar items are provided for the purpose of reference
and convenience and are not intended to be inclusive, defmitive or to affect the meaning of the
contents or scope of this Agreement.
11.4 RRC Membership
In the event Buyer ceases to be a member of RRC or MISO during the Term of this Agreement, all
terms and conditions with respect to MRO or MISO in effect at the time Buyer terminates its
membership with RRC or MISO shall remain in force, unless superseded by the terms and conditions
of any New Joint Transmission Authority or any other regional transmission or coordination pool or
entity to which Buyer subsequently belongs during the Term.
11.5 No Third Party Beneficiary
No provision of this Agreement is intended to nor shall it in any way inure to the benefit of any
customer, property owner or any other third party, so as to constitute any such Person a third -party
beneficiary under this Agreement, or of any one or more of the terms hereof, or otherwise give rise
to any cause of action in any Person not a Party hereto.
11.6 No Dedication
No undertaking by one Party to the other under any provision of this Agreement shall constitute the
dedication of that Party's system or any portion thereof to the other Party or to the public or affect the
status of Buyer as an independent public utility corporation or Seller as an independent individual or
entity and not a public utility.
11.7 Applicable Law
This Agreement shall be interpreted and governed by the laws of the State of Iowa and the laws of
the United States, as applicable.
11.8 Nature of Relationship
(a) The duties, obligations, and liabilities of the Parties are intended to be several and not joint
or collective. This Agreement shall not be interpreted or construed to create an association, joint
venture, fiduciary relationship or partnership between Seller and Buyer or to impose any partnership
obligation or liability or any trust or agency obligation or relationship upon either Party. Seller and
Buyer shall not have any right, power, or authority to enter into any agreement or undertaking for, or
act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the other Party.
(b) The relationship between Buyer and Seller shall be that of contracting party to independent
contractor. Accordingly, subject to the specific terms of this Agreement, Buyer shall have no general
right to prescribe the means by which Seller shall meet its obligations under this Agreement.
(e) Seller shall be solely liable for the payment of all wages, taxes, and other costs related to the
employment of persons to perform Seller's obligations under this Agreement, including all federal,
state, and local income, social security, payroll, and employment taxes, and statutorily mandated
workers' compensation coverage. None of the persons employed by Seller shall be considered
employees of Buyer for any purpose; nor shall Seller represent to any Person that he or she is or shall
become a Buyer's employee or agent.
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11.09 Good Faith and Fair Dealing; Reasonableness
The Parties agree to reasonably cooperate with each other in the implementation and performance of
this Agreement, and to act reasonably and in accordance with the principles of good faith and fair
dealing in the performance of this Agreement. Unless expressly provided otherwise in this
Agreement, (i) except as specifically provided otherwise, wherever this Agreement requires the
consent, approval, or similar action by a Party, such consent, approval or similar action shall not be
unreasonably withheld or delayed, and (ii) wherever this Agreement gives a Party a right to
determine, require, specify or take similar action with respect to matters, such determination,
requirement, specification or similar action shall be commercially reasonable.
11.10 Severability
If any provision of this Agreement is or becomes void, illegal, or unenforceable, the validity or
enforceability of the other provisions of this Agreement shall not be affected and shall continue in
force. The Parties will, however, use their best endeavors to agree on the replacement of the void,
illegal, or unenforceable provision(s) with legally acceptable clauses which correspond as closely as
possible to the sense and purpose of the affected provision.
11.11 Confidentiality
(a) This Agreement and all appendices and amendments shall be considered proprietary
( "Confidential Information ") and shall not be provided to a third party without prior written approval
of the other Party, unless a Party is required to disclose such information by law or court order or
when such information is already in the public domain or is disclosed to the agents, employees,
advisors, consultants, or potential or actual finance sources of the receiving Party for whose
violations of this requirement of confidentiality the receiving Party shall be responsible. However,
Buyer acknowledges that Seller is a municipal corporation subject to the provisions of Iowa Code
Chapter 21 ( "Open Meetings Law ") which statute provides generally that all meetings of a public
entity's business including any meetings at which information relating to the Solar Generating
Facility and/or this Agreement may be discussed are open to the public, and Iowa Code Chapter 22
( "Open Records Law "), which provides generally for the disclosure of documentation and records
held by governmental bodies of the State of Iowa, unless an exemption from disclosure is available
under the statute. Therefore, notwithstanding any provision of this Agreement, nothing herein shall
limit or prohibit in any way Seller from discussing its investment, agreement or operations of the
Solar Generating Facility at a public meeting in accordance with the Open Meetings Law or to
comply with information requests in accordance with the Open Records Law. This Agreement is not
intended to and does not place a restriction on any disclosure of Confidential Information by a Party
that it is legally required to make. In the event that a Party is legally requested or required (by oral
questions, interrogatories, requests for information or documents, subpoena, civil investigative
demand or similar process or; in the opinion of its counsel, by federal or state securities or other
statutes, regulations or laws) to disclose any Confidential Information that Party shall promptly
notify the disclosing Party, no later than five (5) days of such request or requirement and prior to
disclosure so that the disclosing Party may seek an appropriate protective order or waive compliance
with the terms of this Section 11.11. Notwithstanding anything herein to the contrary, Buyer or
Seller shall be entitled to disclose or use Confidential Information in any proceeding before a
regulatory commission or agency or in any other legal proceeding if it is required or advantageous to
do so, in Buyer's or Seller's sole discretion and upon written notice to the other Party. In such an
event, the disclosing Party will take all reasonable actions to limit the scope of any disclosure.
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(b) The Parties acknowledge and agree that during the course of the performance of their
respective obligations under this Agreement, either Party may need to provide information to the
other Party, which the disclosing Party deems confidential, proprietary or a trade secret. All
documentation and data, including but not limited to, special techniques, methods, computer
programs and software, that the disclosing Party considers proprietary or trade secret and furnishes to
the receiving Party and wants the receiving Party to maintain confidential may be designated as
proprietary or trade secret by clear and distinct notation on each page of such documentation or by
equivalent method (collectively "Proprietary Data ") shall be treated as such by the receiving Party
subject to disclosure in accordance with the Open Record Law, the Open Meetings Law or other
applicable Iowa law. Documentation and data not so designated need not be considered by the
receiving Party to be proprietary or trade secret. The disclosing Party hereby grants to the receiving
Party authority to use Proprietary Data only for the purposes of this Agreement. Subject to the Open
Record Law, Open Meetings law or other applicable Iowa law, the receiving Party agrees to keep
such Proprietary Data confidential, to use it only for work necessary to the performance of this
Agreement, and not to sell, transfer, sublicense, disclose or otherwise make available any such
Proprietary Data to others; provided, that it may be disclosed by the receiving Party to the agents,
employees, advisors, consultants, or potential or actual finance sources of the receiving Party for
whose violations of this requirement of confidentiality the receiving Party shall be responsible and
by Seller in accordance with the Open Record Law, Open Meetings law or other applicable Iowa
law.
(c) Notwithstanding the foregoing, the restrictions on the receiving Party shall not apply to any data
or documentation:
i. Which can be documented was in the public domain at the time it was disclosed by
the disclosing Party to the receiving Party or at any time thereafter;
ii. Which can be documented was independently developed by the receiving Party;
iii. Which can be documented was known to the receiving Party from an ultimate source
other than the disclosing Party without breach of this Agreement by the receiving Party; or
iv Is subject to the Open Record Law, Open Meetings law or other applicable Iowa
law.
(d) Notwithstanding the limitations described in Sections 11.11(a) and (b) herein, as a regulated
public utility, Buyer shall have the right without advance notice to disclose any information,
Confidential or otherwise, that Buyer deems necessary or desirable in its sole, reasonable discretion to
comply with (i) any state or federal securities laws, regulations, orders or decrees, or (ii) any regulatory
requirements, law, regulation, document request, order or decree imposed by any commission, board or
governmental entity exercising jurisdiction over Buyer or any of its affiliates. Buyer shall only
disclose that limited portion of the Confidential Information that it is advised by written opinion of
counsel is legally required to be disclosed. Should Buyer deem disclosure of such information
necessary, it shall make an effort to first notify Seller of the pending disclosure. If Buyer reasonably
does not have the opportunity to notify Seller of the pending disclosure, Buyer shall notify Seller of the
disclosure as soon as possible after the disclosure. In any event, Buyer shall make an effort to obtain a
protective order or other reliable assurance that confidential treatment will be accorded the
Confidential Information. Buyer makes no guarantee that the commission, board or governmental
entity requiring disclosure will fmd that the disclosed information is confidential.
11.12 Counterparts
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This Agreement may be executed in two or more counterparts, all of which shall be considered one
and the same agreement and each of which shall be deemed an original.
11.13 Ambiguities
The Parties acknowledge that they have reviewed this Agreement in its entirety and have had a full
opportunity to negotiate its terms, and therefore, waive all applicable rules of construction to the
effect that any provision of this Agreement should be construed against its drafter and agree that all
provisions of this Agreement shall be construed as a whole, according to the fair meaning of the
language used.
11.14 Appendices
The following appendices are hereby incorporated into this Agreement:
Appendix A
Appendix B
Appendix C
Appendix D
Guaranteed Price and Trial Energy
Description of the Point of Interconnection
Legal Description of the Site
Environmental Indemnity. Agreement
11.15 Entire Agreement; Integration
This Agreement, together with all Appendices attached hereto constitutes the entire agreement
between the Parties and supersedes any and all prior oral or written understandings. No amendment,
addition to, or modification of any provision hereof shall be binding upon the Parties, and neither
Party shall be deemed to have waived any provision or any remedy available to it unless such
amendment, addition, modification or waiver is in writing and signed by a duly authorized officer or
representative of the applicable Party or Parties. In the event of any conflict between an appendix
and this Agreement, the terms of the appendix shall prevail.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the
day and year first above written.
CITY OF D UQUE, IOWA INTERSTATE POWER AND LIGHT COMPANY
( "Seller ") ("Buyer ")
By: (,), By:
Name: Roy D. Buol Name:
Title: Mayor Title:
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Appendix A
GUARANTEED PRICE
Contract Year Guaranteed Price for That Year ($ /MWh)
1 $21.00
2 $21.00
3 $21.00
4 $21.00
5 $21.00
The Guaranteed Price applies only to the Delivered Energy, and does NOT include payment for
Environmental Attributes.
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Appendix B
Description of the Point of Interconnection
The point of interconnection between the Buyer and the Seller is the Seller -owned CT/PT/Metering cabinet
which supplies 480 volt 3 -phase electric service to the City of Dubuque Municipal Services Center at 925
Kerper Court, Dubuque, Iowa. This electric cabinet is the termination point of the Buyer's 480 volt service
cables and the Seller's 480 volt service cables, and is the point of division -of- ownership. This cabinet
contains the Buyer's metering equipment, which consists of current transformers (CTs), potential
transformers (PTs), and bi- directional electric meter. This cabinet is located electrically on the 480 volt side
of the Buyer's 13800GY/7970- 480GY/277 volt distribution transformer.
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Appendix C
Legal Description of the Site
Real property located at 925 Kerper Court, Dubuque, Iowa,
legally described as
Lot 2 of 2 of Kerper Industrial Park in the City of Dubuque, Iowa
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Appendix D
Environmental Indemnity Agreement
THIS ENVIRONMENTAL INDEMNITY AGREEMENT is entered into this day of
2012 by and between City of Dubuque, Iowa ( "Seller ") and Interstate Power and Light Company, an Iowa
corporation ("Buyer").
RECITALS
A Buyer is a public utility providing electricity to retail customers in Iowa. Seller is an Iowa municipal
corporation and political subdivision of the State of Iowa operating a solar energy conversion electric
generating facility.
B. Buyer and Seller have entered into a Power Purchase Agreement dated , 2012,
as amended (the "Agreement ") pursuant to which Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller, such surplus electricity Seller produces from the solar energy conversion
electric generating facility located on the real property described in Appendix C of the Agreement
(the "Legal Description of the Site ").
C. As a condition to its entry into and performance under the Agreement, Buyer requires that Seller
execute and deliver in its favor an agreement indemnifying Buyer against any claims for
environmental emissions, releases or other sources of potential liability related to or arising from the
Solar Generating Facility or the Site.
D. Seller wishes to indemnify Buyer in order to obtain the benefits of the Agreement.
NOW, THEREFORE in consideration of these premises, the mutual promises in the Agreement and
other good and valuable consideration, the receipt and adequacy of which are acknowledged, Seller and
Buyer agree as follows:
AGREEMENT
1. Definitions. All capitalized terms used herein shall have the meaning given to them in the
Agreement, unless otherwise expressly defined herein.
2. Seller represents and warrants that, to the best of its knowledge, no portion of the Site and the
improvements thereon has ever been used by previous or current owners or operators or Seller to
generate manufacture, refine, transport, treat, store, handle or dispose of toxic material, hazardous
substances, solid waste or hazardous wastes, as the terms are defined in any applicable
Environmental Law, and Seller does not intend to use any of the Site for such purposes. To the best
of Seller's knowledge, the Site does not contain, through the action or inaction of previous owners or
operators or Seller, asbestos, ureaformaldehyde foam insulation, PCBs, other toxic materials,
hazardous substances, or any other chemical, material, or substance exposure to which may or could
pose a health hazard whether or not the substance is prohibited, limited or regulated by any
Governmental Authority, whether used in the Solar Generating Facility or stored on the Site.
3. Seller represents and warrants that Seller has not received a summons, citation, directive, letter, or
other communication, written or oral, from any Governmental Authority concerning the existence of
any condition on or affecting the Site which currently violates, or which, with the passage of time,
will violate, any applicable Environmental Law, or which otherwise indicates that Seller may be
subject to any potential Environmental Liability with respect to the Site or the Solar Generating
Facility. To the best of Seller's knowledge, Seller, the Solar Generating Facility and the Site are not
subject to any existing or pending investigation or inquiry by any Governmental Authority or to any
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remedial obligations under any applicable Environmental Law. These representations and warranties
would continue to be true and correct following disclosure to the applicable Governmental Authority
of all relevant facts, conditions and circumstances pertaining to Seller, the Solar Generating Facility
and the Site.
4. To the extent permitted by law, Seller agrees to defend, indemnify and hold Buyer and its officers,
directors, employees, agents and representatives, and their respective successors and assigns, from
and against all claims, actions, demands, losses, liabilities, damages, judgments, penalties, injuries,
and expenses arising from or related to any Environmental Liability concerning Seller, the Solar
Generating Facility or the Site, including, but not limited to, (a) any claim for personal injury, bodily
injury or property damage by any Person arising out of, resulting from or caused by any violation of
any applicable Environmental Law by Seller or concerning the Solar Generating Facility or the Site;
(b) any assessment, fine, penalty, lien or other imposition by any Governmental Authority; and (c)
any liability, losses, or remedial costs suffered because a Governmental Authority finds Buyer to be
a responsible party, owner or operator of the Solar Generating Facility or Site; except for claims or
damages resulting from Buyer's negligence or willful misconduct.
5. The release and return of this Indemnity Agreement shall not affect or impair any rights or remedies
or claims Buyer or Seller may have outside the scope of this Indemnity Agreement, at law or in
equity, with respect to Seller or Buyer or other Persons. The obligations of this Indemnity Agreement
shall survive the termination of the Agreement.
6. This Indemnity Agreement shall inure to the benefit of Buyer and any successor and assignee of
Buyer and shall be binding upon Seller and its successors and assignees.
7. Buyer shall not be required to resort first to any other indemnitors or other Persons or their respective
properties or estates, or to any collateral, property, liens or other rights or remedies available to
Buyer before seeking indemnification hereunder from Seller.
8. This Indemnity Agreement shall be governed by and construed in accordance with the laws of the
State of Iowa.
9. No provision of this Indemnity Agreement, whether express or implied, is intended to nor shall it in
any way inure to the benefit of any third Person, so as to constitute any such Person a third -party
beneficiary under the Indemnity Agreement, or of any one or more of the terms hereof, or otherwise
give rise to any cause of action in any Person other than Buyer, and neither this Indemnity
Agreement nor any provision thereof is intended to confer any rights or remedies of any sort on any
Person other than Buyer. Nothing in this Indemnity Agreement is intended to relieve or discharge
any obligation or liability of any Person to any Party to this Indemnity Agreement or to the
Agreement and no provision of this Indemnity Agreement shall give any Person other than a Party
any right of subrogation or cause of action over and against any Party.
CITY OF DUBUQUE, IOWA INTERSTATE POWER AND LIGHT COMPANY
( "Seller ") ( "Buyer ")
By: By:
Name: Name:
Title: Title:
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