(This form could be used as a starting point, but it should be updated for this purpose to address producer security.
Also, changes will be needed to handle farm RECs that aren't being conveyed to purchasers)
NONLEVELIZED ENERGY SALE AND PURCHASE AGREEMENT
This Agreement is made by and between ________________________ (hereafter
referred to as “Producer”), a ________________________ with principal offices at
______________________________, and A VERMONT UTILITY. (hereafter referred to as
“Purchaser”), a Vermont Corporation with principal offices at XXXX (together the “Parties”), on
the date executed below.
ACKNOWLEDGMENTS
1.
Producer represents that its proposed Facility is a ____ kW , <enter generator type>
generating facility located in the Town of ________________, Vermont (the “Facility”).
2.
The Facility will be a “qualifying facility” within the meaning of 16 U.S.C. § 824a-3, 18
CFR Part 292, 30 V.S.A. § 209(a)(8) and Vermont Public Service Board (“PSB”) Rule
4.100.
3.
Producer desires to sell the gross electric output of its Facility including any tradable
renewable energy certificates or generation information system certificates and related
environmental attributes (together the “RECs”), ancillary products or services, or
Emerging Products (as defined in Attachment A) associated therewith (hereinafter
collectively referred to as the “Energy”) to Purchaser, net of Producer’s own electric
consumption for its own loads that are connected to the Facility. Producer acknowledges
that it voluntarily elects to sell the Energy produced at its Facility to Purchaser pursuant to
PSB Rule 4.102(b) and 18 C.F.R. § 292.301 under the terms and conditions set forth
herein.
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AGREEMENTS
ARTICLE 1
Purchase and Sale/Payment/Operation of Facilities
(a)
Producer shall deliver to Purchaser, and Purchaser shall purchase on behalf of its Vermont
retail customers, the electric output of the facility net of Producer’s own electric
consumption for its own loads that are connected to the Facility including Energy and
RECs. Such Energy and RECs to be offered and excepted under the rate methodology set
forth in Attachment A hereto. Said rate methodology sets forth the terms for the pricing
of Energy and RECs as well as for Emerging Products also included as a part of the gross
electric output of the Facility. In the event that Purchaser fails to make payment when
due, and remains delinquent for more than fifteen (15) days, Producer may pursue all
legally available remedies including setoff payment for the electric service provided by
Purchaser.
(b)
Invoices for the Energy and RECs delivered to Purchaser shall be prepared by Purchaser
and shall be calculated and forwarded to the Producer within fifteen (15) days of the
month end by the Purchaser or on a less frequent basis by mutual agreement, such invoices
to be payable within thirty (30) days after its forwarding to Producer. Purchaser shall
calculate and submit to Producer a final invoice within thirty (30) days after termination of
this Agreement. Purchaser shall pay each such invoice within 20 working days after its
forwarding to Producer.
(c)
From the time that deliveries of Energy commence under this Agreement, Producer shall
operate the Facility in a manner that gives due consideration to prudent electrical,
operating, and business practices. To the extent that its generating Facility is not
dispatched by an independent authority, Producer shall, whenever practical, give
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Purchaser reasonable advance notice of any changes in operations and shall cooperate with
Purchaser. All operations and deliveries shall be subject to the rules and regulations of the
Independent System Operator of the New England (“ISO-NE”) bulk power system.
Should the actions of the Producer give rise to the assessment of any costs, sanctions or
charges by ISO-NE, Producer shall be solely responsible for the timely payment of such
costs or charges. To the extent set forth by statute or by agreement, Producer shall be
subject to the authority of the Public Service Board to require that all operations be
managed to promote the public interest.
(d)
Producer agrees to operate and maintain its Facility in accordance with good engineering
and construction practices, and in accordance with applicable laws, ordinances,
regulations, licenses and permits.
(e)
Producer represents that its has or will obtain all requisite federal, state or local permits,
licenses, approvals or other governmental authorizations, including without implied
limitation, a certificate of public good from the Vermont Public Service Board. Upon
request, Producer shall provide Purchaser copies of any such permits, licenses, approvals
or other governmental authorizations.
(f)
In the event Purchaser issues a request for power supply proposals prior to January 1,
2013, Producer agrees to submit a good faith proposal to restructure the terms of this
Agreement including the pricing terms. If the Parties cannot establish mutually agreeable
alternative terms and conditions as a part of the process of reviewing and evaluating
Producer’s proposal, nothing in this paragraph shall require Producer to restructure the
terms of this Agreement.
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ARTICLE 2
Liability and Workers’ Compensation Insurance
(a)
Purchaser and Producer shall each maintain in full force and effect policies providing
general liability insurance, less only reasonable deductibles, to pay on their respective
behalf all sums which each is legally obligated to pay as damages for bodily injury and/or
property damage sustained as a result of negligence. Producer shall maintain a policy or
policies in the minimum amount of One Million Dollars ($1,000,000.00), less a reasonable
deductible for self-insured amount not to exceed Twenty-Five Thousand Dollars
($25,000.00) for each occurrence, for the term of this Agreement, and shall provide
certificates of such insurance to Purchaser prior to the signing of this Agreement.
(b)
Producer shall also provide Excess/Umbrella Liability Insurance with minimum limits of
at least $1,000,000.
(c)
Purchaser and Producer shall maintain in full force and affect a policy or policies of
insurance sufficient to insure their respective obligations under workers’ compensation
law. Producer shall provide and maintain a Workers Compensation/Employers Liability
Policy as required by the laws of the State of Vermont with the following minimum limits
for Employers Liability: $100,000 each accident; $100,000 disease each employee, and
$500,000 disease policy limit.
(d)
Producer shall provide Purchaser a certificate or certificates of insurance for each policy
required hereunder, naming Purchaser as an additional insured, in a form agreeable to
Purchaser that shall remain in effect for the duration of the term of this Agreement.
Updated certificates will be provided to the Purchaser upon subsequent renewal(s) of the
policy(s).
(e)
Should Producer fail to provide the insurance required pursuant hereto, nothing shall
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release Producer of the obligation to pay any claims that arise hereunder.
(f)
Upon request of Purchaser, Producer shall provide Purchaser a copy of each insurance
policy required hereunder.
ARTICLE 3
Jurisdiction of Public Service Board
The Vermont Public Service Board shall have primary jurisdiction to resolve disputes
between the Parties hereto concerning the construction of the provisions of this Agreement and
any other matters arising under this Agreement within the Board’s jurisdiction. The Vermont
Department of Public Service shall be entitled to participate as a party in any such proceeding.
Nothing in this provision shall be deemed to preclude the Parties from endeavoring to resolve
any dispute between them on an amicable basis.
ARTICLE 4
Electric Service
Producer will receive and pay for electric service from Purchaser in accordance with all
relevant terms and conditions contained in Purchaser’s electric service tariff, A Vermont Utility
Electric Service Tariff, VPSB No. 6, as the same is on file with and approved by the Vermont
Public Service Board and as the same shall be modified from time to time. Purchaser reserves the
right to measure reactive power delivered to Producer and Producer agrees to maintain a
minimum power factor level as referenced in Purchaser’s electric service tariff. Failure to
maintain at least that level shall result in additional billing in accordance with the provisions of
the applicable rate as contained in Tariff VPSB No. 6 as the same shall be modified from time to
time.
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Should Producer fail to pay for its electric service in accordance with Purchaser’s electric
service tariff, or fail to properly contest any bill for said service in accordance with the terms of
said tariff or the rules of the Vermont Public Service Board, Purchaser may, at its sole option and
without incurring any interest or penalty on account thereof, setoff payment for the Energy
produced at the Facility until such time as Producer’s electric service account(s) is paid in full.
ARTICLE 5
Term of Agreement
This Agreement shall become effective upon execution, and shall continue in full force for
a term starting from the date that Producer commences commercial operation of the Facility and
ending ___________, 20xx.
This Agreement may be renewed upon 30 days prior written notice
by either Party for an additional one-year term. If so renewed, that one-year term and each
subsequent one-year term may be renewed by either Party on a rolling one-year basis upon 30
days prior written notice. Nothing in this Agreement shall be deemed to preclude future
agreements between the Parties, subject to the terms of PURPA, Rule 4.100, or other applicable
laws and regulations.
Notwithstanding any other provision of this Agreement to the contrary, to the extent that
Purchaser’s obligation to provide electricity to customers at retail within its franchised service
territory in Vermont should be terminated on account of the introduction of customer choice and
retail access or otherwise, Purchaser’s obligations under this Agreement shall terminate, and
Purchaser shall not be liable to Producer for any amount howsoever arising except past charges
for Energy or other products or services delivered by Producer to Purchaser hereunder.
ARTICLE 6
Integration Clause
This Agreement, its attachments and the materials incorporated herein by reference,
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constitute the entire agreement and understanding between the Parties, their agents, and
employees regarding the subjects covered in this Agreement.
ARTICLE 7
Governing Law
This Agreement shall be governed by the laws of the State of Vermont.
ARTICLE 8
Notices
Any notice, demand, or request required or authorized in connection with this Agreement
shall be in writing and shall be deemed properly given if delivered in person or sent by certified
mail, return receipt requested, to the Parties to this Agreement. Unless otherwise agreed to by
the Parties, notices to a party shall be sent as follows:
If to Purchaser:
Director, Power Supply & Strategic Analysis
A Vermont Utility
77 Grove Street
Rutland, Vermont. 05701
If to Producer:
Attention:
, VT
ARTICLE 9
Assignment; Successors
This Agreement may not be assigned, other than to an affiliate or subsidiary of Producer
without the prior written consent of Purchaser, which shall not be unreasonably withheld. No
assignment or delegation shall discharge any party from obligations which shall have accrued
under the terms of this Agreement prior to such assignment or delegation, whether such accrual
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is known or unknown.
ARTICLE 10
Attachments
Attachment A is incorporated by reference and forms a part of this Agreement.
ARTICLE 11
Waiver
No waiver by either Party of the performance of any obligation under this Agreement or
with respect to any default or any other matter arising in connection with this Agreement shall be
deemed a waiver with respect to any subsequent performance, default, or matter.
ARTICLE 12
Modification
No modification or waiver of all or any part of this Agreement shall be valid unless it is in
writing and signed by both Parties.
ARTICLE 13
No Duty to Third Parties
Nothing in this Agreement, or any action taken hereunder, shall be construed to create any
duty, liability or standard of care to any person not a Party to this Agreement.
The Parties agree that this Agreement and any order by any governmental authority
approving this Agreement shall not be construed by any party or tribunal as having precedential
impact on any future proceedings involving Purchaser except as necessary to ensure the Parties’
implementation of this Agreement or to enforce an order issued by a governmental authority of
competent jurisdiction resulting from this Agreement. This Agreement, and any Order approving
this Agreement, may not in any future proceeding be used against any party except as necessary to
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enforce the Parties’ rights and obligations under this Agreement or to enforce an order resulting
here from.
ARTICLE 14
Cooperation
Producer shall cooperate with Purchaser, as Purchaser may reasonably request from time
to time, in connection with the approval of this Agreement, and in connection with the
certification of Facility for purposes of ISO recognition, including but not limited to, Facility
generation or Facility capacity. Purchaser shall cooperate with Producer, as Producer may
reasonably request from time to time, in connection with the permitting of the Facility, approval
of this Agreement, the making of improvements to the Facility, and certification of Facility as
necessary for purposes of recognition for Facility RECs. Producer agrees to permit Purchaser to
include information about the Facility, including photographs, in any of Purchaser’s marketing
materials.
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ARTICLE 15
Conditions Precedent
The Parties agree that this Agreement is subject to the satisfaction of the following
conditions precedent:
(a)
Producer shall certify to Purchaser that Producer has obtained all necessary governmental
authorizations that are required for the commencement of power sales pursuant to this
Agreement; and
(b)
The Parties shall have entered into an interconnection agreement that provides for the
interconnection of Producer’s Facility with the A VERMONT UTILITY electric system.
Said agreement shall establish the terms and conditions for the metering of the Energy to
be delivered to Purchaser hereunder.
DATED at RUTLAND, VERMONT this ____ day of _______, 2008.
FOR PRODUCER
By:_________________________
Name:
Title:
FOR PURCHASER
A VERMONT UTILITY
By:_________________________
Name:
Title:
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INDEX OF ATTACHMENTS
A. Pricing and Payment Provisions
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NONLEVELIZED ENERGY SALE AND PURCHASE AGREEMENT
ATTACHMENT A
Pricing and Payment Provision
Rates:
Billing Schedule:
The monthly billing period shall begin at 000 hours the first day of each month and run
through 2400 hours of the last day of the month.
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