HomeMy WebLinkAbout2014-07-28 BOS Packet - Released
SELECTMEN’S MEETING
Monday, July 28, 2014
Selectmen Meeting Room
7:00 p.m.
AGENDA
7:00 p.m. PUBLIC COMMENTS (10 min.)
7:10 p.m. SELECTMEN CONCERNS AND LIAISON REPORTS (5 min.)
7:15 p.m. TOWN MANAGER REPORT (5 min.)
7:20 p.m. ITEMS FOR INDIVIDUAL CONSIDERATION
1.Omni Crushed Grapes Liquor License Hearing – 7:00 p.m. (10 min.)
2.Review and Approve Energy Management Services Contract (Solar Installation for Municipal and
School Buildings) – 7:00 p.m. (20 min.)
3.Approval of Comcast Cable TV Renewal License (10 min.)
4.Public Works Update on Summer Construction & Update on Bedford Street/Hartwell Avenue
Intersection Pedestrian Crossing (20 min.)
5.MBTA Letter Regarding Town Meeting Resolution for Additional Service to Lexington (5 min.)
6.Joint Discussion with Planning Board – Fill Vacancy on Planning Board (20 min.)
7.Discuss 21 Muzzey Street Proposed Development (20 min.)
8.Elimination of Disposition/Burial Permit Fee (5 min.)
9.Approve Increase in Authorization for PEG Access Revolving Fund (5 min.)
10.Approve Limousine License Renewal – R&M Ride (5 min.)
11.Approve and Sign Eagle Letter Congratulating Justin Krasinski (5 min.)
12.Town Manager Appointment – Council on Aging (5 min.)
13.Liaisons and Memberships on Boards and Committees (5 min.)
14.Approve Changes to 2020 Vision Committee Charge (5 min.)
15.Approve Selectmen Committee Changes (5 min.)
a.Approve Revised Charge of the Monuments and Memorials Committee
b.Resignation/Appointments – Monuments and Memorials Committee
c.Resignation/Appointment – Fund for Lexington
d.Resignation – HATS
e.Resignation/Appointments – Town Report Committee
f.Reappointment – Munroe Center for the Arts
9:45 p.m. CONSENT AGENDA (5 min.)
1.Water and Sewer Commitments and Adjustments
2.Approve Use of Battle Green – LexFun Halloween Parade
3.Delegate Street Performer Licensing to Town Manager’s Office (Chapter 76-3 of the Code of the Town
of Lexington)
4.Approve Cost of Living Adjustment for Non-Represented Staff Omitted from the List Voted on June
30, 2014
5.Approve Lexington Minute Men Request for Cannon Salutes on Battle Green
6.Approve Selectmen Minutes
7.Approve Selectmen Executive Sessions Minutes
9:50 p.m. ADJOURN
The next regular meeting of the Board of Selectmen is tentatively scheduled for Monday, August 25, 2014 in the
Selectmen’s Meeting Room, 1625 Massachusetts Avenue.
Hearing Assistance Devices Available on Request
All agenda times and the order of items are approximate and subject to change.
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE: 7/28/14 STAFF: Lynne Pease ITEM NUMBER: I.1
SUBJECT:
Omni Crushed Grapes Liquor License Hearing
EXECUTIVE SUMMARY:
The Property Owner for 411 Waltham Street (Omni’s Crushed Grapes and More) notified me
that the business had closed. See attached information which includes: legal notice put in the
Lexington Minuteman, fax/letter from Omni’s Attorney, Jeffrey Schaffer, letters sent to Omni’s
Crushed Grape manager/owner, and a copy of MGL Chapter 138 Section 77. I expect Mr.
Schaffer to attend this hearing. The Property Owner and/or his Attorney may also attend this
hearing.
FINANCIAL IMPACT:
RECOMMENDATION / SUGGESTED MOTION:
Motion to cancel the Retail Package Goods Liquor License of J&T Enterprises of Massachusetts,
Inc. d/b/a Omni’s Crushed Grapes and More, 411 Waltham Street.
STAFF FOLLOW-UP:
Selectmen’s Office
General Laws: CHAPTER 138, Section 77Page 1of 1
Print
ADMINISTRATION OF THE GOVERNMENT
PART I
PUBLIC SAFETY AND GOOD ORDER
TITLE XX
ALCOHOLIC LIQUORS
CHAPTER 138
Cancellation of license upon cessation of licensed business
Section 77
Section 77. The licensing authorities may, after hearing or reasonable opportunity therefor,
cancel any license issued under this chapter if the licensee ceases to conduct the licensed
business. If the local licensing authorities determine that a license should be cancelled as
aforesaid the licensee may appeal to the commission as if such authorities had refused to
grant the license upon an original application therefor, and the decision of the commission
upon such appeal shall be final.
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXX/Chapter138/Section77/Print7/24/2014
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE:PRESENTER: ITEM NUMBER:
July 28, 2014 Mark Sandeen I.2
Dan Voss
SUBJECT:
Review and Approve Energy Management Services Contact (Solar for Municipal and
School Buildings)
EXECUTIVE SUMMARY:
See attached presentation.
Also included is an email from the liaisons for the financial committees who reviewed
the financial arrangements.
In addition:
1.NSTAR has approved interconnection services agreements for all sites, and Ameresco has asked for the
Time of Use Rate for the meters which will measure the solar output. Based on Mark’s analysis, this rate
will provide the highest net metering credits and most benefit to the Town;
2.Rob wanted to make sure that in the event of the withdrawal of a building by the Town during the term of
the agreement, the Buyer Termination payment would be net of the PILOT payments due for the remainder
of the term. The schedule now includes this consideration.
3.Ameresco has provided a spreadsheet showing the remove and re-install costs for the three high school
buildings if they came off-line in 2022, 2023 and 2024.
4.Ameresco has asked for a letter indicating the Town Manager’s recommendation of approval to the
Selectmen, in order to order equipment before new tariffs kick in. I have provided that letter (attached).
5.In order to qualify for the public net metering cap, the first step is for the Town to apply to the DPU to be
approved as a Municipality or Other Government entity. Staff is working with Ameresco on this
submission.
(The full Solar Contract, 50+pages, is included on the on-line version of the Agenda packet and
available from Lynne)
FINANCIAL IMPACT:
Provided in attached presentation.
RECOMMENDATION / SUGGESTED MOTION:
Authorize the Town Manager to enter into a Solar Power Purchase Agreement with
Lexington Municipal Solar LLC and to approve all relevant documents and submissions on
behalf of the Town including a Payment-in-lieu-of Taxes Agreement, for a 20 year term
with up to three additional terms of 5 years each, subject to Town Meeting approval, and
in accordance with the Town General bylaw Chapter 32-4.
STAFF FOLLOW-UP:
TMO and Finance
Prepared by cfv
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Town of Lexington
Town Manager’s Office
Carl F. Valente, Town Manager Tel: (781) 698-4540
Linda Crew Vine, Deputy Town Manager Fax: (781) 861-2921
via email
To: Board of Selectmen
From: Carl Valente
Date: July 21, 2014
C: Kevin Batt
William Lahey
Mina Makarious
Rob Addelson
Mark Sandeen
Dan Voss
Patrick Goddard
Shawn Newell
Paul Ash
RE: Solar Projects
Contract negotiations with Ameresco, a solar development company based in Framingham,
Massachusetts, have been completed by the negotiating team, led by Mark Sandeen and Dan Voss of
the Sustainable Lexington Committee with participation by Rob Addelson, Shawn Newell and Town
Counsel Kevin Batt.
Mark, Dan and Kevin recommend that the Town Manager, with the approval of the Selectmen, award
the contract, as finalized in negotiations, to Ameresco. Ameresco proposes to install solar arrays on
roofs of Bowman, Harrington and Estabrook Elementary Schools, Clarke Middle School, four High
School buildings and Cary Library with an aggregate capacity of approximately 1.1 Megawatts (DC).
The power purchase agreement with Ameresco runs for a term of 20 years (plus time for permitting
and construction) and provides, with Town Meeting approval, for three renewal terms of 5 years each.
The agreement provides for the Town to purchase the solar electricity produced by the arrays at a flat
rate of $0.1365 per kWh for the next 20 years. The Town will receive net metering credits for that
solar electricity from NSTAR, currently at an effective annual rate of $0.2217 per kWh. This rate has
been increasing at an average rate of 2.5% per year over the past 25 years. In addition, the Town will
receive $30,000 per year in annual payments in lieu of taxes (PILOT). Mark has provided me with a
favorable economic analysis of the transaction. Over a 20 year period, the net savings to the Town will
1625 MASSACHUSETTS AVENUE • LEXINGTON, MASSACHUSETTS 02420
be $3.2 to $3.8 million. If the Town exercises the option for an additional 5 years, the net savings to
the Town will be approximately $5.6 million.
In addition, the negotiated agreement with Ameresco provides the Town with the option to purchase
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one or more of the solar arrays on the 12 and 15 anniversaries and at the end of the 20 year term, or
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in the event that the Town proposes to demolish one or more of the buildings, on or after the 10
anniversary of commercial operation of the solar systems. Alternatively, if one or more of the
buildings are to be demolished, the Town would have the option to pay Ameresco for the removal and
re-installation of the arrays on new buildings. I have reviewed the analysis of removal and re-
installation costs if each of three buildings at the high school were to be replaced in the years 2022,
2023 and 2024. Even in this ‘less favorable’ financial scenario, I would continue to recommend that
the Selectmen approve the award of the power purchase agreement to Ameresco.
I have copied Jim Walker from Ameresco on this email so that he know the status of the Town’s
position regarding the PPA. Jim understands that action by the Board of Selectmen will be necessary
to authorize the Town Manager to sign the PPA. Said action is scheduled for consideration at the
Board’s meeting on July 28, 2014.
SOLAR POWER PURCHASE AGREEMENT
THIS SOLAR POWER PURCHASE AGREEMENT (“Agreement”) is made and entered into as of this
___ day of _______________, 2014 (the “Effective Date”) by and between the Town of Lexington,
Massachusetts, with an address of 1625 Massachusetts Avenue, Lexington, Massachusetts 02420, a municipal
corporation of the Commonwealth of Massachusetts (“Buyer”) and Lexington Municipal Solar LLC, a Delaware
limited liability company with an address of 111 Speen Street, Suite 410, Framingham, MA 01701
(“Developer”). Buyer and Developer are sometimes hereinafter referred to individually as a “Party” and
collectively as the “Parties”.
RECITALS
WHEREAS, Developer proposes to construct one or more solar photovoltaic generation units or
facilities (individually, a “Facility” and collectively, the “Facilities”) with an aggregate generating capacity of
up to approximately 1.1MW DC (0.9MW AC) (the “Project”) on the property or properties described in
Attachment A hereto (each, a “Property” and together, the “Properties);
WHEREAS, the Parties intend that, pursuant to the Net Metering Rules (defined below), the Project
will be comprised of one or more Net Metering Facilities (defined below), and will generate Net Metering
Credits (defined below);
WHEREAS, Buyer prefers to be the Host Customer of the Facilities, if allowed by the Net Metering
Rules;
NOW,THEREFORE, in consideration of the foregoing recitals, the mutual promises, representations,
warranties, covenants, conditions herein contained, and the Attachments attached hereto, Buyer and Developer
agree as follows.
Section 1. DEFINED TERMS; RULES OF INTERPRETATION
Capitalized terms used in this Agreement shall have the meanings ascribed to them in this Agreement,
or as otherwise set forth below:
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, through one
or more intermediaries, controls, or is controlled by, or is under common control with, such Person.
“Agreement” means this Power Purchase Agreement, including all attachments hereto.
“Annual Facilities Degradation Factor” means the factor expressed in percent by which the
Guaranteed Annual Electric Output of the Facilities shall decrease each Contract Year as set forth in Attachment
C.
“Applicable Legal Requirements” means any present and future law, act, rule, requirement, order, by-
law, ordinance, regulation, judgment, decree, or injunction of or by any Governmental Authority, ordinary or
extraordinary, foreseen or unforeseen, and all licenses, permits, tariffs, and other governmental consents, which
may at any time be applicable to the Facility, or any part thereof or to any condition or use thereof, or a Party’s
rights and obligations hereunder and all leases, permits and other governmental consents which are or may be
required for the use and occupancy of the Properties and for the design, installation, operation, maintenance and
removal of the Facilities.
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“Bankrupt” means that a Party or other entity (as applicable): (i) is dissolved (other than pursuant to a
consolidation, amalgamation or merger); (ii) becomes insolvent or is unable to pay its debts or fails (or admits
in writing its inability) generally to pay its debts as they become due; (iii) makes a general assignment,
arrangement or composition with or for the benefit of its creditors; (iv) has instituted against it a proceeding
seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or
other similar law affecting creditor’s rights, or a petition is presented for its winding-up, reorganization or
liquidation, which proceeding or petition is not dismissed, stayed or vacated within twenty (20) Business Days
thereafter; (v) commences a voluntary proceeding seeking a judgment of insolvency or bankruptcy or any other
relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights; (vi) seeks or
consents to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian
or other similar official for it or for all or substantially all of its assets; (vii) has a secured party take possession
of all or substantially all of its assets, or has a distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or substantially all of its assets; (viii) causes or is subject to
any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (i) to (vii) inclusive; or (ix) takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the foregoing acts.
“Billing Cycle” means the monthly billing cycle established by the LDC.
“Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday.
“Buyer Termination Payment” means an amount payable by Buyer to Developer in the event of
termination of this Agreement as a result of an Event of Default in accordance with Section 9, or as a possible
Purchase Price in accordance with Section 13(e), as set forth in Attachment E-1 attached hereto.
“Claiming Party” has the meaning set forth in Section 8.
“Commercial Operation” means with respect to a Facility, that the Facility is capable of producing
Electricity, is ready for regular, daily operation, has approval to interconnect to the LDC system, and has all
relevant governmental approvals.
“Commercial Operation Date” means the first day on which each Facility is ready for Commercial
Operation, as certified in writing by Developer to Buyer in a notice of Commercial Operation.
“Contract Year” means a 365-day period commencing on the Commercial Operation Date of the last
Facility, and each subsequent 365-day period thereafter.
“Decommissioning Assurance” means financial security in the form of an escrow account, letter of
credit, bond or other form of security reasonably acceptable to Buyer to be established as provided in Section
4(h)(1) of this Agreement and to be in the cumulative amount of $216,000.00.
“Delivery Point” means, with respect to a Facility, the Developer Metering Device.
“Developer Metering Device” means with respect to the Facilities, any and all revenue quality meters
installed by Developer between the inverter and the LDC Metering Device, which is needed for the registration,
recording, and transmission of information regarding the amount of Electricity generated by a Facility and
delivered to the Delivery Point.
“Developer Termination Payment” means the payment made by the Developer to the Buyer in
accordance with Section 9 and shown on Attachment E-2.
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“Downgrade Event” means the occurrence of either of the following events: (i) Buyer was, on the date
of this Agreement, rated at least Investment Grade, and Buyer ceases to be rated at least Investment Grade at
any time during the Term, or (ii) Buyer was on the date of this Agreement not rated at least Investment Grade,
and Buyer at any time during the Term fails (A) to maintain Performance Assurance of a type and in an amount
reasonably required by Developer, or (B) fails to provide Financial Statements to Developer within twenty (20)
Business Days of Developer’s written request therefore.
“Early Termination Date” shall have the meaning ascribed to it in Section 9.
“Effective Date” is the date first set forth in the introductory paragraph of this Agreement.
“Electricity” means the electricity generated by the Facilities and delivered to Buyer at the Delivery
Point, as metered in whole kilowatt-hours (kWh) at the Developer Metering Device. The Electricity delivered to
Buyer at the Delivery Point shall be deemed to be equal to the electric energy measured at the Developer
Metering Device; actual energy losses between the Developer Metering Device and the Delivery Point shall not
reduce the measurement of Electricity.
“Electricity Price” shall mean the price per kWh of Electricity delivered to the Delivery Point, as set
forth in Attachment C attached hereto.
"Environmental Attributes" means the characteristics of electric power generation by the Facilities that
have intrinsic value separate and apart from the energy and arising from the perceived environmental benefit of
the Facilities or the energy produced by the Facilities including but not limited to all environmental attributes or
renewable energy credits, including carbon trading credits, or certificates, emissions reduction credits, emissions
allowances, green tags and tradable renewable credits, environmental and other attributes that differentiate the
Facilities or energy produced by the Facilities from energy generated by fossil fuel based generation units, fuels
or resources, characteristics of the Facilities that may result in the avoidance of environmental impacts on air,
soil or water, such as the absence of emission of any oxides of nitrogen, sulfur or carbon or mercury, or other
base or chemical, soot particulate matter or other substances attributable to the Facilities or the compliance of
the Facilities or energy with the law, rules and standards of the United Nations Framework convention on
Climate Changes or the Kyoto Protocol or the UNFCCC or crediting “early action” with a view thereto, or laws
or regulations involving or administered by the Clean Air Markets Division of the Environmental Protection
Agency or successor administrator of any state or federal entity given jurisdiction over a program involving
transferability of rights arising from Environmental Attributes and Reporting Rights. Environmental Attributes
does not include Environmental Incentives or Net Metering Credits.
“Environmental Incentives” means any credit, benefit, reduction, offset, financial incentive, tax credit
and other beneficial allowance that is in effect as of the Effective Date or may come into effect in the future,
including, to the extent applicable and without limitation, (i) greenhouse gas offsets under the Regional
Greenhouse Gas Initiative, (ii) tax credits, incentives or depreciation allowances established under any federal
or state law, (iii) fuel-related subsidies or “tipping fees” that may be paid to accept certain fuels, and (iv) other
financial incentives in the form of credits, tax write-offs, reductions or allowances under applicable Legal
Requirements attributable to the Facilities or Electricity, and all Reporting Rights with respect to such
incentives. Environmental Incentives does not include Net Metering Credits.
“Event of Default” has the meaning set forth in Section 9.
“Facility” or “Facilities” have the meanings set forth in the recitals. For avoidance of doubt, except as
otherwise expressly provided herein, the term “Facility” as used in this Agreement shall correspond with the
term “Unit” as used in the Net Metering Rules.
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“Facility Assets” means each and all of the assets of which a Facility is comprised, including solar
energy panels, mounting systems, tracking devices, inverters, integrators and other related equipment and
components installed on the Properties, electric lines and conduits required to connect such equipment to the
Delivery Point and the LDC Facilities, protective and associated equipment, improvements, Metering Devices,
and other tangible and intangible assets, permits, property rights and contract rights reasonably necessary for the
construction, operation, and maintenance of the Facilities.
“Facility Loss” means loss, damage or destruction of a Property, a Facility or any Facility Assets that in
either case prevents or limits the Facility from operating in whole or in part, resulting from or arising out of
casualty, condemnation or Force Majeure.
“Fair Market Value” means the fair market value of the Facilities, valued in place, as determined by an
Independent Appraiser based on the average equipment value of solar energy facilities located in geographical
proximity to the Facilities and comparable age, size and condition.
“Force Majeure” means any event or circumstance that prevents a Party’s ability to perform pursuant
to this Agreement if such event or circumstance is beyond the Party’s reasonable control and is not the result of
willful or negligent act or omission of the Party relying thereon as justification for not performing any obligation
or complying with any obligation required of such Party under this Agreement and such Party had been unable
to overcome such event or circumstances with the exercise of due diligence (including the expenditure of
reasonable sums). "Force Majeure" events or circumstances may include but are not restricted to events of the
following kinds: an act of God, an act of war, insurrection, riot or civil disturbance, fire, explosion, flood,
epidemics, unusually severe and extraordinary weather conditions, acts of government or regulatory authorities
(but not including actions of Buyer under the provisions of this Agreement), and strikes or lockouts which
materially affect, impact or impede obligations under this Agreement. Force Majeure will not be based on (i)
Buyer’s inability to economically use Electricity purchased hereunder, (ii) Developer’s ability to sell Electricity
at a price greater than the Electricity Price under this Agreement, (iii) changes in market conditions, or (iv)
increases in the costs of construction, equipment or supplies for the Facilities.
“Governmental Authority” means the United States of America, the Commonwealth of Massachusetts,
and any political or municipal subdivision thereof (including but not limited to Buyer), and any agency,
department, commission, board, bureau, or instrumentality of any of them, and any independent electric system
operator.
“Governmental Charges” means all applicable federal, state and local taxes (other than taxes based on
income or net worth but including, without limitation, sales, use, gross receipts or similar taxes), governmental
charges (but not including payments made to Buyer under the provisions of this Agreement), emission
allowance costs, duties, tariffs, levies, leases, fees, permits, assessments, adders or surcharges (including public
purposes charges and low income bill payment assistance charges), imposed or authorized by a Governmental
Authority, LDC, or other similar entity, on or with respect to the Electricity or this Agreement.
“Guaranteed Annual Electric Output” means the minimum amount of electricity that is guaranteed by
the Developer to be generated by the Facilities in a Contract Year, as set forth in Attachment C.
“Host Customer” shall have the meaning given this term in the Net Metering Rules.
“Hazardous Materials” means those substances defined, classified, or otherwise denominated as a
“hazardous substance”, “toxic substance”, “hazardous material”, “hazardous waste”, “hazardous pollutant”,
“toxic pollutant” or oil in the Applicable Legal Requirements or in any regulations promulgated pursuant to the
Applicable Legal Requirements.
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“Independent Appraiser” means an individual qualified by education, certification, experience and
training to determine the value of solar generating facilities of the size and age and with the operational
characteristics of the Facilities. Except as may be otherwise agreed by the Parties, the Independent Appraiser
shall not be (or within three (3) years before his appointment have been) a director, officer or employee of, or
directly or indirectly retained as consultant or adviser to, Developer, any Affiliate of Developer, or Buyer.
“Interest Rate” means a fluctuating interest rate per annum equal to the sum of the lesser of (i) the
Prime Rate as stated in the “Bonds, Rates & Yields” section of the The Wall Street Journal on the Effective Date
and thereafter on the first day of every calendar month, plus two (2) percentage points, or (ii) ten percent (10%).
In the event that such rate is no longer published in The Wall Street Journal or such publication is no longer
published, the Interest Rate shall be set using a comparable index or interest rate selected by Buyer and
reasonably acceptable to Developer. The Interest Rate hereunder shall change on the first day of every calendar
month. Interest shall be calculated daily on the basis of a year of three hundred and sixty-five (365) days and
the actual number of days for which such interest is due.
“LDC” means the regulated electric local distribution company that provides electric distribution
service to the Buyer, as set forth in Attachment C.
“LDC Facilities” means the electric distribution system operated and maintained by the LDC.
“LDC Metering Device” means one or more meters furnished and installed by the LDC for the purpose
of measuring the Electricity delivered by the LDC to the Host Customer and delivered by the Host Customer to
the LDC.
“License” means the license for the use of the Properties granted by Buyer to Developer, as further
described in Section 4(b).
“Licensed Area” means the area on the Properties in which Buyer grants Developer a license to install
and operate the Facilities.
“Net Metering” shall have the meaning set forth in the Net Metering Rules.
“Net Metering Cap Relief” shall have the meaning set forth in Section 3(c)(xi).
“Net Metering Credit” shall mean the applicable monetary value of an excess kilowatt-hour of
electricity, determined in accordance with the Net Metering Rules.
“Net Metering Facility” and “Net Metering Facility of a Municipality or other Governmental Entity”
shall have the meanings set forth in the Net Metering Rules.
“Net Metering Rules” means collectively, M.G.L. c.164, section 138-140 and 220 CMR 18.00 et seq.,
orders issued by the Massachusetts DPU relating to Net Metering, and the associated net metering tariff of the
LDC, as same may be amended.
“Outside Commercial Operation Date” means June 30, 2015, subject to the provisions of Section 4(a)
hereof.
“Outside Construction Commencement Date” means 180 days from the Effective Date.
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“Person” means an individual, general or limited partnership, corporation, municipal corporation,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority,
limited liability company, or any other entity of whatever nature.
“Performance Assurance” means collateral in the form of either cash, letter(s) of credit, or other
security reasonably acceptable to Developer.
“Production Shortfall” means the amount, expressed in kWh, by which the actual amount of Electricity
generated by the Facilities in any Contract Year is less than the Guaranteed Annual Electric Output.
“Properties” has the meaning set forth in Attachment A.
“Private Cap Allocation” means an assurance that a Host Customer will receive Net Metering Services
(as defined in the Net Metering Rules) within the Private Cap (as defined in the Net Metering Rules) upon the
Host Customer’s receipt of notice of authorization to interconnect from the LDC.
“Public Cap Allocation” means an assurance that a Host Customer will receive Net Metering Services
(as defined in the Net Metering Rules) within the Public Cap (as defined in the Net Metering Rules) upon the
Host Customer’s receipt of notice of authorization to interconnect from the LDC.
“Purchase Price” shall have the meaning ascribed to it in Section 13 of this Agreement.
“Release” means any release, migration, seepage, discharge, disposal, leak or spill of Hazardous
Materials, including without limitation as any of the foregoing may be defined in or pursuant to any of the
Applicable Legal Requirements.
“Reporting Rights” means the right of Developer to report to any federal, state or local agency,
authority or other party, including without limitation under Section 1605(b) of the Energy Policy Act of 1992
and provisions of the Energy Policy Act of 2005, to the extent that such Acts provide such rights, or under any
present or future domestic, international or foreign emissions trading program, that Developer owns the
Environmental Attributes and the Environmental Incentives associated with Electricity produced by the
Facilities.
“Schedule Z” shall have the meaning set forth in Section 4(l).
“Shortfall Payment” shall have the meaning set forth in Section 5(f).
“Term” shall have the meaning set forth in Section 3 herein.
“Termination Date” means the earlier to occur of (i) the last day of the Term, (ii) the date of
termination of this Agreement as the result of an Event of Default, and (iii) the date of termination pursuant to
Section 8 or the Transfer Date pursuant to Section 13 herein.
Section 2 FACILITY DESCRIPTION
(a) This Agreement provides the terms and conditions upon which the Developer may, subject to
satisfaction or waiver of the conditions precedent below, construct and install the Facilities. A preliminary
description of the Facilities is set forth in Attachment B hereto.
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(b) The Parties acknowledge and agree that, other than with respect to the calculation of the
Guaranteed Annual Electrical Output and any Shortfall Payment, each Facility shall be treated separately and
independently from each other Facility for all purposes under this Agreement. Without limiting the generality
of the foregoing, the Parties acknowledge and agree that, among other things, for purposes of Section 9 (Events
of Default) of this Agreement, the Parties shall have the right to terminate this Agreement and to exercise
remedies for default as provided in Section 9 only as to the applicable Facility and the calculations pursuant to
the Termination Payment will be made as to the applicable Facility, provided however that nothing herein shall
prohibit either Party from terminating this Agreement with respect to more than one or all of the Facilities, to the
extent that an Event of Default affects more than one or all of the Facilities. The Parties further agree, with
respect to the Facility to be installed at the Lexington High School Property, that such Facility may be treated as
four separate Facilities for certain purposes under this Agreement, including with respect to Buyer’s exercise of
the Purchase Option under Section 13 hereof, and with respect to the payment of the Buyer Termination
Payment or the Developer Termination Payment in the event this Agreement is terminated, as permitted herein,
with respect to one but not all of the Facilities installed on the buildings comprising Lexington High School.
Section 3 TERM
(a) Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and
shall remain in effect until the twentieth (20th) anniversary of the Commercial Operation Date of the last
Facility, or such earlier date provided herein. The Term may be extended by mutual written agreement of the
Parties for up to three (3) additional terms of up to five (5) years each, subject to the approval by Town Meeting
(or any other then-required approval) of any such renewal term, including the provisions and conditions thereof.
(b) Without constituting a default under this PPA, and without liability of either Party to the other
Party (except for amounts then due under this PPA), Developer shall have the right, but not the obligation, to
terminate this Agreement prior to expiration of the Term upon the occurrence of an unstayed order of a court or
administrative agency having the effect of subjecting the sales of Electricity to federal or state regulation of
prices and/or services.
(c) Conditions Precedent. The obligation of Developer to commence construction on a Facility
hereunder (and with respect to subparagraph (c)(xii) below), the obligation of Developer to commence selling
Electricity hereunder) and the obligation of Buyer to commence purchasing Electricity hereunder is, as
applicable in each case, subject to the fulfillment of each of the following conditions precedent:
(i)Developer shall have obtained financing on terms acceptable to Developer in its sole
discretion. For the purposes of this subparagraph (c)(i), financing may include debt financing, equity
financing, tax equity financing, loan and credit agreements, notes, bonds, indentures, security
agreements, lease financing agreements, mortgages, interest rate exchanges, or swap agreements, and
any other documents relating to the development, bridge construction or the permanent financing for the
construction and operation of the Facilities;
(ii) Developer shall have received and approved the most recently available Financial
Statements of Buyer;
(iii) Developer shall have obtained all permits, licenses and other approvals required by
Applicable Legal Requirements and from the LDC and owner of the Properties for construction,
installation and operation of the Facilities;
(iv) Developer shall have determined that the roofs of the buildings at the Properties have
sufficient load-bearing capacity to support the Facilities and all related foot traffic and construction
activities and/or the infrastructure of the buildings at the Properties can support the Facilities;
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(v) Developer shall have determined that no upgrades are required to Buyer’s existing
electrical infrastructure, structural infrastructure or roofs, it being acknowledged by both Parties that
neither Party shall be under any obligation to pay for any required upgrades, but that this condition may
be satisfied if either Party agrees to implement any necessary upgrades at its own cost, or if the Parties
agree to share the costs of such upgrades;
(vi) the LDC requires material changes in plans and/or specifications to the Facilities or the
interconnection of Buyer’s facilities which requires additional costs or fees, in excess of $1,000 per
Facility, which in Developer’s sole discretion are unreasonable, except if Buyer agrees to pay for such
LDC mandated costs;
(vii) Buyer shall have entered into all contracts and delivered all other documents required
by the LDC in connection with this Agreement and the transactions contemplated hereby (the “Utility
Documents”) to the reasonable satisfaction of Developer, or the LDC shall have waived the
requirements for such Utility Documents;
(viii) Without limiting the foregoing condition, Buyer shall have delivered a copy of the
executed Schedule Z and Customer Interconnection Acknowledgement Agreement;
(ix) Developer shall have entered into all contracts for procurement, construction and
installation of the Facilities;
(x) Developer shall have satisfied itself that the Facilities, if constructed, would not be in
violation of zoning or land use laws applicable to the Properties, it being acknowledged by Buyer that
Developer is under no obligation to apply for or obtain zoning relief;
(xi) Buyer shall have applied for and received a Public Cap Allocation; Developer shall
assist Buyer in applying for the Public Cap Allocation and shall pay all reservation fees to apply and
maintain the Public Cap Allocation, and such Public Cap Allocation shall not have lapsed due to any
delays in construction and/or commercial operation; provided that, if the Massachusetts Legislature
should pass a bill providing that no aggregate net metering cap shall apply to solar net metering
facilities (the “Net Metering Cap Relief”), and such Net Metering Cap Relief is made effective by the
Massachusetts Department of Public Utilities and the Net Metering Rules amended accordingly, then
the condition precedent set forth in this Section 3(c)(xi), and any other provision of this Agreement
referring to a Public Cap Allocation, a net metering cap, or similar language, including, without
limitation, the provisions of Section 4(l) hereof, shall be of no further force and effect as if the same had
not been included in this Agreement, and provided further that, if such Public Cap Allocation is not
available as anticipated, Developer shall apply for a Private Cap Allocation and the provisions of this
subsection (xi) shall be deemed to apply to such Private Cap Allocation;
(xii) the Project shall have qualified under, and Buyer and Developer shall each have taken
actions within their respective control to cause the Project to qualify under, the so-called SREC-II
program administered by the Department of Environmental Resources (DOER) described in 225 CMR
14.00 et seq., Renewable Energy Portfolio Standard – Class I, as same may be amended from time to
time;
(xiii) Buyer and Developer shall have entered into a payment in lieu of taxes (“PILOT”)
agreement;
(xiv) Developer shall have designed and the LDC shall have approved, on terms satisfactory
to Developer and Buyer, the interconnection of each Facility such that the Facility delivers Electricity to
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the LDC through the LDC Metering Device, and any Electricity delivered to the Facility from the LDC
is used only for operating the Facility’s “parasitic” electric load, if any. (“Virtual Net Metering
Facility”); and
(xv) Buyer shall have approved the final design of each Facility, in accordance with Section
4(a) hereof.
Either Party may waive any condition precedent applicable to it. The Party proposing to terminate this
Agreement as the result of the non-fulfillment or failure of any of the above-referenced conditions precedent
shall give the other Party written notice of the notifying Party’s intent to terminate this Agreement due to non-
fulfillment or failure of any such foregoing conditions, and shall include in such notice a detailed description of
the efforts undertaken by the notifying Party to satisfy such condition or conditions (which efforts need only be
commercially reasonable) and the reasons why such condition or conditions have not been satisfied. In the
event either Party terminates this Agreement as permitted by this Section 3(c), the Parties shall have no further
obligations hereunder except those which survive expiration or termination of this Agreement in accordance
with the terms hereof.
(d) The conditions precedent herein shall apply to each Facility. For clarity, the satisfaction of
conditions precedent and commencement of performance obligations for any one Facility shall not be deemed
their satisfaction for any other Facility.
Section 4 FACILITY OWNERSHIP, DESIGN, INSTALLATION, OPERATION,
MAINTENANCE, AND REMOVAL
(a) Construction. Developer will use diligent and commercially reasonable efforts to (i) obtain all
permits and financing for the Project, (ii) furnish all design, materials, supplies, tools, equipment, labor, and
other services necessary for the installation and construction of the Facilities, and (iii) maintain the Facilities in
good condition and repair and in accordance with Applicable Legal Requirements, industry standards applicable
to the installation and maintenance of rooftop photovoltaic projects in the greater Boston, Massachusetts
metropolitan area, and the terms of this Agreement. The Parties agree that, wherever used in this Agreement,
“industry standards” are not limited to the optimum practice or method to the exclusion of others, but rather
refer to commonly used and reasonable practices and methods in the geographical area set forth above. A
preliminary aggregated construction schedule is attached hereto as Attachment F. As soon as practicable
following the Effective Date hereof, Developer shall provide to Buyer an updated schedule of design,
permitting, equipment procurement, construction and commissioning activities for each Facility, indicating
appropriate milestones and durations for each activity. Failure to meet the Outside Construction
Commencement Date or the Outside Commercial Operation Date, which failure is not caused by Force Majeure,
delays by the LDC in approval and execution of the interconnection agreement, or any other delay caused by
LDC or Buyer, shall entitle either Party to terminate this Agreement upon no less than thirty (30) days’ prior
written notice to the other Party with no further liability of either Party. In addition, if Developer fails to meet
the Outside Commercial Operation Date, which failure is not caused by Force Majeure, delays by the LDC in
approval and execution of the interconnection agreement, or any other delay caused by LDC or Buyer, Buyer
may elect, for a period not to exceed ninety (90) days and in lieu of exercising its right to immediate termination
during such time, to assess liquidated damages in an amount equal to Two Hundred Twenty- Three Dollars
($223.00) per day for each day of delay past the Outside Commercial Operation Date.. Prior to the
commencement of construction, Developer shall coordinate with and receive input from the Buyer’s designated
technical staff and submit final Facility design drawings for approval by the Buyer, such approval not to be
unreasonably withheld, conditioned or delayed. Said Facility design shall provide that no so-called parasitic
load exceed 10 KW. Developer shall coordinate the construction with Buyer so as to minimize disruption to
Buyer’s activities and adhere to the access rules and conditions in Attachment G. Developer shall coordinate
project meetings with a representative of the Buyer to discuss the status and progress of the Project and to
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address issues that may arise during construction. On a daily basis and upon completion of the construction of
the installation of the Facilities, Developer shall remove all debris, tools, and packaging. Buyer acknowledges
that construction and initial operation of the Facilities is subject to (i) delays by the LDC in approving
interconnection of the Facilities, (ii) Force Majeure events, or (iii) delays caused by Buyer. Buyer, or its
designee, shall have the right to inspect each Facility upon completion of construction and prior to Commercial
Operation to ensure substantial compliance with the final design, as approved, or with approved modifications to
such final design, and to ensure the safety of each Facility. Such inspection shall be performed by Buyer or its
designee as expeditiously as practicable following notice by Developer of substantial completion, and in any
event shall be completed during Developer’s commissioning process with respect to each such Facility.
(b) Title to Facilities. Except as otherwise set forth in this Agreement, as between the Parties
during the Term of this Agreement, all ownership of and title to the Facilities, Environmental Attributes, and tax
benefits associated with the Facilities shall be with the Developer. Developer shall be the legal and beneficial
owner of the Facilities, which Facilities will at all times retain the legal status of personal property of Developer
as defined under Article 9 of the Uniform Commercial Code. The Facilities will not attach to or be deemed a
part of, or a fixture to, the Properties notwithstanding the manner in which the Facilities are or may be affixed to
real property of Buyer. If there is any mortgage or fixture filing against the Properties which could reasonably
be construed as prospectively attaching to the Facilities as a fixture, Buyer shall provide a disclaimer or release
from such lienholder. Buyer will not take a position on any tax return or in other filings suggesting that it is
anything other than a purchaser of Electricity from the Facilities, owner of the Properties, Licensor under the
License or Governmental Authority pursuant to its local regulatory jurisdiction. Buyer authorizes Developer to
file a precautionary UCC financing statement which shall disclaim the fixture statues of the Facilities. The
parties intend this Agreement to be treated as a “service contract” within the meaning of section 7701(e)(3) of
the Internal Revenue Code.
(c) Cooperation Regarding Authorizations. Developer will prepare, file and manage applications
for all permits, approvals, registrations and other related matters under the SREC-II program, the System of
Assurance of Net Metering Eligibility, the LDC and any other Governmental Authority and, to the extent
necessary, Developer will do so on behalf of Buyer. Developer and Buyer agree to seek approval from the
LDC for the Facility to receive Optional Time-Of-Use rate classification (currently designated the B-5 rate
class). Buyer agrees to reasonably cooperate with Developer in preparing such applications and securing such
permits, approvals and registrations, including without limitation, timely executing and delivering all
documentation required from Buyer relating thereto. Where allowed by law and if necessary, and subject to
Applicable Legal Requirements, Buyer shall designate Developer as its agent in obtaining all permits, approvals,
registrations and additional authorizations required of Buyer in connection with this Agreement and the
transactions contemplated hereby. The Parties agree that, if the Net Metering Relief is not passed and the Net
Metering Rules amended as provided in Section 3(c)(xi) above prior to the date on which the interconnection
agreement is entered into with the LDC, the Parties intend to file the Project as a public net metering project,
subject to availability under the public net metering cap. If there is insufficient availability under the public net
metering cap, the parties shall proceed to file the Project as a private net metering project, and shall restructure
the Project to permit Developer to sell the net metering credits to Buyer through an affiliate of Developer, if
necessary to comply with the Net Metering Rules. In the event the Project is filed as a private net metering
project as provided herein, the Developer shall act as Host Customer. In any event, the Parties shall work
cooperatively to address any issues arising from the Net Metering Rules so as to proceed with the Project.
(d) License; Access; Other Rights.
(1) Buyer hereby grants to Developer and Developer’s employees, contractors, consultants,
invitees and designees (“Developer’s Designees”), a license (“License”) to enter upon the Properties to
construct, install, maintain, operate and remove the Facilities. The area of a Property upon which a
Facility will be located (in each case, the “Licensed Area”) consists of (i) rooftop space of the building
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on the Property, (ii) other space either inside the building or elsewhere on such Property for the
installation, operation and maintenance of utility lines, cables, conduits, transformers, wires, meters,
monitoring equipment, communication lines and other necessary and convenient equipment and
appurtenances (“Cabling Space”). A preliminary depiction of such rooftop space within the Licensed
Area and the respective Facilities at each of the Properties is shown on Attachment B hereto. After
construction, Developer shall provide updated drawings of the rooftop space and Facilities at each
Property.
(2) Buyer hereby grants to Developer and Developer’s Designees rights of ingress and
egress over and across each Property to and from the respective Licensed Areas from all public roads
serving the Property, subject to access rules and conditions set forth in Attachment G.
(3) Buyer hereby grants to Developer and Developer’s Designees the temporary use of
additional space at each Property for construction laydown, storage of construction materials, parking of
construction crew vehicles and trailers, such area to be agreed upon by the Parties prior to construction.
(4) Buyer hereby grants to Developer and Developer’s Designees the use of Developer’s
water supply already available at the Properties for purposes of construction, cleaning and maintenance
of the Facilities.
(5) During the Term, Buyer shall not grant any license or other interest in and to the
Properties that would interfere with the License granted to Developer or that interferes with other rights
granted to Developer under this Agreement. Buyer shall not cause or permit any shading of the
Facilities or permit any obstruction or interference with direct sunlight to the Facilities.
(6) Subject to the access rules and conditions in Attachment G, Developer and Developer’s
Designees shall have access to the Properties pursuant to the License for the purpose of planning,
constructing, operating, inspecting, maintaining, repairing and removing the Facilities, and to any
documents, materials and records of Buyer relating to the Properties that Developer reasonably requests
in conjunction with these activities.
(7) At Developer’s request or at the request of Developer’s lenders, Buyer agrees to
execute a notice of License and other access rights granted to Buyer in the form of Attachment D, and
consents to the recording of such document in the land records of the county where the Licensed Area is
located.
(e) Security. Buyer shall at all times comply with all safety and other operating procedures
established by Developer, for which notice shall be provided in accordance with Section 20 “Notices”, herein,
and all Applicable Legal Requirements. Rules and conditions for Developer’s access to the Properties are
included in Attachment G.
(f) Operations Manual; Training. Within sixty (60) days following the Commercial Operation Date
with respect to the last Facility, , and at the expiration of the Term hereof, if Buyer exercises the Purchase
Option as provided in Section 13 hereof, Developer shall deliver to Buyer a current operation, maintenance and
parts manual for the Facilities. In addition, in either case, Developer will train Buyer’s representative(s) on
Buyer operations and monitoring (for informational purposes only) and emergency preparedness and response, it
being acknowledged by Buyer that Buyer shall not operate the Facilities, except in the case of an emergency
where immediate action on the part of the Buyer is reasonably necessary for safety reasons. In the event of an
emergency where immediate action on the part of Buyer is reasonably necessary for safety reasons, Buyer may,
but is not obligated to, shut down or disconnect the Facilities and provide notice to Developer as soon as
reasonably possible, and in any event within twenty-four (24) hours following such emergency, but otherwise
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Buyer shall not be permitted to perform any maintenance or repair on the Facilities. Any lost production
resulting from Buyer’s emergency shutdown shall not be the subject of a claim for lost revenue by Developer
unless Buyer does not notify Developer as required in this subsection.
(g) Notice of Commercial Operation. Subject to the provisions of this Agreement, Developer shall
notify Buyer when the each of the Facilities achieve Commercial Operation (“Notice of Commercial
Operation”), and shall in such notices state the Commercial Operation Date.
(h) Removal of the Facilities. Except as otherwise provided herein, including, without limitation,
in the event of Buyer’s exercise of the Purchase Option as provided in Section 13 hereof, Developer shall,
within ninety (90) days following the expiration or earlier termination of the Term (subject to Developer’s
receipt of all necessary permits and approvals and the required access to the Properties and Facilities), and at
Developer’s sole cost and expense, except as otherwise provided herein, remove all of the tangible property
comprising the Facilities, including mounting and support structures, exterior conduits and other related
infrastructure, from the Properties and restore the Properties to their original respective conditions, normal wear
and tear excluded.
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(1)Not later than the fifteenth (15) anniversary of the Commercial Operation Date of the last
Facility, Developer shall establish the Decommissioning Assurance, and shall select the form of such
Decommissioning Assurance, subject to the approval of Buyer, not to be unreasonably withheld,
conditioned or delayed. Failure to timely establish and/or fund in accordance with this paragraph such
Decommissioning Assurance shall constitute an Event of Default by Developer, for which the Buyer
shall be entitled to exercise any of the remedies for default afforded under Section 9. Thereafter, within
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30 days after the beginning of the sixteenth (16), seventeenth (17), eighteenth (18) and nineteenth
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(19) Contract Years, Developer shall fund one-fourth of the required amount of the Decommissioning
Assurance, provided that at the time of each one-fourth contribution no Event of Default by Buyer has
occurred. If an Event of Default by Developer occurs at any time after the expiration of the first
Contract Year, Buyer shall have the right to require Developer to fund one-fourth of the
Decommissioning Assurance prior to the expiration of the Contract Year in which such Event of Default
occurs, and thereafter to fund the remaining portion of the Decommissioning Assurance in one-fourth
increments within thirty (30) days after the beginning of the next three (3) Contract Years. During
Developer’s removal of the Facilities and restoration of the Properties, Developer shall have the right to
draw on the Decommissioning Assurance on a monthly basis to reimburse itself for the cost of such
removal and restoration.
(2)Developer shall repair any damage it causes in connection with such removal not related to
ordinary use and wear or damage by fire or other casualty.
(3) Not later than sixty (60) days after Developer’s removal of the Facilities and restoration of
the Properties is completed, Buyer shall release, disclaim or return to the Developer any remaining
unexpended portion of the Decommissioning Assurance, including any interest accrued thereon.
(4) If Developer fails to remove or commence substantial efforts to remove the Facilities within
one hundred and twenty (120) days after the expiration or earlier termination of this Agreement, for
reasons other than Force Majeure, any Buyer delay or any inability to obtain any necessary permits or
approvals or access to the Facilities, which shall excuse the Developer only for the duration of any such
delay event(s), Buyer shall have the right, at its option, but exercisable only if Buyer has provided at
least ten (10) days’ prior notice to Developer of such election, to remove the Facilities and restore the
Properties as contemplated by Section 4(h) hereof. Buyer shall remove the Facilities to a public
warehouse or storage facility within a reasonable distance of the Properties, if Developer has so
identified such warehouse or storage facility and has entered into an agreement with said warehouse or
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storage facility to pay any and all storage costs. If Developer has failed to identify such warehouse or
agreed to pay storage costs, the Facilities will be deemed abandoned, and Buyer shall have the right to
sell the Facilities and retain proceeds from such sale. In addition, Buyer shall be entitled to access the
Decommissioning Assurance to cover its reasonable costs in removing the Facilities, restoring the
Properties and either transporting the Facilities to storage or disposing of them, as the case may be.
(5) The provisions of this Section survive expiration or termination of this Agreement until the
actual removal of the Facilities has been completed hereunder.
(i) Developer Access. Developer shall be allowed immediate access to the Properties and the
Facilities in connection with any emergency condition then existing with respect to the Facilities that could
reasonably be expected to pose an imminent threat to the safety of persons or property.
(j) \[Intentionally Deleted\]
(k) Educational Program. Developer shall provide Buyer with Developer’s standard
Massachusetts-based educational program regarding the Facilities and their operation, incorporating
substantially the same provisions as those set forth on Attachment H hereto.
(l) Net Metering Provisions.
(1) Host Customer. At Developer’s request, provided the Project is filed as a public net
metering project as anticipated by the Parties, Buyer shall take any reasonable action and execute any
documents that are necessary to designate Buyer as the LDC customer of record for the LDC Metering
Device and otherwise establish Buyer as the Host Customer for such Facilities for purposes of the Net
Metering Rules. Developer shall prepare any such documents, including the LDC’s net metering
service application (the “Schedule Z”) and Buyer shall reasonably cooperate with Developer’s
preparation of such documents, including, without limitation, by providing information on Buyer’s
existing other accounts with the LDC. Further Developer shall prepare an application with appropriate
supporting documents for Public Cap Allocation for the Project, and Buyer shall reasonably cooperate
with Developer’s preparation of such documents. If the Parties are required to file the Project as a
private net metering project as provided above, Developer shall take any reasonable action and execute
any documents that are necessary to designate Developer as the LDC customer of record for the LDC
Metering Device and otherwise establish Developer as the Host Customer for such Facilities for
purposes of the Net Metering Rules.
(2) Net Metering Facility of a Governmental Entity. Buyer and Developer acknowledge
that they will endeavor to file the Project as a Public Net Metering Facility(ies), but that the Project may
have to be filed as a Private Net Metering Facility(ies), as determined under the Net Metering Rules. In
either case, the Parties agree not to take any action inconsistent with such regulatory status of the Project
(including, without limitation, terminating the Schedule Z or amending the Schedule Z in a manner
inconsistent with such status). For the avoidance of doubt, the Parties acknowledge that pursuant to the
current Net Metering Rules, in order to obtain and preserve such status, no Schedule Z for a Net
Metering Facility of a Municipality or Other Governmental Entity may allocate Net Metering Credits to
the account of any individual or of any entity that is not a city, town, federal agency or department, state
agency or department, or any entity that is not approved by DPU as an “Other Governmental Entity.”
(3) Net Metering Limit. Buyer and Developer acknowledge that, pursuant to the Net
Metering Rules, the maximum amount of generating capacity currently eligible for net metering by a
municipality or other governmental entity is the Public Net Metering Limit. Accordingly, Buyer
covenants that, unless the Net Metering Rules are changed to increase such limit, it shall not serve as the
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Host Customer of Net Metering Facilities (inclusive of the Project) with an aggregate capacity more
than the Public Net Metering Limit.
(4) Customer Interconnection Acknowledgement. In order to fulfill the LDC’s
requirements for interconnecting to the LDC distribution grid an energy generating facility that is owned
by one party but is located behind the LDC Metering Device of another party, Developer shall be party
to the interconnection service agreement and Buyer agrees, promptly following Developer’s request, to
enter into the customer interconnection acknowledgement agreement, if required, with the LDC in a
form substantially similar to the form of customer interconnection acknowledgement agreement
attached to the LDC’s interconnection tariff as may be required by the LDC (the “Customer
Interconnection Acknowledgement Agreement”).
(5) No Resale of Electricity. The Electricity purchased by Buyer from Developer under
this Agreement shall not be resold to any other Person, nor shall such Electricity be assigned or
otherwise transferred to any other Person (other than to the LDC pursuant to the Net Metering Rules),
without prior approval of Developer.
(m) No voiding of existing roof warranties. Developer shall ensure that the Facility is designed
and constructed so that no existing roof warranty is voided on account of the installation of the Facility.
Developer shall consult, as may be necessary, with any company that has provided such roof warranty
to the Buyer.
Section 5. PURCHASE AND SALE; DELIVERY;
GOVERNMENTAL CHARGES
(a)Purchase and Sale of Electricity. Commencing on the Commercial Operation Date of the first
Facility and continuing throughout the remainder of the Term, Developer shall sell and make available to Buyer,
and Buyer shall purchase and take delivery of at the Delivery Point, all of the Electricity generated by the
Facilities. Buyer acknowledges that Electricity produced by the Facilities is intermittent as available energy
product and that Buyer is solely responsible for meeting any and all of its energy needs not met from Facilities-
generated energy at Buyer’s cost and expense.
(b) Price for Electricity. Notwithstanding any other provision of this Agreement, Buyer shall pay
Developer for the Electricity, as metered at the Developer Metering Device, at the applicable Electricity Price.
(c) Adjustments to Electricity Price. In all cases, any adjustments in the Electricity Price shall be
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made to the nearest one ten-thousandth (1/10,000) of a dollar.
(d) Title and Risk of Loss of Electricity. Title to and risk of loss of the Electricity will pass from
Developer to Buyer at the Delivery Point. Developer warrants that it will deliver the Electricity to Buyer at the
Delivery Point free and clear of all liens, security interests, claims, and other encumbrances.
(e) Governmental Charges.
(i) Developer is responsible for local, state and federal income taxes attributable to
Developer for income received under this Agreement.
(ii) Buyer shall pay directly or reimburse Developer on an after-tax basis for all sales and
use taxes that may be imposed by any Governmental Authority on the sale of Electricity to Buyer.
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Buyer shall provide Developer with its exemption certificate or documentation which may be necessary
for Developer to demonstrate to such Governmental Authority that no sales or use taxes should be
imposed on Buyer as a municipal corporation.
(iii) If any real or personal property taxes are assessed against Developer due to
Developer’s ownership or operation of the Facilities or occupancy of the Properties, Developer will
promptly submit to Buyer a written notice setting forth (A) the manner in which such taxes change
Developer’s costs to provide the Electricity, and (B) Developer’s proposed adjustment to the Electricity
Price. The parties explicitly agree that the Developer may offset assessments of real or personal
property taxes with a commensurate increase in the Electricity Price, provided that it has supplied to
Buyer the reasonable basis for such adjustment. The Parties intend to enter into a PILOT Agreement.
The payment to be made under the PILOT Agreement is carried and included in the Electricity Price. In
the event that the PILOT Agreement is, at any time during the Term hereof, determined to be invalid
due to subsequent legislative action or a final judgment of a court of competent jurisdiction, and the
Developer is responsible for the payment of real and personal property taxes assessed to the Licensed
Area and/or to the Facilities, or is exempt from or subject to a different PILOT amount, a proportionate
adjustment to the Electricity Price shall be made by Developer as follows:
Commencing on the beginning of the month after Developer's receipt of a property tax bill or
assessment with respect to a fiscal year or on the effective date of any exemption, or
modification of a PILOT payment, the Electricity Price shall be adjusted by an amount that is
equal to (a) the total amount (in dollars) of such assessment, or $0.00 in the event of a complete
exemption, or the modified amount of a new mandated PILOT, minus the annual amount to be
paid under the PILOT Agreement ($30,000), divided by (b) the estimated Electricity to be
produced by the Facilities for the same period of time covered by the assessment. Adjustments
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shall be rounded to the nearest one ten-thousandth (1/10,000) of a dollar. If such adjustment
yields a positive amount, the Electricity Price shall be increased by such a positive amount.
Conversely, if such adjustment yields a negative amount, the Electricity Price shall be decreased
by such amount. At the end of a fiscal year during which Developer made an adjustment to the
Electricity Price, the Parties agree to true up the prior fiscal year’s Electricity Price increase
based upon the actual Electricity produced from the Facilities for such prior year, and make any
adjustments as necessary to the following year’s Electricity Price to reflect such true up. In the
event such tax assessment subsequently is adjusted by Buyer, the Electricity Price shall
correspondingly be adjusted.
If this Agreement shall be terminated with respect to any Facility or portion of a Facility, except
in the event of a termination due to a Developer default under Section 9, the PILOT payment
shall be reduced by an amount equal to the product of (i) the total amount of the PILOT
payment, and (ii) a fraction, the numerator of which is the system capacity size, measured in
kilowatts, of the Facility or portion of a Facility being removed from service, and the
denominator of which is the total system capacity size, measured in kilowatts, of all Facilities,
including the Facility or portion of a Facility being removed from service. In the event of a
Developer default, the PILOT payments for the remainder of the full Term shall be as set forth
in Schedule E-2 hereto.
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(iv) Both Parties shall use reasonable efforts to administer this Agreement and implement its
provisions so as to minimize Governmental Charges. Nothing herein however shall relieve Developer
of customary fees for local permits. In the event any of the sales of Electricity hereunder are to be
exempted from or not subject to one or more Governmental Charges, the applicable Party shall,
promptly upon the other Party’s request therefore, provide the applicable Party with all necessary
documentation to evidence such exemption or exclusion.
(f) Guaranteed Annual Electric Output.
(i) Developer guarantees that the Facilities will produce a Guaranteed Annual Electric
Output in each Contract Year, as adjusted by the Annual Facilities Degradation Factor. On the first
anniversary of the Commercial Operation Date for the last Facility and each anniversary of such last
Commercial Operation Date thereafter during the Term (and any extension thereof), the Guaranteed
Annual Electric Output shall be decreased by the Annual Facilities Degradation Factor. The Guaranteed
Annual Electric Output, including the application of the Annual System Degradation Factor, is shown
on Attachment C.
(ii) Subject to clause (iii) below, in the event that a Production Shortfall exists in any
Contract Year, Developer shall be required to pay Buyer a payment equal to the product of:
(A) the amount, if any, in dollars per kWh by which (1) (i) the aggregate value of Net Metering
Credit calculated for each billing periods or portion thereof that occurred in such Contract Year divided
by (ii) the actual aggregate kWh produced by the Facilities and delivered to the Delivery Point in such
Contract Year exceeds (2) the Electricity Price for such Contract Year, multiplied by (B) the Production
Shortfall for such Contract Year (the “Shortfall Payment”); provided, that the amount under subclause
(A) shall in no case exceed $0.05 per kWh.
(iii) For purposes of calculating a Shortfall Payment under clause (ii) above, the Production
Shortfall shall be adjusted downward due to failure, damage or downtime attributable to third parties,
other than agents, subcontractors and suppliers of Developer, general utility outages or any failure of
any electric grid, or Force Majeure. Within sixty (60) days after each Contract Year, Provider shall
provide Customer with a reconciliation of all production by the Facilities, and include in such
reconciliation the basis for any adjustments to the Guaranteed Annual Electric Output for such Contract
Year. Payment of the Shortfall Payment, as described herein, shall be Buyer’s sole remedy against
Developer for failure to meet the Guaranteed Annual Electric Output. Notwithstanding the foregoing,
Developer may install additional equipment on the Properties (including without limitation additional
solar panels) to prevent or reduce future Production Shortfalls, upon approval by the Buyer, such
approval not to be unreasonably withheld, conditioned or delayed, provided that the Licensed Area can
reasonably accommodate such additional equipment or can be expanded in area without materially
impairing the Buyer’s uses of the Properties.
(g) Outages for Maintenance and Roof Repair or Replacement.
(i) The Parties agree that at any time during the Term of the Agreement, Buyer shall be
afforded a period of up to five (5) days per Contract Year per Facility during which a designated Facility
may be temporarily shut down and taken out of operation so that Buyer may perform minor roofing
repair work on the Property on which such Facility is located. Buyer agrees to and shall pay Developer
an amount with respect to such work equal to Developer’s actual and documented removal, storage, and
replacement costs. Buyer agrees to coordinate such minor repair work to minimize the period of time in
which the Facility is taken out of operation and to mitigate the Developer’s loss of revenues by
attempting to schedule repair work during times of day when insolation is at a minimum.
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(ii) If the Buyer requires that a Facility be temporarily shut down and taken out of operation for
major repair or reconstruction of roofs for an amount of time exceeding five (5) days in a Contract Year,
or if an appropriation has been duly authorized by Town Meeting (and/or other governing authority of
the Buyer) to demolish the building on the Property on which such Facility is installed during the first
ten (10) Contract Years (i.e., during any period in which Developer may have the ability to mint and sell
SRECs with respect to the output of the affected Facility), Buyer agrees to and shall pay Developer an
amount with respect to such work equal to Developer’s actual and documented removal, storage, and
replacement costs plus any estimated Electricity not delivered and any lost SREC revenue during such
outage. After the expiration of the SREC period, provided the Buyer has chosen not to exercise a
Purchase Option in accordance with Section 13, the Parties shall agree to a month-for-month extension
of the Term hereof to offset lost revenues arising from any such shutdown. Following Buyer’s notice to
Developer containing an assurance that an appropriation has been made for payment of the estimated
removal, storage, and replacement costs (plus amounts owed for estimated Electricity not delivered and
any lost SREC revenue, if applicable) in the required amount, Developer shall arrange for removing,
storing and re-installing the Facility at an existing building. Developer shall solicit at least two bids for
such removal and re-installation work to demonstrate to Buyer the reasonableness of costs related
thereto. Buyer shall reimburse Developer (or, at the Developer’s option, make payment directly to the
applicable contractor or vendor on Developer’s behalf) for the actual documented costs of such removal,
storage and reinstallation of the Facility (plus amounts owed for estimated Electricity not delivered and
any lost SREC revenue, if applicable) within thirty (30) days following receipt of an invoice from
Developer, including reasonably acceptable back up information, with respect thereto. In the event that
the existing building has been demolished and the Buyer has chosen not to exercise a Purchase Option
in accordance with Section 13, the Developer shall design and construct the Facility for the replacement
building, at Buyer’s cost. Buyer shall ensure that the replacement building allows for the re-installation
of the Facility so that the Facility is able to produce equivalent amounts of Electricity, or shall
compensate Developer for lost revenues, on account of the reduction in capacity of the Facility. Buyer
shall provide at least ninety (90) days’ prior notice of the need for such extended temporary removal.
Notwithstanding the foregoing, Developer shall respond within 24 hours to any request from Buyer to
turn off a Facility to permit Buyer to make emergency repairs to the roof of any Property. The
Electricity output of the affected Facility shall be estimated by Developer for the period of such
shutdown and such estimated output shall be added to actual Facility output for purposes of determining
whether the Guaranteed Annual Electric Output has been satisfied.
(iii) The Parties recognize that during the Term of the Agreement, temporary (not to exceed
three (3) consecutive business days) shut-offs of a Facility may be necessary as a result of emergency
conditions affecting the LDC distribution system outside the control of the Parties and that such shut
offs also may protect the Facility and the Property from damage (“Emergency Shutoffs”). In the event
of an Emergency Shutoff, Buyer shall not be liable to Developer for any lost revenue during the period
of any Emergency Shutoff. Any Electricity output of the Facility during such Emergency Shutoffs shall
be estimated by Developer. Such estimated output shall be added to actual Facility output for purposes
of determining whether the Guaranteed Annual Electric Output has been satisfied.
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Section 6. ENVIRONMENTAL ATTRIBUTES
(a) Title to Environmental Attributes. All Environmental Attributes, Environmental Incentives and
Reporting Rights relating to the Facilities or the Electricity, other than Net Metering Credits, if any, will be and
remain property of Developer. Subject to Buyer’s Facility purchase rights in Section 13, Developer shall have
all right, title, and interest in and to any and all such Environmental Attributes, Environmental Incentives and
Reporting Rights that relate to the Electricity during the Term.
(b) Reporting of Ownership of Environmental Attributes. Buyer shall not report to any Person that
any Environmental Attributes, Environmental Incentives or Reporting Rights relating to the Electricity or the
Facilities belong to any Person other than Developer.
(c) Further Assurances. At Developer’s request, Buyer shall execute all such documents and
instruments reasonably necessary or desirable to effect or evidence Developer’s right, title and interest in and to
the Environmental Attributes, Environmental Incentives and Reporting Rights relating to the Electricity. If the
standards used to qualify Environmental Attributes, or Environmental Incentives to which Developer is entitled
under this Agreement are changed or modified, Developer shall use all commercially reasonable efforts to
cause the Environmental Attributes to comply with new standards as changed or modified, and Buyer shall
cooperate as necessary with Developer in such efforts.
Section 7. METERING DEVICE AND METERING
(a) Metering Equipment. Developer shall provide, install, own, operate and maintain the Developer
Metering Device. Developer shall maintain and test the Developer Metering Device in accordance with
Applicable Legal Requirements. Developer shall assist Buyer in any discussions or negotiations with the LDC
to reconcile the Net Metering Credits calculated by the LDC based on the LDC Metering Device to the actual
kilowatt hours measured by the Developer Metering Device.
(b) Measurements. Readings of the Developer Metering Device shall be conclusive as to the
amount of Electricity delivered to Buyer.
(c) Testing and Correction/Buyer’s Right to Conduct Tests. Each Party and its consultants and
representatives shall have the right to witness each test conducted by or under the supervision of Developer to
verify the accuracy of the measurements and recordings of the Developer Metering Device. Developer shall
provide at least ten (10) days prior written notice to Buyer of the date upon which any such test is to occur.
Developer shall prepare a written report setting forth the results of each such test, and shall provide Buyer with
copies of such written report not later than thirty (30) days after completion of such test.
(d) Standard of Metering Device Accuracy; Resolution of Disputes as to Accuracy. The following
steps shall be taken to resolve any disputes regarding the accuracy of the Metering Device:
(i) If either Party disputes the accuracy or condition of the Developer Metering Device,
such Party shall so advise the other Party in writing setting forth in reasonable detail the reasons it
believes the Developer Metering Device is inaccurate including the dates it discovered same.
(ii) The non-disputing Party shall, within fifteen (15) days after receiving such notice from
the disputing Party, advise the other Party in writing as to its position concerning the accuracy of such
Developer Metering Device and state reasons for taking such position.
(iii) If the Parties are unable to resolve the dispute, then either Party may cause the
Developer Metering Device to be tested by an agreed upon and independent third party.
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(iv) If the Developer Metering Device is found to be inaccurate by two percent (2%) or less,
any previous recordings of the Developer Metering Device shall be deemed accurate, and the Party
disputing the accuracy or condition of the Developer Metering Device shall bear the cost of inspection
and testing of the Developer Metering Device.
(v) If the Developer Metering Device is found to be inaccurate by more than two percent
(2%) or if such Developer Metering Device is for any reason out of service or fails to register, then (A)
Developer shall promptly cause any Developer Metering Device found to be inaccurate to be adjusted to
correct, to the extent practicable, such inaccuracy, (B) the Parties shall estimate the correct amounts of
Electricity delivered during the periods affected by such inaccuracy, service outage or failure to register
in accordance with Section 7(b) above (but for not more than six months prior), and (C) Developer shall
bear the cost of inspection and testing of the Developer Metering Device in accordance with Section
7(c). If as a result of such adjustment the quantity of Electricity for any period is decreased (such
quantity, the “Electricity Deficiency Quantity”), Developer shall reimburse Buyer for the amount paid
by Buyer in consideration for the Electricity Deficiency Quantity by crediting such amount against
Buyer’s payment obligations under this Agreement, and Developer shall bear the cost of inspection and
testing of the Developer Metering Device. If as a result of such adjustment the quantity of Electricity
for any period is increased (such quantity, the “Electricity Surplus Quantity”), Buyer shall pay for the
Electricity Surplus Quantity at the Electricity Price applicable during the applicable Contract Year.
Section 8. LOSS, DAMAGE OR DESTRUCTION OF FACILITIES; FORCE MAJEURE
(a) Facility Loss.
(i) Developer shall bear the risk of any Facility Loss, except to the extent such Facility
Loss results from the negligence of Buyer or Buyer’s agents, representatives, vendors, employees, or
contractors (collectively, “Buyer Misconduct”).
(ii) Partial Loss. In the event of any Facility Loss that results in less than total damage,
destruction or loss of the Facilities, this Agreement will remain in full force and effect with respect to
such Facility and Developer will, at Developer’s sole cost and expense, subject to the provisions below,
repair or replace the Facility as quickly as practicable. To the extent of any Facility Loss that results in
less than total damage, destruction or loss of the Facility, and is caused by Buyer Misconduct, Buyer
shall promptly upon demand therefor from Developer and subject to a sufficient appropriation or the
receipt of insurance proceeds on account thereof, pay any and all costs and expenses of such repair or
replacement, including any lost revenues for sales of Electricity and loss of Environmental Attributes,
Environmental Incentives and Reporting Rights based upon the estimated energy production capacity of
the affected Facility or Facilities in the relevant Contract Year. Buyer shall pay as quickly as
practicable within applicable internal processing constraints, including claims processing time for
Buyer’s insurer or authorization of necessary appropriations therefor. If Buyer is unable to obtain the
necessary insurance proceeds or authorize the necessary appropriations within a reasonable time, not to
exceed one hundred eighty (180) days following any such Facility Loss, Developer shall have the right
to terminate this Agreement on an additional thirty (30) days’ notice to Buyer. Upon such termination,
Developer shall remove the Facility in question upon payment of the Buyer Termination Payment and
shall invoice the Buyer for the actual removal Costs related to such Facility.
(iii) Total Loss. In the event of any Facility Loss that, in the reasonable judgment of
Developer, results in total damage, destruction or loss of the Facility, Developer shall, within sixty (60)
Business Days following the occurrence of such Facility Loss, notify Buyer whether Developer is
willing, notwithstanding such Facility Loss, to repair or replace the Facility. If Developer is so willing
to repair or replace the Facility, Developer shall do so as quickly as practicable as provided in the next
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paragraph of this subsection 8(a)(iii). In the event that Developer notifies Buyer that Developer is not
willing to repair or replace the Facility following a total loss, this Agreement will terminate
automatically with respect to such Facility, effective upon the effectiveness of such notice and
Developer shall within a reasonable time remove the Facility from the Premises in accordance with
Section 4. If such Facility Loss was caused by Buyer Misconduct, Buyer shall pay to Developer, as
liquidated damages, the Buyer Termination Payment as of such termination date with respect to such
Facility. If, following such a Facility Loss caused by Buyer Misconduct, any remnants of the Facility
must be removed from the Property on which it is installed in order to return the Property to Buyer as
required by the terms of Section 4(h) hereof, Buyer shall pay the actual removal costs related to such
Facility in addition to the Buyer Termination Payment with respect thereto. Buyer shall pay as quickly
as practicable within applicable internal processing constraints, including claims processing time for
Buyer’s insurer or authorization of necessary appropriations therefor.
In the event that Developer notifies Buyer that Developer is willing to repair or replace the
Facility following a total loss, the following shall occur, (A) this Agreement will remain in full force
and effect with respect to such Facility, (B) Developer will repair or replace the Facility as quickly as
practicable, and (C) if such Facility Loss has been caused partially or totally by Buyer Misconduct,
Buyer shall promptly upon demand therefore from Developer pay any and all costs and expenses of
such repair or replacement, lost revenues for sales of Electricity, loss of Environmental Attributes and
Environmental Incentives and Reporting Rights, in each case based upon the estimated energy
production capacity of the system in the relevant Contract Year. Buyer shall pay as quickly as
practicable within applicable internal processing constraints, including claims processing time for
Buyer’s insureror authorization of necessary appropriations therefor. If Buyer is unable to obtain the
necessary insurance proceeds or authorize the necessary appropriations within a reasonable time, not to
exceed one hundred eighty (180) days following any such Facility Loss, Developer shall have the right
to terminate this Agreement on an additional thirty (30) days’ notice to Buyer. Upon such termination,
Developer shall remove the Facility in question upon payment of the Buyer Termination Payment
related to such Facility, and shall invoice the Buyer for the actual removal costs related to such Facility.
(b) Performance Excused by Force Majeure. To the extent either Party is prevented by Force
Majeure from carrying out, in whole or part, its obligations under this Agreement and such Party (the “Claiming
Party”) gives written notice and details of the Force Majeure to the other Party as soon as practicable, then the
Claiming Party will be excused from the performance of its obligations under this Agreement (other than the
obligation to make payments then due or becoming due with respect to performance prior to the Force Majeure,
but the period of time to pay shall be extended if Buyer is prevented from paying due to Force Majeure). The
Party affected by Force Majeure will use commercially reasonable efforts to eliminate or avoid the Force
Majeure and resume performing its obligations; provided, however, that neither Party is required to settle any
strikes, lockouts or similar disputes except on terms acceptable to such Party, in its sole discretion. The non-
Claiming Party will not be required to perform or resume performance of its obligations to the Claiming Party
corresponding to the obligations of the Claiming Party excused by Force Majeure for so long as the claim of
Force Majeure continues. For greater clarify, the Guaranteed Annual Electric Output shall be adjusted or pro-
rated for any period of time the Facilities are not generating Electricity due to Force Majeure.
(c) Termination Due to Force Majeure. If a Claiming Party claims a Force Majeure for a
consecutive period of twelve (12) calendar months or longer, then either Party may terminate this Agreement, in
whole or in part, without any liability to the Claiming Party as a result of such termination and Developer shall
within a reasonable time remove the Facilities from the Properties.
(d) Change in Law. In the event that a change in Law occurs, including without limitation, a
change in the Net Metering Rules, or the administration of interpretation thereof by the Massachusetts
Department of Public Utilities or the LDC (“Change in Law”) which (a) materially restricts the ability of
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Developer to deliver Electricity generated by the Facilities to Buyer or the ability of Electricity generated by the
Facilities to be delivered to the LDC or the ability of Buyer to receive Net Metering Credits, (b) results in one or
more Facilities for which Buyer is Host Customer being disqualified as a Net Metering Facility of a
Municipality or Other Governmental Entity, or (c) otherwise materially impacts the ability of either Party to
perform its obligations or receive the economic benefits contemplated under this Agreement, including changes
in Law that result in material increase in Developer’s costs of construction and installation, or operation of one
or more Facilities, then, upon a Party’s receipt of notice of such Change in Law from the other Party, the Parties
shall promptly and in good faith endeavor to negotiate such amendments to or restatements of this Agreement as
may be necessary to achieve the allocation of economic benefits and burdens originally intended by the Parties,
subject to Applicable Legal Requirements. Without limiting the foregoing, such amendments may include an
amendment and restatement of this Agreement in the form of a net metering credit purchase agreement. If the
Parties are unable, despite good faith efforts, to reach agreement on an amendment or restatement within one
hundred twenty days, either Party may terminate this Agreement without liability for such termination.
Section 9. EVENTS OF DEFAULT; REMEDIES
(a) Events of Default. An “Event of Default” means, with respect to a Party (a “Defaulting
Party”), the occurrence of any of the following:
(i) the failure to make, when due, any payment required under this Agreement if such
failure is not remedied within five (5) Business Days after receipt of written notice;
(ii) any representation or warranty made by such Party in this Agreement (including the
License) is false or misleading in any material respect when made or when deemed made or repeated;
(iii) the failure to perform any material covenant or obligation set forth in this Agreement
(except to the extent constituting a separate Event of Default); provided, that the Defaulting Party shall
have sixty (60) days after receipt of written notice of default to cure the alleged breach, or additional
time not to exceed an additional ninety (90) days if the Defaulting Party has diligently commenced and
is pursuing a cure of such breach during such initial sixty (60) day period;
(iv) such Party becomes Bankrupt, or any assignment shall be made by the Developer or by
any guarantor of the Developer for the benefit of creditors, or if a petition is filed by the Developer or
by any guarantor of the Developer for adjudication as a bankrupt, or for reorganization or an
arrangement under any provision of the Bankruptcy Act as then in force and effect, or if an involuntary
petition under any of the provisions of the Bankruptcy Act is filed against the Developer and such
involuntary petition is not discharged within ninety (90) days thereafter, in any of those events the
Buyer may terminate this Agreement upon written notice to the Developer;
(v)such Party fails to provide or maintain in full force and effect any required insurance, if
such failure is not remedied within five (5) Business Days after receipt of written notice from the Non-
Defaulting Party to the Defaulting Party, or the occurrence of a default by the insurer of such Party
under any insurance policy provided hereunder;
(vi) with respect to Buyer, a Downgrade Event occurs and Buyer fails to provide
Performance Assurance in an amount determined by Developer in a commercially reasonably manner,
within ten (10) Business Days of receipt of notice from Developer that such Performance Assurance
will be required;
(vii) with respect to Buyer, any Performance Assurance previously provided by Buyer is
amended, modified or terminated without the prior written consent of Developer.
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(b) Remedies for Event of Default. If at any time an Event of Default with respect to a Defaulting
Party has occurred and is continuing beyond applicable notice and cure periods, the other Party (the “Non-
Defaulting Party”) shall, without limiting the rights or remedies available to the Non-Defaulting Party under
this Agreement or applicable Law, but subject to the provisions of Section 19, have the right to any of the
following: (a) by notice to the Defaulting Party, to designate a date, not earlier than twenty (20) Business Days
after the date such notice is effective, as an early termination date (“Early Termination Date”) with respect to
any one, more than one or all Facilities under this Agreement; (b) to withhold any payments due to the
Defaulting Party under this Agreement; (c) to suspend performance due to the Defaulting Party under this
Agreement; and (d) exercise all other rights and remedies available at law or in equity to the Non-Defaulting
Party.
(c) Buyer Rights Upon Termination for Default. In the event that Buyer is the Non-Defaulting
Party and elects to terminate this Agreement with respect to one, more than one or all Facilities as provided in
Section 9(b), Buyer shall, at its sole and exclusive option and in its sole and absolute discretion (i) require
Developer to pay the Developer Termination Payment related to such Facility or Facilities and (ii) either
remove the Facility or Facilities as provided in Section 4 above or if such Event of Default occurs after the sixth
anniversary of the applicable Commercial Operation Date, exercise the Purchase Option for one, more than one
or all Facilities provided in Section 13 below. In the event that Buyer elects the foregoing remedies, such
express remedies and any associated measure of damages shall be the sole and exclusive remedy available to
Buyer for its failure to receive Electricity and/or Net Metering Credits under this Agreement, subject, however,
to subsection (h) below.
(d) Developer Rights Upon Termination for Default. In the event that Developer is the Non-
Defaulting Party and elects to terminate this Agreement with respect to one, more than one or all Facilities as
provided in Section 9(b), Developer shall, at its sole and exclusive option and in its sole and absolute discretion,
remove the Facility or Facilities upon payment of the Buyer Termination Payment, and shall invoice the Buyer
for the actual removal costs, related to such Facility or Facilities. In the event that Developer elects the
foregoing remedy, such express remedy and any associated measure of damages shall be the sole and exclusive
remedy available to Developer as a result of termination of this Agreement related to such Facility or Facilities
subject, however, to subsection (h) below.
(e) Termination Payment Notice. In the event that a Non-Defaulting Party elects to require
payment of the Buyer Termination Payment or Developer Termination Payment as provided in Section 9 herein,
then, the Non-Defaulting Party will notify the Defaulting Party of the amount due and outstanding under this
Agreement. Such notice will include a written statement explaining in reasonable detail the calculation of such
amount. In the event that the Defaulting Party is the Developer, the Defaulting Party shall pay the applicable
termination payment and any amount otherwise due and outstanding under this Agreement to the Non-
Defaulting Party within thirty (30) Business Days after the effectiveness of such notice. In the event that the
Defaulting Party is the Buyer, Buyer shall pay the Termination Payment as quickly as practicable within
applicable internal processing constraints, including claims processing time for Buyer’s insurer or authorization
of necessary appropriations therefor.
(f) Closeout Setoffs. The Non-Defaulting Party shall be entitled, at its option and in its discretion,
to set off, against any amounts due and owing from the Defaulting Party under this Agreement, any amounts due
and owing to the Defaulting Party under this Agreement.
(g) Remedies Cumulative. Except as otherwise provided in Sections 9(c) and 9(d), the rights and
remedies contained in this Section 9 are cumulative with the other rights and remedies available under this
Agreement or at law or in equity.
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(h) Unpaid Obligations; Attorneys’ Fees. The Non-Defaulting Party shall be under no obligation to
prioritize the order with respect to which it exercises any one or more rights and remedies available under this
Agreement. Notwithstanding anything to the contrary herein, the Defaulting Party shall in all events remain
liable to the Non-Defaulting Party for any amount payable by the Defaulting Party in respect of any of its
obligations remaining outstanding after any such exercise of rights or remedies. The Non-Defaulting Party shall
be entitled to all reasonable attorneys’ fees and expenses incurred by such Non-Defaulting Party in enforcing the
Defaulting Party’s obligations under this Section 9.
Section 10. INVOICING AND PAYMENT
(a) Invoicing and Payment. Developer will bill Buyer on a monthly basis and Buyer shall pay such
invoice not later than thirty (30) days after receipt of the applicable invoice (or, if such day is not a Business
Day, then on the next Business Day). Each invoice shall itemize the amount of Electricity and payment for
production from each Facility. Each Party will make payment by mutually agreeable method(s), to the account
designated by the other Party. Any amounts not paid by the applicable due date will accrue interest at the late
payment Interest Rate until paid in full.
(b) Disputed Amounts. A Party may in good faith dispute the correctness of any invoice (or any
adjustment to any invoice) under this Agreement at any time within three (3) months following the date the
invoice (or invoice adjustment) was rendered. In the event that either Party disputes any invoice or invoice
adjustment, such Party will nonetheless be required to pay the undisputed amount on the applicable payment due
date, and to give written notice of the objection to the other Party.
(c) Records and Audits. The Developer shall comply with the record keeping requirements of
M.G.L. c. 30, §39R. Notwithstanding any other record keeping provision of the Massachusetts General Laws,
each Party will keep, for a period not less than two (2) years after the expiration or termination of any
transaction, records sufficient to permit verification of the accuracy of billing statements, invoices, charges,
computations and payments for such transaction. During such period each Party may, at its sole cost and
expense, and upon reasonable notice to the other Party, examine the other Party’s records pertaining to
transactions during such other Party’s normal business hours.
Section 11. REPRESENTATIONS AND WARRANTIES;
USER ACKNOWLEDGEMENT
(a) Representations and Warranties. Each Party represents and warrants to the other Party that:
(i) The individual(s) executing this Agreement on behalf of the Party is/are authorized and
empowered to bind that Party, the execution, delivery and performance of this Agreement are within each
Party’s respective powers, have been duly authorized by all necessary action and do not violate any of the terms
and conditions in its governing documents, or any Applicable Legal Requirements;
(ii) this Agreement, and each document executed and delivered in accordance with this
Agreement, constitutes its legally valid and binding obligation enforceable against it in accordance with its
terms; subject to any bankruptcy, insolvency, reorganization and other Applicable Legal Requirements affecting
creditors’ rights generally, and with regard to equitable remedies, the discretion of the applicable court;
(iii) it is acting for its own account, and has made its own independent decision to enter into
this Agreement, and is not relying upon the advice or recommendations of the other Party in so doing;
(iv) it is capable of assessing the merits of and understanding, and understands and accepts,
the terms, conditions and risks of this Agreement;
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(v) it understands that the other Party is not acting as a fiduciary for or an adviser to it or its
Affiliates; and
(vi) it will execute and acknowledge when appropriate all documents and instruments and
take all actions necessary to implement, evidence and enforce this Agreement.
(b) Buyer Acknowledgement Regarding Inapplicability of Bankruptcy Code Section 366.
Buyer acknowledges and agrees that, for purposes of this Agreement, Developer is not a “utility” as such term is
used in Section 366 of the United States Bankruptcy Code (the “Bankruptcy Code”), and Buyer agrees to waive
and not to assert the applicability of the provisions of Section 366 in any bankruptcy proceeding wherein Buyer
is a debtor.
(c) Additional Representations by Developer and Buyer.
If Buyer’s performance under this Agreement depends upon the appropriation of funds
by its governing body, and if the governing body fails to appropriate the funds necessary for
performance, then the Buyer shall provide written notice to Developer, and Buyer may cancel this
Agreement effective at the end of the then-current fiscal year without further obligation except for the
payment of the Termination Payment and for any services already performed by Developer prior to the
effective date of termination. Buyer covenants to include the payments required to fulfill its
obligations under this Agreement in any annual (or other) budget submitted for approval by the
appropriate governing body and to take all necessary action to ensure funds are available at all
necessary times to satisfy its obligations hereunder.
(i)Except as previously disclosed in writing to Developer, to Buyer’s knowledge there are
no facts, circumstances or other matters that may interfere with or delay the construction and installation of the
Facilities.
(ii)Buyer represents, warrants, and covenants that it is the fee owner of and has good,
lawful and marketable title the Properties free of any liens, encumbrances, restrictions or covenants which may
impact Developer’s proposed occupancy. Buyer shall deliver to Developer, upon request, copies of any title
policies, deeds, orders of taking or other instruments evidencing the fact of Buyer’s fee ownership of the
Properties. In the event that any encumbrance, easement, restriction, covenant or similar instrument is found to
impact, prohibit or adversely affect Developer’s ability to install, maintain or operate the Facilities, or interferes
with insolation to the Facilities, Buyer shall make all commercially reasonable efforts to discharge, modify,
amend or subordinate any such instrument so that Developer’s rights hereunder are not adversely impacted.
(iii)Buyer represents and warrants that Buyer is duly formed and validly existing under
Massachusetts law.
(iv)Developer represents and warrants that Developer is duly formed and validly existing
under Delaware law, and is qualified to do business in Massachusetts.
Section 12. LIMITATIONS
(a) Limitation of Remedies, Liability and Damages. The Parties confirm that the express remedies
and measures of damages provided in this Agreement satisfy the essential purposes hereof. For breach of any
provision for which an express remedy or measure of damages is provided, such express remedy or measure of
damages will be the sole and exclusive remedy, the obligor’s liability will be limited as set forth in such
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provision and all other remedies or damages at law or in equity are waived. If no remedy or measure of
damages for the breach of any obligation is expressly provided herein, the obligor’s liability will be limited to
actual direct damages only, and such direct actual damages will be the sole and exclusive remedy and all other
remedies or damages at law or in equity are waived. It is agreed by the Parties that the Buyer Termination
Payment is considered to be direct damages for the Buyer’s failure to pay for the Electricity to be produced by
the Facility(ies) for the full Term of the Agreement and the Developer Termination Payment is considered to be
direct damages with respect to any failure by the Developer to deliver Electricity and/or Net Metering Credits
for the full Term of the Agreement. In no event shall either Party be liable to the other Party for consequential,
incidental, punitive, exemplary or indirect damages, including but not limited to, loss of profits or revenue,
downtime costs, loss of use of any property, cost of substitute equipment or facilities, whether arising in tort,
contract or otherwise. This Section 12 shall survive termination of this Agreement. For greater clarity, the
Parties agree that the Termination Payment and Developer Termination Payment do not constitute
consequential, incidental, punitive, exemplary or indirect damages.
(b) EXCEPT AS EXPRESSLY DISCUSSED IN SECTION 11, THE ELECTRICITY PROVIDED
TO USER WILL BE AS IS, WHERE IS, AND ALL OTHER WARRANTIES, IMPLIED OR EXPRESS,
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
ARE HEREBY DISCLAIMED BY DEVELOPER. USER ACKNOWLEDGES THAT ELECTRICITY FROM
THE SYSTEM IS INTERMITTENT, AND USER IS RESPONSIBLE FOR MEETING ANY AND ALL OF
ITS ENERGY NEEDS NOT MET FROM THE SYSTEM-GENERATED ENERGY AT USER’S SOLE COST
AND EXPENSE. USER IS RESPONSIBLE FOR INSTALLATION AND OPERATION OF ANY
EQUIPMENT ON USER’S SIDE OF THE DELIVERY POINT NECESSARY FOR ACCEPTANCE AND
USE OF THE ELECTRICITY.
Section 13. SYSTEM PURCHASE AND SALE OPTIONS
(a) Grant of Purchase Option. For and in consideration of the payments made by Buyer under this
Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Parties, Developer hereby grants Buyer the right and option to purchase all of Developer’s
right, title and interest in and to any one Facility Asset, more than one Facility Asset or all the Facility Assets,
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to be exercised on the twelfth (12) or fifteenth (15) anniversaries of the Commercial Operation of any Facility
or upon the expiration of this Agreement, or the early termination of this Agreement by Buyer in accordance
with Section 9(c) of this Agreement, or in accordance with Section 13(j) hereof, on the terms set forth in this
Agreement (the “Purchase Option”). Buyer shall provide a written notice not later than (a) two hundred (200)
days prior to said anniversaries or the end of the Term (the “Option Notice”) to Developer that it wishes to
exercise the Purchase Option, or (b) in the Event of Default with respect to Developer in the notice under
Section 9 (“Default Option Notice”), provided Buyer is not then in default. The Purchase Option may be
exercised by Buyer during the Exercise Period (defined below) following a Final Determination (defined below)
or following the Developer’s waiver of such Final Determination.
(b) Developer Request for Appraisal of Facilities Value. Not later than twenty (20) Business Days
after receipt of the Option Notice or Default Option Notice, Developer shall have the right to provide a written
notice to Buyer requiring a determination of the Fair Market Value of each of the Facilities. Fair Market Value
shall be determined pursuant to Section 13(c) and (d) by the Independent Appraiser.
(c) Selection of Independent Appraiser. Within twenty (20) Business Days after receipt of a notice
provided under subsection (b), Buyer and Developer shall mutually agree upon an Independent Appraiser. If
Developer and Buyer do not agree upon the appointment of an Independent Appraiser within twenty (20)
Business Days, then at the end of such twenty (20) Business Day period, two proposed Independent Appraisers
shall, within five (5) Business Days of each Party’s notice, select a third Independent Appraiser (who may be
one of the Independent Appraisers originally designated by the Parties or another Independent Appraiser) to
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perform the valuation and provide notice thereof to Developer and Buyer. Such selection shall be final and
binding on Developer and Buyer.
(d) Determination of Purchase Price(s). The selected Independent Appraiser shall, within twenty
(20) Business Days of appointment, make a preliminary determination of the Fair Market Value (the
“Preliminary Determination”) of each Facility. Upon making such Preliminary Determination, the selected
Independent Appraiser shall provide such Preliminary Determination to Developer and Buyer, together with all
supporting documentation that details the calculation of the Preliminary Determination. Developer and Buyer
shall each have the right to object to the Preliminary Determination within twenty (20) Business Days of
receiving such Preliminary Determination; provided that the objecting Party provides a written explanation
documenting the reasons for its objection. Within ten (10) Business Days after the expiration of such twenty
(20) Business Day period, the selected Independent Appraiser shall issue its final determination (the “Final
Determination”) (which shall specify the “Final Appraised Value” of each of the Facilities) to Developer and
Buyer, which shall specifically address the objections received by the Parties, if any, and whether such
objections were taken into account in making the Final Appraised Value(s). Except in the case of fraud or
manifest error, the Final Appraised Value(s) of the selected Independent Appraiser shall be final and binding on
the Parties.
(e) Calculation of Purchase Price. The “Purchase Price” payable by Buyer for the Facility Assets
shall be equal to the higher of the Buyer Termination Payment(s) for the Facility or Facilities, excluding costs of
removal, or the Final Appraised Value(s) as determined by the Independent Appraiser.
(f) Costs and Expenses of Independent Appraiser. The Developer shall be responsible for payment
of all of the costs and expenses of the Independent Appraiser.
(g) Exercise of Purchase Option. Buyer shall have seventy-five (75) days from the date of the Final
Determination (such period, the “Exercise Period”) or from Developer’s waiver of a Final Determination to
exercise the Purchase Option, at the Purchase Price. During such seventy-five days, the Buyer and its agents
shall be entitled to inspect the Facility or Facilities and all records relating to the operation, maintenance and
warranties applicable to the Facility or Facilities and any contracts for the sale of Environmental Attributes or
Environmental Incentives and revenues derived therefrom. Buyer must exercise its Purchase Option during the
Exercise Period by providing a written notice (an “Exercise Notice”) to Developer, and specifying a closing
date for the purchase and sale of the Facility or Facilities (the “Transfer Date”). Once Buyer delivers its
Exercise Notice to Developer, such Exercise Notice shall be irrevocable.
(h) Terms of Facilities Purchase. On the Transfer Date (a) Developer shall surrender and transfer to
Buyer all of Developer’s right, title and interest in and to the Facility Assets, which are the subject of the
Exercise Notice, and shall retain all liabilities arising from or related to the Facility Assets prior to the Transfer
Date, (b) Buyer shall pay the Purchase Price, by wire transfer and shall assume all liabilities arising from or
related to the Facility Assets from and after the Transfer Date, and (c) both Parties shall (i) execute and deliver a
bill of sale and assignment and assumption of contract rights containing no representations or warranties, except
as to title, together with such other conveyance and transaction documents as are reasonably required to fully
transfer and vest title to the Facilities in Buyer on an AS IS, WHERE IS basis, and (ii) deliver such other
commercially reasonable ancillary documents as may be reasonably necessary to complete the sale of the
Facility Assets to Buyer. In the event Developer has made commitments for the transfer or sale of solar
renewable energy certificates or other Environmental Attributes or Environmental Incentives which accrue after
the Transfer Date, Buyer agrees to honor such commitments, provided however that Buyer shall be entitled to
either the proceeds of such sales or the Purchase Price shall be reduced by the monetary value of such
commitments.
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(i) Transfer Date. The closing of any sale of the Facilities (the “Transfer Date”) pursuant to this
Section 13 will occur no later than thirty (30) Business Days following the date of the Exercise Notice. This
Agreement shall terminate as of the Transfer Date with respect to any Facility transferred to Buyer as of such
Transfer Date.
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(j)Purchase Option upon Proposed Demolition of Building. At any time after the tenth (10)
anniversary of the Commercial Operation of any Facility, provided Buyer is not then in default hereunder, Buyer
shall have the right, exercisable on one hundred twenty (120) days’ prior notice to Developer (“Demolition
Option Notice”), to exercise a Purchase Option with respect to any Facility if (i) demolition of the building on
the Property on which such Facility is installed, and (ii) appropriation to demolish such building and to pay the
estimated Purchase Price with respect to the affected Facility, have been duly authorized by Town Meeting
(and/or other governing authority of the Buyer).
Section 14. INSURANCE
(a) The Developer shall provide and maintain throughout the Term the following insurance with
companies that are authorized and licensed in the Commonwealth of Massachusetts to issue policies for the
coverages and limits so required.
i.Workers' Compensation Insurance as required by the laws of the Commonwealth of
Massachusetts and employer's liability insurance in the amount of $500,000 by accident, each
accident/$500,000 by disease, each employee/$500,000 by disease, policy limit.
ii.Commercial General Liability Insurance, $1,000,000 each occurrence and $2,000,000
aggregate limit. Commercial General Liability insurance shall include personal injury liability, broad
form property damage liability, products/completed operations liability and broad form contractual
liability.
iii.Automobile Liability Insurance - Combined single limit of $1,000,000.
iv.Professional Liability Insurance, covering errors and omissions, $1,000,000 each
occurrence and $2,000,000 aggregate limit.
v.Excess Liability Insurance, Umbrella Form - $2,000,000 each occurrence and
$5,000,000 aggregate, which shall be following form, providing coverage over commercial general
liability insurance, automobile liability insurance, professional liability insurance, and employer's
liability under workers' compensation insurance.
vi.The Buyer shall be named as an additional insured on each such policy of Commercial
General Liability Insurance, Excess Liability Insurance, Umbrella Form, and Automobile Liability
Insurance.
vii.Developer shall provide written notice to Buyer at least thirty (30) days prior to the
effective date of any cancellation, non-renewal or material amendment of such policies.
viii.Certificates evidencing such insurance shall be furnished to Buyer upon execution of
this Agreement. Such certificates shall not merely name the types of policy provided, but shall
specifically refer to this Agreement and shall state that such insurance is as required by this Agreement.
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ix.Certificates evidencing such insurance shall be furnished to Buyer on the first
anniversary of the Commercial Operation Date of the last Facility and each anniversary of such
Commercial Operation Date thereafter during the Term (and any extension thereof).
(b) Buyer shall maintain during the Term the coverage set forth in subsections (a)(i) and (a)(ii) .
(c) Developer may satisfy the insurance obligations above by ensuring that its subcontractors
provide and maintain such insurance coverage, provided all the requirements herein are included .
Section 15. INDEMNIFICATION
To the fullest extent permitted by law, the Developer shall indemnify and hold harmless the Buyer and
all of its officers, employees, boards, commissions, and representatives from and against all claims, causes of
action, suits, costs, damages, and liability of any kind (“Losses”) from or to third parties which arise out of the
performance of Developer’s work, provided that such Losses are attributable to bodily injury, sickness, disease
or death, or to injury to or destruction of tangible property but only to the extent caused by the negligent or
intentional acts or omissions of the Developer, its employees, agents, subcontractors, or anyone directly or
indirectly employed by them or anyone for whose acts Developer is legally liable. This indemnity obligation
shall apply notwithstanding any negligent or intentional acts, errors or omissions of the Buyer, but the
Developer’s obligation to pay Losses shall be reduced in proportion to the percentage by which the Buyer’s
negligent or intentional acts, errors or omissions caused the Losses.
To the extent permitted by law, Buyer shall indemnify and hold harmless Developer from and against
any and all Losses from or to third parties for injury or death to persons or damage or loss to or of property to
the extent arising out of the negligent or intentional acts or omissions of the Buyer, its employees, agents,
subcontractors or representatives. This indemnity obligation shall apply notwithstanding any negligent or
intentional acts, errors or omissions of Developer, but the Buyer’s obligation to pay Losses shall be reduced in
proportion to the percentage by which the Developer’s negligent or intentional acts, errors or omissions caused
the Losses.Notwithstanding any other provision in this Agreement, the Town’s liability hereunder
shall be limited by the protections and immunities afforded by and to the amount set forth in Chapter
258 of the Massachusetts General Laws.
The provisions of this section shall survive the expiration or earlier termination of the Agreement.
Section 16. \[INTENTIONALLY DELETED\]
Section 17. DISPUTE RESOLUTION
Disputes regarding changes in and interpretations of the terms or scope of the Agreement and denials of
or failures to act upon claims shall be resolved according to the following procedures:
(a) Notice of Dispute/Negotiated Resolution. In the event that there is any controversy, claim or
dispute between the Parties hereto arising out of or related to this Agreement, or the breach hereof, that has not
been resolved by informal discussions and negotiations, either Party may, by written notice to the other, invoke
the formal dispute resolution procedures set forth herein. The written notice invoking these procedures shall set
forth in reasonable detail the nature, background and circumstances of the controversy, claim or dispute. During
the twenty (20) Business Day period following a party’s receipt of said written notice, the Parties shall meet,
confer and negotiate in good faith to resolve the dispute.
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(b) In the event that any controversy, claim or dispute between the Parties hereto arising out of or
related to this Agreement, or the breach hereof, cannot be settled or resolved amicably by the Parties during the
twenty (20) Business Day period of good faith negotiations provided for above, then either or any Party hereto
may resort to any and all available judicial proceedings in a court of competent jurisdiction.
Section 18. NOTICES
(a) Notices. All notices, requests, statements or payments will be made to the addresses and
persons specified below. All notices, requests, statements or payments will be made in writing. Notices
required to be in writing will be delivered by hand delivery, overnight delivery. Notice by hand delivery or
overnight delivery will be deemed to have been received when delivered. A Party may change its address by
providing notice of the same in accordance with the provisions of this section.
If to the Buyer: Town Manager
Town of Lexington
1625 Massachusetts Avenue
Lexington, MA 02420
If to the Developer: Lexington Municipal Solar, LLC
c/o Ameresco, Inc.
111 Speen Street, Suite 410
Framingham, MA 01701
Attention: James Walker, Vice President
With a copy to: Ameresco, Inc.
111 Speen Street, Suite 410
Framingham, MA 01701
Attention: General Counsel
(b) Emergency. In the event of emergency, the Parties designate the following individuals as their
respective points of contact to be available twenty-four (24) hours per day, seven (7) days per week (either Party
may change the individuals named below by providing written notice of same in accordance with the provisions
of this section):
Buyer: Public Facilities Director
Town of Lexington
201 Bedford Street
Lexington, MA 02420
Telephone: 781-274-8958 (office) 781-698-6473 (cell)
Developer: Kevin Sullivan
Telephone: 508-598-3028
Facsimile: 508-661-2201
Email: ksullivan@ameresco.com
Section 19. ASSIGNMENT; BINDING EFFECT;
FINANCING PROVISIONS
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(a) Assignment; Binding Effect. Except as provided in this Agreement, neither Party shall have the
right to assign or transfer, whether voluntarily or by operation of law, any of its rights, duties or obligations
under this Agreement without the prior written consent of the other Party, which consent shall not be
unreasonably withheld, conditioned or delayed, provided that, in the case of an assignment or transfer by the
Developer, Buyer may withhold consent to any assignee of Developer who does not demonstrate to Buyer’s
reasonable satisfaction that it has, or will contract with contractors who have, sufficient professional experience,
operational capabilities and financial integrity and capacity to construct, operate and maintain the Facilities and
fulfill the other obligations of Developer hereunder. Assignment shall include conveyance of a majority
ownership interest in the Developer. Buyer agrees to promptly execute any document reasonably requested in
acknowledgement of such assignment and in consent thereto in accordance with the provisions hereof. If any
assignment described in this Section 19 is a full assignment of all of Developer’s rights, and obligations under
this Agreement, then Developer shall have no further liability arising under this Agreement after the effective
date of the assignment.
Subject to the foregoing restrictions on assignment, this Agreement will inure to the benefit of
and be binding upon the Parties and their respective successors and assigns.
(c) Buyer agrees that this Agreement (including without limitation the License provisions) shall
survive any transfer of the Properties. In furtherance of the foregoing, Buyer agrees that it shall cause any
purchaser, assignee, or mortgagee of the Properties to execute and deliver to Developer an assignment and
assumption of this Agreement simultaneously with the transfer of the Properties to such purchaser, assignee or
mortgagee. Such assignment and assumption agreement shall contain an acknowledgement by the purchaser,
assignee or mortgagee that it has no interest in the Facilities and shall not gain any interest in the Facilities by
virtue of the transfer, other than the rights of Buyer hereunder.
(d) Financing Provisions. Notwithstanding any contrary provisions contained in this Agreement,
including without limitation Section 19(a) and 19(b), Buyer specifically agrees, without any further request for
prior consent but with advance written notice to Buyer, to permit Developer to assign, transfer or pledge its
rights under this Agreement as collateral for the purpose of obtaining financing or refinancing in connection
with the Project and to sign any agreement reasonably requested by Developer or its lenders to acknowledge and
evidence such agreement. Any such assignment for financing purposes shall provide that Developer shall not
be relieved of its obligations and liabilities under this Agreement, unless such assignee agrees in writing to be
bound by the terms and conditions of this Agreement and, in the event such collateral assignee elects to assign
this Agreement to a third party to complete the performance required of Developer hereunder, the Buyer has
approved such additional assignment pursuant to paragraph (a) herein. The Buyer agrees to cooperate with
Developer in the negotiation and execution of any reasonable amendment or addition to this Agreement required
by the financing parties so long as such amendment or addition does not in any way materially alter or amend
the rights and obligations of the Buyer herein.
(e) Third Party Rights.
(1) Notice to Designated Third Party. Buyer agrees to give copies of any notice provided
to Developer by Buyer under Section 9 to any assignee or transferee permitted pursuant to Section 19
(each, a “Designated Third Party”).
(2) Exercise of Developer Rights. Any Designated Third Party, as collateral assignee and
if allowed pursuant to its contractual arrangements with Developer, shall have the right in the place of
Developer, to any and all rights and remedies of Developer under this Agreement. Such Designated
Third Party shall also be entitled to exercise all rights and remedies of secured parties generally with
respect to this Agreement, subject to the terms of this Agreement.
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(3) Performance of Developer Obligations. A Designated Third party shall have the right,
but not the obligation, to pay all sums due under this Agreement and to perform any other act, duty or
obligation required of Developer hereunder or cause to be cured any default of Developer hereunder in
the time and manner provided by and subject to the terms of this Agreement. Nothing herein requires
the Designated Third Party to cure any default of Developer under this Agreement or (unless such party
has succeeded to the Developer’s interests under this Agreement) to perform any act, duty or obligation
of Developer under this Agreement, but Buyer hereby gives such party the option to do so, provided any
such cure, act, duty or obligation is performed in accordance with the terms of this Agreement.
(4) Exercise of Remedies. Upon the exercise of secured party remedies, including any sale
of one or more of the Facilities by a Designated Third Party, whether by judicial proceeding or under
any power of sale contained therein, or any conveyance from Developer to the Designated Third Party
(or any assignee of the Designated Third Party) in lieu thereof, the Designated Third Party shall give
notice to Buyer of the transferee or assignee of this Agreement. Any such exercise of secured party
remedies shall not constitute a default under this Agreement, unless the act of exercising such remedy
itself constitutes an Event of Default provided, however, that the exercise of such remedies shall not
itself serve as the cure of any default of Developer.
(5) Buyer agrees that each Designated Third Party is a third party beneficiary of the
provisions of this Section.
(f) Buyer agrees to cooperate with Developer and its financing parties in connection with any
financing or refinancing of all or a portion of the Facilities for which Buyer is the Host Customer. In
furtherance of the foregoing, as Developer or its financing parties request from time to time, Buyer agrees,
subject to the other provisions of this Agreement, to (i) execute any consents to assignment or
acknowledgements, (ii) negotiate and deliver such reasonable estoppel certificate as an existing or prospective
Designated Third Party may reasonably require, and (iii) furnish such reasonable information as Developer and
its financing parties may reasonably request.
Section 20. MISCELLANEOUS
(a) Amendment and Restatement; Contract Drafting. The Parties acknowledge that they jointly
participated in the drafting of this Agreement, jointly participated in the choice of language used in this
Agreement, and have each reviewed all of the terms of this Agreement. This document has not been proffered
by one Party to the exclusion of the other Party. If any ambiguous word or phrase is found in this Agreement,
the canon of construction requiring that any such word or phrase be construed against the drafter shall not be
applied to determine the true meaning of that ambiguous word or phrase.
(b) Waiver. No action or failure to act by either party shall constitute a waiver of a right or duty
afforded to the other party under the Agreement, nor shall such action or failure to act constitute approval of or
acquiescence in a breach thereunder, except as may be specifically agreed in writing. No forbearance or
indulgence in any form or manner by either party shall be construed as a waiver or in any way limit the legal or
equitable remedies available to the other party. No waiver by one party of any default or breach by the
Developer shall constitute a waiver of any subsequent default or breach by the other party.
(c) Severability. The invalidity or unenforceability of any provision of this Agreement shall not
affect the other provisions hereof. Any provisions adjudged to be invalid or unenforceable shall be severed from
the Agreement and the remaining provisions shall continue in full force and effect to the extent permitted by
law. The Parties shall negotiate promptly and in good faith to fashion contractual provisions to be observed in
place of any provisions adjudged to be invalid or unenforceable to achieve as nearly as possible the commercial
results contemplated by this Agreement.
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(d) Headings. The headings of Sections of this Agreement are for convenience of reference only
and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions
of such Sections.
(e) Entire Agreement; Amendment. This Agreement and any attachments referenced herein shall
constitute the entire agreement of the Parties as to the subject matter addressed herein. There are no other
agreements between the Parties concerning the subject matter of this Agreement. This Agreement and its
attachments may not be altered, modified, supplemented, terminated or discharged except by way of an
instrument in writing executed by both Parties.
(f) Good Faith. All rights, duties and obligations established by this Agreement shall be exercised
in good faith and in a commercially reasonable manner.
(g) Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws
of the Commonwealth of Massachusetts, without resort to any principles of law that would call for the
application of the laws of any other jurisdiction. Each of the Parties consents to the jurisdiction of the state or
federal courts of the Commonwealth of Massachusetts with respect to all disputes arising under or out of this
Agreement.
(h) Consent to Service of Process. Each Party hereby consents to service of process in the
Commonwealth of Massachusetts in respect of actions, suits or proceedings arising out of or in connection with
this Agreement or the transactions contemplated by this Agreement.
(i) Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, and all of which together shall constitute one and the same instrument. A signature
on a copy of this Agreement received by either Party by facsimile transmission is binding upon the other Party
as an original.
(j) No Third Party Beneficiaries. Nothing in this Agreement will provide any benefit to any third
party or entitle any third party to any claim, cause of action, remedy or right of any kind.
(k) Relationship of Parties. The Parties are independent contractors, and will not be deemed to be
partners, joint venturers or agents of each other for any purpose, unless expressly stated otherwise herein. The
Developer shall provide services under this Agreement as an independent contractor with the Buyer and not as
an employee of the Buyer. No employee, agent or representative of the Developer shall be entitled to receive
any benefits of employment with the Buyer, including without limitation salary, overtime, vacation pay, holiday
pay, sick leave, health insurance, life insurance, pension or deferred compensation.
(l) Authority to Speak. Neither Party shall represent or purport to represent that it speaks for the
other party vis-à-vis the media or the public at-large without the other party’s express, written consent in
advance.
(m) No Limitation of Regulatory Authority. The Parties acknowledge that nothing in this
Agreement shall be deemed to be an agreement by Buyer to issue or cause the issuance of any Approval.
(n) Survivorship. The provisions of Sections 4(h), 9(h), 10 (c), 12, 15, 18, 20 and definitions
relevant thereto as set forth in Section 1 shall survive the expiration or earlier termination of this Agreement.
\[SIGNATURE PAGE FOLLOWS\]
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IN WITNESS WHEREOF, the Parties hereto have executed this POWER PURCHASE
AGREEMENT under seal as of the day and year first above written.
BUYER: DEVELOPER:
By:
By:____________________________
By:
\[SIGNATURE\]
Printed Name:
Printed Title:
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ATTACHMENT A
DESCRIPTION OF PREMISES
Name: Lexington High School
Address: 251 Waltham St, MA 02421
Site Photo:
The school is situated on a parcel of land owned by the Town of Lexington, Massachusetts
described in a Deed dated ____________ and recorded at the Middlesex County Registry of
Deeds in Book ____, Page _____.
Name: Bowman Elementary School
Address: 9 Philip Rd Lexington, MA 02421
Site Photo:
The school is situated on a parcel of land owned by the Town of Lexington, Massachusetts
described in a Deed dated ____________ and recorded at the Middlesex County Registry of
Deeds in Book ____, Page _____.
Name: Cary Memorial Library
Address: 1874 Massachusetts Ave, Lexington, MA 02420
Site Photo:
The school is situated on a parcel of land owned by the Town of Lexington, Massachusetts
described in a Deed dated ____________ and recorded at the Middlesex County Registry of
Deeds in Book ____, Page _____.
Name: Harrington Elementary School
Address: 328 Lowell St,Lexington, MA 02420
Site Photo:
The school is situated on a parcel of land owned by the Town of Lexington, Massachusetts
described in a Deed dated ____________ and recorded at the Middlesex County Registry of
Deeds in Book ____, Page _____.
Name: Jonas Clarke Middle School
Address: 17 Stedman Rd, Lexington, MA 02421
Site Photo:
The school is situated on a parcel of land owned by the Town of Lexington, Massachusetts
described in a Deed dated ____________ and recorded at the Middlesex County Registry of
Deeds in Book ____, Page _____.
Name: Joseph Estabrook Elementary School
Address: 117 Grove St, Lexington, MA 02420
Site Photo:
The school is situated on a parcel of land owned by the Town of Lexington, Massachusetts
described in a Deed dated ____________ and recorded at the Middlesex County Registry of
Deeds in Book ____, Page _____.
EXHIBIT B
DESCRIPTION OF SYSTEMS
Name: Lexington High School
Address: 251 Waltham St Lexington, MA 02421
The final System Description shall be the final As-Built drawings to be provided 30 days after
Commercial Operation Date.
General System Description:
1.System Size DC: 459.42 kW_DC at STC capacity
2.System Size AC: 388 kW_AC
Solar PV Panels:
1.Manufacturer: Canadian Solar
2.Model Number: CS6X-310P
3.Module Wattage: 310W
4.Panel Count: 1,482
5.Type: Polycrystalline 72 Cell Modules
6.Array tilt: 5 degrees from horizontal and oriented 35 degrees west of south and 1
degrees east of south.
7.Warranty Information: Free from defects in materials and workmanship for 10 years,
97% minimum production on year 1, and 25 year linear power output with 80%
minimum production at year 25.
Inverters:
1.Manufacturer: Solectria
2.Model Number: PVI 23TLM & PVI 28TLM Inverters
3.Number and size to be installed: (12) 23 kW inverters & (4) 28kW inverters
4.String size and Quantity: 19 panels per string with 78 total strings.
5.Warranty Information: 20 year warranty
Mounting System:
1.Manufacturer: Panel Claw.
2.Model: Panel Claw Polar Bear at 5 Degrees Tilt Angle
3.Type: Flat Roof Mounting System, ballasted using concrete ballast blocks.
Data Acquisition System (DAS):
1.Manufacturer: Draker Energy Model: Draker PV 250 Base Station or equivalent
Solar PV System Layout:
Electrical System Layout:
Name: Bowman Elementary School
Address: 9 Philip Rd Lexington, MA 02421
The final System Description shall be the final As-Built drawings to be provided 30 days after
Commercial Operation Date.
General System Description:
3.System Size DC: 94.24 kW_DC at STC capacity
4.System Size AC: 79 kW_AC
Solar PV Panels:
8.Manufacturer: Canadian Solar
9.Model Number: CS6X-310P
10.Module Wattage: 310W
11.Panel Count: 304
12.Type: Polycrystalline 72 Cell Modules
13.Array tilt: 5 degrees from horizontal and oriented 23 degrees east of south.
14.Warranty Information: Free from defects in materials and workmanship for 10 years,
97% minimum production on year 1, and 25 year linear power output with 80%
minimum production at year 25.
Inverters:
6.Manufacturer: Solectria
7.Model Number: PVI 23TLM & PVI 28TLM Inverters
8.Number and size to be installed: (1) 23 kW inverters & (2) 28kW inverters
9.String size and Quantity: 19 panels per string with 16 total strings.
10.Warranty Information: 20 year warranty
Mounting System:
4.Manufacturer: Panel Claw.
5.Model: Panel Claw Polar Bear at 5 Degrees Tilt Angle
6.Type: Flat Roof Mounting System, ballasted using concrete ballast blocks.
Data Acquisition System (DAS):
2.Manufacturer: Draker Energy Model: Draker PV 250 Base Station or equivalent
Solar PV System Layout:
Electrical System Layout:
Name: Cary Memorial Library
Address: 1874 Massachusetts Ave Lexington, MA 02420
The final System Description shall be the final As-Built drawings to be provided 30 days after
Commercial Operation Date.
General System Description:
5.System Size DC: 37.51 kW_DC at STC capacity
6.System Size AC: 40 kW_AC
Solar PV Panels:
15.Manufacturer: Canadian Solar
16.Model Number: CS6X-310P
17.Module Wattage: 310W
18.Panel Count: 121
19.Type: Polycrystalline 72 Cell Modules
20.Array tilt: 5 degrees from horizontal and oriented 36 degrees west of south.
21.Warranty Information: Free from defects in materials and workmanship for 10 years,
97% minimum production on year 1, and 25 year linear power output with 80%
minimum production at year 25.
Inverters:
11.Manufacturer: Solectria
12.Model Number: PVI 20TL Inverters
13.Number and size to be installed: (2) 20 kW inverters
14.String size and Quantity: 11 panels per string with 11 total strings.
15.Warranty Information: 20 year warranty
Mounting System:
7.Manufacturer: Panel Claw.
8.Model: Panel Claw Polar Bear at 5 Degrees Tilt Angle
9.Type: Flat Roof Mounting System, ballasted using concrete ballast blocks.
Data Acquisition System (DAS):
3.Manufacturer: Draker Energy Model: Draker PV 250 Base Station or equivalent
Solar PV System Layout:
Electrical System Layout:
Name: Harrington Elementary School
Address: 328 Lowell St Lexington, MA 02420
The final System Description shall be the final As-Built drawings to be provided 30 days after
Commercial Operation Date.
General System Description:
7.System Size DC: 170.81 kW_DC at STC capacity
8.System Size AC: 135 kW_AC
Solar PV Panels:
22.Manufacturer: Canadian Solar
23.Model Number: CS6X-310P
24.Module Wattage: 310W
25.Panel Count: 551
26.Type: Polycrystalline 72 Cell Modules
27.Array tilt: 5 degrees from horizontal and oriented 44 degrees west of south.
28.Warranty Information: Free from defects in materials and workmanship for 10 years,
97% minimum production on year 1, and 25 year linear power output with 80%
minimum production at year 25.
Inverters:
16.Manufacturer: Solectria
17.Model Number: PVI 23TLM & PVI 28TLM Inverters
18.Number and size to be installed: (4) 28 kW & (1) 23kW inverters
19.String size and Quantity: 19 panels per string with 29 total strings.
20.Warranty Information: 20 year warranty
Mounting System:
10.Manufacturer: Panel Claw.
11.Model: Panel Claw Polar Bear at 5 Degrees Tilt Angle
12.Type: Flat Roof Mounting System, ballasted using concrete ballast blocks.
Data Acquisition System (DAS):
4.Manufacturer: Draker Energy Model: Draker PV 250 Base Station or equivalent
Solar PV System Layout:
Electrical System Layout:
Name: Jonas Clarke Middle School
Address: 17 Stedman Rd Lexington, MA 02421
The final System Description shall be the final As-Built drawings to be provided 30 days after
Commercial Operation Date.
General System Description:
9.System Size DC: 214.42 kW_DC at STC capacity
10.System Size AC: 171 kW_AC
Solar PV Panels:
29.Manufacturer: Canadian Solar
30.Model Number: CS6X-305P
31.Module Wattage: 305W
32.Panel Count: 703
33.Type: Polycrystalline 72 Cell Modules
34.Array tilt: 5 degrees from horizontal and oriented 26 degrees west of south.
35.Warranty Information: Free from defects in materials and workmanship for 10 years,
97% minimum production on year 1, and 25 year linear power output with 80%
minimum production at year 25.
Inverters:
21.Manufacturer: Solectria
22.Model Number: PVI 23TLM & PVI 28TLM Inverters
23.Number and size to be installed: (2) 28 kW & (5) 23kW inverters
24.String size and Quantity: 19 panels per string with 37 total strings.
25.Warranty Information: 20 year warranty
Mounting System:
13.Manufacturer: Panel Claw.
14.Model: Panel Claw Polar Bear at 5 Degrees Tilt Angle
15.Type: Flat Roof Mounting System, ballasted using concrete ballast blocks.
Data Acquisition System (DAS):
5.Manufacturer: Draker Energy Model: Draker PV 250 Base Station or equivalent
Solar PV System Layout:
Electrical System Layout:
Name: Joseph Estabrook Elementary School
Address: 117 Grove St Lexington, MA 02420
The final System Description shall be the final As-Built drawings to be provided 30 days after
Commercial Operation Date.
General System Description:
11.System Size DC: 133.29 kW_DC at STC capacity
12.System Size AC: 115 kW_AC
Solar PV Panels:
36.Manufacturer: Canadian Solar
37.Model Number: CS6X-305P
38.Module Wattage: 305W
39.Panel Count: 437
40.Type: Polycrystalline 72 Cell Modules
41.Array tilt: 5 degrees from horizontal and oriented 33 degrees east of south and 38
degrees east of south.
42.Warranty Information: Free from defects in materials and workmanship for 10 years,
97% minimum production on year 1, and 25 year linear power output with 80%
minimum production at year 25.
Inverters:
26.Manufacturer: Solectria
27.Model Number: PVI 23TL Inverters
28.Number and size to be installed: (5) 23 kW inverters
29.String size and Quantity: 19 panels per string with 23 total strings.
30.Warranty Information: 20 year warranty
Mounting System:
16.Manufacturer: Panel Claw.
17.Model: Panel Claw Polar Bear at 5 Degrees Tilt Angle
18.Type: Flat Roof Mounting System, ballasted using concrete ballast blocks.
Data Acquisition System (DAS):
6.Manufacturer: Draker Energy Model: Draker PV 250 Base Station or equivalent
Solar PV System Layout:
Electrical System Layout:
ATTACHMENT C PRODUCTION GUARANTEE AND ELECTRICITY PRICE
A.Production Guarantee
Lexington Municipal Buildings
Guarantee Amount
Estimated First Year's
1,320,802
Solar PV Production
Guarantee Percentage80%
Annual Facilities
0.5%
Degradation Factor
Guarantee
Contract Year
Amount (kWh)
11,056,642
21,051,358
31,046,102
41,040,871
51,035,667
61,030,488
71,025,336
81,020,209
91,015,108
101,010,033
111,004,983
12999,958
13994,958
14989,983
15985,033
16980,108
17975,207
18970,331
19965,480
20960,652
B.Electricity Price
Lexington Municipal Buildings
kWh Rate
First Year kWh Rate ($/kWh)$ 0.1365
Annual Rate Escalator0.0%
Annual PILOT$30,000
YearPrice ($/kWh)
1$ 0.1365
2$ 0.1365
3$ 0.1365
4$ 0.1365
5$ 0.1365
6$ 0.1365
7$ 0.1365
8$ 0.1365
9$ 0.1365
10$ 0.1365
11$ 0.1365
12$ 0.1365
13$ 0.1365
14$ 0.1365
15$ 0.1365
16$ 0.1365
17$ 0.1365
18$ 0.1365
19$ 0.1365
20$ 0.1365
PILOT = Payment in Lieu of Taxes
ATTACHMENT D - NOTICE OF LICENSE
RECORDING REQUESTED BY, PREPARED
BY AND WHEN RECORDED RETURN TO:
Ameresco, Inc.
111 Speen Street, Suite 410
Framingham, MA 01701
Attn: General Counsel
(Space above this line for recorder’s use only)
NOTICE OF LICENSE
This Notice of License is dated \[____________\] by and between ________________,
Massachusetts ("Licensor") and \[__________________\], a Delaware limited liability company
("Licensee" and together with Licensor, the "Parties").
Date of License Grant: ____________
Licensor:
Licensee: ________________________
111 Speen Street, Suite 410
Framingham, MA 01701
Initial Term: From ___________ \[INSERT DATE OF PPA\] until the twentieth (20th) anniversary of
the Commercial Operation Date (as defined in the Power Purchase Agreement dated
__________________________ between Licensor and Licensee), or such other date, as
provided in the PPA.
Licensed Areas: (i) Rooftop space of the building on the Properties listed below, (ii) other space either
inside the building or elsewhere on such Properties, in each case relating to the
installation of a solar photovoltaic system and for the installation, operation and
maintenance of utility lines, cables, conduits, transformers, wires, meters, monitoring
equipment and other necessary and convenient equipment and appurtenances. The
rooftop space of the Licensed Areas is depicted on Annex 1 hereto.
Other Rights: Licensor hereby grants to Licensee non-exclusive rights of ingress and egress from all
public road over each Property to and from the respective Licensed Areas during normal
business hours outside of normal business hours, all in accordance with Annex 2
\[INCLUDE AND RE-LABEL ATTACHMENT G TO THE AGREEMENT AS AN
ATTACHMENT TO THIS NOTICE BEFORE RECORDING\].
Licensor hereby grants to Licensee the temporary use of additional space at each Property
for construction laydown, storage of construction materials, parking of construction crew
vehicles and trailers, such area to be agreed upon by the Parties prior to construction.
37
The Licensed Areas are located at, on and within the following properties all located in
_____________, Massachusetts:
Ownership of
the Facilities: Licensee or Licensee's assigns, will at all times retain title to and be the legal and
beneficial owner of the Facilities, which Facilities will at all times retain the legal status
of personal property of Licensee as defined under Article 9 of the Uniform Commercial
Code. The Facilities will not attach to or be deemed a part of, or a fixture to, the
Licensed Areas, notwithstanding the manner in which the Facilities are or may be affixed
to the real property of Licensor. As used herein the term “Facilities” means a
photovoltaic system including without limitation, all modules, inverters, meters, conduits,
cables, wiring and associates equipment.
Executed and effective as of the date first set forth above.
38
LICENSOR:
By:_______________________
Name:
Title:
COMMONWEALTH OF MASSACHUSETTS
________________, ss.
On this ____ day of __________________, before me, the undersigned notary public, personally
appeared _____________________, proved to me through satisfactory evidence of identification, which
was a Massachusetts driver’s license, to be the person whose name is signed on the preceding document,
and acknowledged to me that he signed it voluntarily for its stated purpose, as Mayor of City of Melrose,
Massachusetts.
___________________________________
Notary Public
My commission expires:
LICENSEE:
By:_________________
Name:
Title:
COMMONWEALTH OF MASSACHUSETTS
________________, ss.
On this ____ day of __________________, before me, the undersigned notary public, personally
appeared _____________________, proved to me through satisfactory evidence of identification, which
was a Massachusetts driver’s license, to be the person whose name is signed on the preceding document,
and acknowledged to me that he signed it voluntarily for its stated purpose, as _________________ of
Ameresco, Inc.
___________________________________
Notary Public
My commission expires:
39
Annex 1 to Notice of License
DEPICTION OF THE LICENSED AREAS
40
ATTACHMENT E-1 – BUYER TERMINATION PAYMENT
Lexington Municipal Buildings
BUYER TERMINATION PAYMENT
AB
Early Termination Early Termination
Termination
Fee (Including Fee (Excluding
Occurs in Year:
costs of removal*)costs of removal)
1$ 4,327,000$ 4,148,000
2$ 3,966,000$ 3,785,000
3$ 3,549,000$ 3,366,000
4$ 3,099,000$ 2,914,000
5$ 2,628,000$ 2,442,000
6$ 2,132,000$ 1,944,000
7$ 1,965,000$ 1,775,000
8$ 1,792,000$ 1,600,000
9$ 1,614,000$ 1,420,000
10$ 1,430,000$ 1,234,000
11$ 1,364,000$ 1,166,000
12$ 1,291,000$ 1,091,000
13$ 1,212,000$ 1,010,000
14$ 1,125,000$ 921,000
15$ 1,030,000$ 824,000
16$ 925,000$ 717,000
17$ 809,000$ 599,000
18$ 681,000$ 469,000
19$ 539,000$ 325,000
20$ 541,000$ 325,000
At Expiration$ -$ 1
*Estimated costs of removal are for indicative budget
planning purposes. The Buyer shall pay the actual,
documented removal costs less the actual,
documented salvage value.
Early Termination Fee With Removal Costs by School **
Bowman Harrington
Lexington High Cary Memorial Jonas Clarke Estabrook
Elementary Elementary
SchoolLibraryMiddle SchoolSchool
SchoolSchool
kW_DC:
459.42 94.24 37.51 170.81 214.42 133.29
%:
41%8%3%15%19%12%
$1,791,411$367,469$146,262$ 666,037$ 836,085$ 519,736
$1,641,954$336,811$134,060$ 610,470$ 766,331$ 476,375
$1,469,313$301,397$119,964$ 546,283$ 685,756$ 426,287
$1,283,009$263,181$104,753$ 477,016$ 598,805$ 372,235
$1,088,012$223,182$ 88,832$ 404,517$ 507,796$ 315,661
$882,664$181,059$ 72,066$ 328,170$ 411,956$ 256,084
$813,525$166,877$ 66,421$ 302,464$ 379,687$ 236,025
$741,901$152,185$ 60,574$ 275,835$ 346,259$ 215,245
$668,208$137,068$ 54,557$ 248,436$ 311,865$ 193,865
$592,031$121,442$ 48,337$ 220,114$ 276,312$ 171,764
$564,706$115,837$ 46,106$ 209,955$ 263,559$ 163,836
$534,484$109,638$ 43,639$ 198,718$ 249,454$ 155,068
$501,777$102,929$ 40,968$ 186,558$ 234,189$ 145,579
$465,758$95,540$ 38,028$ 173,167$ 217,378$ 135,129
$426,428$87,472$34,816$ 158,544$ 199,022$ 123,718
$382,957$78,555$ 31,267$ 142,381$ 178,733$ 111,106
$334,932$68,704$ 27,346$ 124,526$ 156,319$ 97,173
$281,939$57,834$ 23,019$ 104,824$ 131,586$ 81,798
$223,150$45,774$ 18,219$ 82,966$ 104,148$ 64,742
$223,978$45,944$ 18,287$ 83,274$ 104,535$ 64,982
** The termination costs are prorated based on the system size in kW_DC for each school compared
to the total system size of all the schools
Early Termination Fee With Removal Costs for Each Section of Lexington
High School
Mathematics Foreign Language
Main BuildingScience Building
BuildingBuilding
kW_DC:
259.1688.3547.1264.79
%:
23%8%4%6%
$ 1,010,539$ 344,502$ 183,734$ 252,635
$ 926,230$ 315,760$ 168,406$ 231,558
$ 828,843$ 282,560$ 150,699$ 207,211
$ 723,749$ 246,733$ 131,591$ 180,937
$ 613,750$ 209,233$ 111,591$ 153,438
$ 497,913$ 169,743$ 90,530$ 124,478
$ 458,911$ 156,447$ 83,438$ 114,728
$ 418,509$ 142,673$ 76,092$ 104,627
$ 376,938$ 128,502$ 68,534$ 94,234
$ 333,966$ 113,852$ 60,721$ 83,492
$ 318,552$ 108,597$ 57,919$ 79,638
$ 301,504$ 102,785$ 54,819$ 75,376
$ 283,054$ 96,496$ 51,464$ 70,763
$ 262,736$ 89,569$ 47,770$ 65,684
$ 240,549$ 82,005$ 43,736$ 60,137
$ 216,027$ 73,646$ 39,278$ 54,007
$ 188,936$ 64,410$ 34,352$ 47,234
$ 159,043$ 54,219$ 28,917$ 39,761
$ 125,880$ 42,913$ 22,887$ 31,470
$ 126,347$ 43,073$ 22,972$ 31,587
Early Termination Fee Excluding Removal Costs by School **
Bowman Harrington
Lexington High Cary Memorial Jonas Clarke Estabrook
Elementary Elementary
SchoolLibraryMiddle SchoolSchool
SchoolSchool
kW_DC: 459.42 94.24 37.51 170.81 214.42 133.29
%:41%8%3%15%19%12%
$1,717,303$352,267$140,212$ 638,485$ 801,498$ 498,235
$1,567,018$321,440$127,941$ 582,609$ 731,357$ 454,634
$1,393,549$285,856$113,778$ 518,114$ 650,396$ 404,306
$1,206,418$247,470$ 98,500$ 448,540$ 563,058$ 350,014
$1,011,006$207,386$ 82,545$ 375,887$ 471,856$ 293,320
$804,831$165,093$ 65,712$ 299,232$ 375,630$ 233,503
$734,863$150,741$ 59,999$ 273,218$ 342,975$ 213,203
$662,412$135,879$ 54,084$ 246,281$ 309,160$ 192,183
$587,891$120,593$ 47,999$ 218,575$ 274,380$ 170,563
$510,885$104,797$ 41,712$ 189,945$ 238,440$ 148,221
$482,733$99,022$ 39,413$ 179,478$ 225,301$ 140,054
$451,682$92,653$ 36,878$ 167,933$ 210,809$ 131,045
$418,148$85,774$ 34,140$ 155,465$ 195,157$ 121,316
$381,301$78,216$ 31,132$141,766$ 177,960$ 110,626
$341,142$69,978$ 27,853$ 126,835$ 159,218$ 98,974
$296,843$60,891$ 24,236$ 110,365$ 138,542$ 86,122
$247,991$50,870$ 20,248$ 92,202$ 115,742$ 71,949
$194,170$39,830$ 15,853$ 72,191$ 90,623$ 56,334
$134,552$27,601$ 10,986$ 50,026$ 62,798$ 39,037
$134,552$27,601$ 10,986$ 50,026$ 62,798$ 39,037
** The termination costs are prorated based on the system size in kW_DC for each school compared to the total
system size of all the schools
Early Termination Fee Excluding Removal Costs for Each Section of
Lexington High School
Mathematics Foreign Language
Science Building
Main Building
BuildingBuilding
kW_DC:
88.35259.16 47.12 64.79
%:
23%8%4%6%
$ 968,735$ 330,251$ 176,134$ 242,184
$ 883,959$ 301,350$ 160,720$ 220,990
$ 786,105$ 267,990$ 142,928$ 196,526
$ 680,543$ 232,003$ 123,735$ 170,136
$ 570,311$ 194,424$ 103,693$ 142,578
$ 454,007$ 154,775$ 82,547$ 113,502
$ 414,538$ 141,320$ 75,371$ 103,635
$ 373,668$ 127,387$ 67,940$ 93,417
$ 331,631$ 113,056$ 60,296$ 82,908
$ 288,192$ 98,247$ 52,398$ 72,048
$ 272,311$ 92,833$ 49,511$ 68,078
$ 254,795$ 86,862$ 46,326$ 63,699
$ 235,878$ 80,413$ 42,887$ 58,970
$ 215,093$ 73,327$ 39,108$ 53,773
$ 192,439$ 65,604$ 34,989$ 48,110
$ 167,450$ 57,085$ 30,445$ 41,863
$ 139,892$ 47,690$ 25,435$ 34,973
$ 109,532$ 37,340$ 19,915$ 27,383
$ 75,901$ 25,875$ 13,800$ 18,975
$ 75,901$ 25,875$ 13,800$ 18,975
ATTACHMENT E-2
Developer Termination Payment
If Buyer is entitled to a Developer Termination Payment, then such Developer Termination
Payment shall be in an amount not to exceed the then present value (discounted at the prevailing prime
rate of interest as published in the Wall Street Journal on the day preceding the date of determination) of
the cash flow equal to the product of:
(A) the amount, if any, in dollars per kWh by which (1) (i) the aggregate value of Net Metering
credit (measured in $) calculated for each billing periods or portion thereof that occurred in the Contract
Year in which termination occurs, divided by (ii) the actual aggregate kWh produced by the Facilities and
delivered to the Delivery Point in such Contract Year, exceeds (2) the Electricity Price,
Multiplied by:
(B) The number of days remaining in the Term as to each Contract Year times the Guaranteed
Annual Electric Output in each such remaining Contract Year.
Plus:
(C) The PILOT payment in each such remaining Contract Year.
In no case shall the result of the amount in clause (A) exceed $0.0407 per kWh. A sample
calculation is as follows:
DEVELOPER TERMINATION PAYMENT EXAMPLE CALCULATION
Price for commercial available electricity at time of Termination:
Electricity Price per Exhibit C:
Difference for this example ($/kWh):
$ 0.0407
Example Prime Rate:
3.25%
Maximum
Daily
Days Each Guaranteed Maximum
Guaranteed Maximum Maximum
Termination Annual Developer
Year of Termination
Annual Payment for PILOTTotal Annual
Year
Electric Termination
Electric Maximum DaysPayment
(Excludes Output (KWh)Payment
Output (KWh)
Leap Year)
1365 1,056,642 2,894.91 43,005$ 30,000$ 73,005$ 1,035,782$
2365 1,051,358 2,880.43 42,790$ 30,000$ 72,790$ 996,440$
3365 1,046,102 2,866.03 42,576$ 30,000$ 72,576$ 956,034$
4365 1,040,871 2,851.70 42,363$ 30,000$ 72,363$ 914,529$
5365 1,035,667 2,837.44 42,152$ 30,000$ 72,152$ 871,887$
6365 1,030,488 2,823.26 41,941$ 30,000$ 71,941$ 828,072$
7365 1,025,336 2,809.14 41,731$ 30,000$ 71,731$ 783,043$
8365 1,020,209 2,795.09 41,523$ 30,000$ 71,523$ 736,761$
9365 1,015,108 2,781.12 41,315$ 30,000$ 71,315$ 689,183$
10365 1,010,033 2,767.21 41,108$ 30,000$ 71,108$ 640,267$
2,753.38$ 40,903$ 30,000$ 70,903$ 589,967
11365 1,004,983
12 999,958365 2,739.61$ 40,698$ 30,000$ 70,698$ 538,239
13 994,958365 2,725.91$ 40,495$ 30,000$ 70,495$ 485,033
14 989,983365 2,712.28$ 40,292$ 30,000$ 70,292$ 430,302
15 985,033365 2,698.72$ 40,091$ 30,000$ 70,091$ 373,994
16 980,108365 2,685.23$ 39,890$ 30,000$ 69,890$ 316,058
17 975,207365 2,671.80$ 39,691$ 30,000$ 69,691$ 256,440
18 970,331365 2,658.44$ 39,492$ 30,000$ 69,492$ 195,083
19 965,480365 2,645.15$ 39,295$ 30,000$ 69,295$ 131,931
20 960,652365 2,631.92$ 39,099$ 30,000$ 69,099$ 66,924
Examples at the price difference shown above:
1) Developer Termination Payment after Year 9 (January 1 of year 10) equals:$ 640,267
2) Developer Termination Payment after day 240 in year 14 (125 days remaining in year) equals:$ 404,642
3) Developer Termination Payment after Year 14 (January 1 of year 15) equals:$ 373,994
DEVELOPER TERMINATION PAYMENT BY FACILITY
The Developer Termination Payment per Facility will be adjusted by multiplying the applicable year's termination value by the percentage shown in the
following table.
Bowman Cary Harrington
Lexington Jonas Clarke Estabrook
Elementary Memorial Elementary
High SchoolMiddle SchoolSchool
y
SchoolLibrarSchool
kW_DC: 459.42 94.24 37.51 170.81 214.42 133.29
%:41%8%3%15%19%12%
ATTACHMENT F – PRELIMINARY CONSTRUCTION SCHEDULE
43
ATTACHMENT G – ACCESS, SAFETY AND SECURITY REQUIREMENTS
The Buyer has an overriding duty to assure the safety of students, employees and library patrons
during construction and maintenance of the Facilities throughout the term of the Agreement. The
following conditions shall apply to all such work conducted at the Properties.
Installation
1. Schedule
Prior to commencement of installation work at the Properties, the Developer shall provide a
schedule to the Department of Public Facilities or their designee that indicates the date and nature of work
to be performed each day. The schedule shall be subject to the approval of the Department of Public
Facilities in coordination with the building manager of each building, which shall not be unreasonably
delayed or withheld.
Notwithstanding the approval of the schedule, in the event that construction work substantially
interferes with or disrupts programming, the Department of Public Facilities in coordination with the
building manager of each building, shall have the right to suspend such disruptive work and require that it
be performed on weekends, holidays or after school hours during the week.
Installation work shall be conducted between the hours of 7 a.m. and sunset on weekdays, and,
subject to prior approval of the Department of Public Facilities or designee, from 8 a.m. to 5 p.m. on
Saturdays, Sundays and legal holidays.
2. Deliveries
All deliveries of equipment, supplies and materials to School Properties on weekdays when
school is in session shall be made before the start of the school day and at the end of the school day.
Anticipated deliveries should be coordinated with the Department of Public Facilities or its designee.
3. Securing of Supplies and Equipment
The Developer shall be responsible for securing all materials, supplies, tools and equipment
maintained on the Properties until the completion of the installation in a manner satisfactory to the Buyer.
Buyer reserves the right to require Developer to secure materials, supplies, tools and equipment if in the
Buyer’s reasonable discretion, such items pose a hazard to persons or property.
4. Prohibition on interaction with students and library patrons
The employees and agents of the Developer and the Developers contractors and subcontractors
shall avoid interaction with students and library patrons. In addition, the employees and agents of the
Developer and the Developer’s contractors and subcontractors shall avoid interaction with Buyer’s
employees not directly involved in providing Developer access to a Property, unless interaction with such
employees is authorized in this Agreement. The Buyer shall have the right to require that the Developer
permanently remove from the Properties any of their employees on account of inappropriate interaction
with students, including but not limited to the use of vulgar language, sexually suggestive statements and
any inappropriate physical contact.
Maintenance
5. Notice.
Prior to performing any maintenance work, the Developer shall provide 48 hours advance written
notice to the Department of Public Facilities or its designee, unless such maintenance work is required on
account of emergency circumstances.
6. All maintenance work shall adhere to the conditions for installation work.
44
7. Check-in and Check-out. All of the Developer’s employees, contractors or
subcontractors performing maintenance work shall sign in at the Building main office and call the
Department of public Facilities within ½ hour upon arrival at the Property, sign out after completion of
the maintenance work and notify by phone the Department of Public Facilities to report on the resolution
of any maintenance issue. All such employees of the Developer and its contractors and subcontractors
shall present valid picture identifications.
8. CORI.
The Lexington Public Schools shall conduct checks of the Criminal Offender Record Information
(CORI) maintained by the Massachusetts Criminal History Facilities Board, fingerprinting
(CHRI/SAFIS), and the Sex Offender Record Information (SORI) maintained by the Massachusetts Sex
Offender Registry Board for any officer or employee of the Developer or of a subcontractor or any person
who will work on the Facilities on site. The cost of fingerprinting shall be at the expense of the
Developer or of a subcontractor or any person who will work on the Facilities on site. The Buyer may
refuse to allow any such person to work on the Project site if the Buyer, in its sole discretion, determines
that such employee is not suitable for work on the Project site based upon the results of such CORI,
CHRI, or SORI. All Developer employees and subcontractor employees who will work on the project
site shall initiate a CORI, CHRI, and SORI search by completing forms and presenting identification at
the Department of Public Facilities.
45
ATTACHMENT H – EDUCATIONAL PROGRAM OUTLINE
Developer has prepared and structured a Solar PV Educational Program for all solar PV
customers. The goal of this program is to educate students about the environmental benefits of using
renewable energy, the history of solar PV, the science behind the technology, and the theory used in
system design. After acquiring this knowledge base, student will be better able to understand and analyze
data from their system’s data acquisition system (DAS).
The Developer’s Solar PV Educational Program provides teachers with a database of teaching
materials which includes all the necessary background and technical information as well as a compilation
of lesson plans. Lessons are categorized by grade level for elementary school, middle school, and high
school to ensure that lessons are catered to the appropriate grade level. Teachers are free to pick and
choose the topics and lessons that are appropriate for their class and need not use all the materials
provided. Developer looks forward to working with teachers, principals and other school officials to
customize this program as the schools see fit. This will include conducting up to two (2) presentations at
each school, one to teachers, the other to students, about the solar PV systems.
The curriculum consists of fifteen (15) Solar PV Topics meant to guide students through an
understanding of solar PV from an introduction in renewable energy to the analysis of actual data. Each
Solar PV Topic consists of “Topic Information” which contains the necessary background information
needed to teach the topic and a set of lesson plans divided by grade level. All lesson plans were obtained
from a variety of school districts and solar educational programs. Each Topic has been aligned with
applicable MA Learning Standards for the Science and Technology/Engineering Frameworks to help
teachers better integrate the materials into their normal curriculum.
Display
Subject to approval of Buyer, including the location thereof, Developer will install kiosks at the
Properties receiving the solar PV panel installations, herein, and at the Town Office Building and
Department of Public Facilities Building to display real time and historical data from the system on site
or, if a monitor already exists, launch a web site on that screen to present real time and historic data on the
screen. Each kiosk will also include, as appropriate, an informational poster depicting the solar PV
system. Furthermore a publically viewable website will be set up specific to each installed system. This
website can also be displayed on the Buyer’s website or school web site for viewing by other Town
citizens and anyone who visits those websites.
For the installation of each display, as described above, Developer will provide the monitor, the
website and the programming required to ensure that the kiosk supplies the required information. The
Buyer is responsible for providing the power and internet connection to the monitor including 120 V
power and hardwired internet connection via CAT5 or CAT6. The Buyer will be responsible for ensuring
that the internet connection is maintained to the monitor.
46
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AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE: 7/28/14 STAFF: Lynne Pease ITEM NUMBER: I.3
SUBJECT:
Approval of Comcast Cable TV Renewal License
EXECUTIVE SUMMARY:
Dave Becker, member of the Communications Advisory Committee-Negotiating Subcommittee,
will be at your meeting to provide information on the where negotiations are with Comcast.
See attached information.
FINANCIAL IMPACT:
RECOMMENDATION / SUGGESTED MOTION:
Motion to issue a preliminary assessment of denial of Comcast of Massachusetts III, Inc.’s cable
television renewal proposal to the Town of Lexington, dated May 2, 2014.
STAFF FOLLOW-UP:
Selectmen’s Office
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE:PRESENTER: ITEM NUMBER:
July 28, 2014 Bill Hadley I.4
David Pinsonneault
SUBJECT:
Public Works Update on Summer Construction
Update on Bedford Street/Hartwell Avenue Pedestrian Crossing
EXECUTIVE SUMMARY:
DPW staff will provide updates on summer construction projects and recent discussions with
MassDOT on the pedestrian crossing at Bedford Street/Hartwell Avenue.
FINANCIAL IMPACT:
NA
RECOMMENDATION / SUGGESTED MOTION:
None
STAFF FOLLOW-UP:
Prepared by cfv
PROJECT UPDATE – July 2014
TAX LEVY
Comprehensive Stream Management Plan $ 390,000
Charles River Stream Management Plan: This plan has been completed and
the report can be found on line.
Shawsheen River Stream Management Plan: The plan is completed and the
report can be found on line.
Mystic River Watershed Management Plan: The plan is completed and the
report can be found on line
Implementation of the plans are underway.
NPDES Phase II – Stormwater general permit $ 140,000
The annual report has been submitted to MassDEP and the EPA. We continue to work on
permit compliance and have had great assistance from the Conservation staff and the
Stewards. Additionally, the Illicit Discharge Detection and Elimination (IDDE) program has
been enhanced to include approximately 20 UMass Lowell Engineering students to sample
and analyze test results. Two areas of high bacteria counts have been found including the
Vine Brook and Mill Brook. Repairs have been made to the Vine Brook area and early
sampling results show that the repair has eliminated the bacteria source. The Mill Brook
repairs are currently under construction.
Storm Drain Improvements $ 340,000
Drainage improvement has continued throughout town with a focus on the areas that are
undergoing paving or reconstruction work. Additional drainage work is anticipated in
numerous locations throughout town as problems are identified.
Butterfield Dam $ 530,000
Phase I and phase II improvements have been completed.
Concord Ave sidewalk design and construction $ 3,340,000
Final design plans have been completed and the project is currently in the permitting stage.
Additionally the trees have been evaluated that are anticipated for removal. The Engineering
Division will be meeting with direct abutters to discuss the removal plan prior to the official
posting for the shade tree hearing. Implementation of this plan will also include upgrades to
the Waltham Concord traffic signal. Construction funds were obtained at the 2013 ATM and
construction is expected to commence in the 2015 construction season.
Central Business District Streetscape design $ 290,000
The 25% design phase has been completed and a meeting to discuss the design will be
scheduled with the Board of Selectman in early fall. The meeting will provide valuable
updates to the board and will also provide direction for the design moving forward.
1
Additionally the conceptual plan stage of the Battle Green traffic improvements plan are near
completion and will then move into the 25% design phase.
Three intersection project $ 125,000
Two Public meetings have been held to present the project. Refinements from these meetings
have been incorporated into the plans. MassDOT project review committee has approved the
project and determined that this project is eligible for federal construction funding. The 25%
design plans have been submitted to MassDOT for review and we have received review from
several sections of MassDOT. Once all the reviews are received a 25% public hearing will be
scheduled to discuss the project.
Street Improvements $ 2,600,000
This year’s street improvement includes approximately 5 miles of roadway paving and
reconstruction as well as sidewalk replacement and installation of accessible pedestrian ramps
throughout the project. Major roads include sections of Bedford Street, Massachusetts
Avenue, Simonds Road, and the Hancock Street roundabout. Additionally, as part of the
street resurfacing contract, the Bike trail will be resurfaced from the Arlington Town line to
Fottler Avenue and from Woburn Street to Fletcher Avenue. The funding is from a previously
designated bikeway resurfacing Town Meeting article. Further resurfacing of the bikeway is
expected to continue in future years. Shade Street traffic calming design is near completion
with construction beginning in either early fall or the spring of 2015.
Westview Cemetery Irrigation $35,000
This project is completed.
Park Improvements – Athletic Fields $65,000
Sutherland Park – The back stop and fencing work began this July. The turf and grading work
will begin at the end of September.
Hastings Park Irrigation - $75,000
This project was completed in June 2014.
Town wide Signalization Improvements $125,000
The Worthen Road / Waltham Street intersection has been completed and evaluation is
underway for upgrades at the Bikeway at Bedford, East at Lowell, North at Lowell, and
Brookside at Waltham.
Town wide Sidewalk Improvements $600,000
Complete the second phase of the path connecting Worthen Road and Middleby Road behind
Lincoln Field. Sidewalks on Muzzey St., Taft Ave., Baskin Rd., Turning Mill Rd. East St.
near Adams St. and sections of Forest St. and Clarke.
Estabrook School / Grove Street improvements $250,000
Construction has been completed.
2
Robinson Road sidewalk $1,000,000
The design has been completed and the contract has been awarded. Construction will
commence in July with completion anticipated for either late fall of 2014 or spring of 2015.
Culvert Replacement $390,000
Replacement of the Concord Ave culvert carrying the Beaver Brook has been completed. The
design of the Revere Street culvert replacement is near completion and the North Lexington
Brook culvert crossing under the bikeway near Camellia Place is under design. This culvert
construction will result in temporary closure of the bikeway at this location.
Minuteman Bikeway Culvert $200,000
Replacement of a collapsed culvert north of the Seasons Four nursery entrance has been
completed and the design of the culvert under the bikeway behind the Munroe Center for the
Arts has been designed and permitted and is currently out to bid with fall construction
anticipated. This work will result in a temporary closure of this section of the bikeway.
Hartwell Ave Improvements $600,000
Improvements to Hartwell Ave are currently in the design phase and include work at the Kiln
Brook Bridge, Maguire intersection improvements, and an improved pedestrian crossing on
Bedford Street in the vicinity of the jug handle.
Traffic Island Renovation (Jug Handle at Hartwell Ave) $83,000
Bid specs are being developed for landscape improvements to the large island and the three
smaller islands with construction targeted for fall 2014 and spring 2015.
ENTERPRISE FUNDS
Water System Improvements $ 900,000
The programmed2013 water system work was completed. The work included water main
replacement along Bedford Street from Worthen Road to North Hancock Street as well as
main replacement on Shirley Street, Sunny Knoll Avenue, Larchmont Street, and Manning
Street.
In 2014, the engineering staff and consultants will undertake comprehensive assessment of the
condition of the two aging water mains on Massachusetts Ave in the east Lexington area from
the Arlington town line to the Woburn Road. The scope of the study will include excavation
to remove sections of the pipe for testing. Additional testing techniques will evaluate the
capability of the pipe to deliver proper flow. A program of system renovation will be
developed.
Sanitary Sewer Improvements $ 1,200,000
Wastewater collection system rehabilitation work is underway. Trenchless technology is
being used on pipe and manholes town wide including trunk sewers in the east Lexington
area. This year the program will line 6,800 linear feet of sewer with cured-in-place polyester
lining. It will seal approximately 140 manholes and it will clean, inspect and seal of defective
3
joints in 8,000 linear feet of sewer. This work is, for the most part, in the East Lexington
areas near Massachusetts Avenue.
Simultaneously, our consulting engineer will undertake light cleaning and flow isolation
studies to survey 150,000 linear feet of sewer also in collection basins in the eastern parts of
town. This work focuses efforts for future rehabilitation.
Pump Station Upgrades - $600,000
The engineering division and contractors completed work to upgrade the Concord Ave and
the Potter Pond wastewater pumping stations. The work included permanent emergency
generators to operate the stations in the event of utility power outage. Standby generation is
now on line for those two stations. Priorities for 2014 were rearranged because of sudden
deterioration of the Brigham Road pump station. Design engineers are working on an upgrade
of the Brigham Road station. Construction is projected for later in 2014.
COMMUNITY PRESERVATION FUNDS
Monument Conservation/Repair at the Historic Cemeteries $365,000
The final phase of this project will target the remaining stones and markers at Ye Olde
Burying Ground and Munroe Cemetery. Ivan Myjer has been hired to develop the plans and
specifications for this project. A bid date in the fall of 2014 is expected.
Old Reservoir Stormwater Improvements $ 759,000
Construction has been completed.
Pine Meadows golf course preservation $ 200,000
The construction was completed this past winter.
Hastings Park Gazebo $15,000
Colin Smith is developing the plans and specs for the necessary repairs and bring the Gazebo
into ADA compliance. Work is targeted for September/October 2014.
Center Playfields Drainage Improvement $875,173 – Phase 1
$911,863 – Phase 2
Phase 1 construction is complete. $605,781 – Phase 3
Phase 2 construction is near completion.
Phase 3 contractor has been hired with the project to begin in the fall.
Battlegreen Area Master Plan Implementation $50,000 – Phase 1
$143,845 – Phase 2
The project will address monument restoration, treatment around the monument areas,
pathways and fencing. Plans and specifications are being developed for review with various
committees and boards with a target project date in the spring of 2015.
4
Lincoln Park Field Improvements $565,000
($150,000 is CPA) This is phase 1 of a 3 phase project to replace the synthetic turf, regrade
and make any necessary changes to the field. The field has been installed, but not accepted
and legal counsel is involved.
REVOLVING FUND
Hartwell Avenue Culvert $ 390,000
Construction has been completed.
Hartwell Ave Organics Facility $ 68,750
The town has decided not move forward with the RFP at this time.
Hartwell Avenue Security $82,000
Security cameras have been installed.
Park and Playground Improvements $147,000
$70,000 is for is a multi year program to replace the rubberized safety surface at the Lincoln
Park Playground -- $77,500 is to purchase and install new equipment at the skate park.
Construction is scheduled for the fall of 2014.
GRANT FUNDS
Spring Street / Concord Avenue Intersection Improvements and Hayden Avenue
Sidewalk Improvements $ 1,250,000
Construction has been completed.
Bikeway Wayfinding Grant $41,500
The Town, through the Bike Path Committee, and in conjunction with the Towns of Bedford
and Arlington received a grant in the amount of $41,500 from the DCR. Toole Design Group
was hired to develop a master plan/design for wayfinding which has now been completed.
Snowy Owl Maps was contracted to produce a new bikeway map which is available.
Miscellaneous (funding source varies)
Center Playfields Bathroom (revolving fund): Connected.
Hydrant replacement (enterprise fund - $100,000): The hydrant replacement
program is developed from a list provided by the Fire Department and from
known defective hydrants. A total of 90 hydrants were replaced this past year.
DPW Equipment (tax levy - $340,000, enterprise fund - $309,000): All
equipment from the FY2014 budget have been purchased and delivered. Bids
will be developed in July for the FY2015 approved vehicles.
5
Environmental Monitoring (tax levy): Hartwell Ave landfill and Lincoln
Fields. The police station monitoring is complete and the site has been closed
out.
Antony Park: Bids are being solicited for the construction of Antony Park
which will be located at the east of Tower Park. The park will include a sitting
wall, pathways, landscaping and benches. The water line has been installed and
construction is scheduled for the fall of 2014.
STATE AND FEDERAL FUNDS
State Projects
Grove Street / 128 Bridge repairs are in progress and include repair of a
damaged beam and some pavement repairs.
Rte 2 / 128 Bridge is under construction.
Marrett Road resurfacing from Spring Street to Wilson Road is under
construction and near completion.
Operating Budget –
Street Lights - The installation of the new induction type street lights were completed in
December 2010. Some of the new lights failed; and we had difficulty getting a response
from the manufacturer. The replacement of the new lights are under warranty. We are
working with Town Counsel on the warranty language to insure the Town recoups money
spent that is covered under the warranty. Since the new induction lights have been
installed our electricity costs have been reduced by $110,000. We installed LED
streetlights in the Center as a pilot program.
OTHER
The Town of Bedford will be relining the sanitary sewer force main along Bedford
Street from approximately the town line to the Route 128 ramps. This work is
expected to commence in late July and run through the end of October.
6
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE: 7/28/14 STAFF: Lynne Pease ITEM NUMBER: I.5
SUBJECT:
MBTA Letter Regarding Town Meeting Resolution for Additional Service to Lexington
EXECUTIVE SUMMARY:
Attached is a proposed letter to send to the MBTA regarding the possibility of expanding service
to Lexington and neighboring communities. This letter was drafted by the Transportation
Coordinator with input and review by the Transportation Advisory Committee in response to a
Town Meeting resolution regarding public transportation in Lexington.
See attached letter and a copy of the motion for Article 24 – Public Transportation in Lexington.
FINANCIAL IMPACT:
RECOMMENDATION / SUGGESTED MOTION:
Motion to send a letter to the Massachusetts Bay Transportation Authority regarding expanding
service in Lexington and neighboring communities.
STAFF FOLLOW-UP:
Selectmen’s Office
D R A F T
July 28, 2014
Beverly A. Scott, General Manager
Massachusetts Bay Transportation Authority
Ten Park Plaza
Boston, MA 02116
Dear Ms. Scott:
The Lexington Board of Selectmen is writing this letter to open a dialogue with the
MBTA regarding expanding service to Lexington and neighboring communities. Specifically, we
would like to explore with the MBTA how we can better accommodate late night and weekend
riders on bus routes serving Lexington. This matter was recently discussed at Lexington’s
Annual Town Meeting, and a copy of the resulting resolution is enclosed.
MBTA Routes 62 and 76 handle three quarters of a million rides annually. These routes
provide critical connections between Alewife Station and the towns of Lexington, Arlington,
Bedford and Lincoln. Major destinations include Lincoln Labs, Bedford VA Hospital, Hanscom
Air Force Base and Civil Terminal, commercial districts along Route 128/95, Minute Man
Regional Technical High School, Minute Man National Park and other major historic sites.
Additional public transit is needed to address congestion on Route 2 and capacity limitations at
the Alewife parking garage. Expanding the scope of the MBTA service to our area would be an
important step toward addressing traffic problems and expanding economic opportunities.
Lexington has shown a commitment to public transportation that we believe exceeds that
of most towns. We have operated our own neighborhood bus service for almost thirty-five years,
and recently joined the 128 Business Council TMA as a Community Member. We have actively
supported aggressive legislative action to secure MBTA financial stability. Yet residents
continue to absorb MBTA fare increases, and reductions in MBTA services and Suburban
Transit funding. Our community has less service now than we did 35 years ago when Lexington
was served by commuter rail and four bus routes. Today, we are left with only two week-day bus
routes, limited Saturday service, and no service on Sundays.
Beverly A. Scott, MBTA July 28, 2014
Page Two
The current level of service provided by the MBTA does not meet our area’s
transportation needs. A 2012 transportation survey conducted by a MAPC regional advisory
group showed that Lexington residents would like to have more frequent and later bus service,
express service to Alewife Station, service on Sundays, and additional routes to adjoining towns.
We were very excited to hear about the new “Night Owl” pilot service which expanded evening
service hours within the MBTA core. We would like to suggest similar pilot programs to address
the needs of your Lexington-based customers.
Thank you for giving this vital matter your full consideration. We look forward to
hearing from you.
Very truly yours,
Joseph N. Pato
Chairman
JNP/jr
Enclosure
cc:Representative Jay Kaufman
Senator Kenneth Donnelly
Senator Michael Barrett
Bijan Afshartous
Transportation Advisory Committee
Article 24 PUBLIC TRANSPORTATION IN LEXINGTON (Citizen Article)
MOTION: Resolved: That the Board of Selectmen be requested to explore with the MBTA
the possible expansion of service to the Town to accommodate late night and
weekend riders on bus routes serving Lexington.
(3/24/14)
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE: 7/28/14 STAFF: Lynne Pease ITEM NUMBER: I.6
SUBJECT:
Joint Discussion with Planning Board – Fill Vacancy on Planning Board
EXECUTIVE SUMMARY:
Attached is Greg Zurlo’s resignation from the Planning Board, effective June 17, 2014 and the
relevant sections of the MGLs governing procedures for a replacement. On June 19, 2014 the
Board voted to issue a Notice of Intent and a legal notice was put into the Lexington Minuteman
on June 26 requesting candidates to fill the Planning Board vacancy. Ginna Johnson submitted
her interest. The Planning Board will bring their recommendation to the Selectmen.
FINANCIAL IMPACT:
RECOMMENDATION / SUGGESTED MOTION:
Joint roll call vote of Planning Board and Board of Selectmen members:
Motion to appoint ____________________ to the Planning Board to fill the unexpired term of
Gregory Zurlo until the Annual Town Election in March 2015.
STAFF FOLLOW-UP:
Selectmen’s Office
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE:PRESENTER: ITEM NUMBER:
July 28, 2014 Carl F. Valente I.7
SUBJECT:
Discuss 21 Muzzey Street Proposed Development
EXECUTIVE SUMMARY:
At the July 14 Selectmen’s meeting, the Town Manager brought to the Board’s attention the
development proposed for 21 Muzzey Street. This development, which should be very positive
for the Center, would require the Zoning Board of Appeals to waive the zoning requirement for
approximately 20 parking spaces (the proposed development will have no parking associated
with it). In light of the recent parking study and parking plan adopted by the Board of
Selectmen, staff recommends that the Board consider requesting that the ZBA include in its
Special Permit conditions the requirement that the developer provide some type of parking
mitigation (as negotiated between the Selectmen and developer) in order to receive a waiver of
the zoning requirement for parking.
The attached memorandums from the Economic Development Director and Planning Board
provide further background on this matter.
FINANCIAL IMPACT:
NA
RECOMMENDATION / SUGGESTED MOTION:
Authorize the Town Manager to negotiate, for the Selectmen’s approval and signature, a
Memorandum of Agreement with the developer of 21 Muzzey Street, to mitigate the zoning
requirement for parking for that proposed development.
STAFF FOLLOW-UP:
TMO and Finance
Prepared by cfv
Town of Lexington
1625 Massachusetts Ave.
Lexington, MA 02420
Memorandum
To: Carl Valente, Town Manager
From: Melisa Tintocalis, Economic Development Director
Date: July 24, 2014
RE: Staff Recommendation for Mitigation of Parking for 21 Muzzey
On July 23, 2014 staff from the Planning, Community Development and Economic Development
Departments met with you to discuss the redevelopment proposal at 21 Muzzey Street and the
associated request for a Special Permit from the Zoning Board of Appeals to waive the required
parking spaces. The following summarizes the outcome of the discussion:
Staff recommends that the Zoning Board of Appeals only consider granting a Special Permit to
waive the required parking for this project if the mitigation for the requested number of parking
spaces is provided by one (or a combination) of the following options:
1.Provide documentation through a contract/lease on an annual basis that indicates the
developer has secured 20 parking spaces, the number currently requested under the
Special Permit, with a private property owner(s); or
2.Provide the Town annual payments equivalent of the value the Town charges for an
annual business parking permit per the total number of parking spaces requested,
currently proposed under the Special Permit as 20 spaces; or
3.Partner with the Town’s Economic Development Director to coordinate property owners
adjacent to the Cary Library parking lot to agree to aggregating individual lots and
developing a large shared parking lot that would increase the overall number of parking
spaces in the area per the recommendation in the Nelson Nygaard May 2014 Parking
Management and Implementation Plan. This option assumes an agreement would be
completed prior to the Certificate of Occupancy being issued by the Building
Commissioner. In the event the agreement requires more time or cannot be achieved, the
developer would have to mitigate the parking by options 1 or 2 described above.
Subsequent to the staff level meeting, the developer, Todd Cataldo, requested a meeting with
staff to discuss the rationale for their recommendation. The meeting was held the next day, on
th
July 24 with the Town Manager and staff from the Planning, Community Development and
Economic Development Departments, and it also included the developer’s attorney, John
Farrington. After discussion of the rationale for the parking mitigation and the options, the
developer expressed willingness to provide the recommended mitigation in some fashion as
outlined. However, details were not discussed. A Memorandum of Understanding would need to
be drafted if the Board of Selectmen approves any type of negotiation.
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE:PRESENTER: ITEM NUMBER:
July 28, 2014 Carl F. Valente I.8
SUBJECT:
Elimination of Disposition/Burial Permit Fee
EXECUTIVE SUMMARY:
See attached memo from Town Clerk.
FINANCIAL IMPACT:
Estimated $3,000 loss of revenue to Town.
RECOMMENDATION / SUGGESTED MOTION:
Move to eliminate the $15 fee for issuance of disposition/burial permits, effective August 1,
2014.
STAFF FOLLOW-UP:
Town Clerk and Finance
Prepared by cfv
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE: STAFF: ITEM NUMBER:
July 28, 2014 Rob Addelson, Asst. Town Mgr. for Finance I.9
SUBJECT: Approve Increase in Authorization for PEG Access Revolving Fund
EXECUTIVE SUMMARY:
At each annual town meeting, a spending ceiling is established for each revolving fund authorized under the
provisions of MGL Chapter 44, Section 53E ½. At the 2013 annual town meeting, an FY14 spending ceiling of
$450,000 was voted for the PEG Access Fund, the fund that is used primarily to finance our contract with
LexMedia and other related costs for the broadcast of public, educational and governmental programming. That
ceiling was increased, per statutory procedure by a vote of the Selectmen and the Appropriations Committee to
$490,000 to finance the proposed installation of fiber optic cable in Bedford Street to provide a redundant
pathway for the Town’s computer network. Notwithstanding this increase, a fiscal year-end analysis of the PEG
Access Fund shows that year-end spending will exceed the $490,000 ceiling by approximately $71,000. This
additional spending is predominantly attributable to three factors: the allocation of a portion of the salary of a
Facilities Department employee who supports the delivery of LexMedia governmental programming, particularly
town meeting ($13,274); legal services provided to the Communications Advisory Committee in support of its
negotiation of cable contract renewals ($4,880); and, the cost of fitting out the large meeting room at the Library
to accommodate broadcasts by LexMedia ($45,115) which was approved by the Board of Selectmen on July 29,
2013.
This agenda item seeks approval of the Board of Selectmen to increase the FY14 spending ceiling for the PEG
Access revolving fund from $490,000 to $561,000 to cover the spending described above. Approval by the
Appropriations Committee will be needed in addition to approval by the Board of Selectmen. There is adequate
revenue in the Revolving Fund to support this increase.The current available balance in the fund is $913,000.
FINANCIAL IMPACT:
RECOMMENDATION / SUGGESTED MOTION: Move to approve the increase in the FY14 spending
ceiling for the PEG Access Revolving Fund from $490,000 to $561,000.
STAFF FOLLOW-UP:
Finance Department
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE: 7/28/14 STAFF: Lynne Pease ITEM NUMBER: I.10
SUBJECT:
Limousine License Renewals – R&M Ride
EXECUTIVE SUMMARY:
R&M Ride has provided the necessary paperwork to renew their Limousine License. A CORI
check for Ronald and Veronica Magembe came back with no information. This renewal is for
the period May 1, 2014 through May 1, 2015. The license will be subject to receiving an
Inspection Report from the Police Department. At this time we are licensing only one vehicle
since only one commercial vehicle is allowed by zoning regulations.
See attached information.
FINANCIAL IMPACT:
RECOMMENDATION / SUGGESTED MOTION:
Motion to approve the application and issue one (1) Limousine License to R&M Ride, 24
Deering Avenue, subject to receiving a favorable Inspection Report from the Police Department.
STAFF FOLLOW-UP:
Selectmen’s Office
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE: 7/28/14 STAFF: Lynne Pease ITEM NUMBER: I.11
SUBJECT:
Approve and Sign Eagle Letter Congratulating Justin Krasinski
EXECUTIVE SUMMARY:
You are being asked to sign a letter of commendation for Boy Scout Eagle Justin Krasinski. See
attached letter requesting the commendation and the proposed eagle letter.
FINANCIAL IMPACT:
RECOMMENDATION / SUGGESTED MOTION:
Motion to send a letter of commendation to Justin Krasinski congratulating him on attaining the
highest rank of Eagle in Boy Scouting.
STAFF FOLLOW-UP:
Selectmen’s Office
June 2, 2014
Justin Krasinski
Troop 160
St. Brigid Parish
2001 Massachusetts Avenue
Lexington, MA 02421
Dear Justin,
Congratulations on attaining the highest rank in Scouting. We know the trail to
Eagle has not always been an easy one and we recognize that you have had to work hard
to get this far. Your time in positions of leadership within Troop 160, and the successful
completion of your Eagle project, speaks to your dedication.
Being an Eagle is so much more than just another rank. It is a recognition of what
you have achieved so far, but of more importance is the implied promise you have made
to maintain the ideals of Scouting into your adult life.
We know that your family and fellow Scouts are proud of you and will look to
you to be a leader as you continue your journey beyond Eagle.
Again, congratulations and good luck in all your future endeavors.
Sincerely,
Joseph N. Pato, Chairman
Peter C. J. Kelley
Norman P. Cohen
Michelle L. Ciccolo
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE:STAFF: ITEM NUMBER:
July 28, 2014 Carl Valente I.12
SUBJECT:
Appointments: Council on Aging
EXECUTIVE SUMMARY:
I am requesting that the Board approve the Town Manager’s appointment of Ellen Cameron and
Richard McDonough to the Council on Aging. There were 10 applicants for these two open
board seats. Staff also reached out to CAAL and IAL for candidates.
FINANCIAL IMPACT:
None
RECOMMENDATION / SUGGESTED MOTION:
Move to approve the Town Manager’s appointment of: Ellen Cameron and Richard McDonough
to the Council on Aging.
STAFF FOLLOW-UP:
TMO
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE: 7/28/14 STAFF: Lynne Pease ITEM NUMBER: I.13
SUBJECT:
Liaisons and Memberships on Boards and Committees
EXECUTIVE SUMMARY:
Attached is a list prepared by Joe of Selectmen Liaison/Membership assignments. This list will
be revisited when a new Selectmen is elected. Let Joe know if you have any questions/concerns
about these assignments.
FINANCIAL IMPACT:
RECOMMENDATION / SUGGESTED MOTION:
STAFF FOLLOW-UP:
Selectmen’s Office
Board of Selectmen Liaisons, Etc.
Ciccolo
Board of Selectmen member
Community Center Advisory Committee Chair
Community Farming Committee member
Sidewalk Committee Liaison
Add:
128 Central Corridor Coalition member
Boston Region Metropolitan Planning Organization Liaison
Cary Library Trustees member
Council on Aging Liaison
Greenways Corridor Committee Liaison
MAGIC member
MBTA Liaison
Transportation Advisory Committee Liaison
Youth Sports Council Liaison
Cohen
Board of Selectmen member
Cary Library Trustees Executive Committee member
Cary Library Trustees member
Community Preservation Committee member
Electric Utility Ad Hoc Committee Liaison
Fund for Lexington Board Chair
Human Services Committee Liaison
Lexington Housing Assistance Board (LexHAB) Liaison
Policy Manual Committee Chair
Tax Deferral and Exemption Study Committee Liaison
Youth Services Council member
Add:
Council for the Arts Liaison
Human Rights Committee Liaison
Sister City Group Liaison
Kelley
Board of Selectmen member
Cary Library Trustees member
Design Advisory Committee Liaison
Economic Development Advisory Committee Liaison
Munroe Center for the Arts Board member
Noise Advisory Committee Liaison
Permanent Building Committee Liaison
Police Manual Policy Committee Liaison
Tourism Committee Liaison
Town Celebrations Committee Liaison
Townwide Facilities Master Planning Committee (Ad Hoc) member
Youth Commission Liaison
Add:
Cary Memorial Building Renovation Design Committee Liaison
Council on Aging Liaison
Fund for Lexington Board member
Recreation Committee Liaison
Tree Committee Liaison
Pato
2020 Vision Committee Liaison
Bicycle Advisory Committee Liaison
Board of Selectmen member, Chair
Cary Library Trustees Executive Committee member
Cary Library Trustees member
Center Committee Liaison
Communications Advisory Committee Liaison
Community Center Advisory Committee Liaison
Economic Development Advisory Committee Liaison
Historical Society Liaison
Housing Partnership Board Liaison
MWRA Advisory Board Liaison
Scenic Byway Working Group Liaison
Sustainable Lexington Committee Liaison
Townwide Facilities Master Planning Committee (Ad Hoc) member
Add:
Commission on Disability Liaison
Energy Conservation Committee Liaison
Hanscom Area Towns Committee member
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE: 7/28/14 STAFF: Lynne Pease ITEM NUMBER: I.14
SUBJECT:
Approve Changes to 2020 Vision Committee Charge
EXECUTIVE SUMMARY:
Attached is a proposed new charge for the 2020 Vision Committee that streamlines the language
and specifies a membership of 13. Also attached is the current charge.
FINANCIAL IMPACT:
RECOMMENDATION / SUGGESTED MOTION:
Motion to adopt the revised charge for the 2020 Vision Committee.
STAFF FOLLOW-UP:
Selectmen’s Office
20/20 VISION COMMITTEE
Members:13
Appointed By:Board of Selectmen
Term Length:3-years, staggered, September 30
Staff: Town Manager’s Office
Description: The Lexington 20/20 Vision Committee’s role is to identify a shared vision for
Lexington’s future and communicate that vision to municipal decision-makers. To pursue this role
the Committee will:
Engage the Lexington community to think about Lexington’s long-term future.
Identify and assess opportunities and challenges that may shape Lexington’s future.
Make recommendations to the Board of Selectmen and, as appropriate, the School Committee and
Planning Board.
Measure, track, and report progress on topics studied.
Method: The 20/20 Vision Committee draws on its own members’ skills and experiences, recruits
volunteers with special expertise, and specifically it:
Conducts surveys of Lexington’s residents on issues broadly affecting the community.
Sponsors studies on issues of importance to Lexington’s future via scope groups and task forces.
Communicates results and recommendations to the elected boards and the community. Any and
all recommendations of the Committee, including funding recommendations for facility upgrades
or in support of the Committee’s work, shall be made only to the Board of Selectmen unless the
Selectmen direct otherwise. The Board of Selectmen may choose whether to further these
recommendations, including presenting the request to Town Meeting, based on the Board’s
determination of what is in the best interests of the community.
Membership: The 20/20 Vision Committee seeks members who have an interest in and a
commitment to the future of Lexington and a background in one or more of the following areas:
Familiarity with the community (e.g. experience as an elected member of Town government or
committee member; participation in a community group or organization; work in a Lexington
business or profession.)
Skills beneficial to performing the work of the Committee (e.g. demographics, finance, law,
project management, social sciences, survey design, and analysis.)
Fresh perspectives and a passion for the positive future of Lexington (e.g. new Lexington
residents who are familiar with ideas or solutions that could potentially be applied for the benefit
of Lexington.)
One representative from each of Lexington’s three elected boards (Board of Selectmen, School
Committee, Planning Board) shall be a member of the Committee.
Prior to serving as a member of the Committee, appointees are required to:
1.Acknowledge receipt of the Summary of the Conflict of Interest Statute. Further, to continue to
serve on the Committee the member must acknowledge annually receipt of the summary of the
Conflict of Interest Statute provided by and acknowledged by the Town Clerk.
2.Provide evidence to the Town Clerk that the appointee has completed the on-line training
requirement required by the Conflict of Interest Statute. Further, to continue to serve on the
Committee, every two years the member must acknowledge completion of the on-line training
requirement.
Reference: Charge adopted by the Board of Selectmen on April 4, 2001.
Name change adopted by Board of Selectmen October 20, 2003.
Board of Selectmen voted to designate as Special Municipal Employees on 1/18/06.
Selectmen revised the charge to streamline the language and specify membership of 13 on July 28, 2014.
2020 VISION COMMITTEE
Members: Up to 20
Appointed by: Board of Selectmen
Length of Term: 3 years, staggered
Appointments Made: September 30
Meeting Time: As Posted
Description
: The 2020 Vision Committee will be stewards of the January 2001 Status Report and monitor the
implementation Process. Focusing on the goals, objectives, and action items, they will identify priorities, and those
entities, which have responsibility. The Committee will not be involved in implementation directly, but will have
ongoing interaction with appropriate town bodies around the implementation steps. The Committee will develop
well-defined measures for tracking and a schedule for reporting on implementation progress.
The Committee will also keep larger constituencies engaged in the visions and goals, which belong to the entire
community. Liaison, ongoing communication, and periodic reporting will keep the visions fresh. Finally, the
Implementation Committee is responsible for recommending when the entire visioning process needs to be re-
initiated.
Criteria for Membership
: One representative from each of the three elected boards (Board of Selectmen, School
Committee, Planning Board) shall be a member of the committee. The remaining members shall be Lexington
residents or people working in Lexington who represent a variety of perspectives. Terms will be staggered to ensure
ongoing renewal of the committee.
Ref.: Charge adopted by the Board of Selectmen on April 4, 2001.
Selectmen designated as Special Municipal Employees on January 18, 2006.
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE: 7/28/14 STAFF: Lynne Pease ITEM NUMBER: I.15
SUBJECT:
Selectmen Committees
a.Approve Revised Charge of the Monuments and Memorials Committee
b.Resignation/Appointments – Monuments and Memorials Committee
c.Resignation/Appointment – Fund for Lexington
d.Resignation – HATS
e.Resignation/Appointments – Town Report Committee
f.Reappointment – Munroe Center for the Arts
EXECUTIVE SUMMARY:
Mr. Kelley requested a change to the Monuments and Memorials Committee to reflect that the Selectmen
would be a Liaison instead of a voting member. The Tourism Committee has requested that Bebe Fallick
be appointed to the Monuments and Memorials Committee representing the Tourism Committee. Mr.
Kelley will be the Selectman Liaison to the Committee and the Committee requested that Kathryn Jacobs
be appointed a member.
Ms. Mauger has submitted her resignation from the Fund for Lexington Board. Mr. Kelley would like to
become a member of the Fund for Lexington Board.
Ms. Mauger has submitted her resignation from the Hanscom Area Towns Committee.
Ms. Mauger has submitted her resignation from the Town Report Committee. Please appoint Tanya
Morrisett and Hank Manz to the Town Report Committee.
Mr. Kelley’s term on the Munroe Center for the Arts Board expires July 31, 2014. He would like to be
reappointed for another 3-year term.
FINANCIAL IMPACT:
RECOMMENDATION / SUGGESTED MOTION:
Motion to accept the resignation of Peter Kelley from the Monuments and Memorials Committee.
Motion to appoint Kathryn Jacobs to the Monuments and Memorials Committee to fill the unexpired term
of Peter Kelley until September 30, 2014.
Motion to appoint Bebe Fallick to the Monuments and Memorials Committee representing the Tourism
Committee until September 30, 2015.
Motion to accept the resignation of Deborah Mauger from the Fund for Lexington Board, effective
immediately.
Motion to appoint Peter Kelley to the Fund for Lexington Board.
Motion to accept the resignation of Deborah Mauger from the Hanscom Area Towns Committee,
effective immediately.
Motion to accept the resignation of Deborah Mauger from the Town Report Committee, effective
immediately.
Motion to appoint Tanya Morrisett and Hank Manz to the Town Report Committee for terms to expire
September 30, 2015.
Motion to reappoint Peter Kelley to the Munroe Center for the Arts Board for a 3-year term to expire July
31, 2017.
STAFF FOLLOW-UP:
Selectmen’s Office
Monuments and Memorials Committee
Membership: Seven
Appointed by: Selectmen
Length of Term: 3 years, September 30 appointments, staggered
Meeting Times: As needed
Description: The Committee will develop and publish an inventory of existing public and private
memorials within Lexington, assess the condition of these public memorials, and recommend to the Board
of Selectmen an annual maintenance and restoration plan.
The Committee will be charged with identifying the need for new public memorials for veterans and/or
other persons or events and recommend possible design and locations for such memorials. All records
pertaining to actions of the Monuments and Memorials Committee shall be filed with the Town Clerk for
archiving purposes.
Criteria for Membership: The Committee seeks members with one or more of the following backgrounds:
1. Is a military veteran or represents a veterans’ organization;
2. Is knowledgeable about Lexington’s history;
3. Has knowledge and expertise in design, construction and preservation of statuary and monuments.
The Chair will be appointed by the Board of Selectmen.
A liaison shall be identified from each of the following: Selectmen, Town Celebrations Committee,
Department of Public Facilities, Department of Public Works, and the Lexington Historical Society.
The Veterans’ Services Office shall provide staff support.
Prior to serving as a member of this Committee, appointees are required to:
1.Acknowledge receipt of the Summary of the Conflict of Interest statute. Further, to continue to
serve on the Committee the member must acknowledge annually receipt of the Summary of the
Conflict of Interest statute. Said summary will be provided by and acknowledged to the Town
Clerk.
2.Provide evidence to the Town Clerk that the appointee has completed the on-line training
requirement required by the Conflict of Interest statute. Further, to continue to serve on the
Committee, the member must acknowledge every two years completion of the on-line training
requirement.
Ref.: Charge adopted by the Board of Selectmen on March 26, 2014.
The Selectmen voted on April 7, 2014 to designate members of this committee as Special
Municipal Employees.
Selectmen approved a revised charge to add a Selectmen Liaison on July 28, 2014.
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE: 7/28/14 STAFF: Lynne Pease ITEM NUMBER: C.2-6
SUBJECT:
Consent
EXECUTIVE SUMMARY:
2.Approve the request of LexFUN to use the Battle Green on Saturday, October 25, 2014, from
9:30 a.m. to 12:00 noon for the annual Halloween Parade. Town Manager will approve the
use of Buckman Tavern grounds.
3.Delegate Street Performer Licensing to Town Manager’s Office (Chapter 76-3 of the Code of
the Town of Lexington) until the Bylaw can be amended at the 2015 Annual Town Meeting.
4.Approve Cost of Living Adjustment for Non-Represented Staff Omitted from the List Voted
on June 30, 2014.
5.Approve the Lexington Minute Men request for Cannon Salutes on the Battle Green during
their Change of Command ceremony on Saturday, October 4, 2014 between 12:00 noon and
4:00 p.m., subject to receiving the necessary approval/permit from the Fire Department and
contacting Public Works to schedule a walkthrough for the cannon prior to the event.
6.Approve the Selectmen minutes of May 19, 2014, June 2, 2014, June 9, 2014, June 16, 2014,
June 19, 2014, June 30, 2014 and July 14, 2014.
7.Approve the Selectmen executive sessions minutes of May 19, 2014, June 2, 2014, June 30,
2014 and July 14, 2014.
See attached information.
FINANCIAL IMPACT:
RECOMMENDATION / SUGGESTED MOTION:
Motion to approve the Consent Agenda.
STAFF FOLLOW-UP:
Selectmen’s Office
Lynne Pease
Linda Vine
From:
Monday, July 21, 2014 2:33 PM
Sent:
To:Lynne Pease; Norman Cohen
FW: Codification - 76-3 - street musicians (performers)
Subject:
201406021151.pdf
Attachments:
Follow up
Follow Up Flag:
Flagged
Flag Status:
Lynne,Norman
IwasgoingthroughemailsandfoundthisfromDonna.Shouldwediscussandseewhatthebestsolutionwouldbeto
handling?
Linda
CƩƚƒʹDonnaHooper
{ĻƓƷʹWednesday,June04,20148:54AM
ƚʹLynnePease;LindaVine
/ĭʹDianneSnell
{ǒĬƆĻĭƷʹCodification763streetmusicians(performers)
Thereisanapparentconflictwiththegeneralbylaws763andthepracticesoftheTownre:streetperformer
licenses.ThebylawstipulatesapprovalmustbemadebytheSelectmen.OurpracticesappeartobethattheTown
Managerauthorizesperformers.
Ifso,achangeinthebylaworachangeinthepracticesseemswarranted.
Canyouconfirmandidentifynextsteps?
Thanks,
Donna
Donna M. Hooper, Town Clerk
Town of Lexington
dhooper@lexingtonma.gov
781-862-0500 x84551** new extension**
1
Town of Lexington, MAPage 1of 1
Town of Lexington, MA
Thursday, July 24, 2014
Chapter 76. LICENSES AND PERMITS
§76-3. Street musicians.
No person shall sing, play or perform on any musical instrument in any street or public
place and solicit or receive any compensation or contribution therefor from bystanders or
the public without first having obtained a license therefor from the Selectmen.
http://ecode360.com/print/LE1818?guid=105350447/24/2014
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
DATE:PRESENTER: ITEM NUMBER:
July 28, 2014 Consent Agenda
SUBJECT:
Approve Cost of Living Adjustment for Non-Represented Staff omitted from the list voted
on June 30, 2014.
EXECUTIVE SUMMARY:
A 2% cost of living adjustment for Fiscal Year 2015 for two (2) positions that were
omitted from the list approved on June 30, 2014.
o Assistant to the Project Manager – Department of Public Facilities
o Recording Secretary – Department of Public Facilities
FINANCIAL IMPACT:
This cost of living adjustment for non-represented staff is within the amount allocated in FY15
operating budgets.
RECOMMENDATION / SUGGESTED MOTION:
Move to approve and authorize a cost of living adjustment for non-represented employees
for Fiscal Year 2015.
STAFF FOLLOW-UP:
TMO/Human Resources
Prepared by cfv