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TR-2016-46 SOLAR PHASE 2 AMERESCO RT 57 .. aw d . TR-2016-46 A RESOLUTION ACCEPTING PAYMENTS FROM MA SOLAR HIGHWAY PHASE 2 LLC, IN ACCORDANCE WITH MASSACHUSETTS GENERAL LAWS CHAPTER 59, §38H(b)TO THE TOWN OF AGAWAM Sponsored by Mayor Richard A Cohen Whereas the CITY OF AGAWAM has entered into an agreement with MA SOLAR HIGHWAY PHASE 2 LLC, a Delaware limited liability company ("Developer")to develop, install, build, and operate ground-mounted solar photovoltaic electric generating facilities (the "Project") on property in Agawam, Massachusetts as shown on Exhibit A hereto("Property'l; WHEREAS, the aforesaid solar photovoltaic electric generating facilities consist of the following personal property: (a) solar modules, solar inverter systems, and solar power generating facilities including racking, foundations, support structures, braces and other structures and equipment; (b) wires, cables, conduits, footings, foundations, interconnection and/or switching facilities, circuit breakers, transformers, combiner boxes; (c) control and communication systems; and (d) other improvements, facilities, materials parts, systems, structures, and equipment in any way related to or associated with generation, conversion, storage, switching,metering,transmission,distribution, conducting, sale or other use or conveyance of electricity(the"Solar Facilities"); WHEREAS, Developer and the Massachusetts Department of Transportation ("MDOT') have entered into a Master Solar License and Power Purchase Agreement(as same may be amended from time to time,the "PPA") pursuant to which MDOT will purchase all electricity generated by the Project and Developer will license land owned by MDOT for installation of the Project; WHEREAS,because both Developer and the Town need an accurate projection of their respective expenses and revenues with respect to the real and personal property that is taxable under law,the Parties believe that it is in their mutual best interests to enter into this Agreement fixing the payments that will be made with respect to all taxable real and personal property incorporated within the Project for the term of the Agreement; WHEREAS,it is the intention of the Parties that Developer make payments to the Town for the term of this Agreement on account of real and personal property taxes,under the authority of and in accordance with Massachusetts General Laws Chapter 59, §38H(b),as amended; WHEREAS,the Parties intend that,during the term of the Agreement,Developer will not be assessed for any statutory real and personal property taxes on account of the Project to which it might otherwise be subjected under Massachusetts law,and this Agreement will provide for the exclusive tax payments in lieu of real and personal property taxes that Developer(or any successor owner of the Project)will be obligated to make to the Town with respect to the Project during the term hereof, provided, however,that the Parties do not intend for this Agreement to affect any direct payments for services provided by the Town to the Project, including but not limited to,water and sewer services, building permit fees,and similar payment obligations not in the nature of real or personal property taxes or preclude other assessments of general applicability by the Town for excise taxes on vehicles due pursuant to General Laws Chapter 60A or substitutes for such taxes that Developer may otherwise be obligated to pay to the Town; and WHEREAS,the Town is authorized to enter into this Agreement with Developer,as the culmination of good faith negotiations that anticipate that the tax payments over the life of the Agreement will amount to the equivalent,taking into account other benefits to be received by the Town in the PPA,of the property tax payments that would otherwise be determined under M.G.L. c.59 based upon the full and fair cash valuation of the Project;. NOW THEREFORE,the Agawam City Council resolves that: Developer shall make annual payments in lieu of real and personal property taxes to the Town, beginning in Fiscal Year One and continuing until the earlier of(x) termination of the PPA and removal of the Project from the Property and (y) conclusion of Fiscal Year Twenty(20), in such amounts as calculated by the Town each year based on the Depreciation Values set forth in Exhibit B for the applicable year; provided that, the aggregate amount of payments over the twenty(20)-year term of this Agreement shall not to exceed the Maximum Aggregate Terre Payment of six hundred twenty thousand five hundred and twenty four dollars and no cents ($620,524.00). For purposes hereof, "Fiscal Year 1" shall mean the Town's first fiscal year commencing after the Project's Commercial Operation Date (as defined in the PPA), and "Fiscal Year 20_" shall mean the twentieth (20`s) fiscal year following the commencement of Fiscal Year 1. Dated this y�k dayof 2016. Dri $ee, 7)i a k. C6 u.rt el PER ORDER OF THE AGAWAM CITY COUNCIL Cr Ag*-5S0yS James If. Cichetti, President APPROVED AS TO FORM AND LEGALITY /01 Z�: Patrick M. Toney,City Solicitor •j J MAYORAL ACTION r �, r Received this day of J Vl ,2016 from Council Clerk. Signed by Council President this_ 1 i 4'Oh _day of , 2016. APPROVAL OF LEGISLATION By the powers vested in me pursuant to Article 3, Section 3-6 of the Ag war rCharter, as am , I ereby approve the passage of the above legislation on this —day of 2016. Richard A. Cohen, Mayor DISAPPROVAL OF LEGISLATION By the powers vested in me pursuant to Article 3, Section 3-6 of the Agawam Charter, as amended, I hereby veto the passage of the above legislation on this day of . 2016 for the following reason(s): Richard A. Cohen, Mayor RETURN OF LEGIS+�LATION TO COUNCIL CLERK Returned to Council Clerk this day of JW 2016. barbara bard From: Kevin Baldini Sent: Thursday,June 16, 2016 12:02 PM To: barbara bard Cc: Patrick Toney, Mayor Richard Cohen Subject: Propopsed Amersesco Solar Project Attachments: MassDOT Solar_Agawam Projects Structured Tax-Reworked KB_MZ - Copy l.pdf, Solar Deprc Sched.pdf Hi, Barbara: I have attached a spreadsheet detailing the structured tax agreement for the proposed solar project to be developed by Ameresco on land owned by the Massachusetts Department of Transportation. I have also attached a depreciation schedule for the solar project if it was to be assessed as a regular personal property account. I will be available for a future subcommittee meeting to explain the spreadsheet and the depreciation schedule. As always,the councilors can contact me at any time for an explanation. I apologize for the spreadsheet being such small print, but it has a lot of columns of information on one page. Mike Zimmer from Ameresco will also be at the subcommittee meeting to give greater detail of the project. Thanks, Kevin 404 LJrc&If/ Assessor Town of Agawam, 413-786-0400 x 8704 i . _ . "•■ } �! k $m . �! ■ ■§ � �: , ` | ! \! k ' k k K§ k f° ! � - |7 - 7� ■ 7 , . ,|■a ■ �! k! | , § .e � .. �!! !�, ■� SOLR 0.00 SOLR-0 3.00 SOLR 1.00 SOLR-1 7.00 SOLR 2.00 SOLR-2 11.00 SOLR 3.00 SOLR-3 16.00 SOLR 4.00 SOLR-4 20.00 SOLR 5.00 SOLR-5 25,00 SOLR 6.00 SOLR-6 30,00 SOLR 7.00 SOLR-7 35.00 SOLR 8.00 SOLR-8 40.00 SOLR 9.00 SOLR-9 45.00 SOLR 10.00 SOLR-10 50.00 SOLR 11.00 SOLR-11 55.00 SOLR 12.00 SOLR-12 60.00 SOLR 13.00 SOLR-13 65.00 SOLR 14.00 SOLR-14 69.00 SOLR 15.00 SOLR-15 71.00 SOLR 16.00 SOLR-16 73.00 SOLR 17.00 SOLR-17 75.00 SOLR 18.00 SOLR-18 77.00 SOLR 19.00 SOLR-19 79.00 TR-2016-46 A RESOLUTION ACCEPTING PAYMENTS FROM MA SOLAR HIGHWAY PHASE 2 LLC, IN ACCORDANCE WITH MASSACHUSETTS GENERAL LAWS CHAPTER 59, §38H(b) TO THE TOWN OF AGAWAM Sponsored by Mayor Richard A Cohen Whereas the CITY OF AGAWAM has entered into an agreement with MA SOLAR HIGHWAY PHASE 2 LLC, a Delaware limited liability company ("Developer") to develop, install, build, and operate ground-mounted solar photovoltaic electric generating facilities (the "Project") on property in Agawam, Massachusetts as shown on Exhibit A hereto("Property"); WHEREAS, the aforesaid solar photovoltaic electric generating facilities consist of the following personal property: (a) solar modules, solar inverter systems, and solar power generating facilities including racking, foundations, support structures, braces and other structures and equipment; (b) wires, cables, conduits, footings, foundations, interconnection and/or switching facilities, circuit breakers, transformers, combiner boxes; (c) control and communication systems; and (d) other improvements, facilities, materials parts, systems, structures, and equipment in any way related to or associated with generation, conversion, storage, switching, metering, transmission, distribution, conducting, sale or other use or conveyance of electricity(the"Solar Facilities"); WHEREAS, Developer and the Massachusetts Department of Transportation ("MDOT") have entered into a Master Solar License and Power Purchase Agreement(as same may be amended from time to time, the "PPA") pursuant to which MDOT will purchase all electricity generated by the Project and Developer will license land owned by MDOT for installation of the Project; WHEREAS, because both Developer and the Town need an accurate projection of their respective expenses and revenues with respect to the real and personal property that is taxable under law, the Parties believe that it is in their mutual best interests to enter into this Agreement fixing the payments that will be made with respect to all taxable real and personal property incorporated within the Project for the term of the Agreement; WHEREAS, it is the intention of the Parties that Developer make payments to the Town for the term of this Agreement on account of real and personal property taxes, under the authority of and in accordance with Massachusetts General Laws Chapter 59, §38H(b), as amended; WHEREAS, the Parties intend that, during the term of the Agreement, Developer will not be assessed for any statutory real and personal property taxes on account of the Project to which it might otherwise be subjected under Massachusetts law,and this Agreement will provide for the exclusive tax payments in lieu of real and personal property taxes that Developer(or any successor owner of the Project)will be obligated to make to the Town with respect to the Project during the term hereof, provided, however, that the Parties do not intend for this Agreement to affect any direct payments for services provided by the Town to the Project, including but not limited to, water and sewer services, building permit fees, and similar payment obligations not in the nature of real or personal property taxes or preclude other assessments of general applicability by the Town for excise taxes on vehicles due pursuant to General Laws Chapter 60A or substitutes for such taxes that Developer may otherwise be obligated to pay to the Town; and WHEREAS, the Town is authorized to enter into this Agreement with Developer, as the culmination of good faith negotiations that anticipate that the tax payments over the life of the Agreement will amount to the equivalent, taking into account other benefits to be received by the Town in the PPA,of the property tax payments that would otherwise be determined under M.G.L. c.59 based upon the full and fair cash valuation of the Project;. NOW THEREFORE, the Agawam City Council resolves that: Developer shall make annual payments in lieu of real and personal property taxes to the Town, beginning in Fiscal Year One and continuing until the earlier of (x) termination of the PPA and removal of the Project from the Property and (y) conclusion of Fiscal Year Twenty (20), in such amounts as calculated by the Town each year based on the Depreciation Values set forth in Exhibit B for the applicable year; provided that, the aggregate amount of payments over the twenty (20)-year term of this Agreement shall not to exceed the Maximum Aggregate Term Payment of six hundred twenty thousand five hundred and twenty four dollars and no cents ($620,524.00). For purposes hereof, "Fiscal Year I" shall mean the Town's first fiscal year commencing after the Project's Commercial Operation Date (as defined in the PPA), and "Fiscal Year 20" shall mean the twentieth (200) fiscal year following the commencement of Fiscal Year 1. Dated this day of , 2016. PER ORDER OF THE AGAWAM CITY COUNCIL James P. Cichetti, President APPROVED AS TO FORM AND LEGALITY 1�41— Z;L Patrick M. Toney, City Solicitor EMI A Description of Property The Project will be installed at the intersection of Route 159 and Route 57 on the west side of Route 159 at the grcenfields of the cloverleaf. See attached drawings. ( [ \ i § � ■ �§ 2|§ ��� . � � " ` ] y � � | �\ \ ` |( . |�� £ . | |� 10 POM PU9A MM KW 00 UM PV MMY MT04LATION PHOTWOLT04 AWY LAVOUr m AMERESCO VA M f VA U ROTERCHOJOE SON AWY EXHIBIT B Maximum Aggregate Term Payment: $620,524 Fiscal Year Depreciated Value($} I $929,000 2 $915,065 3 $901,705 4 $888,179 5 $875,123 6 $862,259 7 $849,325 8 $836,840 9 $824,538 10 $812,418 11 $800,483 12 $788,716 13 $777,122 14 $765,698 . 15 $754,213 16 $742,975 17 $731,830 18 $721,073 19 $710,473 20 $700,029 STRUCTURED TAX AGREEMENT THIS STRUCTURED TAX AGREEMENT (this "Agreement") is made and entered into as of 2016, by and between MA SOLAR HIGHWAY PHASE 2 LLC, a Delaware limited liability company ("Developer") with an address of c/o Ameresco, Inc., I I I Speen Street, Suite 410, Framingham, MA 01701, and the TOWN OF AGAWAM, a municipal corporation of the Commonwealth of Massachusetts with an address of 36 Main Street, Agawam, MA 01001 (the "Town"). Developer and the Town are collectively referred to in this Agreement as the "Parties" and are individually referred to as a"Party". WHEREAS, Developer intends to develop, install, build, and operate ground-mounted solar photovoltaic electric generating facilities(the"Project") on property in Agawam, Massachusetts as shown on Exhibit A.hereto("Property"); WHEREAS, the aforesaid solar photovoltaic electric generating facilities consist of the following personal property: (a) solar modules, solar inverter systems, and solar power generating facilities including racking, foundations, support structures, braces and other structures and equipment; (b) wires, cables, conduits, footings, foundations, interconnection and/or switching facilities, circuit breakers, transformers, combiner boxes; (c) control and communication systems; and (d) other improvements, facilities, materials parts, systems, structures, and equipment in any way related to or associated with generation, conversion, storage, switching, metering, transmission, distribution, conducting, sale or other use or conveyance of electricity(the"Solar Facilities"); WHEREAS, Developer and the Massachusetts Department of Transportation ("MDOT") have entered into a Master Solar License and Power Purchase Agreement(as same may be amended from time to time, the "PPA") pursuant to which MDOT will purchase all electricity generated by the Project and Developer will license land owned by MDOT for installation of the Project; WHEREAS,because both Developer and the Town need an accurate projection of their respective expenses and revenues with respect to the real and personal property that is taxable under law,the Parties believe that it is in their mutual best interests to enter into this Agreement fixing the payments that will be made with respect to all taxable real and personal property incorporated within the Project for the term of the Agreement; WHEREAS, it is the intention of the Parties that Developer make payments to the Town for the term of this Agreement on account of real and personal property taxes, under the authority of and in accordance with Massachusetts General Laws Chapter 59, §38H(b), as amended; WHEREAS, the Parties intend that, during the term of the Agreement, Developer will not be assessed for any statutory real and personal property taxes on account of the Project to which it might otherwise be subjected under Massachusetts law, and this Agreement will provide for the exclusive tax payments in lieu of real and personal property taxes that Developer(or any successor owner of the Project) will be obligated to make to the Town with respect to the Project during the term hereof, provided, however, that the Parties do not intend for this Agreement to affect any direct payments for services provided by the Town to the Project, including but not limited to, water and sewer services, building permit fees, and similar payment obligations not in the nature of real or personal property taxes or preclude other assessments of general applicability by the Town for excise taxes on vehicles due pursuant to General.Laws Chapter 60A or substitutes for such taxes that Developer may otherwise be obligated to pay to the Town; and WHEREAS, the Town is authorized to enter into this Agreement with Developer,as the culmination of good faith negotiations that anticipate that the tax payments over the life of the Agreement will amount to the equivalent, taking into account other benefits to be received by the Town in the PPA, of the property tax payments that would otherwise be determined under M.G.L. t;.59 based upon the full and fair cash valuation of the Project;. NOW THEREFORE, in exchange for the mutual commitments and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows: 1. Payment In Lieu of Real and Personal_Prope , Taxes. Developer shall make annual payments in Iieu of real and personal property taxes to the Town, beginning in Fiscal Year One and continuing until the earlier of(x)termination of the PPA and removal of the Project from the Property and (y) conclusion of Fiscal Year Twenty (20), in such amounts as calculated by the Town each year based on the Depreciation Values set forth in Exhibit B for the applicable year; provided that, the aggregate amount of payments over the twenty (20)-year term of this Agreement shall not to exceed the Maximum Aggregate Term Payment of six hundred twenty thousand five hundred and twenty four dollars and no cents ($620,524.00). For purposes hereof, "Fiscal Year l" shall mean the Town's first fiscal year commencing after the Project's Commercial Operation Date (as defined in the PPA), and "Fiscal Year 20" shall mean the twentieth (20's) fiscal year following the commencement of Fiscal Year 1. Each annual payment shall be made to the Town in two equal installments on or before January 1 and July 1 of each fiscal tax year during the term of this Agreement, and the annual payment amount and payment date and the Town's wire instructions will be noted on a bill issued by the Town to the Developer at least thirty(30) calendar days prior to the due date. The first and last payments shall be pro-rated based on the number of days in the semi-annual periods, respectively. The Town specifically agrees that the semi-annual payment amounts will be paid by wire transfer and not by check. The Town agrees that the Depreciation Values and Maximum Annual Term Payment set forth on Exhibit B will not be increased on account of an inflation factor,revaluation or increase in the Town's tax rate or assessment percentage. 2. Improvements or-Additions,Retirements. From and after the Commercial Operation Date and continuing throughout the term of this Agreement and any extension or renewal thereof, the Developer shall provide written notice to the Town of any improvement, addition, retirement and/or replacement of any personal or real property to the Project, such notice to be provided within thirty (30) calendar days after such improvement, addition, retirement or replacement is installed and, if applicable, commissioned. The Town, its officers, employees, consultants and attorneys will have the right to inspect the Project in connection with any such notice. If such improvement, addition, retirement or replacement adds value to the Project, as reasonably determined by the Agawam Board of Assessors, which determination shall include consideration of documentation relating thereto provided by Developer and reasonably acceptable to the Agawam Board of Assessors, the remaining tax payments shall be adjusted to reflect any increase in the value of the Project using the cost method. To the extent that Developer retires or removes any capital improvements from the Project, retires or removes any personal property or real property from the Project, or retires or removes any existing improvements, equipment or personal property from the Project, and such retirement or removal reduces the value of the Project after the Commercial Operation Date based upon documentation provided by Developer and reasonably acceptable by the Agawam Board of Assessors,the remaining tax payments will be adjusted to reflect any temporary or permanent reduction in the value of the Project. 3. Inventory. Within six(6) months after the Commercial Operation Date, Developer shall provide the Town with a comprehensive inventory of all personal property and real property incorporated into the Project(the "Inventory"). The general categories of property to be included in the Inventory are listed in Exhibit C. The Town, its officers, employees, consultants and attorneys will have the right to inspect the Project in connection with the preparation of the Inventory. Any written notice of an improvement, addition, retirement or replacement given by Developer under Section 2 shall reference the Inventory and such a notice shall constitute an update to the Inventory. The Town, its officers,employees,consultants and attorneys will have the right to periodically inspect the Project on reasonable prior notice to Developer, subject to the Town's agreeing to comply with all reasonable Developer safety and security requirements, and to review documents in the possession of Developer that relate to the inventoried property for the purpose of verifying that Developer has accurately updated the Inventory. 4. Ordinary Maintenance. No additional tax payments will be due or required for replacement of equipment or machinery that is nonfunctional, obsolete or is replaced solely due to wear and tear or casualty or as part of scheduled or unscheduled maintenance,or equipment installed as required by or in response to any statute, law, regulation,consent decree, order or case mandating such additional items, provided that such replacement equipment is not worth substantially more than the value on the commercial operation date of the replaced equipment. 5. Payment Collection. The provisions of Massachusetts General Laws Chapter 60 and other applicable law will govern the collection of any payments provided for in this Agreement as though they were real or personal property taxes due and payable to the Town thereunder. In the event Developer fails to make payments hereunder,the Town may, at its sole election and in addition to and not in limitation of any other rights and remedies hereunder, seek to collect said payments in accordance with the provisions of M.G.L.c. 59 and M.G.L. c. 60. 6. Tax Status. The Town agrees that during the term of this Agreement, the Town will not assess Developer for any real estate and personal property taxes with respect to the Project,the Solar Facilities or the licensed area to which Developer might otherwise be subject under Massachusetts law, and the Town agrees that this Agreement will exclusively govern the payments of all ad valorem real estate and personal property taxes and payments in lieu of such taxes that Developer will be obligated to make to the Town with respect to the Project and the licensed area, provided, however,that this Agreement is not intended to affect, and will not preclude,other assessments of general applicability by the Town for excise taxes on vehicles due pursuant to Massachusetts General Laws Chapter 60A and for services provided by the Town to the Project, including but not limited to, water and sewer services. The Town agrees that no real estate or personal property taxes will be due from or assessed to Developer other than the payments described in this Agreement. 7. Successors and Assi s. This Agreement will be binding upon the successors and assigns of Developer,and the obligations created hereunder will run with the Property and the Project. In the event that Developer sells,transfers, leases or assigns all or substantially all of its interest in the Project,this Agreement'wilI thereafter be binding on the purchaser, transferee or assignee. Developer may record a notice of this Agreement in the applicable registry of deeds office, and shall provide to the Town satisfactory evidence of such recording. 8. Statement of Good Faith. The Parties agree that the payment obligations established by this Agreement were negotiated in good faith in recognition of and with due consideration of the full and fair cash value of the Project,to the extent that such value is determinable as of the date of this Agreement in accordance with Massachusetts General Laws Chapter 59, §38H(b). Each Party was represented by counsel in the negotiation and preparation of this Agreement and has entered into this Agreement after full and due consideration and with the advice of its counsel and its independent consultants.The Parties further acknowledge that this Agreement is fair and mutually beneficial to them because it reduces the likelihood of future disputes over real and personal property taxes,establishes tax and economic stability at a time of continuing transition and economic uncertainty in Massachusetts and the region, and fixes and maintains mutually acceptable, reasonable and accurate tax payments for the Project that are appropriate and serve their respective interests. The Town acknowledges that this Agreement is beneficial to it because it will result in mutually acceptable, steady, predictable, accurate and reasonable payments to the Town. Developer acknowledges that this Agreement is beneficial to it because it ensures that there will be mutually acceptable, steady, predictable,accurate and reasonable tax payments for the Project. 9. Additional Documentation and Actions. Each Party will, from time to time hereafter, execute and deliver or cause to be executed and delivered, such additional instruments, certificates and documents, and take all such actions, as the other Party reasonably requests for the purpose of implementing or effectuating the provisions of this Agreement and, upon the exercise by a Party of any power, right, privilege or remedy pursuant to this Agreement that requires any consent,approval, registration, qualification or authorization of any third party, each Party will execute and deliver all applications, certifications, instruments and other documents and papers that the exercising Party may be so required to obtain. Notwithstanding the foregoing, the Town shall not be obligated to execute or deliver any applications, instruments,certifications or documents that will require the Town to interfere with the independent regulatory, legislative or executive functions of any official, board or committee of the Town. 10. Invalidi . (a) If, for any reason, including a change in applicable law, it is ever determined by the Massachusetts Appellate Tax Board or any court or governmental authority of competent jurisdiction that this Agreement is invalid then the parties shall, subject to any necessary city approval, undertake reasonable efforts to amend and or reauthorize this Agreement so as to render the invalid provisions herein lawful, valid and enforceable. If the Parties are unable to do so, this Agreement shall terminate as of the date of such determination of invalidity, and the Property and Project will thereafter be assessed and taxed, if at all, as though this Agreement did not exist. The Parties will cooperate with each other, and use reasonable efforts to defend against and contest any challenge to this Agreement by a third party. (b) The Parties understand and agree that this Agreement shall be void and unenforceable if (i)Developer is determined or declared by the Massachusetts Appellate Tax Board or a court of competent jurisdiction not to be a"generation company" or"wholesale generation company"as those terms are used and/or defined in M.G.L. c. 59 § 38H (b), and M.G.L. c. 164 § 1; and/or(ii) this Agreement is not approved by the Town's governing body, provided that any payments made hereunder by Developer before any such declaration or approval shall be and remain the property of the Town. 11. Notices.All notices,consents, requests, or other communications provided for or permitted to be given hereunder by a Party must be in writing and will be deemed to have been properly given or served upon the personal delivery thereof, or via overnight delivery service or by U.S. certified mail, return receipt requested. Such notices shall be addressed or delivered to the Parties at their respective addresses shown below. To Developer: MA Solar Highway Phase 2 LLC c/o Ameresco, Inc. I I I Speen Street, Suite 410 Framingham, MA 01701 Attention: Vice President—Solar Grid-Tie To the Town: Town of Agawam 36 Main Street Agawam, MA 01001 Attention: Mayor Any such addresses for the giving of notices may be changed by either Party by giving written notice as provided above to the other Party. Notice given by counsel to a Party shall be effective as notice from such Party. 12. Applicable Law. This Agreement is made pursuant to and shall be interpreted in accordance with the laws of the Commonwealth of Massachusetts,without regard to conflict of laws principles. Developer and the Town each consent to the jurisdiction of the Massachusetts courts and the applicable agencies of the Commonwealth of Massachusetts regarding any and all matters related to the subject hereof, including interpretation or enforcement of this Agreement or any of its provisions. 13. Venue. Any dispute arising hereunder shall be heard in the Superior Court for the County of Middlesex of the Commonwealth of Massachusetts, and in no other court or jurisdiction. 14. Good Faith. The Town and Developer shall act in good faith to carry out and implement this Agreement. 15. Force Majeure/Casualty. The Developer and the Town both recognize that there is the possibility during the term of this Agreement that all or a portion of the Property or Project may be damaged or destroyed or otherwise rendered unusable due to events beyond the control of either Party ("Force Majeure"). As used herein Force Majeure includes without limitation: acts of God, including floods, winds, storms, earthquakes, fire or other natural disaster; acts of war, or civil insurrection or disturbance, terrorism; and taking by eminent domain by any governmental entity of all or a portion of the Property. If an event of Force Majeure or casualty occurs during the term of this Agreement with respect to any portion of the Property or Project that renders or Project unusable for the customary purpose of the production of electricity for a period of more than ninety(90)days, the Developer may, at its election, notify the Town of the existence of this condition as well as of its decision whether or not to rebuild that portion of the Project so damaged or destroyed or accommodate the Project based on the land taken. In the event Developer provides such notice to the Town,then, subject to the Town's right to terminate under Section 20, below, the annual payment shall be adjusted in accordance with the provisions of Sections 2 and 3. 16. Early Termination. The Developer's obligation hereunder with respect to payments due for a particular fiscal year shall be reduced in an applicable proportional part due to the early termination of the PPA within such fiscal year. 17. Covenants of Developer. During the term of the Agreement, Developer will not voluntarily do any of the following: (a) seek to invalidate this Agreement,or otherwise take a position adverse to the purpose or validity of this Agreement;or (b) convey, without the express consent of the Town, by sale, lease or otherwise any interest in the licensed area to any entity or organization that qualifies as a charitable organization pursuant to Massachusetts General Laws Chapter 59, §5 (Third). (c) fail to pay the Town the amounts due hereunder when due in accordance with the terms of this Agreement. 18. Covenants of the Town. So long as Developer is not in breach of this Agreement during its term, the Town will not do any of the following: (a) seek to invalidate this Agreement or otherwise take a position adverse to the purpose or validity of this Agreement; (b) seek to collect from Developer any property tax upon the Property or the improvements thereon(including the Project) in addition to the amounts provided for herein; i (c), impose any lien or other encumbrance upon the licensed area or the improvements thereon(including the Project)except as is expressly provided for herein. 19. Representations of the Town. Subject to the terms of this Agreement and except as provided below,the Town represents,to the best of its knowledge and belief,that(i) it has secured all approvals of I appropriate officers, boards and bodies necessary to duly authorize the execution, delivery and performance of this Agreement and its obligations hereunder, and(ii) it is not prohibited from entering into this Agreement and discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement by the terms, conditions or provisions of any law as currently understood, any order of any court or other agency or authority of government, and(iii)this Agreement is a legal, valid and binding obligation of the Town and is enforceable in accordance with its terms, subject to applicable laws. 20, Representations of Developer. Developer represents,to the best of its knowledge and belief,that (i) it is duly organized and validly existing as a limited liability company under the laws of Delaware, and is authorized to conduct business in the Commonwealth of Massachusetts,and (ii) it has all requisite power and authority to enter into this Agreement and to perform and carry out all covenants and obligations on its part to be performed under and pursuant to this Agreement,(iii)the performance of its obligations hereunder will not violate, result in a breach of or constitute a default under any agreement or instrument to which Developer is a party or by which Developer is bound; (iv)this Agreement constitutes the legal, valid and binding obligation of Developer enforceable in accordance with its terms, except to the extent that the enforceability may be limited by applicable bankruptcy, insolvency or other laws affecting other enforcement of creditors' rights generally or by general equitable principles; (v)as of the date of this Agreement, Developer is a"generation company"or"wholesale generation company" as those terms are used and defined in M.G.L. c. 59, § 38H(b)and M.G.L.c. 164 § 1,and Developer does not qualify for a manufacturing classification exemption pursuant to M.G.L. C. 59, §5(16)(3). 21. Termination. The Town may terminate this Agreement upon written notice to Developer in the event Developer fails to make timely payments hereunder on the date due and such failure continues for sixty days after Developer receives written notice of.such failure from Town, provided that if the breach is cured within such sixty(60)-day period,the Agreement shall not be terminated. I EXHIBIT A Description of Property The Project will be installed at the intersection of Route 159 and Route 57 on the west side of Route 159 at the greenfields of the cloverleaf. See attached drawings. �9 C 1 6 ,i i� Q g i _ g a m 0wva w,w AMERESCOO ' ='" VA ���m Cri'awu'ocs+cA �r 'r�ror �uutiwY PMVU XT*JC PMU'f(AVOW I r I E; AMERESCOO ',",----� EXHIBIT B Maximum Aggregate Term Payment: 62_ 0,524 Fiscal Year Depreciated Value{$) 1 $929,000 2 $915,065 3 $901,705 4 $888,179 5 $875,123 6 $862,259 7 $849,325 8 $836,840 9 $824,538 10 $812,418 11 $800,483 12 $788,716 13 $777,122 14 $765,698 15 $754,213 16 $742,975 17 $731,830 18 $721,073 19 $710,473 20 $700,029 EXHIBIT C CATEGORIES OF INVENTORY Personal Property • Solar panels • Inverters • Transformers • Racking for the panels • Data acquisition system r