R2022-161 Resolution Authorizing Agreement with Hawk-Atollo for Power Purchase Agreement Regarding Solar Canopy Project

Home Browse Search

DocuSign Envelope ID:221 D6B40-33AE-418B-BC60-E598F733ACF1 Exhibit A POWE"URCHASE AGREEMENT w w ■K h. Non-Dedication of Facilities. Nothing herein shall be construed as the dedication by either Party of its facilities or equipment to the public or any part thereof. Neither Party shall knowingly take any action that would subject the other Party, or other Party's facilities or equipment, to the jurisdiction of any Governmental Authority as a public utility or similar entity. Neither Party shall assert in any proceeding before a court or regulatory body that the other Party is a public utility by virtue of such other Party's performance under this agreement. If Seller is reasonably likely to become subject to regulation as a public utility,then the Parties shall use all reasonable efforts to restructure their relationship under this Agreement in a manner that preserves their relative economic interests while ensuring that Seller does not become subject to any such regulation. If the Parties are unable to agree upon such restructuring, Seller shall have the right to terminate this Agreement without further liability,and Seller shall remove the System in accordance with Section 11 of this Agreement. i. Estoppel. Either Party hereto,without charge, at any time and from time to time, within five (5) business days after receipt of a written request by the other party hereto, shall deliver a written instrument, duly executed, certifying to such requesting party, or any other person specified by such requesting Party: (i) that this Agreement is unmodified and in full force and effect, or if there has been any modification,that the same is in full force and effect as so modified, and identifying any such modification; (ii)whether or not to the knowledge of any such party there are then existing any offsets or defenses in favor of such party against enforcement of any of the terms, covenants and conditions of this Agreement and, if so, specifying the same and also whether or not to the knowledge of such party the other party has observed and performed all of the terms, covenants and conditions on its part to be observed and performed,and if not,specifying the same; and (iii)such other information as may be reasonably requested by the requesting Party. Any written instrument given hereunder may be relied upon by the recipient of such instrument,except to the extent the recipient has actual knowledge of facts contained in the certificate. j. Service Contract.The Parties intend this Agreement to be a "service contract"within the meaning of Section 7701(e)(3) of the Internal Revenue Code of 1986. Purchaser will not take the position on any tax return or in any other filings suggesting that it is anything other than a purchase of electricity from the System. k. No Partnership. No provision of this agreement shall be construed or represented as creating a partnership,trust,joint venture,fiduciary or any similar relationship between the Parties. No Party is authorized to act on behalf of the other Party, and neither shall be considered the agent of the other. 1. Full Agreement, Modification, Invalidity, Counterparts, Captions. This Agreement, together with any Exhibits,completely and exclusively states the agreement of the Parties regarding its subject matter and supersedes all prior proposals, agreements, or other communications between the Parties, oral or written, regarding its subject matter. This Page 34 of 52