R2024-349 Resolution Authorizing a Behind the Meter Solar Project for the William Street Pump Station (2)

Home Browse Search

POWER PURCHASE AGREEMENT ("PPA") Purchaser any manufacturer's warranties that are in effect as of the purchase,and which are assignable pursuant to their terms. c. Determination of Fair Market Value. "Fair Market Value" means, in Seller's reasonable determination: (i) the amount that would be paid in an arm's length, free market transaction, for cash, between an informed, willing seller and an informed willing buyer, neither of whom is under compulsion to complete the transaction, taking into account, among other things, the age, condition and performance of the System and advances in solar technology, provided that installed equipment shall be valued on an installed basis, shall not be valued as scrap if it is functioning and in good condition and costs of removal from a current location shall not be a deduction from the valuation, or (ii)the present value (using a discount rate of all associated future income streams expected to be received by Seller arising from the operation of the System for the remaining term of the Agreement). Seller shall determine Fair Market Value within thirty (30) days after Purchaser has exercised its option to Purchase the System. Seller shall give written notice to the Purchaser of such determination,along with a full explanation of the calculation of Fair Market Value,including without limitation,an explanation of all assumptions,figures and values used in such calculation and factual support for such assumptions,figures and values. If the Purchaser reasonably objects to Seller's determination of Fair Market Value within thirty(30)days after Seller has provided written notice of such determination,the Parties shall select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry to determine the Fair Market Value of the System. Such appraiser shall act reasonably and in good faith to determine the Fair Market Value of the System based on the formulation set forth herein and shall set forth such determination in a written opinion delivered to the Parties. The valuation made by the appraiser shall be binding upon the Parties in the absence of fraud or manifest error. The costs of the appraisal shall be borne by the Parties equally. Upon purchase of the System, Purchaser will assume complete responsibility for the operation and maintenance of the System and liability for the performance of the System, and Seller shall have no further liabilities or obligations hereunder. 17. Indemnification and Limitations of Liability a. General. Each Party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other Party and the directors, officers, shareholders, partners, members, agents and employees of such other Party,and the respective affiliates of each thereof (collectively, the "Indemnified Parties"), from and against all loss, damage, expense, liability and other claims, including court costs and reasonable attorneys 'fees (collectively, "Liabilities") resulting from any third party actions relating to the breach of any representation or warranty set forth in Section 14 and from injury to or death of persons, and damage to or loss of property to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnifying Party (or its contractors, agents or employees) in connection with this Agreement; provided, however,that nothing herein shall require the Indemnifying Party to indemnify the Page 26 of 49