SOLAR ENERGY PURCHASE AND SALE AGREEMENT

This Solar Energy Purchase and Sale Agreement (“Agreement”) is made as of the following date: _________________. The Agreement, together with the exhibits, schedules and any written supplements hereto shall be referred to as the “Solar Agreement.” This Solar Agreement shall cover only the purchases and sales of Capacity, Energy, and Renewable Energy Certificates (“RECs”) from the Solar Generating Facilities (“SGF”), together referred to as “Solar Products”, executed in furtherance of the competitive bidding process dated [ ]2009, by and through which the New York Power Authority may acquire Solar Products which has been generated from SGF owned or controlled by and through the (“Respondent’s Company Name”). The terms herein shall not replace, supersede or amend any prior or subsequent agreements for the purchase or sale of energy and/or any other commodity between the parties hereto. The Parties to this Solar Agreement are the following:

Name: (“Respondent’s Company Name”), a [Form of Entity] organized under the laws of the State of _______(“Party A” or “Seller”)	Name: New York Power Authority (“NYPA”, Authority, “Party B”, or “Buyer”)
All Notices:	All Notices:
Street:	Street:
City: Zip: _________	City: Zip:__________
Attn: Phone: Facsimile: Duns: Federal Tax ID Number:	Attn: Phone: Facsimile: Duns: Federal Tax ID Number:
Invoices: Attn: Phone: Facsimile:	Invoices: Attn: Phone: Facsimile:
Scheduling: Attn: Phone: Facsimile:	Scheduling: Attn: Phone: Facsimile:
Payments: Attn: Phone: Facsimile:	Payments: Attn: Phone:
Wire Transfer: BNK: ABA: ACCT:	Wire Transfer: BNK: ABA: ACCT:
Credit and Collections: Attn: Phone: Facsimile:	Credit and Collections: Attn: Phone: Facsimile:
With additional Notices of an Event of Default to: Attn: Phone: Facsimile:	With additional Notices of an Event of Default to: Attn: Phone: Facsimile:

The Parties hereby agree that the General Terms and Conditions are incorporated herein, and to the following provisions as provided for in the General Terms and Conditions:

Party A Tariff Tariff NONE Dated Docket Number

Party B Tariff Tariff NONE Dated Docket Number

Article Three

3.15 Buyer’s Rights Related to Commencement of Facility:

Obligations And Deliveries

Target COD: [Month Day, Year]

Article Eight	8.1 Seller Security:
Seller Security	Type of Security Provided (Seller to specify type of security provided):
	[ ] Guaranty(ies) [ ] Letter(s) of Credit [ ] Money in Escrow [ ] Performance Bond
	Seller Security is calculated as the product of (1) Facility Capacity (in MW) and (2) thirty thousand dollars ($30,000). Facility Capacity: _______________ MW (From Exhibit A). Seller Security: $______________.

Article Twelve	12.11 Confidentiality
Confidentiality	[X] Confidentiality Applicable	If not checked, inapplicable.
___________________________________________________________________________________________

Other Changes

None.

Exhibit A – Solar Agreement Pricing Terms

This Exhibit sets forth the pricing terms and payment computation for the purchase and sale of Solar Products under the Agreement.

Exhibit B – Certificate and Assignment of Right Form

This Exhibit sets forth the terms for the sale and transfer of all rights, titles, and interests in the RECs under the Agreement.

Exhibit C – Eligibility and Requirements of the RPS Program-Solar

This Exhibit describes the eligibility requirements for SGFs participating in the NYPA RPS Program-Solar.

Exhibit D –Insurance Requirements

This Exhibit provides NYPA’s Insurance Requirements as it relates to this contract. These provisions must be met throughout the term of the Agreement.

Exhibit E – Form of Seller Guaranty

This Exhibit provides Form of Seller Guaranty.

Exhibit F – Form of Seller Letter of Credit

This Exhibit provides Form of Seller Letter of Credit.

Exhibit G – SGF Construction Milestones

This Exhibit describes the construction milestones necessary to achieve SGF COD.

Exhibit H – Buyout Option

This Exhibit describes the agreed to price for NYPA’s buyout options set forth in Article 11.

Exhibit I – Contract Energy Deliveries

Sets forth the contracted energy deliveries projected from the SGF.

Exhibit J – Minority And Women Owned Business Enterprise Procedures

Sets forth the Minority and Women Owned Business Enterprise Goals and Procedures.

Exhibit K – Interconnection Agreement

The Exhibit contains the separately executed interconnection agreement with the applicable local utilities.

IN WITNESS WHEREOF, the Parties have caused this Solar Agreement to be duly executed as of the date first above written.

[“RESPONDENT’S COMPANY NAME”] NEW YORK POWER AUTHORITY

Party A Party B

By: By:

Name: Name:

Title: Title:

GENERAL TERMS AND CONDITIONS

ARTICLE One: GENERAL DEFINITIONS

1.1 “Act” means the NYPA Act (Public Authorities Law of the State of New York [ADD SECTIONS].

1.2 “Actual Eligible Production” means the amount of the electric energy produced, in MWh, by the Solar Generating Facility, during any period within the Delivery Period, measured at the Delivery Point.

1.3 “Affiliate” means, with respect to any person, any other person (other than an individual) that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such person. For this purpose, “control” means the direct or indirect ownership of fifty percent (50%) or more of the outstanding capital stock or other equity interests having ordinary voting power.

1.4 “Agreement” has the meaning set forth in the Cover Sheet.

1.5 “Back-up Metering” is defined in Section 3.17.

1.6 “Bankrupt” means, with respect to any entity, such entity (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) otherwise becomes bankrupt or insolvent (however evidenced), (iv) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (v) is generally unable to pay its debts as they fall due.

1.7 “Business Day” means any Day except a Saturday, Sunday, or holiday defined by NERC. A Business Day shall open at 0800 and close at 1700 local time for the relevant Party’s principal place of business. The relevant Party, in each instance unless otherwise specified, shall be the Party from whom the notice, payment or delivery is being sent and by whom the notice or payment or delivery is to be received.

1.8 “Buyer” means the New York Power Authority.

1.9 “Capacity” means the capability to generate electrical power.

1.10 “Claiming Party” has the meaning set forth in Article 3.15.

1.11 “Claims” means all third party claims or actions, threatened or filed prior to or after the termination of this Solar Agreement and, whether groundless, false, fraudulent or otherwise, that directly relate to this Solar Agreement, and the resulting losses and damages, and reasonable expenses, attorneys’ fees, consultants’ fees, and court costs, whether incurred by settlement or otherwise, and whether such claims or actions are threatened or filed.

1.12 “COD Liquated Damages” has the meaning set forth in Article 3.4.

1.13 “COD Target Date” mean [DATE SPECIFIED BY SELLER for each SGF].

1.14 “Commercial Operation Date or COD” has the meaning set forth in Article 3.3.

1.15 “Consents” means any approval, consent, permit, license, decree, certificate or other authorization that is required to own, construct, operate and maintain the SGF, which needs to be received from any Governmental Authority having jurisdiction, including all applicable environmental certificates, licenses, permits and approvals.

1.16 “Contract Energy” means the amount of Energy measured in MWh produced by the Solar Generating Facility(ies) planned to be sold by Seller and purchased by Buyer as set forth in Exhibit I.

1.17 “Contract RECs” means the amount of RECs measured in MWh produced by the Solar Generating Facility(ies) planned to be sold by Seller and purchased by Buyer as set forth in Exhibit I.

1.18 “Contract Energy Price” means the price in $/MWh set forth in Exhibit A to be paid by Buyer to Seller for the purchase of the Delivered Energy.

1.19 “Contract Price” means the price in $U.S. to be paid by Buyer to Seller for the purchase of Solar Products as set forth in Exhibit A.1.24 “Contract REC Price” means the price in $/MWH set forth in Exhibit A to be paid by Buyer to Seller for the purchase of Delivered RECs.

1.20 “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third party transaction costs and expenses reasonably incurred by such Party either in terminating any arrangement or entering into new arrangements which replace the terminated Solar Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with the termination of the Solar Agreement.

1.21 “Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issues rating by S&P, Moody’s or any other rating agency agreed by the Parties as set forth in the Cover Sheet.

1.22 “Day” means twenty–four (24) consecutive hours commencing with the hour ending 0100 EPT through hour ending 2400 EPT on any calendar Day.

1.23 “Defaulting Party” has the meaning set forth in Article 5.1.

1.24 “Delivered Energy” means Contract Energy delivered by Seller to Buyer at the Delivery Point.

1.25 “Delivered RECs” means Contract RECs delivered by Seller to Buyer at the Delivery Point.

1.26 “Delivery Period” means the period of delivery of the Solar Product under this Agreement.

1.27 “Delivery Point” means for each SGF, a point on the Local Utility electric [Transmission] or [Distribution System] that is acceptable to Local Utility where Contract Energy is delivered to NYPA. Need to determine if this is the point at which Contract Energy is provided to host or point at which excess Contract Energy (i.e. not used by host) is delivered to the Local Utility.

1.28 ”Distribution System” means, for the purpose of this agreement, those primary distribution system facilities used to distribute electric energy to consumers, including supply lines, distribution lines, service laterals, and accessory equipment which are not classified as transmission facilities under the NYISO Open Access Transmission Tariff.

1.29 “Downgrade Event” has the meaning set forth on the Cover Sheet.

1.30 “Early Termination Date” has the meaning set forth in Article 5.2.

1.31 “Effective Date” has the meaning set forth in Section 2.1. .

1.32 “Electric Metering Devices” means electric meters and associated equipment, including metering transformers and meters for measuring Energy produced by the Solar Generating Facility.

1.33 “Energy” means three-phase, 60-cycle alternating current electric energy, expressed in megawatt hours.

1.34 “EPT” means Eastern Prevailing Time.

1.35 “Equitable Defenses” means any bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, the discretion of the court before which proceedings to obtain same may be pending.

1.36 “Escrow” means the placing of an amount of U.S. currency with an escrow agent (and pursuant to an escrow agreement) reasonably acceptable to the Parties that provides for draws by a Party in accordance with Article 7 of this Solar Agreement, the costs of which shall be borne by the Party providing the Escrow.

1.37 “Event of Default” has the meaning set forth in Article 5.1.

1.38 “Facility Capacity” means the nameplate capacity (in kW) of the SGF(s) as set forth in Exhibit A.

1.39 “Force Majeure” means an event or circumstance which prevents one Party from performing its obligations under the Solar Agreement, which event or circumstance was not anticipated as of the Effective Date, which is not within the reasonable control of, or is the result of the negligence of, the Claiming Party, and which, by the exercise of due diligence, the Claiming Party is unable to overcome or avoid or cause to be avoided. Force Majeure shall not be based on (i) the loss of Buyer’s markets; (ii) Buyer’s inability economically to use or resell the Solar Product purchased hereunder; (iii) the loss or failure of Seller’s supply; or (iv) Seller’s ability to sell the Solar Product at a price greater than the Contract Price. Neither Party may raise a claim of Force Majeure based in whole or in part on curtailments related to the Local Utility transmission and/or Distribution System. If the Claiming Party is Buyer, Force Majeure does not include any action taken by Buyer in its governmental capacity.

1.40 “Forced Outage” – means an unplanned outage or derating of the Solar Generating Facility(ies) that is: (i) an unplanned failure of the Solar Generating Facility(ies) or a component thereof other than other than due to a Force Majeure Event that requires the Solar Generating Facility(ies) to perform maintenance on all, or part of, the Solar Generating Facility(ies) that is not considered an Excused Outage or a Force Majeure Event; or (iii) any other failure of the Solar Generating Facility(ies) to make available, or Seller to Schedule, any of the Solar Products that is not excused pursuant to the terms of this Agreement.

1.41 “Gains” means, with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of the Agreement, determined in a commercially reasonable manner.

1.42 “Good Utility Practice(s)” means the practices, methods, and acts (including the practices, methods, and acts engaged in or approved by a significant portion of the electric power generation industry, and/or NERC) that, at a particular time, in the exercise of reasonable judgment in light of the facts known or that should reasonably have been known at the time a decision was made, would have been expected to accomplish the desired result in a manner consistent with law, regulation, permits, codes, standards, equipment manufacturer’s recommendations, reliability, safety, environmental protection, economy, and expedition. With respect to the Solar Generating Facility, Good Utility Practice(s) includes taking reasonable steps to ensure that:

(A) equipment, materials, resources, and supplies, including spare parts inventories, are available to meet the Solar Generating Facility’s needs;

(B) sufficient operating personnel are available at all times and are adequately experienced and trained and licensed as necessary to operate the Solar Generating Facility properly, efficiently, and in coordination with Company and are capable of responding to reasonably foreseeable Emergency conditions whether caused by events on or off the Site;

(C) preventive, routine, and non routine maintenance and repairs are performed on a basis that ensures reliable, long term and safe operation, and are performed by knowledgeable, trained, and experienced personnel utilizing proper equipment and tools;

(D) appropriate monitoring and testing are performed to ensure equipment is functioning as designed;

(E) equipment is not operated in a reckless manner, in violation of manufacturer’s guidelines or in a manner unsafe to workers, the general public, or the interconnected system or contrary to environmental laws, permits or regulations or without regard to defined limitations such as, flood conditions, safety inspection requirements, operating voltage, current, volt ampere reactive (VAr) loading, frequency, polarity, synchronization, and/or control system limits;

(F) equipment and components meet or exceed the standard of durability that is generally used for electric generation operations in the region and will function properly over the full range of ambient temperature and weather conditions reasonably expected to occur at the Site and under both normal and emergency conditions; and

(G) equipment, components, and processes are appropriately permitted with any Governmental Authority and are operated and maintained in accordance with applicable permit and regulatory requirements.

1.43 “Governmental Authority” means any local, state, regional or federal administrative, legal, judicial or executive agency, court, commission, department or other governmental entity, including NYISO, and the New York Power Authority (except when acting as Buyer pursuant to this Agreement and any related agreement between the parties hereto).

1.44 “Guarantor” means, with respect to a Party, the guarantor, if any, specified for such Party on the Cover Sheet.

1.45 “Guaranty” means the instrument obligating the Guarantor to unconditionally guarantee the payment obligations of Seller which shall be in the form substantially similar to the form in Exhibit E.

1.46 “Interconnection Agreement” means the agreement set forth in Exhibit K that governs the interconnection between the Local Utility’s interconnection facilities and the SGF.

1.47 “Interest Rate” means the effective interest rate as established by Section 2880 of the Public Authorities Law of the State of New York, and any successor thereto.

1.48 “Letter(s) of Credit” means one or more irrevocable, transferable standby letters of credit issued by a U.S. commercial bank or a foreign bank with a U.S. branch with such bank having a credit rating of at least A- from S&P or A3 from Moody’s, in a form acceptable to the Party in whose favor the letter of credit is issued. Costs of a Letter of Credit shall be borne by the applicant for such Letter of Credit.

1.49 “RPS Program-Solar” is that criteria for meeting standards in New York State as set forth in Exhibit C

1.50 “Liquidate” means to convert into cash.

1.51 “Local Utility” means the Consolidated Edison Company of New York, the Long Island Power Authority, National Grid, New York State Electric and Gas, or others, depending on the service area in which the SGF is located.

1.52 “Losses” means, with respect to any Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from termination of the Agreement, determined in a commercially reasonable manner.

1.53 “Month” or “Monthly” means a period commencing with the start of the hour ending 0100 EPT on the first Day of a calendar month and closing at the end of the hour ending 2400 EPT on the last Day of that calendar month.

1.54 “Monthly Energy and RECs Payment” means the amount to be paid by Buyer to Seller for Buyer’s purchase of the Delivered Energy and Delivered RECs for a particular Month, as calculated pursuant to Exhibit A.

1.55 “Moody’s” means Moody’s Investor Services, Inc. or its successor.

1.56 “NERC” means the North American Electric Reliability Council or any successor government agency.

1.57 “New York Control Area” has the meaning set forth in NYISO Rules.

1.58 “Non-Defaulting Party” has the meaning set forth in Article 5.2.

1.59 “NYISO” means the New York Independent System Operator.

1.60 “NYISO Capability Period” – means the NYISO Summer Capability Period or NYISO Winter Capability Period.

1.61 “NYISO ICAP” – means NYISO Installed Capacity.

1.62 “NYISO Installed Capacity” – means the aggregate nameplate capacity of the panels (individual or in aggregate) in each solar array comprising the SGF, net of any station service Load (for an applicable NYISO Contract Capability Period) as calculated under the NYISO Rules and made available to Buyer pursuant to this Solar Agreement.

1.63 Intentionally left blank..

1.64 “NYISO Markets” – means markets administered by the NYISO.

1.65 “NYISO Rules” - means the NYISO Tariff and all NYISO manuals, rules, procedures, agreements or other documents governing the participation of market participants (including both Buyer and Seller) in the NYISO Markets.

1.66 “Off-Peak Hours” means all hours of a Day that are not Peak Hours.

1.67 “Peak Hours” means those hours between hour ending 0800 EPT to and including hour ending 2300 EPT, Monday through Friday, except for holidays as defined by the NERC.

1.68 “Performance Assurance” means collateral in the form of either: Escrow (in U.S. currency), Letter(s) of Credit, Guaranty, Performance Bond or other security acceptable to the Requesting Party.

1.69 “Performance Bond” means a bond issued by a surety company to protect the recipient against loss in case the terms of a contract are not filled; the surety company assumes liability for non-performance.

1.70 “Project” means the Solar Generating Facilities customer facilities listed.

1.71 “Renewable Energy Certificate” or “REC” means the RPS-eligible Attributes offered and delivered by Seller to Buyer, and verified by Buyer, as performance during the Term of the Agreement.

1.72 “Replacement Price” means the price at which Buyer, acting in a commercially reasonable manner, purchases a replacement for the Solar Products if it is not delivered by Seller, plus (i) costs reasonably incurred by Buyer in purchasing such substitute Solar Product and (ii) additional transmission charges, if any, reasonably incurred by Buyer to the Delivery Point, or at Buyer’s option, the market price at the Delivery Point for such Solar Product not delivered as determined by Buyer in a commercially reasonable manner; provided, however, in no event shall such price include any penalties, ratcheted demand or similar charges, nor shall Buyer be required to utilize or change its utilization of its owned or controlled assets or market positions to minimize Seller’s liability. For the purposes of this definition, Buyer shall be considered to have purchased replacement Solar Product to the extent Buyer shall have entered into one or more arrangements in a commercially reasonable manner whereby Buyer repurchases its obligation to sell and deliver the Solar Product to another party at the Delivery Point.

1.73 “RPS-eligible Attributes” means all environmental characteristics, claims, credits, benefits, emissions reductions, offsets, allowances, allocations, howsoever characterized, denominated, measured or entitled, attributable to the generation of Actual Eligible Production by a SGF. One RPS-eligible Attribute shall be created upon the generation by a SGF of one MWh of [Actual Eligible Production]. RPS-eligible Attributes include but are not limited to: (i) any avoided direct emissions of pollutants to the air, soil or water; (ii) any avoided emissions of pollutants to the air, soil or water including but not limited to sulfur oxides (SOx), nitrogen oxides (NO), carbon monoxide (CO), particulate matter and other pollutants; (iii) any avoided emissions of carbon dioxide (CO2), methane (CH4) and other greenhouse gases (GHGs) that have been or may be determined by the United Nations Intergovernmental Panel on Climate Change to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere; (iv) all set-aside allowances and/or allocations from emissions trading programs, including but not limited to allocations available under 6 NYCRR §§ 204, 237 and 238; and (v) all credits, certificates, registrations, recordations, or other memorializations of whatever type or sort, representing any of the above. RPS-eligible Attributes do not include (i) any energy, capacity, reliability or other power products, such as ancillary services; (ii) production tax credits associated with the construction or operation of the SGF or other financial incentives in the form of credits, reductions, or allowances associated with the SGF that are applicable to a state or federal income taxation obligation; (iii) fuel-related subsidies or “tipping fees” that may be paid to the Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular pre-existing pollutants or the promotion of local environmental benefits; or (iv) emission reduction credits encumbered or used by the SGF for compliance with local, state, or federal operating and/or air quality permits.

1.74 “S&P” means the Standard & Poor’s Rating Group (a division of McGraw-Hill, Inc.) or its successor.

1.75 “Sales Price” means the price at which Seller, acting in a commercially reasonable manner, resells any Solar Products not received by Buyer, adding to such proceeds any (i) costs reasonably incurred by Seller in reselling such Solar Product and (ii) additional transmission charges, if any, reasonably incurred by Seller in delivering such Solar Product to the third party purchasers, or at Seller’s option, the market price at the Delivery Point for such Solar Product not received as determined by Seller in a commercially reasonable manner; provided, however, in no event shall such price include any penalties, ratcheted demand or similar charges, nor shall Seller be required to utilize or change its utilization of its owned or controlled assets, including contractual assets, or market positions to minimize Buyer’s liability. For purposes of this definition, Seller shall be considered to have resold such Solar Product to the extent Seller shall have entered into one or more arrangements in a commercially reasonable manner whereby Seller purchases and receives the Solar Product from another party at the Delivery Point.

1.76 “Seller” means [NAME OF ENTITY]

1.77 “Seller Security” is defined in Article Eight.

1.78 “Settlement Amount” means, with respect to the Non-Defaulting Party, the Losses or Gains, and Costs, expressed in U.S. Dollars, which such party incurs as a result of the liquidation of the Solar Product pursuant to Article 5.2.

1.79 “SGF” means Solar Generation Facility.

1.80 “SGF Term” means for each SGF from which Solar Products are provided to Buyer under this Solar Agreement, the period ending 20 years after the Commercial Operation Date for the particular SGF.

1.81 “Sites” means those customer facilities listed in which Seller will install SGFs.

1.82 “Solar Agreement” has the meaning set forth on the Cover Sheet.

1.83 “Solar Products” means the Contract Energy and the Contract RECs.

1.84 “Solar Generating Facility” means the specific resource(s) identified in which Seller will provide Solar Products to Buyer pursuant to this Solar Agreement.

1.85 “Term” shall have the meaning set forth in Article 2.1.

1.86 “Termination Payment” has the meaning set forth in Article 5.2.

1.87 “Transfer” has the meaning set forth in Article 3.9.

ARTICLE Two: TERMS AND CONDITIONS

2.1 Term. This Solar Agreement shall become effective on the date first set above (“Effective Date”), and shall remain in effect until the expiration of the SGF Term for the SGF listed that has the latest Commercial Operation Date unless terminated earlier in accordance with the terms hereof (the “Term”); provided, however, that such termination shall not affect or excuse the performance of either Party under any provision of this Solar Agreement that by its terms survives any such termination and, provided further, that this Solar Agreement and any other documents executed and delivered hereunder shall remain in effect until both Parties have fulfilled all of their obligations with respect to purchase and sale of the Solar Products. The Term shall be subject to the termination provisions of Articles 2.3 of this Solar Agreement.

2.2 Opinion of Counsel. Each Party shall deliver to the other Party an opinion of counsel no later than five (5) Business Days after the Effective Date, in form and substance reasonably satisfactory to the receiving Party regarding the validity, binding effect and enforceability of this Solar Agreement against the Party providing such opinion.

2.3 Early Termination by Buyer. Buyer may terminate this Solar Agreement, without payment or liability of any kind to Seller, if Seller has not satisfied the conditions set forth in Articles 2.2 within ten (10) Business Days of the date that Seller receives notice from Buyer of the achievement of the Effective Date, provided that Buyer shall provide its notice of termination no later than twenty (20) Business Days after the Effective Date. Notwithstanding any provision to the contrary in this Solar Agreement, if the Project fails to achieve Commercial Operation for any reason within one hundred eighty (180) Days of the COD Target Date, Buyer shall have the right to terminate this Agreement with no liability whatsoever upon Notice by Fax to Seller given within thirty (30) Days of the missed deadline. Such termination rights are in addition to and not in lieu of other remedies Buyer has under the Agreement.

2.4 Contesting Validity of Agreement. Each Party agrees not to contest, or assert any defense to, the validity or enforceability of this Solar Agreement (i) based on any law requiring agreements to be in writing or to be signed by the parties, or (ii) based on any lack of authority of the Party or any lack of authority of any employee of the Party to enter into the Solar Agreement.

ARTICLE Three: OBLIGATIONS AND DELIVERIES

3.1 Seller’s and Buyer’s Obligations. Seller shall sell and deliver, and Buyer shall purchase and receive, Solar Products at the Delivery Point. The Solar Products shall be supplied to Buyer by Seller for the SGF Term(s) applicable for each SGF identified. Buyer shall pay Seller the applicable Contract Price set forth in Exhibit A for Delivered Energyand Delivered RECs. Seller shall be responsible for any costs or charges imposed on or associated with the Solar Products and/or the delivery of the Solar Products up to the Delivery Point. Buyer shall be responsible for any costs or charges imposed on or associated with the Solar Products or its receipt at and from the Delivery Point.

3.2 COD Target Date. Buyer and Seller shall use reasonable commercial efforts and work cooperatively so that the COD for each SGF is achieved by the COD Target Date for each such SGF.

3.3 Conditions for COD. The COD for each SGF shall occur upon the achievement of Seller’s Conditions in Article 3.3.1; provided that Seller shall deliver to Buyer written notice seventy-two (72) hours prior to COD that the conditions in Article 3.3.1 have been met.

3.3.1 Seller’s Conditions

(i) Delivery of written certificate from an officer of Seller to Buyer, in form and substance satisfactory to Buyer, that (a) Seller has obtained all Consents necessary to install and operate the SGF; (b) Seller has successfully completed all tests required for Seller to operate the SGF except for such testing that is required by law, regulation or order of a Governmental Authority to be conducted after the COD; (c) the SGF meets the RPS Program-Solar eligibility rules and requirements, (d) that the creation of, and title to, RECs are sufficiently verifiable for purpose of the New York State Environmental Disclosure Program; and (e) Seller has complied with all applicable NYISO Rules with regards to certifying the SGF’s Capacity as NYISO ICAP;

(ii) Delivery by Seller to Buyer of certificates of insurance coverage or proof of insurance policies, as required pursuant to Article Ten and Exhibit D of this Solar Agreement;

(iii) Delivery to Buyer of design documents for SGF(s) as set forth in Article 3.22;

(iv) Completion of required commission and acceptance test services as set forth in Section 3.21;

(v) Written notice by Seller to Buyer that the SGF(s) is capable of operation in accordance with Good Utility Practices, the prevailing rules associated with the NYISO, and all equipment manufacturers’ instruction manuals and warranties;

(vi) the SCF(s) has achieved initial synchronization with the local utility’s [Distribution] or [Transmission] System;

(vii) an independent professional engineer’s certification has been obtained by Seller stating that the SGF(s) has been completed in all material respects (excepting punch list items that do not materially and adversely affect the ability of the SGF to operate as intended hereunder) in accordance with this Solar Agreement;

(viii) Seller has made all arrangements and executed all agreements required to deliver the Solar Products from the Solar Generating Facility to the Delivery Point in accordance with the provisions of this Solar Agreement;

(ix) Delivery by Seller to Buyer of a fully executed Interconnection Agreement for each SGF with a term ending no earlier than the corresponding SGF Term;

(x) Delivery by Seller to Buyer of Seller Security that meets the requirements of Article 8.

3.4 COD Liquidated Damages

(a) COD. If the COD for any SGF listed is not achieved within one hundred eighty (180) Days of the COD Target Date for such SGF, then Seller shall pay to Buyer as liquidated damages in the amount of thirty thousand dollars ($30,000) per MW ($30,000/MW) for the amount of Solar Product not delivered to Buyer (“COD Liquidated Damages”). Buyer may draw from Seller Security the COD Liquidated Damages as set forth in this Article (b) If the COD for any SGF listed is achieved after the COD Target Date for such SGF, but within one hundred eighty (180) Days of the COD Target Date there shall be no COD Liquated Damages owing to Buyer.

(c) Damages. To the extent any damages required to be paid under this Solar Agreement are liquidated, the Parties agree that the damages are difficult or impossible to determine, otherwise obtaining an adequate remedy is inconvenient and the liquidated damages set forth in this Solar Agreement constitute a reasonable approximation of the harm or loss.

(d) Payment of Liquidated Damages. Liquidated Damages will be paid by Seller to Buyer pursuant to the provisions of Article Six.

3.5 Liquidate Energy. Buyer shall be free to Liquidate Delivered Energy.

3.6 Failure to Deliver. Buyer shall have the sole and exclusive right to purchase all Delivered Energy. Should a SGF fail to provide at least ninety percent (90%) of the Contract Energy for each of six (6) consecutive Months, the Contract Energy will be modified for the remainder of the Term of the Agreement, at the Buyer’s discretion, to equal the average actual Delivered Energy provided over the previous six (6)-Month period.

3.7 REC Requirements. Buyer’s right, title and interest shall include exclusive rights to all RECs for the Term, including but not limited to the exclusive rights to claim, consistent with New York State Environmental Disclosure rules: (a) that the Energy associated with RECs was generated by the SGF(s) and matches on a Monthly basis; and (b) that Buyer receives credit for the reductions in emissions and/or other pollution resulting from the generation of the Delivered Energy.

3.8 REC Restrictions. At the time of such sale, assignment and conveyance by Seller to Buyer, the RECs shall be free and clear of all liens, judgments, encumbrances and restrictions.

3.9 Assignment and Transfer of Rights to RECs. The assignment and transfer (“Transfer”) of RECs to Buyer shall be accomplished through their inclusion on the Certification and Assignment of Rights Form, found in Exhibit B, which must accompany each invoice. Should the Buyer create, sanction, adopt or begin participation in a tracking system for accounting for generation attributes or certificates associated with generation in the New York Control Area, Transfer will also include the delivery of the attributes or certificates associated with each REC; at the earliest time such certificates or attributes become available for delivery, to Buyer.

3.10 Seller’s Responsibility Related to RPS-Eligible Attributes. In the event that Seller must apply for or take some other action under any emission-trading or other regime other than the RPS Program-Solar in order to secure a claim, title, ownership, or rights of any type, nature or sort to any RPS-eligible Attributes associated with Contract Energy, or any certification, registration, verification or other memorialization of the creation of such RPS-eligible Attributes by the SGF to which Seller may be entitled (Title), Seller shall (i) take all actions necessary to apply for and secure such Title, to the maximum extent to which Seller is entitled, (ii) provide Buyer with evidence of taking such action; and (iii) Transfer such Title to Buyer whenever so secured.

3.11 Buyer’s Obligation Under RPS Program-Solar. Buyer’s obligations under this Solar Agreement are expressly conditioned on the eligibility of Seller’s SGF, at the time of execution of this Solar Agreement and throughout the duration of the Term of the Solar Agreement, under the RPS Program-Solar eligibility rules and requirements, as provided in Appendix C. The SGF will not be subject to subsequent changes in RPS eligibility rules; however, in the event that the SGF fails to maintain eligibility consistent with the RPS Program-Solar requirements in effect on the date of this Solar Agreement, such ineligibility will extend to the attributes emanating from the SGF.

3.12 Buyer’s Rights Related to Verifiable RPS-Eligible Attributes. Buyer’s obligations to purchase RECs and to make payment under this Solar Agreement are conditioned on the ability of Seller to demonstrate to Buyer’s satisfaction that the creation of and title to the RPS-eligible Attributes is sufficiently verifiable for purposes of the New York Environmental Disclosure Program.

3.13 Buyer’s Rights Related to Commencement of Facility. Buyer’s obligations to purchase RECs and to make payment under this Solar Agreement are conditional on the commencement by the SGF(s) of Commercial Operation at a minimum of eighty percent (80%) of the Facility Capacity on or before the COD Target Date. However, Seller shall be obligated to deliver at least ninety percent (90%) of the Contract Energy and Contract RECs during the twenty-four (24) Month period from the COD and in the event that the SGF is unable to do so within such time frame, Buyer shall have the right to terminate this Agreement in accordance with Section 5.2.

3.14 Buyer’s Rights Related to RECs. Buyer shall be free to sell, assign, transfer or otherwise subject to any encumbrance, any of the RECs or the right, title and interest to the RECs Buyer shall acquire under this Solar Agreement, at any time and from time to time to any entity and on such terms and conditions as Buyer may desire. Any financial or other consideration received by Buyer from any such action shall inure solely to Buyer’s benefit, and shall not affect the Seller’s obligations under the terms of this Solar Agreement.

3.15 Force Majeure. To the extent either Party is prevented by Force Majeure from carrying out, in whole or part, its obligations under the Solar Agreement, such Party (the “Claiming Party”) shall provide written notice and details of the Force Majeure event to the other Party as soon as practicable. Unless the terms of this Solar Agreement specify otherwise, the Claiming Party shall be excused from the performance of its obligations under the Solar Agreement to the extent such Force Majeure affects its performance (other than the obligation to make payments then due or becoming due with respect to performance prior to the Force Majeure). The Claiming Party shall remedy the Force Majeure with all reasonable dispatch. The non-Claiming Party shall not be required to perform its obligations to the Claiming Party that are affected by the inability of the Claiming Party to perform as a result of such Force Majeure. The Claiming Party shall have twelve (12) Months to remedy the Force Majeure; if the Claiming Party is unable to do so, the non-Claiming Party shall have the right to terminate this Solar Agreement in accordance with Section 5.2.

3.16 No Immunity Claim. Buyer warrants and covenants that with respect to its contractual obligations hereunder and performance thereof, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (a) suit, (b) jurisdiction of court (including a court located outside the jurisdiction of its organization), (c) relief by way of injunction, order for specific performance or recovery of property, (d) attachment of assets, or (e) execution or enforcement of any judgment.

3.17 Electric Metering Devices. All Electric Metering Devices used to measure the NYISO Installed Capacity and Contract Energy sold by Seller to Buyer under this Solar Agreement and to monitor and coordinate operation of the Solar Generating Facility shall be owned, installed, and maintained by Seller. Seller shall provide Buyer unlimited access to the Electric Metering Devices which shall be located on the Site unless otherwise agreed by the Parties. Seller shall inspect and test all Electric Metering Devices upon installation and at least annually thereafter. Seller shall provide Buyer with reasonable advance notice of, and permit a representative of Buyer to witness and verify, such inspections and tests, provided, however, that Buyer shall not unreasonably interfere with or disrupt the activities of Seller and shall comply with all of Seller’s safety standards. Upon request by Buyer, Seller shall perform additional inspections or tests of any Electric Metering Device and shall permit a qualified representative of Buyer to inspect or witness the testing of any Electric Metering Device, provided, however, that Buyer shall not unreasonably interfere with or disrupt the activities of Seller and shall comply with all of Seller’s safety standards. The actual expense of any such requested additional inspection of testing shall be borne by Buyer, unless upon such inspection or testing an Electric Metering Device is found to register inaccurately by more than the allowable limits established in this Article, in which event the expense of the requested additional inspection or testing shall be borne by Seller. If requested by Buyer in writing, Seller shall provide copies of any inspection or testing reports to Buyer. Buyer may elect to install and maintain, at its own expense, backup metering devices (“Back-Up Metering”) in addition to those installed and maintained by Seller, which installation and maintenance shall be performed in a manner acceptable to Seller. Buyer, at its own expense, shall inspect and test Buyer’s Back-Up Metering upon installation and at least annually thereafter. Buyer shall provide Seller with reasonable advance notice of, and permit a representative of Seller to witness and verify, such inspections and tests, provided, however, that Seller shall not unreasonably interfere with or disrupt the activities of Buyer and shall comply with all of Buyer’s safety standards. Upon request by Seller, Buyer shall perform additional inspections or tests of Buyer’s Back-Up Metering and shall permit a qualified representative of Seller to inspect or witness the testing of Buyer’s Back-Up Metering, provided, however, that Seller shall not unreasonably interfere with or disrupt the activities of Buyer and shall comply with all of Buyer’s safety standards. The actual expense of any such requested additional inspection or testing shall be borne by Seller, unless, upon such inspection or testing, Buyer’s Back-Up Metering is found to register inaccurately by more than the allowable limits established in this Article, in which event the expense of the requested additional inspection or testing shall be borne by Buyer. If requested by Seller in writing, Buyer shall provide copies of any inspection or testing reports to Seller. If any Electric Metering Devices, or Buyer’s Back-Up Metering, are found to be defective or inaccurate outside the bounds of the selected device’s manufacturer’s performance standards, they shall be adjusted, repaired, replaced, and/or recalibrated as near as practicable to a condition of zero error by the Party owning such defective or inaccurate device and at that Party’s expense.

3.18 Adjustment for Inaccurate Meters. If an Electric Metering Device, or Buyer’s Back-Up Metering, fails to register, or if the measurement made by an Electric Metering Device, or Buyer’s Back-Up Metering, is found upon testing to be inaccurate by more than one percent (1.0%), an adjustment shall be made correcting all measurements by the inaccurate or defective Electric Metering Device, or Buyer’s Back-Up Metering, for both the amount of the inaccuracy and the period of the inaccuracy, in the following manner:

(A) In the event that the Electric Metering Device is found to be defective or inaccurate, the Parties shall use Buyer’s Back-up Metering, if installed, to determine the amount of such inaccuracy, provided, however, that Buyer’s Back-Up Metering has been tested and maintained in accordance with the provisions of this Article. If Buyer’s Back-Up Metering is installed on the low side of Seller’s step-up transformer, the Buyer’s Back-Up metering data shall be adjusted for losses. In the event that Seller did not install Back-Up Metering, or Buyer’s Back-Up Metering is also found to be inaccurate by more than one percent (1.0%), the Parties shall estimate the amount of the necessary adjustment on the basis of deliveries of SGF Energy from the Facility and to the Delivery Point during periods of similar operating conditions when the Electric Metering Device was registering accurately. The adjustment shall be made for the period during which inaccurate measurements were made.

(B) In the event that the Parties cannot agree on the actual period during which the inaccurate measurements were made, the period during which the measurements are to be adjusted shall be the shorter of (i) the last one-half of the period from the last previous test of the Electric Metering Device to the test that found the Electric Metering Device to be defective or inaccurate, or (ii) the one hundred eighty (180) Days immediately preceding the test that found the Electric Metering Device to be defective or inaccurate.

(C) To the extent that the adjustment period covers a period of deliveries for which payment has already been made by Buyer, Buyer shall use the corrected measurements as determined in accordance with this Article to recompute the amount due for the period of the inaccuracy and shall subtract the previous payments by Buyer for this period from such re-computed amount. If the difference is a positive number, the difference shall be paid by Buyer to Seller; if the difference is a negative number, that difference shall be paid by Seller to Buyer, or at the discretion of Buyer, may take the form of an offset to payments due Seller by Buyer. Payment of such difference by the owing Party shall be made not later than thirty (30) Days after the owing Party receives notice of the amount due, unless Buyer elects payment via an offset.

3.19 Monitoring. Buyer intends to monitor system performance of the SGF(s) in order to facilitate public education and outreach. As such, Buyer plans to install, own and maintain a data acquisition system at Buyer’s sole expense that allows Buyer to monitor, analyze, and display historical and live, solar electric generation data for all installed sites. Seller shall reasonably cooperate with Buyer to allow for installation and maintenance of the monitoring system. Any monitoring system that Seller requires for operation and control of its SGF(s) shall be installed at Seller’s sole expense.

3.20 Interconnection of SGF to Local Utility’s Electrical System. Seller shall be responsible for all costs associated with the electrical interconnection of each SGF to Local Utility’s electrical system in accordance with Local Utility’s interconnection requirements. . Responsibility for ownership, operation and maintenance of interconnection facilities shall be in accordance with the terms and conditions of the Interconnection Agreement.

3.21 Required Commissioning and Acceptance Test Services. Required commissioning and acceptance test services shall include:

(A) start-up of each of the photovoltaic system(s) and its delivery of power to the grid in an amount that is in accordance with contract with Local Utility and the system manufacturers published performance curve for power production at the solar irradiance that is present at the time of the start-up of the system. To the extent practical such start-up shall be at or near the time of peak solar irradiance for the day.

(B) performance testing over a consecutive twenty-four (24) hour period (includes testing

output during Peak Hours to establish the Contract Capacity as set forth in Article 3.22 below).

(C) successful delivery of Energy within thirty (30) Days of completion of a system.

3.22 Buyer Review of SGF Design. At least [ninety (90)] Days prior to the proposed start of construction, Seller shall provide Buyer with design documents on each SGF that delineate, explain, and communicate the following information:

(A) equipment details and description, including the manufacturer of the photovoltaic module and the inverter;

(B) layout of installation and equipment;

(D) specifications of equipment procurement and installation;

(E) all engineering associated with structural and mounting details for each site;

(F) performance of equipment components, subsystems, specific site projects;

(G) integration of solar PV system with other power sources;

(H) electrical grid interconnection requirements;

(I) controls, monitors, and instrumentation;

(J) web-based performance monitoring; and

(K) time frame for key milestones.

pursuant to this Article 3.22 in writing by the end of each calendar year.

3.23 All Solar Products Sold to Buyer. All Solar Products produced by the SGFs shall be sold by Seller to Buyer. At Buyer’s request, Seller shall make available all records pertaining to production and sale of Solar Products to Buyer, including any records in the possession of the NYISO.

3.24 Power Factor Adjustment. The SGF should deliver power at a power factor of one hundred percent (100%) with a bandwidth of plus or minus two percent (2%).

ARTICLE Four: REMEDIES FOR FAILURE TO DELIVER/RECEIVE

4.1 Seller Failure. If Seller fails to deliver all or part of the Solar Products pursuant to the Solar Agreement, and such failure is not excused under the terms of the Solar Agreement or by Buyer’s failure to perform, then Seller shall pay Buyer, on the date payment would otherwise be due in respect of the Month in which the failure occurred, an amount for such deficiency equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price. The invoice for such amount shall include a written statement explaining in reasonable detail the calculation of such amount.

4.2 Buyer Failure. If Buyer fails to receive all or part of the Solar Products and such failure is not excused under the terms of this Agreement or by Seller’s failure to perform, then Buyer shall pay Seller, on the date payment would otherwise be due in respect of the Month in which the failure occurred an amount for such deficiency equal to the positive difference, if any, obtained by subtracting the Sales Price from the Contract Price. The invoice for such amount shall include a written statement explaining in reasonable detail the calculation of such amount.

ARTICLE Five: EVENTS OF DEFAULT; REMEDIES

5.1 Events of Default. An “Event of Default” shall mean, 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 pursuant to this Solar Agreement if such failure is not remedied within thirty (30) Business Days after written notice;

(ii) any representation or warranty made by such Party herein 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 Solar Agreement (except to the extent constituting a separate Event of Default, and except for such Party’s obligations to deliver or receive the Solar Product, the exclusive remedy for which is provided in Article Four) if such failure is not remedied within thirty (30) Business Days after written notice;

(iv) such Party becomes Bankrupt; and

(v) such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Solar Agreement to which it or its predecessor was a party by operation of law or pursuant to an agreement reasonably satisfactory to the other Party.

5.1.1. Seller Event of Default

(i) any failure of the SGF to commence Commercial Operation at a minimum of eighty percent (80%) of the Facility Capacity set forth in Exhibit A for the COD Target Date on or before the COD Target Date;

(ii) failure of the SGF to deliver at least ninety percent (90%) of the Contract Energy in conformance with Section 3.13;

(iii) failure by Seller to Transfer rights to Buyer of the Contract RECs, in conformity with Article Three;

(iv) failure of the SGF to maintain eligibility consistent with the RPS Program-Solar requirements in conformity with Article Three; and

(v) failure by Seller to remedy a Force Majeure event within twelve (12) Months from the commencement of such Force Majeure event.

(vi) Any sale of Solar Products during the Term to any entity other than Buyer.

5.2 Declaration of an Early Termination Date and Calculation of Settlement Amounts. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (the “Non-Defaulting Party”) shall have the right (i) to designate a Day, no earlier than the Day such notice is effective and no later than twenty (20) Days after such notice is effective, as an early termination date (“Early Termination Date”) to accelerate all amounts owing between the Parties and to liquidate and terminate the Solar Agreement (between the Parties, (ii) withhold any payments due to the Defaulting Party under this Agreement and (iii) suspend performance. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for the terminated Solar Agreement as of the Early Termination Date. The Settlement Amount shall be the amount due to the Non-Defaulting Party (“Termination Payment”).

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5.4 Notice of Payment of Termination Payment. As soon as practicable after a liquidation, notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Termination Payment due to the Non-Defaulting Party. The notice shall include a written statement explaining in reasonable detail the calculation of such amount. The Termination Payment shall be made by the Defaulting Party to the Non-Defaulting Party within two (2) Business Days after such notice is effective.

5.5 Disputes With Respect to Termination Payment. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment, in whole or in part, the Defaulting Party shall, within two (2) Business Days of receipt of Non-Defaulting Party’s calculation of the Termination Payment, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute.

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5.7 Suspension of Performance. Notwithstanding any other provision of this Solar Agreement, if an Event of Default shall have occurred and be continuing, the Non-Defaulting Party, upon written notice to the Defaulting Party, shall have the right (i) to suspend performance under this Solar Agreement provided, however, in no event shall any such suspension continue for longer than ten (10) Business Days unless an early Termination Date shall have been declared and notice thereof pursuant to Article 5.2 given, and (ii) to the extent an Event of Default shall have occurred and be continuing to exercise any remedy available at law or in equity.

ARTICLE Six: PAYMENT

6.1 Billing Period. Unless otherwise specifically agreed upon by the Parties, the calendar Month shall be the standard period for all payments under this Solar Agreement (other than Termination Payments). As soon as practicable after the end of each Month, each Party will render to the other Party an invoice for the payment obligations, if any, incurred hereunder during the preceding Month.

6.2 Invoices. Seller shall submit Monthly invoices throughout the Term for Energy and RECs delivered to Buyer in the prior Month. Such invoices shall include a statement of the amount due and payable by Buyer to Seller, which amount shall be calculated in accordance with Exhibit A. All such invoices must and shall be accompanied by a completed Certification and Assignment of Rights Form, in the form provided at Exhibit B hereto, and must otherwise demonstrate the Transfer of the RECs. All invoices must be accompanied by a completed Hourly Data Report.

6.3 Timeliness of Payment. Unless otherwise agreed by the Parties, all invoices under this Solar Agreement shall be due and payable in accordance with each Party’s invoice instructions on or before the thirtieth (30^th) Day after receipt of the invoice or, if such Day is not a Business Day, then on the next Business Day. Each Party will make payments by electronic funds transfer, or by other mutually agreeable method(s), to the account designated by the other Party. Any amounts not paid by the due date will be deemed delinquent and will accrue interest at the Interest Rate, such interest to be calculated from and including the due date to but excluding the date the delinquent amount is paid in full.

6.4 Disputes and Adjustments of Invoices. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice, rendered under this Solar Agreement or adjust any invoice for any arithmetic or computational error within twelve (12) Months of the date the invoice, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due, with notice of the objection given to the other Party. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within two (2) Business Days of such resolution along with interest accrued at the Interest Rate from and including the due date to but excluding the date paid. Inadvertent overpayments shall be returned upon request or deducted by the Party receiving such overpayment from subsequent payments, with interest accrued at the Interest Rate from and including the date of such overpayment to but excluding the date repaid or deducted by the Party receiving such overpayment. Any dispute with respect to an invoice is waived unless the other Party is notified in accordance with this Article 6.3 within twelve (12) Months after the invoice is rendered or any specific adjustment to the invoice is made. If an invoice is not rendered within twelve (12) Months after the close of the Month during which performance occurred, the right to payment for such performance is waived.

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6.6 Payment Obligation. Each Party shall pay the Other Party all amounts owed in full when due except for amounts in dispute in accordance with Article 6.3 and Article 6.4.

ARTICLE Seven: LIMITATIONS

7.1 Limitation of Remedies, Liability and Damages. EXCEPT AS SET FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS SOLAR AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS.

ARTICLE Eight: SELLER SECURITY

8.1 Seller Security. As security for Seller to (i) complete SGF installations that it has started, (ii) meet its obligations to provide Solar Products for the Term, (iii) meet its obligations in an Event of Default under Article Five, and (iv) remove each SGF from the Site at the expiration of the corresponding SGF Term, Seller shall deliver to Buyer within five (5) Business Days of receipt of notice from Buyer that the Effective Date has occurred in accordance with Article 2.1, and shall maintain throughout the Term: a Performance Bond, Guaranty(ies), Letter(s) of Credit, and/or money in Escrow in an amount equivalent to the product of (1) the Facility Capacity (in MW) and (2) thirty thousand dollars ($30,000) on the terms and conditions set forth herein (“Seller Security”).

8.2 Seller Security Reduction and Replacement.

(i) On the fifth anniversary of the Term, Seller Security shall be decreased by five percent (5%).

(ii) Seller shall have the right to replace any Performance Bond, Letter of Credit, Guaranty or Escrow with a substitute form of Seller Security provided that Buyer has consented with Buyer to such replacement (such consent not to be unreasonably withheld) and that any such replacement meets the terms and conditions of Seller Security under this Solar Agreement.

8.3 Draw on Seller Security. Any amounts owed by Seller to Buyer under this Agreement (other than disputed amounts) and not satisfied within thirty (30) Days of becoming due and owing may be satisfied by Buyer on a draw on Seller Security. Upon termination, Buyer shall have the right to draw upon Seller Security for any undisputed amounts owed to Buyer under this Solar Agreement.

8.4 Replenishment. In the event Buyer draws upon Seller Security pursuant to Article 8.3, Seller shall replenish the amount of Seller Security required by Article 8.1 within ten (10) Days.

ARTICLE Nine: GOVERNMENTAL CHARGES

9.1 Cooperation. Each Party shall use reasonable efforts to implement the provisions of and to administer this Solar Agreement in accordance with the intent of the Parties to minimize all taxes, so long as neither Party is materially adversely affected by such efforts.

9.2 Governmental Charges. Seller shall pay or cause to be paid all taxes imposed by any government authority (“Governmental Charges”) on or with respect to the SGF(s) and the Solar Product arising prior to the Delivery Point. Buyer shall pay or cause to be paid all Governmental Charges on or with respect to the Solar Product at and from the Delivery Point (other than ad valorem, franchise or income taxes which are related to the sale of the Solar Product and are, therefore, the responsibility of the Seller). In the event Seller is required by law or regulation to remit or pay Governmental Charges which are Buyer’s responsibility hereunder, Buyer shall promptly reimburse Seller for such Governmental Charges. If Buyer is required by law or regulation to remit or pay Governmental Charges which are Seller’s responsibility hereunder, Buyer may deduct the amount of any such Governmental Charges from the sums due to Seller under Article Six of this Solar Agreement. Nothing shall obligate or cause a Party to pay or be liable to pay any Governmental Charges for which it is exempt under the law.

ARTICLE Ten: INSURANCE

10.1 Insurance Required. Seller, at its sole cost and expense, shall acquire and maintain in full force and effect the types and amounts of insurance coverage described in Exhibit D. Failure by Seller to obtain the insurance coverage required by this Article shall not relieve Seller of the insurance requirements set forth or in any way relieve or limit Seller’s obligations and liabilities under any other provision of this Agreement.

10.2 Insurance Notice to Buyer. Seller shall arrange to have its insurance carriers send Buyer a written notice of cancellation or termination of Seller’s insurance coverage required under this Article.

ARTICLE Eleven: BUYER’S FIRST OPTION TO PURCHASE FACILITY and BUYOUT OPTION

11.1 Buyer’s Purchase Option in the Event of Sale of SGF. In the event Seller decides to sell one or more of the SGFs, Seller shall first grant Buyer the right to purchase such SGF(s) at a price and under terms and conditions equal to that to be offered to a third party. Seller shall provide Buyer written notice of the proposed price, terms, and conditions of such sale and Buyer shall have forty-five (45) Days from receipt of Seller’s notice to provide Seller either its written acceptance or rejection of such purchase option. Buyer’s failure to respond to Seller within said forty-five (45) Day period shall be deemed that Buyer has rejected such purchase option. In the event Buyer elects not to exercise its right to purchase the SGF(s), Seller may sale the SGF(s) to a third party at the price and under the same terms and conditions as offered to Buyer. For the avoidance of doubt, Seller shall not sell one or more of the SGFs to a third party without having first offered such SGF(s) to Buyer under the same price, terms, and conditions as offered to such third party.

11.2 Buyer’s SGF Purchase Option at Five Year Intervals. On fifth (5^th), tenth (10^th), fifteenth (15^th) and twentieth (20^th) anniversaries of the Commercial Operation Date for each SGF, Buyer, at its sole discretion, shall have the right to purchase the SGF at the price specified in Exhibit H. In the event that Buyer elects to exercise the option set forth herein, it will provide 180 Days prior written notice to Seller of its election.

11.3 Buyer’s Purchase Remedy for Seller Event of Default. If there is a Seller Event of Default pursuant to Article 5.1, Buyer may elect, as an additional remedy to those set forth in Article 5, to purchase one or more of the SGFs at the price set forth in Exhibit H. Buyer shall make such election by providing written notice to Seller of Buyer’s exercise of such purchase option within sixty (60) Days of the Event of Default. If Buyer provides notice that it is not exercising its right to purchase the SGF(s), Seller shall have the right to sell the SGF(s) to a third party; provided that the sale price is no less than that set forth in Exhibit H.

ARTICLE Twelve: MISCELLANEOUS

12.1 Representations and Warranties. As of the Effective Date, each Party represents and warrants to the other Party that:

(i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;

(ii) it has all regulatory authorizations and approvals by Governmental Authorities necessary for it to legally perform its obligations under this Solar Agreement;

(iii) the execution, delivery and performance of this Solar Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it;

(iv) this Solar Agreement, constitutes its legally valid and binding obligation enforceable against it in accordance with its terms; subject to any Equitable Defenses.

(v) it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt;

(vi) there is not pending or, to its knowledge, threatened against it or any of its Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Solar Agreement;

(vii) no Event of Default with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Solar Agreement;

(viii) it is acting for its own account, has made its own independent decision to enter into this Solar Agreement and as to whether this Solar Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Solar Agreement;

(ix) it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code;

(x) it has entered into this Solar Agreement in connection with the conduct of its business and it has the capacity or ability to make or take delivery of the Solar Product;

(xi) with respect to the purchase or sale of the Solar Product, it is a producer, processor, commercial user or merchant handling the Solar Product, and it is entering into this Solar Agreement for purposes related to its business as such.

Additionally, Seller warrants:

(xii) that the RECs, as to which right and title is to be transferred to Buyer under this Solar Agreement, are eligible and compliant with the RPS Program-Solar eligibility rules and requirements;

(xiii) that the RECs, as to which right and title is to be transferred to Buyer under this Solar Agreement, are free and clear of any liens, encumbrances and/or defects of title; and

(xiv) that the RECs, as to which right and title is to be Transferred to Buyer under this Solar Agreement shall not have otherwise been, nor will be sold retired, claimed or represented as part of electricity output or sales, or used to satisfy obligations in any other jurisdiction.

Additionally, Buyer warrants:

(xv) all acts necessary to the valid execution, delivery and performance of this Solar Agreement, including without limitation, competitive bidding, public notice, election, referendum, prior appropriation or other required procedures has or will be taken and performed as required under the Act and the Public Power System’s ordinances, bylaws or other regulations;

(xvi) all persons making up the Buyer’s Board of Trustees are the duly appointed incumbents in their positions and hold such positions in good standing in accordance with the Act and other applicable law;

(xvii) entry into and performance of this Solar Agreement by Buyer are for a proper public purpose within the meaning of the Act and all other relevant constitutional, organic or other governing documents and applicable law;

(xviii) the term of this Solar Agreement does not extend beyond any applicable limitation imposed by the Act or other relevant constitutional, organic or other governing documents and applicable law;

(xix) entry into and performance of this Solar Agreement by Buyer will not adversely affect the exclusion from gross income for federal income tax purposes of interest on any obligation of Buyer otherwise entitled to such exclusion; and

(xx) obligations to make payments hereunder do not constitute any kind of indebtedness of Buyer or create any kind of lien on, or security interest in, any property or revenues of Buyer which, in either case, is proscribed by any provision of the Act or any other relevant constitutional, organic or other governing documents and applicable law, any order or judgment of any court or other agency of government applicable to it or its assets, or any contractual restriction binding on or affecting it or any of its assets.

12.2 Title and Risk of Loss. Title to and risk of loss related to the Solar Products shall transfer from Seller to Buyer at the Delivery Point. Seller warrants that it will deliver to Buyer the Solar Product free and clear of all liens, security interests, claims and encumbrances or any interest therein or thereto by any person arising prior to the Delivery Point.

12.3 Indemnity. Each Party shall indemnify and hold harmless the other Party from and against any Claims arising from or out of any event, circumstance, act or incident first occurring or existing during the period when control and title to the Solar Products is vested in such Party as provided in this Solar Agreement. Each Party shall indemnify and hold harmless the other Party against any Governmental Charges for which such Party is responsible under Article Nine. The Seller shall indemnify and hold harmless the Buyer against any claim arising out of or relating to the construction, operation and maintenance of the Solar Generating Facility

12.4 Assignment. Neither Party shall assign this Solar Agreement or its rights hereunder without the prior written consent of the other Party, which consent may be withheld in the exercise of its sole discretion; provided, however, either Party may, without the consent of the other Party (and without relieving itself from liability hereunder), (i) transfer, sell, pledge, encumber or assign this Solar Agreement or the accounts, revenues or proceeds hereof in connection with any financing or other financial arrangements, (ii) transfer or assign this Solar Agreement to an affiliate of such Party which affiliate’s creditworthiness is equal to or higher than that of such Party, or (iii) transfer or assign this Solar Agreement to any person or entity succeeding to all or substantially all of the assets whose creditworthiness is equal to or higher than that of such Party; provided, however, that in each such case, any such assignee shall agree in writing to be bound by the terms and conditions hereof and so long as the transferring Party delivers such tax and enforceability assurance as the non-transferring Party may reasonably request.

12.5 Governing Law. THIS SOLAR AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH PARTY WAIVES ITS RESPECTIVE RIGHT TO ANY JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.

12.6 Notices. All notices, requests, statements or payments shall be made as specified in the Cover Sheet. Notices (other than scheduling requests) shall, unless otherwise specified herein, be in writing and may be delivered by hand delivery, United States mail, overnight courier service or facsimile. Notice by facsimile or hand delivery shall be effective at the close of business on the Day actually received, if received during business hours on a Business Day, and otherwise shall be effective at the close of business on the next Business Day. Notice by overnight United States mail or courier shall be effective on the next Business Day after it was sent. A Party may change its addresses by providing notice of same in accordance herewith.

12.7 General. This Solar Agreement (including the exhibits, schedules and any written supplements hereto), constitutes the entire agreement between the Parties relating to the subject matter. This Solar Agreement shall be considered for all purposes as prepared through the joint efforts of the parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution hereof. Each Party further agrees that it will not assert, or defend itself, on the basis that any applicable tariff is inconsistent with this Solar Agreement. This Solar Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Solar Agreement). Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default. Any provision declared or rendered unlawful by any applicable court of law or regulatory agency or deemed unlawful because of a statutory change (individually or collectively, such events referred to as “Regulatory Event”) will not otherwise affect the remaining lawful obligations that arise under this Agreement; and provided, further, that if a Regulatory Event occurs, the Parties shall use their best efforts to reform this Solar Agreement in order to give effect to the original intention of the Parties. The term “including” when used in this Solar Agreement shall be by way of example only and shall not be considered in any way to be in limitation. The headings used herein are for convenience and reference purposes only. All indemnity and audit rights shall survive the termination of this Solar Agreement for twelve (12) Months. This Solar Agreement shall be binding on each Party’s successors and permitted assigns.

12.8 Audit. Each Party has the right, at its sole expense and during normal working hours, to examine the records of the other Party to the extent reasonably necessary to verify the accuracy of any statement, charge or computation made pursuant to this Agreement. If requested, a Party shall provide to the other Party statements evidencing the Solar Products delivered at the Delivery Point. If any such examination reveals any inaccuracy in any statement, the necessary adjustments in such statement and the payments thereof will be made promptly and shall bear interest calculated at the Interest Rate from the date the overpayment or underpayment was made until paid; provided, however, that no adjustment for any statement or payment will be made unless objection to the accuracy thereof was made prior to the lapse of twelve (12) Months from the rendition thereof, and thereafter any objection shall be deemed waived.

12.9 REC Eligibility Audit. Buyer may require periodic audits of the SGF to verify that the SGF remains eligible under the eligibility rules and requirements of the RPS Program-Solar, as such rules existed on the date of this Solar Agreement. Prior to any material modification of the SGF, including but not limited to any modification that is expected to result in a change in the Facility Capacity of the SGF, Seller shall provide Buyer with written Notice and will provide to Buyer a written description of the planned modification.

12.10 Forward Contract. The Parties acknowledge and agree that this Solar Agreement constitutes “forward contracts” within the meaning of the United States Bankruptcy Code.

12.11 Confidentiality. If the Parties have elected on the Cover Sheet to make this Article 12.11 applicable to this Solar Agreement, neither Party shall disclose the terms or conditions of this Agreement to a third party (other than the Party’s employees, lenders, counsel, accountants or advisors who have a need to know such information and have agreed to keep such terms confidential) except in order to comply with any applicable law, regulation, or any exchange, control area or independent system operator rule or in connection with any court or regulatory proceeding; provided, however, each Party shall, to the extent practicable, use reasonable efforts to prevent or limit the disclosure. The Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, this confidentiality obligation.

12.12 Amendment. No amendment or modification to this Solar Agreement shall be enforceable unless reduced to writing and executed by both Parties.

The undersigned , the duly elected and acting of NEW YORK POWER AUTHORITY (the “Beneficiary”), hereby certifies to [Issuing Bank Name] (the “Bank”), [__________ and __________] (collectively, the “Applicants”), and __________________, a _______________ (“Seller”), with reference to Irrevocable Nontransferable Standby Letter of Credit No. _________, dated , _____ (the “Letter of Credit”), issued by the Bank in favor of the Beneficiary, as follows as of the date hereof:

1. The Beneficiary is a party to that certain Solar Energy Purchase & Sale Agreement dated as of ________, 2008, as amended from time to time (the “Agreement”), between the Beneficiary and Seller.

2. The Beneficiary has not heretofore pledged, assigned, transferred or disposed of any of its right, title or interest in or to the Agreement.

3. The Bank has heretofore provided written notice to the Beneficiary of the Bank’s intent not to renew the Letter of Credit following the present Expiration Date thereof.

4. The Beneficiary has provided at least thirty (30) days’ prior written notice to the Applicants of the Bank’s intent not to renew the Letter of Credit following the present Expiration Date thereof.

5. The Applicants have failed to provide the Beneficiary with a substitute letter of credit substantially in the same form as the Letter of Credit within the thirty (30) day period referred to in paragraph 4 above.

6. Based upon the foregoing, the Beneficiary hereby makes demand under the Letter of Credit for payment of U.S. DOLLARS & /100ths (U.S. $ ).

7. The undersigned has concurrently presented to you its sight draft drawn in the amount specified in Paragraph 6 above, which amount does not exceed the lesser of (a) the amount the Beneficiary is entitled to draw pursuant to the provisions of the Agreement, and (b) the Available Amount as of the date hereof. The date of the sight draft is the date of this Certificate, which is not later than the Expiration Date.

8. Funds paid pursuant to the provisions of the Letter of Credit shall be wire transferred to the Beneficiary in accordance with the following instructions:

Unless otherwise provided herein, capitalized terms which are used and not defined herein shall have the meaning given each such term in the Letter of Credit.

IN WITNESS WHEREOF, this Certificate has been duly executed and delivered on behalf of the Beneficiary by its duly elected and acting as of this day of , .

[Seller to insert SGF Construction Milestones and Target Dates to achieve Target COD]

In the event that Buyer exercises its right pursuant to Article 11.2 or Article 11.3 to purchase one or more of the SGFs from Seller, Buyer shall have the right to purchase the facility in accordance with the following price schedule:

I. DECLARATION OF POLICY AND STATEMENTS OF GOALS. It is the policy of the Authority to provide Minority and Women-Owned Business Enterprises (M/WBEs) the greatest practicable opportunity to participate in the Authority's contracting activity for the procurement of goods and services. To effectuate this policy, the Contractor shall comply with these provisions and the provisions of Article 15-A of the New York Executive Law. The Contractor will use its best efforts to achieve the below-stated M/WBE Goals set for the Contract, and will cooperate in any efforts of the Authority, or any government agency which may have jurisdiction, to monitor and assist Seller's compliance with the Authority's M/WBE program.

(1) CERTIFICATION. The process conducted by the New York State Department of Economic Development, Minority and Women's Business Division to verify that a business enterprise qualifies for New York State Minority or Women-Owned Business Enterprise status. To initiate the certification process, contact one of the offices listed below.

(2) CERTIFIED BUSINESS. A business enterprise which has been approved by the Director for status as a MBE or WBE subsequent to verification that the business enterprise is owned, operated, and controlled by Minority Group Members, or women.

(a) A written agreement or purchase order instrument, or amendment thereto, providing for a total expenditure in excess of twenty-five thousand dollars ($25,000), whereby the Authority is committed to expend or does expend funds in return for labor, services, supplies, equipment materials or any combination of the foregoing, to be performed for, or rendered or furnished to, the Authority; or

(b) A written agreement in excess of one hundred thousand dollars ($100,000), whereby the Authority is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon.

(4) CONTRACTOR. An individual, a business enterprise including a sole proprietorship, a partnership, a corporation, a not-for-profit corporation, or any other party to an Authority contract, or a bidder in conjunction with the award of an Authority contract or a proposed party to an Authority contract.

(b) Services or products which must be provided to perform specific tasks required by the Contract; and

(7) DIRECTOR. New York State Department of Economic Development, Minority and Women's Business Division.

(9) GOAL. A percentage of participation, which is not a set aside or quota, that represents a target toward which the prime Contractor must aim in expending good faith efforts to subcontract with or otherwise ensure the commercial involvement of minority and women-owned businesses on specific Authority contracts.

(10) NEW YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT, MINORITY AND WOMEN'S BUSINESS DIVISION. Office in the Executive Department created by Article 15-A of the Executive Law (hereinafter referred to as the "Office").

(11) MINORITY GROUP MEMBER. A United States citizen or permanent resident alien who is and can demonstrate membership in one of the following groups:

(b) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American descent of either Indian or Hispanic Origin, regardless of race;

(d) Asian and Pacific Islander persons having origins in any of the Far East countries, South East Asia, the Indian subcontinent or the Pacific Islands.

(e) Other groups which the Office may determine to be eligible for M/WBE status.

(12) MINORITY-OWNED BUSINESS ENTERPRISE. A business enterprise, including a sole proprietorship, partnership or corporation that is:

(b) An enterprise in which such minority ownership is real, substantial and continuing;

(c) An enterprise in which such minority ownership has, and exercises the Authority to control independently, the day-to-day business decisions of the enterprise; and

(d) An enterprise authorized to do business in New York State and is independently owned and operated.

(13) SUBCONTRACT. An agreement in which a portion of a Contractor's obligation under an Authority contract is under-taken or assumed.

(14) WOMEN-OWNED BUSINESS ENTERPRISE. A business enterprise, including a sole proprietorship, partnership or corporation that is:

(a) At least fifty-one percent owned by one or more United States citizens or permanent resident aliens who are women;

(b) An enterprise in which the ownership interest of such women is real, substantial and continuing;

(c) An enterprise in which such women ownership has, and exercises the Authority to control independently, the day-to-day business decisions of the enterprise; and

(d) An enterprise authorized to do business in New York State and is independently owned and operated.

(1) Each bidder shall search for, assess the capabilities of and generally deal with potential M/WBE subcontractors in a fair and responsive manner, allowing them the opportunity to participate in the Contract Scope of Work.

(2) Each bidder will designate, and make known to the Authority, an M/WBE Officer who will have the responsibility for and authority to effectively administer the M/WBE Program.

(3) As a part of its proposal, each bidder shall submit its Preliminary Subcontracting Plan, which shall identify the Certified Businesses it will utilize to meet its M/WBE Contract Goals. Approval of any such firm is solely within the discretion of the Authority.

The bidder will also designate an M/WBE Officer who will have the responsibility for, and authority to, effectively administer these procedures. If any bidder believes it may be unable to meet the Goals, the reasons shall be submitted in writing.

(4) To help prospective bidders with M/WBE participation, they may inspect the current New York State Certification Directory of Minority and Women Owned Businesses, prepared for use by state agencies and contractors in complying with Executive law Article 15-A, (the Directory) at the same location where the Authority's bid document or request for proposals may be obtained or inspected and also at the Authority's office at 333 Earle Ovington Boulevard, Suite 403, Uniondale, NY 11553. In addition, printed or electronic copies of the Directory may be purchased from the New York State Department of Economic Development, Minority and Women's Business Division.

(5) Firms certified as both MBE and WBE may count toward either the MBE or WBE Goal on a single contract, but not both, regardless of whether either Goal is thus exceeded. The Bidder must choose the Goal to which the participation value is to be applied in the Preliminary Subcontracting Plan.

(1) Within ten (10) days after contract award the Contractor may submit a complete Utilization Plan, which shall include identification of the M/WBEs which the Contractor intends to use; the dollar amount of business with each such M/WBE; the Contract Scope of Work which the Contractor intends to have performed by such M/WBEs; and the commencement and end dates of such performance. The Authority will review the plan and, within twenty (20) days of its receipt, issue a written acceptance of the plan or comments on deficiencies in the plan.

(2) The Authority shall consider a partial or total waiver of Goal requirements only upon the submission of a written request for a waiver following Contractor’s unsuccessful good faith efforts at compliance. (See Section VI, below). Such wavier request may be made simultaneously with the submission of the Utilization Plan.

(3) The Contractor shall include in each Subcontract, in such a manner that the provisions will be binding upon each Subcontractor, all of the provisions herein including those requiring Subcontractors to make a good faith effort to solicit participation by M/WBEs.

(4) The Contractor shall keep records, canceled checks and documents for at least one (1) year following completion of the Contract. These records, and canceled checks, documents or copies thereof will be made available at reasonable times upon written request by the Authority or any other authorized governmental entity.

(5) The Contractor shall submit monthly compliance reports regarding its M/WBE utilization activity. Reports are due on the first business day of each month, beginning thirty (30) days after Contract award. A monthly compliance form has been provided in this Exhibit.

(6) The Authority will conduct compliance reviews for determination of the Contractor's performance relative to meeting the specified M/WBE Goal which may include review and inspection of documents pertaining to the Contractor's efforts towards meeting the Goals and on-site interviews with personnel of Contractor and its Subcontractors. The Contractor will fully cooperate to assist the Authority in this endeavor.

(7) The Contractor shall not use the requirements of this section to discriminate against any qualified company or group of companies.

V. CONDITIONS FOR SATISFYING M/WBE GOALS. M/WBE participation will be counted toward the total Contract M/WBE Goals subject to the following conditions:

(1) If the Contractor is unable to meet the Goals with Certified Businesses by making all of the good faith efforts defined herein (under section VI), the Contractor shall actively solicit uncertified M/WBEs to satisfy the Goals. Uncertified firms will be required to submit an application for certification (to the New York State Department of Economic Development, Minority and Women's Business Division) and will be counted as contributing towards the contract Goals only after they have been certified.

(2) The Contractor must keep records of efforts to utilize certified M/WBE's including:

(3) Price alone will not be an acceptable basis for rejecting M/WBE bids if any of the bids are reasonable.

(4) Geographical limitation in the M/WBE search is not an acceptable reason for not meeting the M/WBE goal when traditionally non-local firms have been generally utilized.

(5) The Authority reserves the right to reject any firm as counting toward meeting the Contractor's M/WBE goal if, in the opinion of the Authority, the facts as to that firm's business and technical organization and practices justify the rejection.

VI. CONTRACTOR'S GOOD-FAITH EFFORTS. To satisfy the M/WBE participation requirements, the Contractor agrees to make the following good-faith efforts in a timely manner:

(2) Advertising in appropriate general circulation, trade and minority and women-oriented publications.

(3) Written solicitations made in a timely manner of certified minority and women-owned business enterprises listed in the Directory.

(4) Attendance at pre-bid, pre-award, or other meetings, if any, scheduled by the Authority with certified M/WBEs capable of performing the contract scope of work.

(5) Written notification to M/WBE trade associations located within the region where the contract scope of work will be performed.

(6) Structuring the Contract Scope of Work for purposes of subcontracting with certified M/WBEs.

(7) Where certified M/WBEs have expressed an interest to the Contractor in performing work that the Contractor normally performs with its own forces and the contract scope of work has not been fully performed, the Contractor shall consider subcontracting such work or portions of it to meet the M/WBE Goals.

DATE	PURCHASE PRICE
[COD DATE, YEAR]
[DATE, YEAR +1]
[DATE, YEAR + ….]
[TERM END DATE, YEAR]