RENEWABLE ENERGY CERTIFICATE SALES AGREEMENT
This Agreement (the “Agreement”) is entered into this day of 2005, by and between the
Massachusetts Technology Park Corporation, an independent public instrumentality of the Commonwealth of Massachusetts, doing business as the Massachusetts Technology Collaborative (“Seller”), and _________________________________, a ______________corporation (“Purchaser”) (Hereinafter each of the Seller and Purchaser shall be referred to individually as a “Party” and, collectively,
as the “Parties”.)
WHEREAS, attributes of renewable energy produced from qualified renewable energy sources are commonly documented as renewable energy certificates; and
WHEREAS, Seller is the owner of certain renewable energy certificates and Purchaser desires to purchase and Seller desires to sell its title to the renewable energy certificates which are the subject of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants and obligations contained herein, the Parties hereto agree as follows:
1. Definitions. All capitalized terms not defined herein have the same meanings as set forth in Chapter 164 of the Acts of 1997 - ACT RELATIVE TO RESTRUCTURING THE ELECTRIC UTILITY INDUSTRY.
(a) Prime Rate. The Prime Rate announced from time to time by the Wall Street Journal or its successors as its prime rate.
(b) Renewable Portfolio Standard (“RPS”). The legislative requirements imposed by the
applicable Massachusetts Renewable Portfolio Standard (225 CMR 14.00) requiring that a minimum percentage of electrical energy sold by electricity suppliers must be produced from a Qualified Renewable Energy Generating Facility.
(c) New England Generation Information System (“NE-GIS”). The generation information
database and certificate system established by the New England Power Pool to account for and track the attributes associated with electrical output generated and/or sold within New England.
(d) Renewable Energy Generating Facility. A generation facility that uses a fuel source
that is defined as “renewable” (i) by any law requiring the purchase of certificates in New England or (ii) by any statute, regulation or order or decision of a governmental agency of a New England state with respects to eligibility of monies from a state renewable energy fund.
(e) Qualified Renewable Energy Generating Facility. An electric generating facility that has
qualified under the requirements of the Massachusetts Renewable Portfolio Standard (225 CMR 14.00) as a New Renewable Generation Unit.
(f) Certificate. The electronic record of electric generation attributes (except the actual electrical energy) associated with each MWh of energy generated and/or sold within New England and recorded in the NE-GIS. Certificates are deemed to come into existence at the point that output from a generating facility is metered and which are verified and certified by the applicable Certification Authority. Specific attributes captured on certificates are described in Appendix 2.4 of the New England Power Pool Generation Information System Operating Rules (“NE-GIS Operating Rules”).
(g) Renewable Energy Certificate (“REC"). A Certificate generated by a Renewable Energy
(h) Certification Authority. A governmental body or other accredited entity responsible for
verifying and certifying RECs based on applicable generation data as specified in Exhibit A. The Certification Authority may be a regional Independent System Operator (“ISO”), a regional transmission
organization (“RTO”), a generation information system (“GIS”), or governmental regulatory authority.
(i) REC Termination Date. The date upon which the Certification Authority stipulates that the certified RECs are no longer eligible for sale, trade, banking or credit.
(j) REC Trading Period. The period in which a Certification Authority permits the sale or trade of RECs as specified in Exhibit A: NEPOOL GIS Schedule .
(k) Transfer Date. The date within the applicable REC Trading Period on which the Seller transfers the RECs to the Purchaser's (a) NE-GIS Retail Load Serving Entity Account (the “LSE Account”)
(preferably into the appropriate Retail LSE Retail sub-account for Massachusetts RPS compliance or voluntary consumer “green” choice program), or (b) into the appropriate Trader Account for use as part of a voluntary consumer “green” choice program. For purposes of this Agreement, the Transfer Date shall
be the date within 5 business days of Seller’s receipt of full payment of the REC Purchase Price.
2. Purchase and Sale of RECs. Subject to the terms and conditions of this Agreement,
within the REC Trading Period(s) as listed on Exhibit A attached hereto, Seller hereby agrees to sell to
the Purchaser, free and clear of all claims, liens, security interests and encumbrances of every kind, nature and description, and the Purchaser hereby agrees to purchase, acquire and receive assignment from Seller, all of the Seller’s right, title and interest in RECs of the type, in a quantity, and for the price ("REC Purchase Price") as each term is listed on Exhibit B.
3. Terms of Payment and Transfer of RECs. Any and all sums due Seller for the transfer of
RECs, as stipulated on Exhibit B, shall be due and payable within 5 business days of the date that both Parties’ have fully executed this Agreement (“Due Date”). Payments shall be made by electronic funds
transfer to the account of the Seller as designated on Schedule 1. Any amounts due and not paid by the
Due Date shall accrue interest at the rate per annum equal to two percent (2%) above the Prime Rate in effect on the Due Date. Seller shall transfer the RECs into Purchaser’s LSE Account or Trader Account
within 5 business days of Seller’s receipt of full payment of the REC Purchase Price (the “Transfer Date”).
In accordance with the acceptance procedures of the NE-GIS, the Purchaser must acknowledge the Seller’s transfer of RECs to their LSE Account or Trader Account within 5 days from the Transfer Date
(the “Acceptance Date”).
4. Failure to Deliver Agreed Upon RECs.
(a) In the event that the Seller fails to provide RECs as stipulated in Section 2, and the Purchaser elects to terminate this Agreement, the Seller shall pay to the Purchaser the positive amount, if any, equal to the product of (i) the remaining RECs to be transferred under this Agreement and (ii) the positive difference, if any, of the aggregate market price as of the date of termination for a quantity of RECs of equal vintage as specified in Exhibit B less the REC Purchase Price. The aggregate market price is to be determined based upon the average of prices quoted by three independent third party brokerage services selected by Purchaser and reasonably acceptable to the Seller.
(b) In the event that the Purchaser causes or suffers an Event of Default and Seller elects to terminate this Agreement, the Purchaser shall pay Seller the positive amount, if any, equal to the product of (i) the remaining RECs to be transferred under this Agreement and (ii) the positive difference, if any, of the REC Purchase Price less the aggregate market price as of the date of termination for a
quantity of RECs of equal vintage as specified in Exhibit B. The aggregate market price is to be determined based upon the average of prices quoted by three independent third party brokerage services selected by Seller and reasonably acceptable to the Purchaser.
5. Term. This Agreement shall be effective from the date first written above and continue in full force through the Acceptance Date, or until any and all sums due Seller, including but not limited to interest accrued in accordance with Section 3, are paid to the Seller, whichever is later.
6. Default. In the event (each an “Event of Default”) that: (i) either Party shall fail to perform the terms and conditions set forth in this Agreement; or (ii) either Party’s representation, warranty
or covenant contained in this Agreement shall be false or misleading in any material respect, the non-defaulting Party shall be entitled to terminate this Agreement immediately upon written notice to the defaulting party. The defaulting Party will have ten (10) days following receipt of such termination notice to cure the Event of Default. If such Event of Default is cured to the satisfaction of the non-defaulting Party, this Agreement will be reinstated for the duration of the term of the Agreement subject to the terms contained herein. In the event that a Party: (a) becomes insolvent; (b) makes a general assignment of substantially all of its assets for the benefit of its creditors, files a petition for bankruptcy or reorganization or seeks other relief under any applicable insolvency laws; or (c) has filed against it a petition for bankruptcy, reorganization or other relief under any applicable insolvency laws and such petition is not dismissed within thirty (30) days after it is filed, then the other Party shall be entitled to terminate this Agreement immediately.
7. Representations and Warranties of Seller.
(a) Title to RECs. Seller has or will have good and marketable title to the RECs, and
will transfer such good and marketable title on the applicable Transfer Dates, free and clear of any and all encumbrances or any other title defect of any kind or nature whether arising by operation of law, statutory or otherwise, to Purchaser in accordance with this Agreement.
(b) Authority. The Seller has the power and authority to execute, deliver and perform this Agreement and any and all other agreements and documents to be executed and delivered in connection with this Agreement.
(c) Binding Effect. The execution and delivery by the Seller of this Agreement and the
performance by the Seller of its obligations hereunder will not violate any provision of any applicable law, any order of any court or other agency of government, or any provision of any agreement or other instrument to which the Seller is bound.
8. Representations and Warranties of Purchaser.
(a) Authority. The Purchaser has the power and authority to execute, deliver and
perform this Agreement and any and all other agreements and documents to be executed and delivered in connection with this Agreement.
(b) Binding Effect. To the best knowledge of the Purchaser, the execution and delivery
by the Purchaser of this Agreement and the performance by the Purchaser of its obligations hereunder will not violate any provision of any applicable law, any order of any court or other agency of government, the organizational documents of the Purchaser, or any provision of any agreement or other instrument to which the Purchaser is bound.
9. Massachusetts Ratepayer Benefit Requirement. The Purchaser shall utilize the RECs
transferred pursuant to this Agreement for the sole purpose of either (a) its compliance with the
Massachusetts Renewable Portfolio Standard or (b) to fulfill demand from a voluntary REC sales program to Massachusetts-based customers, and shall not use the RECs for compliance with any other state’s
renewable energy compliance requirements or such state’s voluntary REC sales programs. In the event
that Purchaser intends to re-sell the RECs, Purchaser shall sell the RECs exclusively to end-use customers for final disposition in the Commonwealth of Massachusetts and in full compliance with the Massachusetts Ratepayer Benefit Requirement. In order to verify compliance with the Massachusetts Ratepayer Benefit Requirement, Purchaser shall, for a period of two (2) years from the Acceptance Date, provide Seller (upon reasonable advance notice) with reasonable access to its documents and records relating to its purchase of RECs pursuant to this Agreement, including but not limited to records of any re-sale of such RECs and the identify of the final purchaser of such RECs.
10. Warranty; Limitation of Damages. UNLESS OTHERWISE AGREED HEREIN,
NEITHER PARTY SHALL BE RESPONSIBLE FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL
DAMAGES OF ANY KIND, AND IN NO EVENT SHALL BE RESPONSIBLE FOR DAMAGES IN EXCESS
OF ANY AMOUNTS RECOVERABLE UNDER SECTION 4 OF THIS AGREEMENT. THE FOREGOING
DISCLAIMER OF LIABILITY SHALL BE BINDING UPON THE PURCHASER AND ANY SUCCESSOR IN
TITLE, ASSIGNS, TRANSFEREES, AND ULTIMATE USERS OF THE RECS. 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 THE AGREEMENT
SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR A BREACH OF ANY PROVISION FOR WHICH
AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR
MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER
REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE OF
DAMAGES IS EXPRESSLY PROVIDED HEREIN OR IN A TRANSACTION, THE OBLIGOR’S LIABILITY
SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES
SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT
LAW OR IN EQUITY ARE WAIVED.
11. Taxes. The Parties are responsible for the payment of any and all applicable taxes, government charges or levies, properly payable by the respective Parties as a result of the transactions contemplated by this Agreement.
12. Public Records Law.
(a) Publicity. The Parties acknowledge that Seller is subject to the Massachusetts Public Records Law (M.G.L. c. 66), and thus any documents and other materials made or received by Seller are subject to public disclosure, including but not necessarily limited to the existence of this Agreement. Purchaser acknowledges that its identity and the REC Purchase Price shall be publicly disclosed by Seller in the sole exercise of Seller’s discretion. The Parties acknowledge that the policies
and procedures set forth in the attached Exhibit C are applicable to any documents submitted to Seller by Purchaser.
(b) Prior Written Consent. Prior to either Party publicizing or disseminating any
promotional materials containing the name, trademarks, logo or service marks of the other Party, the Party publicizing or disseminating such materials shall obtain the prior written consent of the other Party. The foregoing notwithstanding, Seller’s written or verbal responses to public inquiries or Seller’s discretionary disclosures concerning the sale of RECs pursuant to this Agreement shall not require Purchaser’s consent.
13. Dispute Resolution. The Parties will attempt in good faith to resolve any dispute concerning this Agreement or the Parties' respective obligations hereunder through an acceptable alternative dispute resolution procedure. In the event the Parties are unable to agree upon an acceptable
alternative dispute resolution procedure, or following any such alternative dispute resolution procedure any dispute arising out of this Agreement remains unresolved, the Parties shall retain whatever legal remedies are available to them for resolution of the unresolved dispute.
14. Notices. All notices which may be given in connection with this Agreement shall be sent by either Party to the other Party by U.S. Certified Mail, return receipt requested, or by overnight courier service. Any such notice given to the Seller shall be addressed to:
Massachusetts Technology Park Corporation
75 North Drive
Westborough, MA 01581
Attn: Martha Broad
With copy to: Matthew Schemmel, Senior Counsel
Any such notice given to Purchaser shall be addressed to:
[Purchaser address, line 1]
[Purchaser address, line 2]
Attn: [Purchaser contact]
15. Assignability. Neither Party shall assign their rights or transfer their obligations hereunder without the prior written consent of the other Party (which consent shall not be withheld unreasonably).
16. Severability. In the event that any provision of this Agreement is determined to be unenforceable or invalid under any applicable law, or is held unenforceable or invalid by any applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of any applicable law or applicable court decisions.
17. Controlling Law. This Agreement shall be governed in all respects by the laws of the Commonwealth of Massachusetts. Each Party hereby expressly waives any objection to the personal jurisdiction and venue of the state or federal courts located in the Commonwealth of Massachusetts.
18. Section Headings. The descriptive section headings herein have been inserted for
convenience only and shall not be deemed to define, limit, or otherwise affect the construction of any provision hereof.
19. Entire Agreement. This Agreement completely and exclusively states the agreement of the Parties regarding its subject matter. It supersedes, and its terms govern, all prior or contemporaneous proposals, agreements or other communications between the Parties, oral or written, regarding such subject matter. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of Seller and Purchaser by their duly authorized representatives.
20. Counterpart Execution. This Agreement may be signed and delivered in counterparts
with the same effect as if both Parties had signed and delivered the same copy, and when each Party has executed and delivered a counterpart, all counterparts together constitute one Agreement. Delivery of a copy of this Agreement by facsimile is good and sufficient delivery.
IN WITNESS HEREOF, the Parties have executed this Agreement as a document under seal by their
authorized representatives as follows:
MASSACHUSETTS TECHNOLOGY PARK CORPORATION
________________________________________ Name: Mitchell Adams
Title: Executive Director
NEPOOL GIS Schedule
The NE-GIS schedule specifies four time periods within each annual REC generation period (the “Trading
Year”) when RECs may be transferred from one entity to another (the “Trading Periods”). The Trading
Periods are set forth in the table below. The creation of Certificates as well as the schedule of the Trading Periods are maintained and monitored by a Certification Authority.
According to the NE-GIS Operating Rules, RECs may be transferred during the Trading Periods, according to the following rules:
; RECs may not be transferred during any period of time intervening between such Trading Periods thth(e.g. September 16 – October 14 each year).
; RECs may be banked for transfer in future Trading Periods within a Trading Year, except for
RECs from the fourth quarter of each year of REC generation (this needs better explanation)
; RECs that remain banked beyond the final Trading Period within a Trading Year are forfeited.
Therefore, RECs remaining in an account during the final Trading Period (April 15-June 15) must thbe matched against load or traded, or else they will be forfeited as of June 16 of each year.
Generation Period Trading Period
July 15 to
Q1, 200X September 15, 200X
October 15 to
Q2, 200X December 15, 200X
January 15 to
Q3, 200X March 15, 200(X+1)
April 15 to
Q4, 200X June 15, 200(X+1)
REC Sales Agreement Quantity and Price
Number of Generation Purchase Price
RECs Period ($ Per MWh) Total Price
$AB, CDE Q2, 2005 $XX
$FG,HIJ Q3, 2005 $YY
$KL,MNO Q4, 2005 $ZZ
TOTAL REC PURCHASE PRICE:___________________________________
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THE MASSACHUSETTS TECHNOLOGY COLLABORATIVE
POLICY AND PROCEDURES REGARDING SUBMISSION OF “SENSITIVE INFORMATION”
The Massachusetts Technology Collaborative and the Massachusetts Renewable Energy Trust which it administers (collectively referred to herein as “MTC”) is subject to the requirements concerning disclosure of public records under the Massachusetts Public Records Act, M.G.L. c. 66 (the “Public Records Act”), which governs the retention, disposition and archiving of public records. For purposes of the Public Records Act, “public records” include all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by MTC. As a result, any information submitted to MTC by a grant applicant, recipient grantee, respondent to a request for response (including, but not limited to an RFQ, RFP and RFI), contractor, or any other party (collectively the “Submitting Party”) is subject to public disclosure as set forth in the Public Records Act.
The foregoing notwithstanding, "public records" do not include certain materials or data which fall within one of the specifically enumerated exemptions set forth in the Public Records Act or in other statutes, including MTC's enabling act, M.G.L. Chapter 40J. One such exemption that may be applicable to documents submitted by a Submitting Party is for any documentary materials or data made or received by MTC that consists of trade secrets or commercial or financial information regarding the operation of any business conducted by the Submitting Party, or regarding the competitive position of such Submitting Party in a particular field of endeavor (the "Trade Secrets Exemption").
It is MTC’s expectation and belief that the overwhelming percentage of documents it receives from a Submitting Party does not contain any information that would warrant an assertion by MTC of an exemption from the Public Records Act. Submitting Parties should therefore take care in
determining which documents they submit to MTC, and should assume that all documents submitted to MTC are subject to public disclosure without any prior notice to the Submitting Party and without resort to any formal public records request.
In the event that a Submitting Party wishes to submit certain documents to MTC and believes such a document or documents may be proprietary in nature and may fall within the parameters of the Trade Secrets Exemption and/or some other applicable exemption, the following procedures shall apply:
1. At the time of the Submitting Party’s initial submission of documents to MTC, the Submitting Party
must provide a cover letter, addressed to MTC’s General Counsel, indicating that it is submitting
documents which it believes are exempt from public disclosure, including a description of the
specific exemption(s) that the Submitting Party contends is/are applicable to the submitted
materials, a precise description of the type and magnitude of harm that would result in the event
of the documents’ disclosure, and a specific start date and end date within which the claimed
exemption applies. If different exemptions, harms and/or dates apply to different documents, it is
the Submitting Party’s responsibility to provide detailed explanations for each such document.
2. At the time of the Submitting Party’s initial submission of documents to MTC, the Submitting Party
must also clearly and unambiguously identify each and every such document that it contends is
subject to an exemption from public disclosure as “Sensitive Information.” It is the Submitting
Party’s responsibility to ensure that all such documents are sufficiently identified as “Sensitive
Information,” and Submitting Party’s designation must be placed in a prominent location on the
face of each and every document that it contends is exempt from disclosure under the Public
Information submitted to MTC in any form other than a hard copy document will not be subject to the procedures set forth herein. For example, information submitted by e-mail, facsimile and/or verbally will not be subject to these procedures and may be disclosed at any time without notice to the Submitting Party.
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3. Documents that are not accompanied by the written notification to MTC’s General Counsel or are
not properly identified by the Submitting Party as “Sensitive Information” at the time of their initial submission to MTC are presumptively subject to disclosure under the Public Records Act, and the procedures for providing the Submitting Party with notice of any formal public records request for documents, as set forth below, shall be inapplicable.
4. At the time MTC receives documents from the Submitting Party, any such documents designated by Submitting Party as “Sensitive Information” shall be segregated and stored in a secure filing area when not being utilized by appropriate MTC staff. By submitting a grant application, request for response, or any other act that involves the submission of information to MTC, the Submitting Party certifies, acknowledges and agrees that (a) MTC’s receipt, segregation and storage of documents designated by Submitting Party as “Sensitive Information” does not represent a finding by MTC that such documents fall within the Trade Secrets Exemption or any other exemption to the Public Records Act, or that the documents are otherwise exempt from disclosure under the Public Records Act, and (b) MTC is not liable under any circumstances for the subsequent disclosure of any information submitted to MTC by the Submitting Party, whether or not such documents are designated as “Sensitive Information” or MTC was negligent in disclosing such documents.
5. In the event that MTC receives an inquiry or request for information submitted by a Submitting Party, MTC shall produce all responsive information without notice to the Submitting Party. In the event that the inquiry or request entails documents that the Submitting Party has previously designated as “Sensitive Information”, the inquiring party shall be notified in writing that one or
more of the documents it has requested has been designated by the Submitting Party as “Sensitive Information”, and that a formal, written public records request must be submitted by the requesting party to MTC’s General Counsel for a determination of whether the subject documents are exempt from disclosure.
6. Upon the General Counsel’s receipt of a formal, written public records request for information that encompass documents previously designated by Submitting Party as “Sensitive Information”, the
Submitting Party shall be notified in writing of MTC’s receipt of the public records request, and MTC may, but shall not be required to provide Submitting Party an opportunity to present MTC with information and/or legal arguments concerning the applicability of the Trade Secrets Exemption or some other exemption to the subject documents.
7. The General Counsel shall review the subject documents, the Public Records Act and the exemption(s) claimed by the Submitting Party in making a determination concerning their potential disclosure.
The General Counsel is the sole authority within MTC for making determinations on the applicability and/or assertion of an exemption to the Public Records Act. No employee of MTC other than the General Counsel has any authority to address issues concerning the status of “Sensitive Information” or to bind MTC in any manner concerning MTC’s treatment and disclosure of such documents.
Furthermore, the potential applicability of an exemption to the disclosure of documents designated by the Submitting Party as “Sensitive Information” shall not require MTC to assert such an exemption. MTC’s General Counsel retains the sole discretion and authority to assert an exemption, and he may decline to exert such an exemption if, within his discretion, the public interest is served by the disclosure of any documents submitted by the Submitting Party.
8. MTC shall provide the requesting party and Submitting Party with written notice of its determination that the subject documents are either exempt or not exempt from disclosure.
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