Exhibit 10.11
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AMENDED AND RESTATED
INTERCONNECTION FACILITIES AGREEMENT
CO-OWNERSHIP AGREEMENT
THIS AMENDED AND RESTATED INTERCONNECTION FACILITIES AGREEMENT
CO-OWNERSHIP AGREEMENT ("Agreement") is entered into as of June 30, 1992 by and
among Zond Systems, Inc., a California corporation ("Zond"), Victory Garden
Phase IV Partnership, a California general partnership (the "Partnership"),
Heizel and Schwarzhoff, a California general partnership ("H&S"), Zond
Windsystem Partners, Ltd. Series 85-A, a California limited partnership ("Series
85-A"), and Zond Windsystem Partners, Ltd. Series 85-B, a California limited
partnership ("Series 85-B"). Each of Zond, Partnership, H&S, Series 85-A and
Series 85-B are sometimes referred to as a "Party" or collectively as "the
Parties."
A. Zond entered into an Amended and Restated Interconnection
Facilities Agreement (the "Original IFA") dated November 18, 1988 with Southern
California Edison Company ("SCE"), providing for interconnection of certain wind
turbine electric generating facilities to the SCE distribution system.
B. Zond, SCE and the Partnership entered into Amendment No. 1 to
the Original IFA dated October 11, 1989 ("Amendment No. 1"), pursuant to which
the Partnership was added as a party to the Original IFA and named as a "Seller"
under the Original IFA in order to permit the Partnership to use the IFA as the
contractual basis for interconnecting certain wind turbine electric generating
facilities owned by the Partnership to the SCE distribution system.
C. Zond and the Partnership have entered into a Interconnection
Facilities Agreement Co-Ownership Agreement dated as of October 10, 1989 (the
"Existing Agreement") pursuant to which they established their proportionate
rights, benefits and obligations to interconnect their wind turbine electric
generating facilities to the SCE distribution system pursuant to the terms of
the IFA.
D. H&S, Series 85-A and 85-B have been or will be named as
additional Sellers under, and parties to, the Original IFA pursuant to that
certain Amendment No. 2 to the IFA by and among SCE, Zond, H&S, Partnership,
Series 85-A and Series 85-B (together with the Original IFA and Amendment No. 1,
the "IFA").
E. The Parties desire to amend and restate the Existing Agreement
to provide that all of the rights, benefits and obligations of the Seller under
the IFA shall be owned and held by them in the form of undivided interests as
tenants in common and to establish among themselves their proportionate rights,
respectively, to interconnect their wind turbine electric generating facilities
to the SCE distribution system.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby agrees as follows:
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AGREEMENT
1. Co-Ownership. The Parties hereby agree that they shall
be jointly and collectively considered as the Seller under the IFA, and as
co-owners of all the Seller's right, title and interest in, to and under the
IFA. Each of the Parties hereby acknowledges and agrees that all of the rights,
benefits and obligations of the Seller under the IFA shall be shared and
allocated between them as provided herein. The Parties acknowledge that the
total capacity under the IFA (the "Total IFA Capacity") equals the sum of the
Contract Capacities (as defined in Section 1.5 of each of the Monolith power
purchase contracts). Each Party's undivided interest in the capacity, rights,
benefits and obligations of Seller under the IFA shall equal (i) the aggregate
of such Party's Nameplate Ratings (as defined in Section 3.6 of the IFA) as of
the date hereof under the various Monolith power purchase contracts which name
such Party as a Seller divided by (ii) the Total IFA Capacity. The Parties
recognize that Zond is acting for itself and as agent on behalf of the
Non-Manager Parties.
2. Payment of Expenses.
All expenses, including, without limitation, capital
expenditures, payable by Sellers under the IFA (the "IFA Costs") shall be shared
by the Parties. Each Seller shall be allocated a percentage of any IFA Costs
equal to the aggregate rated capacity of such Seller's turbines utilizing the
IFA divided by the total aggregate rated capacity of all turbines utilizing the
IFA.
3. Project Manaqement Responsibilities. Zond agrees to act
as Project Manager on behalf of the Sellers for the purposes of the IFA. Zond
shall not receive any additional compensation from the Sellers for acting as
Project Manager. Zond may only be removed as Project Manager by the Sellers if
(i) Zond is grossly negligent in the performance of its duties as Project
Manager or (ii) SCE delivers a written notice to Zond or the Sellers that Zond
has committed a non-payment default under the IFA. Zond may resign as Project
Manager upon a written notice to SCE and the Sellers. If the Non-Manager Parties
elect to remove Zond or if Zond resigns as Project Manager, a new Project
Manager shall be selected by a majority approval (based upon rated capacity of
the turbines utilizing the IFA) of the Sellers under the IFA. Zond's removal or
resignation shall be effective upon the agreement of such selected third party
to serve as Project Manager and the approval of such selected third party by SCE
as described in Section 4.1.15 of the IFA. The Project Manager shall deliver
promptly to the Sellers copies of all notices received by such Project Manager
from SCE relating to the IFA and shall cooperate with the Sellers in complying
with terms of the IFA.
4. Indemnity.
4.1 Mutual Indemnity. Each Party hereto, and its
successors and assigns ("Indemnifying Party"), shall defend, indemnify and hold
harmless the other Parties hereto, and their respective successors and assigns
("Indemnified Party") for any and all losses, damages, costs or liabilities,
including reasonable attorneys' fees and expenses, which the Indemnified Party
might suffer or incur as a result of the ownership
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or use of the turbine wind park of the Indemnifying Party; provided that the
foregoing indemnity shall not apply to any losses, damages, costs or liabilities
caused by the gross negligence or willful misconduct of the Indemnified Party.
4.2 Zond Indemnity. Zond shall defend, indemnify and
hold harmless each Seller under the IFA for any and all losses, damages, costs
or liabilities, including reasonable attorneys' fees and expenses, which such
Seller might suffer or incur as a result of the negligence or willful misconduct
of Zond as Project Manager under the IFA.
5. Liens.
5.1 Right to Encumber. Each of the Parties may, at
any time and from time to time during the term of this Agreement, encumber,
mortgage or hypothecate to any person or entity (herein, the "Mortgagee") by
deed of trust or mortgage or other security instrument (the "Mortgage"), all or
part of such party's interest under this Agreement without the consent of the
other, non-encumbering Parties. Any Mortgagee under a lien permitted hereunder
shall agree not to disturb the interest of the other Parties and their
mortgagees.
5.2 Limitation on Transfer. Except as provided in
Section 5.1 above, no Party shall be permitted to sell, assign, sublease,
hypothecate, transfer or dispose of, whether by operation of law or otherwise,
the whole or any part of this Agreement, without the prior written consent of
the other Parties which consent may not be unreasonably withheld or delayed.
6. Term. The term of this Agreement shall commence on the
date hereof and, unless otherwise terminated with the written consent of all
parties hereto, shall continue in effect until the termination of the IFA.
7. Miscellaneous.
7.1 Further Assurances. Each of the Parties agrees
to perform all such acts (including, but not limited to, executing and
delivering such instruments and documents) as reasonably may be necessary to
fully effectuate each and all of the purposes and intent of this Agreement.
7.2 Arbitration.
7.2.1 Agreement to Arbitrate Disputes. Any
controversy, claim or dispute between the Parties arising out of or related to
this Agreement or the breach hereof which cannot be settled amicably by the
Parties, shall be submitted for arbitration in accordance with the provisions
contained herein and in accordance with the Commercial Arbitration Rules of the
American Arbitration Association ("Rules"); provided, however, that
notwithstanding any provisions of such Rules, the Parties shall have the right
to take depositions and obtain discovery regarding the subject matter of the
arbitration, as provided in Title III of Part 4 (commencing with Section 1985)
of the California Code of Civil Procedure. Judgment upon the award rendered by
the arbitrators
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may be entered in any court having jurisdiction. The arbitrators shall determine
all questions of fact and law relating to any controversy, claim or dispute
hereunder, including but not limited to, whether or not any such controversy,
claim or dispute is subject to the arbitration provisions contained herein.
7.2.2 Commencement of Proceedings. Any Party desiring
arbitration shall serve on the other disputing Party or Parties and the Los
Angeles Office of the American Arbitration Association, in accordance with the
Rules, its Notice of Intent to Arbitrate ("Notice"), accompanied by the name of
the arbitrator selected by the Party serving the Notice. A second arbitrator
shall be chosen by the other disputing Party or Parties, and a third arbitrator
shall be chosen by the two arbitrators so selected. If the Party or Parties upon
whom the Notice is served fails to select an arbitrator and advise the Party who
initially served the Notice of its or their selection within fifteen (15) days
after receipt of the Notice, the second arbitrator shall be selected by the
first arbitrator. If the two arbitrators so chosen cannot agree upon a third
arbitrator within ten (10) days after the appointment of the second arbitrator,
the third arbitrator shall be selected in accordance with the Rules. The
arbitration proceedings provided hereunder are hereby declared to be
self-executing, and it shall not be necessary to petition a court to compel
arbitration.
7.2.3 Location. All arbitration proceedings shall be
held in Los Angeles, California.
7.2.4 Filing Deadlines. Notice of the demand for
arbitration shall be filed in writing with the other disputing Party or Parties
to this Agreement and with the American Arbitration Association. The demand for
arbitration shall be made within a reasonable time after the claim, dispute or
other matter in question has arisen, and in no event shall it be made after the
date when institution of legal or equitable proceedings based on such claim,
dispute or other matter in question would be barred by the applicable statutes
of limitations.
7.3 Attorneys' Fees. If any Party brings any action or
proceeding (including, but not limited to, arbitration) for the enforcement,
protection or establishment or any right or remedy under this Agreement or for
the interpretation of this Agreement, the prevailing Party shall be entitled to
recover its reasonable attorneys' fees and costs in connection with such action
or proceeding, whether or not taxable.
7.4 Construction of Agreement.
7.4.1 Governing Law. The terms and provisions of this
Agreement shall be interpreted in accordance with the laws of the State of
California applicable to contracts made and to be performed within such State
and without reference to the choice of law principles of the State of California
or any other state.
7.4.2 Interpretation. The Parties agree that the terms
and provisions of this Agreement embody their mutual intent and that they are
not to be construed more liberally in favor of, nor more strictly against, any
Party hereto.
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7.4.3 Partial Invalidity. If any term or provision of
this Agreement or the application thereof to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or circumstances other than
those to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
7.4.4 Headings. The Section headings contained in this
Agreement are for purposes of reference and convenience only and shall not limit
or otherwise affect the meaning hereof.
7.4.5 Notices. All notices or other communications
required or permitted hereunder shall, unless otherwise provided herein, be in
writing, shall be personally delivered, telegraphically transmitted, sent by
telecopy, or sent by registered or certified mail, return receipt requested, and
deposited in the United States mail, postage prepaid, addressed to the Parties
at the addresses set forth on the signature page below. Notices given by hand,
telegraphically transmitted or sent by telecopy shall be deemed given the day so
delivered transmitted or sent. Notices mailed as provided herein shall be deemed
received on the third business day following the mailing date. Notice of change
of address shall be given by written notice in the manner detailed in this
Section 7.4.5.
7.5 No Waiver. No waiver of any of the covenants,
terms of conditions of this Agreement shall be effective unless set forth in
writing by the Party making the waiver and delivered to the other Parties and
such waiver shall be effective only for the time and to the extent therein
stated. No omission or act (other than the delivery of the foregoing written
waiver) by a Party shall constitute or be deemed to constitute a waiver of any
default in the performance of or breach of any agreement, duty, responsibility,
representation, warranty or covenant of the other Parties contained in this
Agreement.
7.6 Action by a Party. Whenever under the terms of
this Agreement any action is required or permitted to be taken by any Party
which is a corporation, such action may be taken and performed by any duly
authorized officer of the Party.
7.7 Execution in Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be considered an
original instrument, but all of which shall be considered one and the same
agreement, and shall become binding when one or more counterparts have been
signed by each of the Parties and delivered to each of them.
7.8 No Third Party Beneficiaries. The Parties do not
intend to, and this Agreement shall not, confer any benefit hereunder on any
person, firm or corporation other than the Parties hereto.
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7.9 Entire Agreement. This Agreement, together with
its attached schedules and exhibits, contains the entire agreement between the
Parties hereto with respect to the subject matter hereof and any prior
agreements, discussions or understandings, written or oral, are superseded by
this Agreement and shall be of no force or effect. No addition or modification
of any term or provision of this Agreement shall be effective unless set forth
in writing and signed by the authorized representatives of the Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as
set forth below.
"ZOND"
Zond Systems, Inc., a
California corporation
13000 Jameson Road
Tehachapi, CA 93561
Telephone: (805) 822-6835
Telecopies: (805) 822-7880
By: /s/ Kenneth C. Karas
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Name: Kenneth C. Karas
Title: President
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"PARTNERSHIP"
Victory Garden Phase IV
Partnership, a California
general partnership
13000 Jameson Road
Tehachapi, CA 93561
Telephone: (805) 822-6835
Telecopies: (805) 822-7880
By its general partners
Zond Victory Garden Phase IV
Development Corporation, a
California corporation
By: /s/ Kenneth C. Karas
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Name: Kenneth C. Karas
Title: President
ESI VG Limited Partnership, a
Delaware limited partnership
By its general partner
ESI Victory, Inc., a Florida
Corporation
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
"H&S"
Helzel and Schwarzhoff,
a California general
partnership
5550 Redwood Road
Oakland, CA 94619-2915
Telephone: (510) 482-2900
Telecopies: (510) 482-2915
By:
---------------------------------
Name:
---------------------------------
Title: General Partner
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"PARTNERSHIP"
Victory Garden Phase IV
Partnership, a California
general partnership
13000 Jameson Road
Tehachapi, CA 93561
Telephone: (805) 822-6835
Telecopies: (805) 822-7880
By its general partners
Zond Victory Garden Phase IV
Development Corporation, a
California corporation
By:
-------------------------------------
Name: Kenneth C. Karas
Title: President
ESI VG Limited Partnership, a
Delaware limited partnership
By its general partner
ESI Victory, Inc., a Florida
Corporation
By: /s/ Kenneth P. Hoffman
--------------------------------
Name: Kenneth P. Hoffman
Title: President
"H&S"
Helzel and Schwarzhoff,
a California general
partnership
5550 Redwood Road
Oakland, CA 94619-2915
Telephone: (510) 482-2900
Telecopies: (510) 482-2915
By:
---------------------------------
Name:
---------------------------------
Title: General Partner
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"Series 85-A"
Zond Windsystem Partners,
Series 85-A, a California
limited partnership
13000 Jameson Road
Tehachapi, CA 93561
Telephone: (805) 822-6835
Telecopies: (805) 822-7880
By its general partner
By: Zond Windsystem
Management Corporation III,
a California corporation
By: /s/ Kenneth C. Karas
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Name: Kenneth C. Karas
Title: President
"Series 85-B"
Zond Windsystem Partners,
Series 85-B, a California
limited partnership
13000 Jameson Road
Tehachapi, CA 93561
Telephone: (805) 822-6835
Telecopies: (805) 822-7880
By its general partner
By: Zond Windsystem Management,
Corporation IV, a
California corporation
By: /s/ Kenneth C. Karas
------------------------------------
Name: Kenneth C. Karas
Title: President
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