þ | Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the fiscal year ended October 31, 2007 |
o | Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the transition period from to |
Delaware | 03-0366218 | |
(State or other jurisdiction of
incorporation
or organization) |
I.R.S. Employer Identification Number |
Securities registered pursuant to Section 12(b) of the Act:
|
Common Stock, par value $.001 per share | American Stock Exchange | ||
|
||||
|
(Title of Class) | (Exchange registration) |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Completed the planning for an extensive solar electricity generation installation in our
Watertown facility that is scheduled to be operational in 2008 and to supply a significant
amount of the energy for that facility.
Upgraded the lighting in most of our facilities to high efficiency lighting.
Instituted no-idling and other driving policies in all of our locations.
Finalized plans to upgrade many of our older vehicles to new, more energy efficient
vehicles.
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
charges related to any potential acquisition from which we may withdraw;
diversion of our managements time, attention, and resources;
decreased utilization during the integration process;
loss of key acquired personnel;
increased costs to improve or coordinate managerial, operational, financial, and
administrative systems including compliance with the Sarbanes-Oxley Act of 2002;
dilutive issuances of equity securities, including convertible debt securities;
the assumption of legal liabilities;
amortization of acquired intangible assets;
potential write-offs related to the impairment of goodwill;
difficulties in integrating diverse corporate cultures; and
additional conflicts of interests.
Table of Contents
Location
Lease expiration
Sq. Ft.
Annual Rent
June 2009
10,000
$
70,936
December 2008
11,760
$
147,000
June 2010
9,600
$
48,360
January 2012
15,000
$
60,000
September 2010
10,000
$
62,500
December 2010
10,000
$
38,333
October 2011
22,500
$
148,500
May 2010
5,000
$
24,000
October 2016
67,000
$
414,000
October 2010
22,000
$
248,400
June 2009
12,000
$
76,647
June 2008
5,000
$
17,240
June 2009
7,500
$
56,375
Table of Contents
$
452,250
$
461,295
$
475,521
Table of Contents
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
ITEM 5.
MARKET FOR REGISTRANTS COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF
EQUITY SECURITIES.
High
Low
$
1.75
$
1.38
$
1.98
$
1.75
$
1.94
$
1.79
$
1.93
$
1.61
$
2.05
$
1.73
$
2.04
$
1.69
$
1.71
$
1.33
$
1.77
$
1.30
Table of Contents
Among Vermont Pure Holdings, Ltd., The AMEX Composite Index,
A New Peer Group And An Old Peer Group
10/02
10/03
10/04
10/05
10/06
10/07
100.00
88.95
47.11
53.68
39.47
43.95
100.00
132.26
160.11
203.56
246.95
316.31
100.00
112.10
134.88
217.75
419.59
799.90
100.00
112.27
112.02
116.82
133.80
153.81
*
$100 invested on 10/31/02 in stock or index-including reinvestment of dividends.
Fiscal year ending October 31.
Total Number of
Maximum
Shares
Number of
Purchased as
Shares that May
Total Number of
Part of Publicly
Yet be
Shares
Average Price
Announced
Purchased Under
Period
Purchased
Paid per Share
Program (1)
the Program (1)
15,100
$
1.80
15,100
141,600
9,100
$
1.86
9,100
132,500
5,200
$
1.81
5,200
127,300
29,400
$
1.82
29,400
(1)
On June 16, 2006 we announced a program to repurchase up to 250,000 shares of our
common stock at the discretion of management. There is no expiration date for the program
and the share limit may not be reached.
Table of Contents
Fiscal Years Ended
October 31,
October 31,
October 31,
October 31,
October 31,
(000s except per share)
2007
2006
2005
2004
2003
$
65,231
$
62,774
$
59,835
$
52,473
$
49,854
$
2,076
$
(20,670
)
$
871
$
500
$
941
$
.10
$
(.96
)
$
.04
$
.02
$
.04
$
80,718
$
81,335
$
102,889
$
103,781
$
111,123
$
31,442
$
33,875
$
37,975
$
37,854
$
48,274
Business Overview
a brief description of fiscal year 2007.
Results of Operations
an analysis of our consolidated results of operations for
the three years presented in our consolidated financial statements.
Liquidity and Capital Resources
an analysis of cash flows, sources and uses of
cash, and contractual obligations and a discussion of factors affecting our future cash
flow.
Critical Accounting Policies
a discussion of accounting policies that require
critical judgments and estimates. Our significant accounting policies, including the
critical accounting policies discussed in this section, are summarized in the notes to
the accompanying consolidated financial statements.
Table of Contents
Product Line
2007
2006
Difference
% Diff.
(in 000s $)
(in 000s $)
(in 000s $)
$
29,560
$
28,886
$
674
2
%
19,341
17,430
1,911
11
%
9,143
9,013
130
1
%
7,187
7,445
(258
)
(3
%)
$
65,231
$
62,774
$
2,457
4
%
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Product Line
2006
2005
Difference
% Diff.
(in 000s $)
(in 000s $)
(in 000s $)
$
28,886
$
28,869
$
17
17,430
15,388
2,042
13
%
9,013
9,337
(324
)
(3
%)
7,445
6,241
1,204
19
%
$
62,774
$
59,835
$
2,939
5
%
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Payment due by Period
Contractual Obligations
Total
2008
2009-2010
2011-2012
After 2012
$
34,702,000
$
3,260,000
$
6,695,000
$
6,760,000
$
17,987,000
14,724,000
2,678,000
4,750,000
3,901,000
3,395,000
10,359,000
2,784,000
4,086,000
1,615,000
1,874,000
247,000
247,000
$
60,032,000
$
8,969,000
$
15,531,000
$
12,276,000
$
23,256,000
(1)
Interest based on 75% of outstanding senior debt at the hedged interest rate discussed above,
25% of outstanding senior debt at a variable rate of 6.46%, and subordinated debt at a rate of 12%.
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
34
35
(a)
(b)
(c)
Number of Securities
remaining available for
Number of Securities to be
Weighted-average exercise
future issuance under
issued upon exercise of
price of outstanding
equity compensation plans
outstanding options,
options, warrants and
(excluding securities
Plan Category
warrants and rights
rights
reflected in column (a)).
659,500
$
3.01
1,724,185
-0-
-0-
659,500
$
3.01
1,724,185
Table of Contents
Table of Contents
36
37
38
F-1, F-2
F-3
F-4
F-5
F-6
F-7 - F-27
Filed with
Exhibit
this Form
Incorporated by Reference
No.
Description
10-K
Form
Filing Date
Exhibit No.
Certificate of Incorporation
S-4
September 6, 2000
Exhibit B to
Appendix A
Certificate of Amendment to
Certificate of Incorporation
8-K
October 19, 2000
4.2
By-laws
10-Q
September 14, 2001
3.3
Registration Rights Agreement
with Peter K. Baker, Henry E.
Baker, John B. Baker and Ross
Rapaport
8-K
October 19, 2000
4.6
1998 Incentive and Non-Statutory
Stock Option Plan, as amended
14A
March 10, 2003
A
1999 Employee Stock Purchase Plan
14A
March 15, 1999
A
2004 Stock Incentive Plan
14A
March 9, 2004
B
Instrument of Amendment dated
September 22, 2005 amending the
1999 Employee Stock Purchase
Plan
8-K
September 28, 2005
10.1
Employment Agreement dated May
2, 2007 with Peter K. Baker
8-K
May 2, 2007
10.1
Employment Agreement dated May
2, 2007 with Bruce S. MacDonald
8-K
May 2, 2007
10.3
Employment Agreement dated May
2, 2007 with John B. Baker
8-K
May 2, 2007
10.2
Employment Agreement dated
January 1, 2005 with Henry E.
Baker
8-K
June 29, 2005
10.1
Severance Agreement dated
December 5, 2005 with Timothy
Fallon
10-K
January 30, 2006
10.11
Table of Contents
Filed with
Exhibit
this Form
Incorporated by Reference
No.
Description
10-K
Form
Filing Date
Exhibit No.
Lease of Grounds in Stamford,
Connecticut from Henry E. Baker
S-4
September 6, 2000
10.24
Lease of Buildings and Grounds
in Watertown, Connecticut from
the Bakers Grandchildren Trust
S-4
September 6, 2000
10.22
Lease of Building in Stamford,
Connecticut from Henry E. Baker
S-4
September 6, 2000
10.23
First Amendment to the Lease of
Buildings and Grounds in
Watertown, Connecticut from the
Bakers Grandchildren Trust
10-Q
September 14, 2007
10.4
Credit Agreement dated April 5,
2005 with Bank of America and
Webster Bank
10-Q
July 8, 2005
10.1
Form of Term Note dated April 5,
2005 issued to Bank of America
and Webster Bank
10-Q
July 8, 2005
10.2
Form of Subordination and Pledge
Agreement dated April 5, 2005
between Henry E. Baker, Joan
Baker, John B. Baker, Peter K.
Baker and Bank of America
10-Q
July 8, 2005
10.3
Form of Second Amended and
Restated Promissory Note dated
April 5, 2005 issued to Henry E.
Baker, Joan Baker, John B. Baker
and Peter K. Baker
10-Q
July 8, 2005
10.4
Form of Acquisition Note dated
April 5, 2005 issued to Bank of
America and Webster Bank
10-Q
July 8, 2005
10.5
Form of Revolving Credit Note
dated April 5, 2005 issued to
Bank of America and Webster Bank
10-Q
July 8, 2005
10.6
First Amendment to the Credit
Agreement dated April 5, 2005
with Bank of America
10-Q
September 14, 2007
10.1
Second Amendment to the Credit
Agreement dated April 5, 2005
with Bank of America
10-Q
September 14, 2007
10.2
Third Amendment to the Credit
Agreement dated April 5, 2005
with Bank of America
10-Q
September 14, 2007
10.3
Form of Indemnification
Agreement dated November 2, 2005
with each of Henry E. Baker,
John B. Baker, Peter K. Baker,
Phillip Davidowitz, Martin A.
Dytrych, David Jurasek, John M.
Lapides, Bruce S. MacDonald and
Ross S. Rapaport
10-K
January 30, 2006
10.21
Form of Indemnification
Agreement dated November 2, 2005
with each of John M. Lapides and
Martin A. Dytrych
10-K
January 30, 2006
10.22
Purchase and Sale Agreement
dated March 1, 2004 with
MicroPack Corporation
10-Q
March 16, 2004
10.27
Trademark License Agreement
dated March 1, 2004 with
MicroPack Corporation
10-Q
March 16, 2004
10.28
Supply and License Agreement
dated March 1, 2004 with
MicroPack Corporation
10-Q
March 16, 2004
10.29
Agreement dated May 5, 2006 with
Nestle Waters of North America
Inc. to discontinue the Civil
Action
Vermont Pure Holdings,
Ltd. v. Nestle Waters of North
America Inc.
10-Q
June 14, 2006
10.1
Installation Agreement with
American Capital Energy, Inc.
dated August 29, 2007
X
Financial Assistance Agreement
with
X
Table of Contents
Filed with
Exhibit
this Form
Incorporated by Reference
No.
Description
10-K
Form
Filing Date
Exhibit No.
Connecticut Innovations
dated August 20, 2007
Subsidiary
X
Consent of Wolf & Company, P.C.
X
Consent of Deloitte & Touche LLP
X
Certification of Chief Executive
Officer pursuant to Section 302
of the Sarbanes-Oxley Act of
2002
X
Certification of Chief Financial
Officer pursuant to Section 302
of the Sarbanes-Oxley Act of
2002
X
Certification of Chief Executive
Officer pursuant to Section 906
of the Sarbanes-Oxley Act of
2002
X
Certification of Chief Financial
Officer pursuant to Section 906
of the Sarbanes-Oxley Act of
2002
X
*
Management contract or compensatory plan.
Table of Contents
39
40
VERMONT PURE HOLDINGS, LTD.
By:
/s/ Peter K. Baker
Dated: January 29, 2008
Peter K. Baker, Chief Executive Officer
Name
Title
Date
/s/ Ross S. Rapaport
Chairman of the Board of Directors
January 29, 2008
Director, Chairman Emeritus
January 29, 2008
Executive Vice President and Director
January 29, 2008
Chief Executive Officer and Director
January 29, 2008
Director
January 29, 2008
Director
January 29, 2008
Director
January 29, 2008
Chief Financial Officer, Chief
Accounting Officer and Secretary
January 29, 2008
Table of Contents
ANNUAL REPORT ON FORM 10-K
FOR THE FISCAL YEAR ENDED OCTOBER 31, 2006
Exhibits Filed Herewith
Exhibit
Number
Description
Installation Agreement with American Capital Energy, Inc. dated August 29, 2007
Financial Assistance Agreement with Connecticut Innovations dated August 20, 2007
Subsidiary
Consent of Wolf & Company, P.C.
Consent of Deloitte & Touche LLP
Certification of Chief Executive Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
PAGE
F-1, F-2
F-3
F-4
F-5
F-6
F-7 F-27
Table of Contents
F-1
Vermont Pure Holdings, Ltd.
Watertown, Connecticut
Boston, Massachusetts
January 22, 2008
Table of Contents
F-2
Vermont Pure Holdings, Ltd.
Watertown, Connecticut
January 26, 2006
Table of Contents
F-3
F-4
Accumulated | ||||||||||||||||||||||||||||||||||||||||
Common | Additional | Treasury | Other | |||||||||||||||||||||||||||||||||||||
Shares | Stock | Paid in | Unearned | Treasury | Stock | Accumulated | Comprehensive | Comprehensive | ||||||||||||||||||||||||||||||||
Issued | Par Value | Capital | Compensation | Shares | Amount | Deficit | Income (Loss) | Total | Income (Loss) | |||||||||||||||||||||||||||||||
Balance, October 31, 2004
|
21,569,711 | 21,569 | $ | 57,869,411 | $ | | 71,550 | $ | (264,735 | ) | $ | (6,460,816 | ) | $ | 103,100 | $ | 51,268,529 | $ | 798,949 | |||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
Shares issued under employee
stock purchase plan
|
97,047 | 97 | 150,646 | 150,743 | ||||||||||||||||||||||||||||||||||||
Restricted stock grants
|
75,000 | 76 | 134,174 | (134,250 | ) | | ||||||||||||||||||||||||||||||||||
Stock compensation
|
3,059 | 2 | 5,747 | 5,749 | ||||||||||||||||||||||||||||||||||||
Deferred compensation
|
47,667 | 47,667 | ||||||||||||||||||||||||||||||||||||||
Net income
|
870,593 | 870,593 | $ | 870,593 | ||||||||||||||||||||||||||||||||||||
Unrealized gain on derivatives, net of taxes
|
65,482 | 65,482 | 65,482 | |||||||||||||||||||||||||||||||||||||
Balance, October 31, 2005
|
21,744,817 | 21,744 | 58,207,645 | (134,250 | ) | 71,550 | (264,735 | ) | (5,590,223 | ) | 168,582 | 52,408,763 | $ | 936,075 | ||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
Shares issued under employee
stock purchase plan
|
82,315 | 82 | 124,349 | 124,431 | ||||||||||||||||||||||||||||||||||||
Non cash compensation
|
14,064 | 14,064 | ||||||||||||||||||||||||||||||||||||||
Restricted stock forfeiture
|
(75,000 | ) | (75 | ) | (134,175 | ) | 134,250 | | ||||||||||||||||||||||||||||||||
Exercise of stock options
|
5,000 | 5 | 8,995 | 9,000 | ||||||||||||||||||||||||||||||||||||
Share retirements
|
(9,560 | ) | (9 | ) | 9 | | ||||||||||||||||||||||||||||||||||
Shares repurchased
|
67,100 | (104,927 | ) | (104,927 | ) | |||||||||||||||||||||||||||||||||||
Net loss
|
(20,670,118 | ) | (20,670,118 | ) | $ | (20,670,118 | ) | |||||||||||||||||||||||||||||||||
Unrealized loss on derivatives, net
of taxes
|
(91,922 | ) | (91,922 | ) | (91,922 | ) | ||||||||||||||||||||||||||||||||||
Balance, October 31, 2006
|
21,747,572 | 21,747 | 58,220,887 | | 138,650 | (369,662 | ) | (26,260,341 | ) | 76,660 | 31,689,291 | $ | (20,762,040 | ) | ||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
Shares issued under employee
stock purchase plan
|
52,983 | 53 | 86,508 | 86,561 | ||||||||||||||||||||||||||||||||||||
Shares repurchased
|
55,600 | (104,779 | ) | (104,779 | ) | |||||||||||||||||||||||||||||||||||
Net income
|
2,076,364 | 2,076,364 | $ | 2,076,364 | ||||||||||||||||||||||||||||||||||||
Unrealized loss on derivatives, net
of taxes
|
(143,796 | ) | (143,796 | ) | (143,796 | ) | ||||||||||||||||||||||||||||||||||
Balance, October 31, 2007
|
21,800,555 | $ | 21,800 | $ | 58,307,395 | $ | | 194,250 | $ | (474,441 | ) | $ | (24,183,977 | ) | $ | (67,136 | ) | $ | 33,603,641 | $ | 1,932,568 | |||||||||||||||||||
F-5
F-6
1. | BUSINESS OF THE COMPANY AND BASIS OF PRESENTATION | |
Vermont Pure Holdings, Ltd. and Subsidiary (collectively, the Company) is engaged in the production, marketing and distribution of bottled water and distribution of coffee, ancillary products, and other office refreshment products. Through February, 2004, when the Company divested the retail segments of its business, the Companys products were sold, predominantly in the Northeast, as well as in the Mid-Atlantic and Mid-Western United States. Distribution was accomplished through a network of independent beverage distributors and with the Companys own trucks and employees. Commencing March 2004, the Company operated exclusively as a home and office delivery business, using its own trucks to distribute throughout New England, New York, and New Jersey. | ||
The consolidated financial statements of the Company include the accounts of Vermont Pure Holdings, Ltd. and its wholly-owned subsidiary, Crystal Rock, LLC. All inter-company transactions and balances have been eliminated in consolidation. | ||
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Such estimates relate primarily to the estimated lives of property and equipment and other intangible assets, the values for the purpose of calculating goodwill impairment and the value of equity instruments issued. Actual results could differ from those estimates. | ||
2. | SIGNIFICANT ACCOUNTING POLICIES | |
Cash Equivalents The Company considers all highly liquid temporary cash investments with an original maturity of three months or less to be cash equivalents. | ||
Inventories Inventories primarily consist of products that are purchased for resale and are stated at the lower of cost or market on a first in, first out basis. | ||
Property and Equipment Property and equipment are stated at cost net of accumulated depreciation. Depreciation is calculated on the straight-line method over the estimated useful lives of the assets, which range from three to ten years for machinery and equipment, and from seven to thirty years for buildings and improvements, and three to seven years for other fixed assets. | ||
Goodwill and Other Intangibles Intangible assets with lives restricted by contractual, legal, or other means are amortized over their useful lives. Based on Statement of Financial Accounting Standards (SFAS) No. 142, Goodwill and Other Intangible Assets, the Company defines an assets useful life as the period over which the asset is expected to contribute to the future cash flows of the entity. Goodwill and other |
F-7
intangible assets not subject to amortization are tested for impairment annually or more frequently if events or changes in circumstances indicate that the asset might be impaired. The amount of impairment for goodwill and other intangible assets is measured as the excess of their carrying values over their implied fair values. The Company conducted assessments of the carrying value of its goodwill as required by SFAS No. 142, using an independent third party valuation, and concluded that goodwill was not impaired as of October 31, 2007 and 2005. As of October 31, 2006, we conducted a similar valuation process, and determined that goodwill was impaired. Other than goodwill, intangible assets consist primarily of customer lists and covenants not to compete, with estimated lives ranging from 3 to 10 years. |
F-8
For the Year Ended | ||||
October 31, 2005 | ||||
Net Income As Reported
|
$ | 870,593 | ||
Add: Stock based employee compensation expense
included in net income, net of related tax effects
|
28,123 | |||
Deduct: Total stock-based employee compensation expense
determined under fair value based method for all
awards, net of related tax effects
|
(336,444 | ) | ||
|
||||
Pro Forma Net Income
|
$ | 562,272 | ||
|
||||
Basic As Reported
|
$ | .04 | ||
|
||||
Basic Pro Forma
|
$ | .03 | ||
|
||||
Diluted As Reported
|
$ | .04 | ||
|
||||
Diluted Pro Forma
|
$ | .03 | ||
|
2005 | ||||
Expected Dividend Yield
|
0 | % | ||
Expected Life
|
5 Years | |||
Risk free Interest Rate
|
3.0 | % | ||
Volatility
|
36 | % |
F-9
F-10
Shipping and Handling Costs The Company distributes its home and office products directly to its customers on its own trucks. The delivery costs related to the Companys route system, which are reported under selling, general, and administrative expenses, were approximately $12,930,000, $12,741,000, and $12,563,000 for fiscal years 2007, 2006, and 2005 respectively. | ||
3. | RECENT ACCOUNTING PRONOUNCEMENTS | |
In December 2007, the Financial Accounting Standards Board (FASB) issued Statement No. 141 (revised) (No. 141 R), Business Combinations. This Statement replaces FASB Statement No. 141, and applies to all business entities that previously used the pooling-of-interests method of accounting for some business combinations. Under Statement No. 141R, an acquirer is required to recognize, at fair value, the assets acquired, liabilities assumed, and any non-controlling interest in the entity acquired at the acquisition date. Further, it requires that acquisition costs and expected restructuring costs be recognized separately form the acquisition, and that the acquirer, in a business combination executed in stages, recognize the identifiable assets and liabilities as well as the non-controlling interest in the entity acquired, at the full amounts of their fair values. SFAS No. 141R also requires an acquirer to recognize the assets acquired and liabilities assumed arising from contractual contingencies as of the acquisition date. Also under this statement, an acquirer is required to recognize contingent consideration as of the acquisition date and eliminates the concept of negative goodwill and requires gain recognition in instances in which the fair value of the identifiable net assets exceeds the fair value of the consideration plus any non-controlling interest in the entity acquired as of the acquisition date. SFAS No. 141R makes significant amendments to other Statements and other authoritative guidance, and applies prospectively to business combinations on or after the acquiring entities first fiscal year that begins after December 15, 2008, which is fiscal year 2010 for the Company. It may not be applied prior to that date. | ||
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and Financial Liabilities Including an Amendment of FASB Statement No. 115. SFAS No. 159 permits entities to choose to measure many financial instruments and certain other items at fair value. The objective is to improve financial reporting by providing entities with the opportunity to mitigate volatility in reported earnings caused by measuring related assets and liabilities differently without having to apply complex hedge accounting provisions. This statement is expected to expand the use of fair value measurement, which is consistent with the FASBs long-term measurement objectives for accounting for financial instruments. The fair value option established will permit all entities to choose to measure eligible items at fair value at specified election dates. An entity shall record unrealized gains and losses on items for which the fair value option has been elected through net income in the statement of operations at each subsequent reporting date. SFAS No. 159 is effective as of the beginning of an entitys first fiscal year that begins after November 15, 2007, which is fiscal year 2009 for the Company. The Company is currently reviewing the impact, if any, that this new accounting standard will have on their financial statements. |
F-11
2007 | 2006 | 2005 | ||||||||||
|
||||||||||||
Cash (including acquisition costs)
|
$ | 290,540 | $ | 409,277 | $ | 511,570 | ||||||
Notes Payable
|
100,407 | 167,750 | 141,750 | |||||||||
|
||||||||||||
|
$ | 390,947 | $ | 577,027 | $ | 653,320 | ||||||
|
2007 | 2006 | 2005 | ||||||||||
Accounts Receivable
|
$ | | $ | 637 | $ | | ||||||
Inventories
|
| | 70,532 | |||||||||
Equipment
|
40,161 | 40,307 | | |||||||||
Identifiable Intangible Assets
|
343,200 | 523,206 | 546,398 | |||||||||
Goodwill
|
7,586 | 12,877 | 36,390 | |||||||||
|
||||||||||||
Purchase Price
|
$ | 390,947 | $ | 577,027 | $ | 653,320 | ||||||
|
F-12
2007 | 2006 | 2005 | ||||||||||
Net Sales
|
$ | 65,597,106 | $ | 63,396,121 | $ | 61,250,658 | ||||||
|
||||||||||||
Net Income (Loss)
|
$ | 2,108,786 | $ | (20,621,514 | ) | $ | 978,558 | |||||
|
||||||||||||
Net Income (Loss) Per
Share-Diluted
|
$ | .10 | $ | (.95 | ) | $ | .05 | |||||
|
||||||||||||
Weighted Average Common
Shares
Outstanding-Diluted
|
21,624,381 | 21,630,739 | 21,625,683 | |||||||||
|
Original Cost
|
$ | 3,152,378 | ||
Accumulated Depreciation
|
2,072,695 | |||
|
||||
Carrying Cost
|
$ | 1,079,683 | ||
|
20 0 7 | 2006 | 2005 | ||||||||||
Balance, beginning of year
|
$ | 352,844 | $ | 289,837 | $ | 303,304 | ||||||
Provision
|
326,435 | 300,811 | 316,667 | |||||||||
Write-offs
|
(324,454 | ) | (237,804 | ) | (330,134 | ) | ||||||
|
||||||||||||
Balance, end of year
|
$ | 354,825 | $ | 352,844 | $ | 289,837 | ||||||
|
F-13
7. | INVENTORIES | |
Inventories at October 31 consisted of: |
2 0 07 | 2 006 | |||||||
Finished Goods
|
$ | 1,546,168 | $ | 1,057,580 | ||||
Raw Materials
|
165,198 | 134,706 | ||||||
|
||||||||
Total Inventories
|
$ | 1,711,366 | $ | 1,192,286 | ||||
|
U s eful | ||||||||||||
Life | 2007 | 2006 | ||||||||||
Leasehold improvements
|
3 30 yrs. | $ | 813,486 | $ | 752,907 | |||||||
Machinery and equipment
|
3 10 yrs. | 19,518,020 | 17,984,393 | |||||||||
Bottles, racks and vehicles
|
3 7 yrs. | 6,913,808 | 7,600,860 | |||||||||
Furniture, fixtures and
office equipment
|
3 7 yrs. | 2,029,532 | 1,985,958 | |||||||||
Construction in progress
|
330,296 | | ||||||||||
|
||||||||||||
|
29,605,142 | 28,324,118 | ||||||||||
Less accumulated depreciation
|
18,908,124 | 17,605,284 | ||||||||||
|
||||||||||||
|
$ | 10,697,018 | $ | 10,718,834 | ||||||||
|
2007 | 2006 | |||||||||||||||
Gross Carrying | Accumulated | Gross Carrying | Accumulated | |||||||||||||
Amount | Amortization | Amount | Amortization | |||||||||||||
Amortized Intangible Assets:
|
||||||||||||||||
Customer Lists and Covenants
Not to Compete
|
$ | 5,477,663 | $ | 3,227,854 | $ | 5,141,123 | $ | 2,383,443 | ||||||||
Other Identifiable Intangibles
|
598,705 | 195,026 | 633,172 | 193,277 | ||||||||||||
|
||||||||||||||||
Total
|
$ | 6,076,368 | $ | 3,422,880 | $ | 5,774,295 | $ | 2,576,720 | ||||||||
|
F-14
Fiscal Year Ending | Amount | |||
October 31, 2008
|
$ | 823,000 | ||
October 31, 2009
|
643,000 | |||
October 31, 2010
|
369,000 | |||
October 31, 2011
|
229,000 | |||
October 31, 2012
|
83,000 |
2007 | 2006 | |||||||
Beginning balance
|
$ | 54,421,662 | $ | 74,755,851 | ||||
Goodwill acquired during the year
|
7,586 | 12,877 | ||||||
Goodwill disposed of during the year
|
(5,251 | ) | (16,347 | ) | ||||
Adjustment of goodwill related to deferred
tax liability
|
| 2,619,299 | ||||||
Impairment loss
|
| (22,950,018 | ) | |||||
|
||||||||
Balance as of October 31
|
$ | 54,423,997 | $ | 54,421,662 | ||||
|
F-15
2007 | 2006 | |||||||
Payroll and Vacation
|
$ | 1,606,748 | $ | 1,877,689 | ||||
Interest
|
516,652 | 530,446 | ||||||
Income Taxes
|
557,832 | 184,102 | ||||||
Severance
|
| 194,459 | ||||||
Accounting and Legal
|
160,000 | 189,335 | ||||||
Miscellaneous
|
613,255 | 438,005 | ||||||
|
||||||||
Total
|
$ | 3,454,487 | $ | 3,414,036 | ||||
|
F-16
F-17
Senior | Credit Lines | Subordinated | Other | Total | ||||||||||||||||
Fiscal year ending
October 31,
|
||||||||||||||||||||
2008
|
$ | 3,250,000 | $ | | $ | | $ | 10,000 | $ | 3,260,000 | ||||||||||
2009
|
3,250,000 | 65,000 | | | 3,315,000 | |||||||||||||||
2010
|
3,250,000 | 130,000 | | | 3,380,000 | |||||||||||||||
2011
|
3,250,000 | 130,000 | | | 3,380,000 | |||||||||||||||
2012 and after
|
7,042,000 | 325,000 | 14,000,000 | | 21,367,000 | |||||||||||||||
|
||||||||||||||||||||
Total Debt
|
$ | 20,042,000 | $ | 650,000 | $ | 14,000,000 | $ | 10,000 | $ | 34,702,000 | ||||||||||
|
F-18
Outstanding Options | Weighted Average | |||||||
(Shares) | Exercise Price | |||||||
Balance at October 31, 2004
|
2,662,790 | $ | 2.96 | |||||
Granted
|
414,500 | 2.28 | ||||||
Expired
|
(450,800 | ) | 2.50 | |||||
|
||||||||
Balance at October 31, 2005
|
2,626,490 | 2.96 | ||||||
Exercised
|
(5,000 | ) | 1.80 | |||||
Expired
|
(1,864,303 | ) | 2.96 | |||||
|
||||||||
Balance at October 31, 2006
|
757,187 | 2.96 | ||||||
Expired
|
(97,687 | ) | 2.61 | |||||
|
||||||||
Balance at October 31, 2007
|
659,500 | 3.01 | ||||||
|
F-19
Weighted Average | Weighted | |||||||||||||||
Outstanding | Remaining | Average | ||||||||||||||
Options | Contractual | Exercise | Intrinsic | |||||||||||||
Exercise Price Range | (Shares) | Life | Price | Value | ||||||||||||
$1.80 $2.60
|
234,500 | 7.24 | $ | 2.32 | $ | | ||||||||||
$2.81 $3.38
|
350,000 | 2.81 | 3.25 | | ||||||||||||
$3.50 $4.25
|
70,000 | 2.71 | 3.99 | | ||||||||||||
$4.28 $4.98
|
5,000 | 4.17 | 4.98 | | ||||||||||||
|
||||||||||||||||
|
659,500 | 4.38 | $ | 3.01 | $ | | ||||||||||
|
F-20
Fiscal Year Ending October 31, | ||||
2008
|
$ | 2,784,438 | ||
2009
|
2,289,926 | |||
2010
|
1,795,589 | |||
2011
|
1,018,764 | |||
2012
|
596,566 | |||
Thereafter
|
1,874,115 | |||
|
||||
Total
|
$ | 10,359,398 | ||
|
F-21
Fiscal year ending October 31, | Stamford | Watertown | Total | |||||||||
2008
|
$ | 248,400 | $ | 414,000 | $ | 662,400 | ||||||
2009
|
248,400 | 414,000 | 662,400 | |||||||||
2010
|
248,400 | 414,000 | 662,400 | |||||||||
2011
|
| 452,250 | 452,250 | |||||||||
2012
|
| 452,250 | 452,250 | |||||||||
2013
|
| 461,295 | 461,295 | |||||||||
2014
|
| 461,295 | 461,295 | |||||||||
2015
|
| 475,521 | 475,521 | |||||||||
2016
|
| 475,521 | 475,521 | |||||||||
|
||||||||||||
Totals
|
$ | 745,200 | $ | 4,020,132 | $ | 4,765,332 | ||||||
|
F-22
Fiscal Year Ended October 31, | ||||||||||||
2007 | 2006 | 2005 | ||||||||||
Current:
|
||||||||||||
Federal
|
$ | 960,353 | $ | 147,239 | $ | 208 | ||||||
State
|
182,156 | 210,600 | 1,790 | |||||||||
|
||||||||||||
Total current
|
1,142,509 | 357,839 | 1,998 | |||||||||
|
||||||||||||
|
||||||||||||
Deferred:
|
||||||||||||
Federal
|
169,588 | 1,177,739 | 667,664 | |||||||||
State
|
5,006 | 145,995 | 70,104 | |||||||||
|
||||||||||||
Total deferred
|
174,594 | 1,323,734 | 737,768 | |||||||||
|
||||||||||||
Total income tax expense
|
$ | 1,317,103 | $ | 1,681,573 | $ | 739,766 | ||||||
|
October 31, | ||||||||
2007 | 2006 | |||||||
Deferred tax assets:
|
||||||||
Allowance for doubtful accounts
|
$ | 134,834 | $ | 134,081 | ||||
Accrued compensation
|
304,930 | 494,222 | ||||||
Net operating losses
|
| 76,832 | ||||||
Accrued liabilities and reserves
|
17,091 | 163,492 | ||||||
Interest rate swap
|
42,586 | | ||||||
|
||||||||
Total deferred tax assets
|
499,441 | 868,627 | ||||||
|
||||||||
|
||||||||
Deferred tax liabilities:
|
||||||||
Depreciation
|
(1,603,022 | ) | (2,116,513 | ) | ||||
Amortization
|
(1,520,069 | ) | (1,243,756 | ) | ||||
Interest rate swap
|
| (58,077 | ) | |||||
|
||||||||
Total deferred tax liabilities
|
(3,123,091 | ) | (3,418,346 | ) | ||||
|
||||||||
|
||||||||
Net deferred tax liability
|
$ | (2,623,650 | ) | $ | (2,549,719 | ) | ||
|
F-23
Fiscal Year Ended October 31, | ||||||||||||
2007 | 2006 | 2005 | ||||||||||
Income tax expense (benefit)
computed at the statutory
rate
|
$ | 1,153,778 | $ | (6,456,105 | ) | $ | 547,522 | |||||
Goodwill impairment
|
| 7,803,000 | | |||||||||
Other permanent differences
|
39,799 | 99,326 | 120,959 | |||||||||
State income taxes
|
123,526 | 235,352 | 71,285 | |||||||||
|
||||||||||||
Income tax expense
|
$ | 1,317,103 | $ | 1,681,573 | $ | 739,766 | ||||||
|
In calculating its effective tax rate, the Company has considered the effect of certain contingent factors involving state and local income taxes. Although it believes that the tax returns filed accurately reflect operations and financial results, the Company has an accrued liability as of October 31, 2007 and 2006 of approximately $150,000 and $165,000, respectively, for the purpose of settling disputes in the event that certain jurisdictions viewed particular tax laws differently than the Company did when the returns were filed. |
19. | NET INCOME (LOSS) PER SHARE | |
The following calculation provides the reconciliation of the denominators used in the calculation of basic and fully diluted earnings per share: |
Fiscal Year Ended October 31, | ||||||||||||
2007 | 2006 | 2005 | ||||||||||
Net Income (Loss)
|
$ | 2,076,364 | $ | (20,670,118 | ) | $ | 870,593 | |||||
|
||||||||||||
Denominator:
|
||||||||||||
Basic Weighted Average Shares
Outstanding
|
21,624,381 | 21,630,739 | 21,619,863 | |||||||||
Effect of Stock Options
|
| | 5,820 | |||||||||
|
||||||||||||
Diluted Weighted Average Shares
Outstanding
|
21,624,381 | 21,630,739 | 21,625,683 | |||||||||
|
||||||||||||
Basic Net Income (Loss) Per Share
|
$ | .10 | $ | (.96 | ) | $ | .04 | |||||
|
||||||||||||
Diluted Net Income (Loss) Per Share
|
$ | .10 | $ | (.96 | ) | $ | .04 | |||||
|
F-24
20. | UNAUDITED QUARTERLY FINANCIAL DATA | |
The Companys unaudited quarterly financial data for the last two fiscal years is as follows: |
Fiscal 2007 | For the quarter ended: | |||||||||||||||
January 31, | April 30, | July 31, | October 31, | |||||||||||||
($ in 000s except per share data) | 2007 | 2007 | 2007 | 2007 | ||||||||||||
Net Sales
|
$ | 15,302 | $ | 15,677 | $ | 17,107 | $ | 17,145 | ||||||||
Gross Profit
|
$ | 8,569 | $ | 8,668 | $ | 9,938 | $ | 9,867 | ||||||||
Net Income
|
$ | 291 | $ | 412 | $ | 577 | $ | 796 | ||||||||
Earnings per Share:
|
||||||||||||||||
Net Income Basic and Diluted
|
$ | .01 | $ | .02 | $ | .03 | $ | .04 |
Fiscal 2006 | For the quarter ended: | |||||||||||||||
January 31, | April 30, | July 31, | October 31, | |||||||||||||
($ in 000s except per share data) | 2006 | 2006 | 2006 | 2006 | ||||||||||||
Net Sales
|
$ | 14,614 | $ | 15,240 | $ | 16,520 | $ | 16,400 | ||||||||
Gross Profit
|
$ | 8,214 | $ | 8,765 | $ | 9,854 | $ | 9,468 | ||||||||
Net Income (Loss)
|
$ | 65 | $ | 475 | $ | 1,252 | $ | (22,462 | ) | |||||||
Earnings per Share:
|
||||||||||||||||
Net Income (Loss) Basic and
Diluted
|
$ | | $ | .02 | $ | .06 | $ | (1.04 | ) |
The Companys business is seasonal based on weather. It is typical for sales and net income to be higher in the warmer months than the balance of the year. Given the Companys fiscal year, the quarter ending July 31 is typically the strongest financial quarter. In fiscal year 2006, the results for this quarter were even stronger as a result of a legal settlement of $750,000 in favor of the Company. The fourth quarter loss in 2006 was a result of the Companys annual goodwill analysis and impairment. The higher earnings in the fourth quarter of 2007 were a result of a sustained level of higher sales as a result of warmer weather during that period and lower operating expenses. | ||
21. | CONCENTRATION OF CREDIT RISK | |
The Company maintains its cash accounts at various financial institutions. The balances at times may exceed federally insured limits. At October 31, 2007, the Company had cash in deposits exceeding the insured limit by approximately $1,513,000. | ||
22. | LITIGATION | |
On May 1, 2006, the Company filed a lawsuit in the Superior Court Department, County of Suffolk, Massachusetts, alleging malpractice and other wrongful acts against three law firms that had been representing the Company in litigation involving Nestlé Waters North America, Inc.: Hagens Berman Sobol Shapiro LLP, Ivey & Ragsdale, and Cozen OConnor. The case is Vermont Pure Holdings, Ltd. vs. Thomas M. Sobol et al. , Massachusetts Superior Court CA No. 06-1814. |
F-25
Until May 2, 2006, when the Company terminated their engagement, the three defendant law firms represented the Company in litigation in federal district court in Massachusetts known as Vermont Pure Holdings, Ltd. vs. Nestlé Waters North America, Inc. (the Nestlé litigation). The Company filed the Nestlé litigation in early August 2003. | ||
The Companys lawsuit alleges that the three defendant law firms wrongfully interfered with a proposed June 2003 settlement with Nestlé. The complaint includes counts involving negligence, breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, tortuous interference with economic relations, civil conspiracy, and other counts, and seeks declaratory relief and compensatory and punitive damages. | ||
In June 2006, certain of the defendants filed motions to dismiss the Companys complaint based on lack of personal jurisdiction and/or failure to state a claim upon which relief could be granted. Those motions are pending. In July 2006, certain of the defendants filed a counterclaim against the Company seeking recovery of their fees and expenses in the Nestlé litigation. In August 2007, certain of the defendants filed a counterclaim against the Company that includes an abuse of process count in which it is alleged that our claims against them are frivolous and were not advanced in good faith, as well as a quantum meruit count in which these defendants allege that their services were terminated wrongfully and in bad faith. The case is in the discovery stage. | ||
Management intends to pursue its claims, and to the extent of the counterclaims, defend itself vigorously. | ||
On May 15, 2006, the Company entered into an agreement with Nestlé Waters North America Inc. to resolve pending litigation known as Vermont Pure Holdings, Ltd. v Nestlé Waters North America Inc. , which was in the United States District Court for the District of Massachusetts. In this lawsuit, filed in August 2003, the Company had made claims under the federal Lanham Act against Nestlé. The parties provided mutual releases and have stipulated to dismissal of the case, with neither side admitting liability or wrongdoing. Nestle paid the Company $750,000 in June 2006 in connection with the agreement. The Company recorded $750,000 as other income in the third quarter of 2006, related to this settlement. | ||
At any point in time there may be various legal proceedings pending against the Company. Unless specifically mentioned, the Company considers all such proceedings to be in the normal course of business. Generally such claims are covered by insurance. The Company believes that the resolution of these types of claims, to the extent not dismissed or covered by insurance, will not individually or in the aggregate have a material adverse effect on its financial position or results of operations. To the extent reasonably estimable, reserves are established regarding pending legal proceedings if there is a probable outcome that would require a payment by the Company. |
F-26
23. | REPURCHASE OF COMMON STOCK | |
In January 2006, the Companys Board of Directors approved the purchase of up to 250,000 of the Companys common shares at the discretion of management. Subsequently, the Company purchased, in the open market, 67,100 shares from July through October 2006, for an aggregate purchase price of $104,927. In fiscal year 2007, the Company purchased an additional 55,600 shares for an aggregate purchase price of $104,779. The Company expects to continue to purchase stock in the open market but total purchases may not ultimately reach the limit established. The Company has used internally generated cash to fund these purchases. |
F-27
1.1. | The Contract Documents consist of the following: |
1.1.1. | This Agreement. | ||
1.1.2. | The System Descriptions and Specifications (the System) attached as Schedule 1 to this Agreement. | ||
1.1.3. | The Work Description and Specifications (the Services) attached as Schedule 2 to this Agreement. | ||
1.1.4. | The Purchaser Assistance Description (the Purchaser Services) attached as Schedule 3 to this Agreement. | ||
1.1.5. | The Warranties attached as Schedule 4 to this Agreement. | ||
1.1.6. | The Price Schedule attached as Schedule 5 to this Agreement. | ||
1.1.7. | The Project Schedule attached as Schedule 6 to this Agreement. |
1.2. | There are no Contract Documents other than those listed in Article 1.1 above. |
2.1. | INSTALLER RESPONSIBILITIES |
As required for performance of the Services, INSTALLER shall, subject to the terms and provisions of this Agreement: |
2.1.1. | Furnish supervisors, engineers, designers, draftsmen, and other personnel necessary for the preparation of complete drawings and specifications; | ||
2.1.2. | Furnish buyers, inspectors, expediters, and other personnel necessary to procure and or manufacture all materials, supplies, and equipment; | ||
2.1.3. | Installation services to be performed by CT licensed contractors. |
1
2.1.4. | Furnish only qualified and competent supervisors, foremen, skilled and unskilled labor, and all other personnel; provided that to the extent reasonably available, such personnel shall be individuals with experience in the specific services being performed; | ||
2.1.5. | Procure or supply machinery, equipment, materials, expendable construction items and supplies, related services and subcontracts, and all appropriate proprietary rights, licenses, agreements and permissions for materials, methods, processes and systems incorporated into the System; | ||
2.1.6. | Make adjustment to the Project Schedule as specified therein or elsewhere in the Contract Documents; | ||
2.1.7. | Execute a reasonable Interconnection Agreement and obtain all permits and licenses required to be taken out in the name of Purchaser that are necessary for the performance of the Services and installation and operation of System, except for those permits which shall be Purchasers responsibility as set forth in the following Article; | ||
2.1.8. | Facilitate and support Purchasers negotiation and procurement of an appropriate interconnection agreement to be executed between Purchaser and the electric distribution utility to which the System will be interconnected (Interconnection Agreement), including providing all necessary drawings and technical information; | ||
2.1.9. | Install the System and complete the Services as specified in the Contract Documents. The System is described in Schedule 1 . The Services are described on Schedule 2 ; | ||
2.1.10. | Perform the Services, in accordance with practices generally accepted in the industry, all applicable laws, government approvals and permitting requirements, and quality control and inspections so that the System (i) meets or exceeds all requirements of applicable laws, government approvals and licenses and the System is installed in accordance with manufacturers specifications or by methods otherwise approved by the manufacturer; (ii) complies with all requirements of the Interconnection Agreement; (iii) meet or exceeds the warranties and guarantees set forth in Section 7; (iv) are safe and adequate for their intended purpose and conditions; (v) are free from defects; (vi) is comprised of equipment which is new and of good quality when installed, designed and manufactured and of a grade in accordance with generally accepted national standards for the design, manufacture and quality of such equipment; and (vii) meets or exceeds all requirements for the following federal and state rebates and incentives: Federal Investment Tax Credit (ITC) as described in 26 USC § 48 (2005), Modified Accelerated Cost Recovery System (MACRS) as described in 26 USC § 168 (2005), Connecticut Clean Energy Fund Solar Program (the Rebates); |
2.2. | PURCHASER RESPONSIBILITIES | |
Purchaser shall at such times as may be required by INSTALLER for the successful and expeditious completion of the Services: |
2.2.1. | Make arrangements to make the Site available to INSTALLER according to dates specified in the Project Schedule, and make arrangements to provide the Purchaser Services. Purchaser and INSTALLER will cooperate in a commercially reasonable manner to accomplish the Services in accordance with the specifications and time schedule provided for in the Contract Documents; |
2
2.2.2. | Conduct any reviews and inspections in a manner that minimizes interference with INSTALLER progress of the Services; | ||
2.2.3. | Pay the Price and all other sums, if any, required to be paid by Purchaser to INSTALLER for providing the System and performing the Services pursuant to the terms of this Agreement; and | ||
2.2.4. | Appoint an individual who shall be authorized to act on behalf of Purchaser, with whom INSTALLER may consult at all reasonable times, and whose written instructions, requests, and decisions will be binding upon Purchaser as to all matters pertaining to this Agreement and the performance of the parties hereunder. Purchaser shall advise INSTALLER in writing of the names of the individuals referred to in the preceding sentence. |
2.3. | CHANGES | |
It is the desire of INSTALLER and Purchaser to keep changes to the System and in the scope of Services at a minimum, but the parties recognize that such changes may become necessary and agree that they shall be handled as follows: |
2.3.1. | Purchaser may initiate a change by advising INSTALLER in writing of the change believed to be necessary. As soon thereafter as practicable, INSTALLER shall prepare and forward to Purchaser a cost estimate and a schedule impact of the change, which shall include the adjustment to the Price (as defined below), any other compensation, and any effect on INSTALLER ability to comply with any of its obligations under this Agreement, including warranties and guarantees. Purchaser shall advise INSTALLER in writing of its approval or disapproval of the change. If Purchaser approves the change, INSTALLER shall perform the Services as changed. | ||
2.3.2. | INSTALLER may initiate changes by advising Purchaser in writing that in INSTALLER opinion a change is necessary and providing the additional cost, if any, for such change. If Purchaser agrees, it shall advise INSTALLER in writing within five (5) business days after receipt and, thereafter, the change shall be handled as if initiated by Purchaser. | ||
2.3.3. | If a party disputes the existence, extent, validity or affect of a change, then a party may notify the other parties in writing that it desires to resolve the dispute. If the dispute cannot be resolved to the mutual satisfaction of the parties within ten (10) business days, then a party can demand binding dispute resolution in accordance with Article 17.4 . Such dispute resolution process shall commence immediately and conclude no later than thirty (30) days following the notice of dispute. |
2.4. | CONDITION PRECEDENT |
3
3.1. | As full compensation and consideration for the full and complete performance of all of the System installation and Services and all of INSTALLERs other obligations under this Agreement and all costs in connection therewith, Purchaser shall pay to INSTALLER, and INSTALLER shall accept $2,089,832 as the total fixed price of this Contract (the Price), inclusive of all sales or use taxes, permits, and utility interconnection fees subject to adjustment as stated elsewhere in the Contract Documents, as well as for work performed under properly approved change orders. Installation prices are detailed in Schedule 5 . Except as specifically provided herein, the Price shall not be subject to adjustment for any reason. | |
3.2. | INSTALLER shall be paid for the System and Services as they are provided and accepted by Purchaser in accordance with Schedule 5. | |
3.3. | Payments indicated in Article 3.2 shall be due within ten (10) days after INSTALLERs delivery to Purchaser of an invoice containing such amounts except those items deemed to be COD in accordance with Schedule 5. INSTALLER shall include with each invoice a certification that the System has been supplied and/or the Services has been completed to the extent required for payment at such stage. Any overdue amounts shall bear interest at the rate of twelve percent (12%) per annum. In the event that Purchaser disputes any portion of the amount invoiced, it shall nonetheless pay all undisputed amounts promptly. Any amounts ultimately found to be due shall be paid with 5% interest from the date originally due. In the event that Purchaser fails to make timely payments to INSTALLER of any of the undisputed amounts, INSTALLER shall have the right to place a lien on the System, in order to secure such payment, and Purchaser shall not object to or oppose the imposition of such liens. | |
3.4. | INSTALLER, for themselves, their successors and assigns, and all subcontractors and other parties acting through or under them, does hereby covenant, promise and agree with Purchaser, its successors and assigns, that no mechanics lien or other claim or encumbrance in the nature of a lien shall be maintained against the System or the Site or any part or parts thereof or the appurtenances thereto, by INSTALLER or by any subcontractor, for any Services, the System, tools, equipment, materials, supplies, or supervision or other goods or services furnished under this Agreement or any subcontract or any supplements hereto or thereto, written or oral, or by any other party acting through or under them, or any of them, for which Purchaser has made payment to INSTALLER, and waives and releases any such lien rights. This waiver of liens shall be an independent covenant in favor of Purchaser and its successors and assigns and shall operate and be effective as well with respect to Services, the System, materials, tools, equipment, supplies, goods, and services furnished under any supplemental contract for extra work in connection with the construction of the System and as to any Services and materials furnished under this Agreement for which Purchaser has made payment to INSTALLER. Purchaser will be named on lien wavers and as payments are made to INSTALLER Purchaser will receive lien releases accordingly. |
4.1. | The Services and the System will be completed in accordance with the Project Schedule. This schedule is subject to adjustment as specified in the Project Schedule and elsewhere in the Contract Documents. | |
4.2 | INSTALLER will make all reasonable, diligent efforts to obtain all permits, clearances, Interconnection Agreement, etc. necessary for performance and completion of the |
4
Services. Any failure to obtain such permits for reasons beyond INSTALLER reasonable control will not constitute a default of INSTALLER obligations under this Agreement. |
5.1. | INSTALLER has examined the Financial Assistance Agreement (FAA) by and between the CT Clean Energy Fund and Purchaser. INSTALLER certifies that the metering and other solar system requirements in the FAA will be met by INSTALLER as part of this installation agreement. | |
5.2. | INSTALLER has examined and carefully studied the Contract Documents. | |
5.3. | INSTALLER has visited the Site and become generally familiar with the general, local and site conditions that may affect the supply of the System and the performance of the Services. | |
5.4. | INSTALLER has all the required skills and capacity necessary to perform or cause to be performed the Services to be performed in a timely and professional manner, utilizing sound engineering principles, project management procedures and supervisory procedures, all in accordance with practices generally accepted in the industry. | |
5.5. | INSTALLER is familiar with applicable law, regulations, and interconnection standards relevant to the performance of its obligations under the Contract Documents. | |
5.6. | INSTALLER has all necessary power and authority to execute, deliver and perform its obligations under this Agreement, and each of the execution, delivery and performance by such INSTALLER of this Agreement has been duly authorized by all necessary action on the part of such INSTALLER, and does not require any approval except as has been heretofore obtained. | |
5.7. | INSTALLER shall be liable for the performance of the INSTALLER obligations under this Agreement. |
6.1. | Purchaser has examined and carefully studied the Contract Documents. | |
6.2. | Purchaser has informed INSTALLER in writing of all relevant general, local and site conditions known to Purchaser, that INSTALLER should be aware of for the performance of the Services and supply of the System. Purchaser is familiar with applicable law relevant to the performance of its obligations under the Contract Documents. | |
6.3. | Purchaser has all necessary power and authority to execute, deliver and perform its obligations under this Agreement, and each of the execution, delivery and performance by Purchaser of this Agreement has been duly authorized by all necessary action on the part of Purchaser, does not require any approval except as has been heretofore obtained. |
5
7.1. | PRODUCT AND SYSTEM WARRANTY |
7.1.1 | INSTALLER will provide a warranty for the System and the photovoltaic modules in the System as described in Schedule 4 . | ||
7.1.2 | INSTALLER warrants that all goods, other than System, supplied as part of the Services will conform to the specifications for such goods set forth in the Contract Documents. INSTALLER warrants that it will deliver good title to the System and all other goods it supplies in connection with the Services. |
7.2. | ENGINEERING AND DESIGN WARRANTY |
7.2.1 | INSTALLER warrants they will perform the engineering and design services (Engineering Services) in accordance with the current standards of care and diligence normally practiced in performing services of a similar nature. If during the five (5) year period following acceptance of the Services pursuant to Article 11.2 it is shown that there is an error in the Engineering Services as a result of INSTALLER failure to meet those standards and Purchaser has notified INSTALLER in writing of any such error within the specified period, such INSTALLER shall re-perform within a reasonable timeframe such Engineering Services within the original scope of Services as may be necessary to remedy such error. All costs incurred by INSTALLER in performing such corrective services shall be paid by INSTALLER. | ||
7.2.2 | INSTALLER warrants that any system design or installation services provided by INSTALLER, will not infringe any valid U.S. patent and that INSTALLER has obtained and shall provide all appropriate proprietary rights, licenses, agreements and permissions for materials, methods, processes and systems incorporated into the System. INSTALLER makes no warranties as to patent infringement to the extent resulting from goods supplied by third parties or goods specified neither by Purchaser, nor as to designs supplied by parties other than INSTALLER. |
7.3. | INSTALLATION WARRANTY |
INSTALLER shall provide their installation services in a professional, workmanlike and timely manner. INSTALLER warrants that such installation services shall (i) be performed in accordance with Article 2.1.8 and all other conditions and requirements contained herein; (ii) reflect the degree of care, skill, prudence, judgment and diligence, under the circumstances then-prevailing, that a reasonable, qualified and competent provider of similar services would exercise; and (iii) that such installation services shall be free from material defects in workmanship including any roof leaks that result from installation or operation and maintenance services provided by the INSTALLER. All actions taken by INSTALLER in performing installation services hereunder shall comply with all applicable laws, rules, regulations and ordinances. | ||
If during the five (5) year period following acceptance of the Services pursuant to Article 11 it is shown that there is an error in the installation services as a result of INSTALLER failure to meet those standards and Purchaser has notified INSTALLER in writing of any such error within the specified period, INSTALLER shall reperform such installation services within thirty (30) days; assuming that full access to the Site is granted to the INSTALLER and that delays in materials/supplies delivery, weather, or any other matter beyond the INSTALLER control does not interfere with this work. Within the original scope |
6
of Services as may be necessary to remedy such error, INSTALLER shall pay all costs incurred by INSTALLER in performing such corrective services. | ||
7.4. | THIRD PARTY WARRANTY AND GUARANTEE | |
INSTALLER shall, for the protection of Purchaser, use commercially reasonable efforts to obtain from all vendors and subcontractors from which INSTALLER procures machinery, equipment or materials or services, warranties and guarantees with respect to such machinery, equipment, materials or services, which shall be made available to Purchaser to the full extent of the terms thereof. | ||
7.5. | NEGLIGENCE | |
Nothing contained in paragraph 7 is deemed to waive liability for negligence. |
8.1. | In the event that a party defaults in its obligations hereunder, a non-defaulting party may seek to enforce this Agreement, may recover damages from the defaulting party or may terminate this Agreement, all at the non-defaulting partys election. In the event a party finds it necessary to bring an action to enforce this Agreement, the prevailing party, in addition to any other relief which may be granted, shall be entitled to recover all reasonable and necessary costs incurred by the prevailing party in such action, including an award of attorneys fees. | |
8.2. | Notwithstanding the foregoing, INSTALLER shall be liable for any INSTALLER default under this Agreement. |
9.1.1.1. | Workers Compensation and/or all other social insurance in accordance with the statutory requirements of the state, province or country having jurisdiction over INSTALLER employees who are engaged in the Services, with Employers Liability of one million dollars ($1,000,000) per accident; | ||
9.1.1.2. | Commercial General Liability, including automobile (owned, non-owned or hired vehicle) insurance in a combined single limit of two million dollars ($2,000,000) per occurrence for bodily injury to or death of persons and/or loss of or damage to property of parties, which policy shall contain contractual liability coverage; | ||
9.1.1.3. | Errors and Omissions insurance in the amount of $500,000 shall be carried by subcontractors conducting professional engineering & design work related to the project and both INSTALLER and Purchaser shall be named as additional insured. |
7
9.1.2 | All coverage required to be maintained by INSTALLER under this Agreement shall provide that they are primary to any insurance coverage carried by Purchaser, shall contain waivers of subrogation, and shall provide that they may not be amended or terminated without notice to Purchaser. |
11.1 | CARE, CUSTODY AND CONTROL | |
Upon completion of the System as described in Section 10.2, INSTALLER shall so advise Purchaser in writing. Unless Purchaser shall advise INSTALLER within thirty (30) days thereafter why the System is not complete, completion shall be deemed to have occurred and the care, custody and control of the System shall pass to Purchaser. In any event, the care, custody, and control of the System shall pass to Purchaser no later than the time when Purchaser takes physical possession thereof. Except as otherwise expressly provided in this Agreement, from and after that date of transfer of care, custody, and control of the System or portion thereof, Purchaser shall assume all risks of physical loss or damage thereto and shall, and does hereby, release INSTALLER from and Purchaser will and shall cause its insurers to waive rights of subrogation against INSTALLER and its vendors and subcontractors for loss or damage to the System which may thereafter occur. | ||
11.2 | ACCEPTANCE OF SERVICES | |
When INSTALLER deems they have completed the Services, they shall so notify Purchaser in writing. Within thirty (30) days thereafter, Purchaser shall advise INSTALLER in writing of any defects in the Services for which INSTALLER is responsible under this Agreement. As soon as any such defects are corrected (or as soon as the thirty (30) day period for such notice has expired if Purchaser does not advise INSTALLER of any such defects within the period), Purchaser shall accept the Services in writing or they shall be deemed accepted. Care, custody, and control shall be transferred to Purchaser after acceptance. |
8
11.3 | ELECTRICITY PRODUCED | |
Purchaser will be the owner of all the electricity generated by the System and the related renewable energy credits and other intangible attributes associated with such electricity. | ||
12. | TERMINATION, CANCELLATION AND SUSPENSION | |
12.1 | TERMINATION BY PURCHASER FOR DEFAULT | |
Should INSTALLER (i) become insolvent or bankrupt, (ii) should INSTALLER commit a substantial breach or default of any of the covenants or obligations of the Contract Documents, and should such INSTALLER thereafter fail to commence action to remedy such breach within ten (10) business days after written notice thereof from Purchaser and thereafter to proceed diligently in remedying the same, then Purchaser may, at its option, terminate this Agreement and enter upon the premises and take possession thereof and at the same time instruct INSTALLER to remove from the premises all of their tools, equipment, and supplies for the purpose of completing Services. Under any such termination, INSTALLER shall be compensated for all reimbursable costs incurred under the Contract Documents and Services properly rendered by INSTALLER to the date of such termination for the System that are in usable condition, or that are later made usable by Purchaser (or one of its subcontractors) less any reasonable rework costs incurred to such end and In the event that Purchaser uses any of INSTALLER equipment or tools, Purchaser shall return the same to INSTALLER in good condition and repair, reasonable wear and tear excepted and shall reimburse INSTALLER for the use thereof. | ||
12.2 | TERMINATION BY INSTALLER FOR DEFAULT | |
Should Purchaser become insolvent or bankrupt, or commit a substantial breach or default of any of the covenants or obligations of the Contract Documents and (a) fail to remedy the same within ten (10) business days after written notice thereof from INSTALLER if the breach constitutes a failure to pay money, or (b) fail to commence proceedings to remedy the same within fifteen (15) days after written notice thereof from INSTALLER and thereafter to proceed diligently in remedying the same if the breach is other than to pay money, then INSTALLER may, at their option, suspend performance or terminate this Agreement. Should INSTALLER so suspend or terminate this Agreement, then: (i) Purchaser shall reimburse to INSTALLER all reasonable costs incurred and pay for the percentage of Services performed and System installed to the date of suspension/termination in accordance with the provisions of Article 3; (ii) all retention monies (if any) withheld by Purchaser pursuant to this Agreement shall be paid to INSTALLER; (iii) Purchaser shall pay to INSTALLER, as liquidated damages and not as a penalty, and (iv) Purchaser shall reimburse INSTALLER reasonable demobilization costs. |
9
13.1. | COMPLIANCE WITH LAWS |
13.1.1. | INSTALLER shall make every reasonable effort to design the System so they are capable of complying with all applicable safety legislation, including state and federal Occupational Safety and Health Acts (OSHA), and with applicable environmental laws, rules and regulations in force during the term of this Agreement. If, during the course of the Services, any questions should arise regarding safety or environmental aspects of the Services, INSTALLER and Purchaser shall mutually agree upon any changes required in the Services and such changes shall be treated as changes in the scope of the Services. Purchaser shall only pay for unforeseen changes. | ||
13.1.2. | INSTALLER shall make every reasonable effort during the course of construction to perform the Services in accordance with applicable laws, rule, regulations, and orders relating to environmental concerns or the safety of INSTALLER employees and shall require each subcontractor to have an appropriate safety program covering the subcontractors employees. |
14.1. | INSTALLER agrees to indemnify, defend and hold harmless Purchaser, its employees, agents, officers, directors and affiliates, (Purchaser Indemnified Parties) from and against any cost, liability, cause of action, suit or judgment (Loss) to the extent relating to personal injury or death, or damage to property, and to the extent arising from the negligence or willful misconduct of any INSTALLER, its employees and agents. Such indemnification shall include any claim, demand or liability of any kind arising out of damage to the roof caused by the installation or maintenance of the System by INSTALLER. Such indemnification shall not apply to the extent a Loss arises from the negligence or willful misconduct of a Purchaser Indemnified Party. | |
14.2. | Purchaser agrees to indemnify, defend and hold harmless INSTALLER, its employees, agents, officers, directors and affiliates, (INSTALLER Indemnified Parties) from and against any Loss to the extent relating to personal injury or death, or damage to property, and to the extent arising from the negligence or willful misconduct of Purchaser, its employees and agents. Such indemnification shall not apply to the extent a Loss arises from the negligence or willful misconduct of an INSTALLER Indemnified Party. |
15.1. | INSTALLER shall be entitled to an equitable adjustment of the time permitted for completion of the Services, in the event of any increase in time for completion caused by (1) Force Majeure, (2) the delay or failure of Purchaser to provide Purchaser Services or (3) potential delays specified in the Project Schedule not caused by INSTALLER including acts of nature. | |
15.2. | If INSTALLER believes that they are entitled to an equitable adjustment, they shall so notify Purchaser, stating in the notice (Adjustment Notice) the adjustment to the completion date and specifying in reasonable detail the reasons for the adjustment. Purchaser will respond in writing within twenty (20) business days of receipt, accepting or objecting to the adjustment proposed in the Adjustment Notice. If Purchaser does not object in writing within twenty (20) business days of receipt, the adjustment proposed in the Adjustment Notice shall become final. If Purchaser does object in writing, the dispute shall be resolved by the parties as specified in this Agreement. |
10
16.1. | Nothing in the Contract Documents is intended to grant Purchaser any rights to acquire, own, use or practice any trade secrets, patents, trademarks, confidential information or other proprietary information of INSTALLER. | |
16.2. | Nothing in the Contract Documents is intended to grant INSTALLER any rights to acquire, own, use or practice any trade secrets, patents, trademarks, confidential information or other proprietary information of Purchaser. | |
16.3. | INSTALLER may refer to the Services and to Purchaser in its brochures, advertisements or other marketing efforts, after written approval of Purchaser. Such references, if permitted, shall be truthful. |
17.1. | Terms used in this Agreement, which are defined in the Contract Documents, will have the meanings indicated in the Contract Documents. | |
17.2. | No party shall assign this Agreement or any of its rights hereunder without the prior written consent of the other parties, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, a party may upon written notice, without the need for consent from the other parties (and without relieving itself from liability hereunder), (i) transfer, pledge or assign this Agreement as security for any financing or to an affiliated special purpose entity created for the financing or tax credit purposes related to the System; (ii) transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the assets of such party, provided, however, that any such assignee shall agree to be bound by the terms and conditions hereof; or (iii) assign its rights under this Agreement to a successor entity in a merger or acquisition transaction, provided, however, that any such assignee shall agree to be bound by the terms and conditions hereof. An affiliate of, or a person affiliated with, a specified person, is a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified. | |
17.3. | If any provision of the Contract Documents is determined by a court or tribunal of competent jurisdiction to be void or unenforceable under applicable law, such provision shall be deemed stricken, and all remaining provisions shall continue to be valid and binding. Purchaser and INSTALLER agree that the Contract Documents shall be reformed to replace such stricken provision with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. | |
17.4. | The Contract Documents and the rights and obligations of the parties under the Contract Documents shall be governed by the laws of the State of Connecticut. The parties shall attempt in good faith to resolve any dispute arising under or in connection with the Contract Documents. If the parties are unable to resolve a dispute within thirty (30) days of its first assertion in writing, then a party may refer such dispute to binding arbitration in the State of Connecticut. The arbitrators shall not have the authority to award any relief, which could not be awarded, by the courts of the State of Connecticut. The decision of the arbitrators shall be final, binding and non-appealable except for fraud or lack of jurisdiction. The arbitrators fees shall be paid by the party which is not substantially prevailing in the arbitration, or the parties jointly if no party is a substantially prevailing party. |
11
17.5. | INSTALLER may subcontract any portion of the Services to a subcontractor approved by Purchaser, which approval shall not be unreasonably withheld, conditioned or delayed. (response shall be given within 10 days) In no case shall Purchasers approval of any subcontractor or supervision over any (appointed) subcontractor relieve INSTALLER of any of their obligations under this Agreement. Notwithstanding the above, INSTALLER may have portions of the Services performed by affiliated entities or their employees, in which event INSTALLER shall be responsible for such Services and Purchaser will look solely to INSTALLER as if INSTALLER performed the Services. | |
17.6. | Any notice required or permitted to be given under the Contract Documents shall be given by courier, personal delivery or U.S. mail, prepaid, and delivered to the parties at the addresses set forth below: |
17.7. | Neither party shall be liable for any failure to comply with its obligations under the Contract Documents, other than to pay moneys due, to the extent arising from outside such partys reasonable control, including, without limitation, fire, flood, storm, strike, lockout or other labor trouble, riot, war, rebellion, accident or other acts of God, or from other similar and dissimilar causes beyond the reasonable control of such party and which could not have been reasonably avoided by such party(Force Majeure). INSTALLER may be entitled to an equitable adjustment arising from Force Majeure, to the extent specified in Article 15 above. A party claiming Force Majeure shall promptly notify the other parties, specifying in reasonable detail the event of Force Majeure, the expected duration, and the steps such party is taking to remedy it. In the event that Force Majeure lasts or is expected to last more than six (6) months, a party may terminate this Agreement and will not need to pay the other parties the liquidated damages described in Article 12. | |
17.8. | The Contract Documents express the entire and integrated agreement of the parties with respect to their subject matter, and any prior or contemporaneous negotiations or discussions are superseded. No party has made any promise or inducement, which is not set forth in the Contract Documents. |
12
18.1 | Each party and its employees, agents and subcontractors, agree to keep confidential and not disclose to any third party (including any governmental agency or official), or use for any purpose other than in connection with the performance of the Services specified under the Contract Documents, any Technical Information (as defined in Article 18. 3) which is disclosed to it (the Receiving Party) by the other party (the Disclosing Party) in connection with its performance under the Contract Documents, except such Technical Information (a) as was known by the Receiving Party prior to execution of the Agreement, (b) is disclosed to the Receiving Party by third parties that did not acquire it directly from the Disclosing Party or (c) is then or thereafter becomes published or otherwise generally available to the public; provided, however, that this exception shall not be deemed to grant the Receiving Party a license to any invention of the Disclosing Party. If INSTALLER defaults, Purchaser shall retain all rights to documents and designs for the purpose of completing installation of the sytem. | |
18.2 | Each party agrees to take all reasonable steps including, but not limited to, providing similar signed agreements for employees, agents or subcontractors to prevent unauthorized disclosure and use of Technical Information by its employees, agents and/or subcontractors. | |
18.3 | The term Technical Information shall include all technical and engineering data and know-how whether patented or unpatented, on processes, products, and equipment relating to the Services, including operating procedures and instructions, flow diagrams, process and detailed design data, specifications on plants and equipment, specifications for raw materials and intermediate and final products and analytical methods. | |
18.4 | Each party and its employees, agents and subcontractors agree not to make public nor discuss information obtained during the course of negotiating and performing under the Agreement, with any third parties, including any governmental officials or any other consultants without the prior written approval of the other party, other than in connection with the performance of the Services. | |
18.5 | The above confidentiality provisions shall terminate five (5) years following termination of this Agreement. |
By:
|
/s/ Thomas Hunton
|
|||
Printed name: Thomas Hunton | ||||
Title: President |
/s/ John B. Baker
|
||
Printed name: John B Baker
|
||
Title: Executive Vice President
|
13
Scope | Name/size | Description | ||||
A |
1,764
|
SCHOTT Solar 170 | SCHOTT Solar 170 Watt solar modules | |||
|
||||||
B |
1
|
Satcon PowerGate
225 kW PV inverter |
225 kW PV inverter with isolation transformer | |||
|
||||||
C |
1
|
Satcon PowerGate
30 kW PV inverter |
30 kW PV inverter with isolation transformer | |||
|
||||||
D |
1
|
SunLink Mounting
system for 299.88
kW DC PV system |
SunLink Flat-Roof Mounting System for 299.88 kW DC PV system | |||
|
||||||
E |
1
|
Fat Spaniel Remote
Data Acquisition System |
Revenue Grade Meter, Solar Irradiance, Temperature, Wind Speed, Maximum Power, Total Energy, Expected Performance typical weather data, Expected Performance Actual Weather Data, Integration with SatCon MODBUS |
2.1. | The System designs shall be consistent with a 25-year design life. | |
2.2. | The System shall be designed to withstand environmental conditions expected for the specified sites, such as winds, temperature, and humidity. | |
2.3. | The System designs shall consider structural loads, such as seismic, wind, and vibration. | |
2.4. | PV modules shall be listed by Underwriters Laboratories (UL). Module data sheet(s) are attached to this Schedule 1 and incorporated herein . | |
2.5. | The inverters shall be listed by Underwriters Laboratories (UL). Inverter data sheet(s) are attached to this Schedule 1 and incorporated herein . | |
2.6. | All System components shall meet applicable national and local codes and standards for grid-interconnected photovoltaic systems. | |
2.7. | All components shall have appropriate finish to prevent corrosion. | |
2.8. | The System will be designed and installed in a manner that makes the System eligible for the Rebates and the data system shall provide output that is sufficient and accepted by CT regulatory authorities as proof required for the Connecticut Solar Initiative program. |
1
1.1. | INSTALLER will provide the following services. |
§ | Mechanical layout and electrical design of the system (with necessary engineering stamps) | ||
§ | Installation of a 299.88 kW dc solar electric system at 1050 Buckingham Street, Watertown, CT | ||
§ | Unpacking and inspection of materials | ||
§ | Assembly of Standing Seam Metal Roof Mounting System for 299.88 kW DC PV system | ||
§ | Installation of a total of 1,764 (one thousand seven hundred sixty four) SCHOTT Solar 170 Solar modules. | ||
§ | Installation of 2 (two) SatCon A/C inverter, A/C and D/C disconnects, one 225 kW and one 30 kW. | ||
§ | Conduit and inter panel wiring | ||
§ | Wiring of system into buildings primary power center | ||
§ | Comprehensive system performance testing | ||
§ | Up to 4 (four) hours of onsite system training for facilities personnel | ||
§ | Preparation of building and electrical permits as well as interfacing with township personnel | ||
§ | Interfacing with CL&P and filing of interconnect paperwork | ||
§ | The site will be kept orderly and left with a neat and clean appearance |
1.1.1. | Design. INSTALLER will design the System according to Work Specifications in this Schedule 2 and the System Descriptions and Specifications listed in Schedule 1 . INSTALLER will provide Purchaser and installation contractor with Plot Plans and System drawings (mechanical, electrical, fabrication, and installation), as needed, to demonstrate the System design and to support Purchaser and installation contractor in permitting and utility interconnection of the System. The System drawings will be stamped by licensed electrical, mechanical, or licensed professional engineers as needed. | ||
1.1.2. | Permits and agreements. INSTALLER will submit for and provide needed documentation to obtain all applicable permits or utility interconnection agreements which are required for the System. Such permits and agreements shall not change the zoning of the Site nor the condition of the use of the Property and the improvements located thereon. | ||
1.1.3. | Fabrication and Integration. INSTALLER will fabricate or purchase all necessary System components and integrate these components to meet the System Description and Specifications listed in Schedule 1 . |
1
1.1.4. | Installation. To the extent INSTALLER will be providing installation services, INSTALLER will complete or manage through appointed sub-contracts all required trenching, mechanical, and electrical work required for installation of the System, according to specifications in this Schedule 2 . | ||
1.1.5. | Installation Management Services. INSTALLER will be prime contractor. | ||
1.1.6. | Commissioning. INSTALLER will develop a System acceptance test protocol and handover documents mutually satisfactory to INSTALLER and Purchaser, conduct the acceptance test and prepare and supply an acceptance test report and handover documents to Purchaser for the System. |
2. | Work Specifications | |
2.1. | To the best of their knowledge and subject to the constraints imposed by site conditions and the Site host, INSTALLER will engineer, locate and install the System to optimize the kWh output of the System over its lifetime. | |
2.2. | Installation shall meet all applicable local and national codes and standards. | |
2.3. | Installation shall be performed in accordance with OSHA standards. | |
2.4. | Workmanship shall be consistent with quality generally accepted in the industry. | |
2.5. | Services will be conducted in a manner that makes the System eligible for the Rebates according to requirements at the date of contract execution. | |
2.6. | INSTALLER covenants that they will not violate any of roof warranties at the System location in the installation and maintenance of the System. |
2
1.1. | Provide access to the installation Site during normal work days and weekends for the duration of the project. | |
1.2. | Provide 20 Ampere, 120 volt AC construction power. | |
1.3. | Provide suitable work area for fabrication and installation of the System. |
1
1. | In addition to any manufacturers warranties, INSTALLER warrants the System will be free from defects in workmanship for a period of five (5) years following the date of completion as described in Section 10.2 (the System Warranty Period). Except as provided below, if the System fails to perform in accordance with INSTALLER specifications during the System Warranty Period, INSTALLER will, at their own expense and at no cost to Purchaser, have the System repaired within a reasonable timeframe, but no later than thirty (30) days after breach of warranty. If repair is not feasible, INSTALLER will coordinate with material supplier and provide troubleshooting and replacement labor related to material warranties. If INSTALLER can repair the System so that it can provide a portion of the specified dc-stc power rating, INSTALLER may do so, and in such event shall refund a percentage of the purchase price equal to the percentage reduction in actual dc-stc power rating after repair from the specified dc-stc power rating. | |
2. | The warranties provided herein do not cover damage, malfunctions, service failures, or reduced electricity production caused by: |
2.1. | Purchasers failure to follow INSTALLER operation instructions; | ||
2.2. | Repair, modifications, or movement of the System or components thereof by someone other than a INSTALLER approved service technician; | ||
2.3. | Abuse, misuse or negligent acts; and | ||
2.4. | Damage or system outages caused by electrical surges, electric service outages, lightning, fire, flood, earthquake, wind, hail, pest, accident, actions of third parties and other events outside INSTALLERs reasonable control or not arising under normal operating conditions. |
1
Payment | Payment Schedule | Estimated Date | Payment | Percent | ||||||||
First Payment |
Contract Signing
|
8/22/07 | $ | 208,983 | 10% | |||||||
|
||||||||||||
Second Payment |
Design/Engineering Complete
|
9/22/07 | $ | 104,492 | 5% | |||||||
|
||||||||||||
Third Payment |
Modules, Inverter, Mounting equipment on site
(COD-Payment wired to ACE)
|
11/22/07 | * | $ | 1,567,374 | 75% | ||||||
|
||||||||||||
Fourth Payment |
Completion of PV system and commissioning
|
12/22/07 | $ | 104,492 | 5% | |||||||
|
||||||||||||
Final Payment |
1st Month of Operation and system performance report
|
1/22/07 | $ | 104,492 | 5% | |||||||
|
||||||||||||
Total |
|
Totals | 2,089,832 | 100.00% |
* | Third payment shall be paid COD to ACE from Purchaser on day of equipment delivery to Site by wire transfer arranged at least 5 days in advance of delivery. Actual delivery of equipment could occur from 30 to 90 days after closing pending manufacturer inventories & production schedules. Multiple deliveries with multiple COD wire transfer payments from Purchase to ACE are likely to avoid on-site storage of equipment to the extent possible. To the extent possible, equipment deliveries will be scheduled such that $783,687 worth of equipment shall arrive and be paid for one month prior to a second delivery worth $783,687. |
1
Contract No.
|
PHOTOVOLTAIC Project |
1.1.1 | Initial Grant Payment . CI will pay Owner fifty percent (50%) of the Grant after the delivery to Owner site of all equipment identified in Schedule A (Project Details) incorporated into this Agreement by this reference. Payment will be |
1
Contract No.
|
PHOTOVOLTAIC Project |
made to Owner within ten (10) business days of delivery to CI of a letter substantially in the form of Appendix I (Equipment Delivery to Site) of this Agreement attesting to the delivery to Owners site of all Equipment and including appropriate documentation of delivery of said Equipment. | |||
1.1.2 | Interim Grant Payment . CI will pay Owner forty percent (40%) of the Grant on the date on which the Equipment has been installed, tested by Owner, and accepted by Owner (the Commissioning Date), but only if all of the following requirements shall have been met at time that CIs pays forty (40%) of the Grant: |
1.1.2.1 | The Equipment and its operation shall comply with all of the details and specifications set forth in this Agreement; | ||
1.1.2.2 | Owner has provided CI with supporting documentation regarding the Equipment and installation of said Equipment, including but not limited to manufacturers warranties and satisfactory inspection and test reports; | ||
1.1.2.3 | CI has received an Inspection Report from an independent engineer selected by CI stating that the Equipment has been installed at the Project Site in accordance with the manufacturers instructions and all applicable code requirements, has been tested, is operational and is capable of power generation in substantially the amounts projected in Schedule A; | ||
1.2.2.4 | Owner has provided CI with all other required documentation, including copies of all required licenses, approvals, cost reports and test reports, and | ||
1.2.2.5 | CI has received from Owner an executed letter substantially in the form of Appendix II (Equipment Acceptance) attached to this Agreement, certifying completion of the system commissioning and entry into operational service of the generating Equipment, and requesting the interim funding. |
1.1.3 | Final Grant Payment . Six months after the Commissioning Date, CI shall pay to Owner the remaining ten percent (10%) of the Grant only if Owner has demonstrated to CIs satisfaction that the Equipment has produced during such six months on an annualized basis at least seventy percent (70%) of the projected Annual AC Production and if Owner has provided CI with an executed funding request substantially in the form of Appendix III (Form of Funding Request) attached to this Agreement. | ||
1.1.4 | Southwest Connecticut Premium Payments. Coincident with the Final Grant Payment described in Section 1.1.3, a payment of 50% of the total estimated premium will be paid, subject to the conditions in Section 1.2 below. The estimated premium will be the present value of the estimated annual kilowatt- hours for each year of the systems expected life multiplied by $0.02, using a discount rate of 10%. |
2
Contract No.
|
PHOTOVOLTAIC Project |
A second and final payment of the SWCT Premium will be made within one month of the documentation to CIs satisfaction of the first 12 months of kWh production. This final payment will be the difference between the total estimated premiums, adjusted based on the actual first year of operation, and the initial payment. |
1.2.1 | The Equipment under this Agreement is installed and tested by Owners agent and accepted by Owner; | ||
1.2.2 | All of the representations and warranties of Owner set forth in this Agreement are true and correct; | ||
1.2.3 | Owner is not in Default; and | ||
1.2.4 | Owner has taken proper actions with respect to the Project as CI shall have reasonably requested, including the timely provision of any deliverables (see Section 2 of this Agreement) due on or before the payment. |
2.1.1 | The Project shall be Commissioned, which means the Equipment for the Project shall be installed, prepared for startup, operationally tested, and fully operating, on or before one year after the Effective Date; | ||
2.1.2 | Owner shall provide a final report describing all activity undertaken by Owner during the course of the project, summarizing lessons learned, project costs actually paid by Owner and an evaluation of the overall success and prospects for completion of the project. | ||
2.1.3 | Owner, or its assignee(s), shall operate the Project in the State of Connecticut for at least eight (8) years from the Commissioning date of the Project; |
3
Contract No.
|
PHOTOVOLTAIC Project |
2.1.4 | For the commercial life of the Project, Owner shall make available, in real time, limited operating data from the facility via a Fat Spaniel monitoring system, or equivalent, acceptable to CI; | ||
2.1.5 | For the commercial life of the Project, Owner shall provide CI with reasonable access to the site for educational purposes, project inspection; public relations or other reasonable purposes; | ||
2.1.6 | Owner shall provide proof of any contractor and subcontractors insurance policies evidencing a minimum of $1,000,000 liability insurance coverage; | ||
2.1.7 | For the commercial life of the Project, Owner shall insure the Project and equipment at replacement cost and list CI as an additional loss payee; | ||
2.1.8 | For the commercial life of the Project, Owner shall provide prominent and visible signage at the project site and acknowledgment in all of Owners promotional materials recognizing CIs contribution to the project in a form acceptable to CI. | ||
2.1.9 | Owner shall invite a CI or the CCEF representative to a kickoff meeting when Owner begins project-specific activity. | ||
2.1.10 | If requested by CI, Owner shall conduct periodic project status meetings with meeting minutes and action items written up and sent to CI. | ||
2.1.11 | For the commercial life of the Project, Owner shall provide annual reports to CI regarding the economic and technical performance of the project. |
3.1 | Of Owner . Owner represents and warrants to CI as follows: | ||
3.1.1 | Owner is a corporation , duly organized and validly existing under the laws of its jurisdiction of organization and, if not organized under the laws of the State of Connecticut, duly authorized to transact business in the State of Connecticut, with all requisite power and authority to (i) develop the Project, install, own and operate the Equipment; and (ii) enter into and perform this Agreement, and to incur the obligations herein provided. The execution, delivery and performance by Owner of this Agreement have been or will be duly authorized and approved by all necessary governmental authorities or other third parties and do not and will not violate Owners organizational documents or any applicable law or any agreement or instrument to which Owner is a party or by which it is bound or by which any of its properties may be affected. This Agreement is the legal, valid |
4
Contract No.
|
PHOTOVOLTAIC Project |
and binding obligation of Owner, enforceable against it in accordance with its terms. 3.1.2 There are no actions, suits or proceedings pending, or to its knowledge, threatened against Owner that could reasonably be expected to affect the Project before any court or other governmental authority or before any arbitrators. |
3.1.8.1 | Neither Owner nor any Related Party has provided to any employee of CI on or after July 1, 2005, any items of value for which full payment has not been made. | ||
3.1.8.2 | In connection with the application for, and solicitation and award of, the financial assistance provided pursuant to this Agreement, neither Owner nor any Related Party committed any violation of the Connecticut Code of Ethics for Public Officials and Lobbyists, Chapter 10 of the General Statutes (the Code of Ethics) or intentionally and knowingly violated any applicable requirement of the request for proposals or other applicable law. | ||
3.1.8.3 | Neither Owner nor any Related Party has been found to have violated the |
5
Contract No.
|
PHOTOVOLTAIC Project |
Code of Ethics or Section 4a-100 of the General Statutes, or has been suspended or disqualified from bidding on contracts with the State of Connecticut or any department, agency or quasi-public agency thereof. |
3.2 | Of CI . CI represents and warrants as follows: | ||
3.2.1 | CI represents and warrants to Owner that it has all requisite power and authority to enter into and perform this Agreement and the obligations herein provided. The execution, delivery and performance by CI of this Agreement has been or will be duly authorized by all necessary Federal, State and local agencies and boards and does not and will not violate any Law (including without limitation CGS Section 16-245n) or any agreement, instrument or evidence of indebtedness to which CI is a party or by which it is bound or by which any of its properties may be affected. This Agreement is the legal, valid and binding obligations of CI, enforceable against it in accordance with its terms. | ||
3.2.2 | CI neither makes nor shall be deemed to have made any warranty or representation, express or implied, concerning the Project or Equipment, including, without limitation, any warranty or representation as to design, quality, capability, title or condition or as to merchantability or fitness for any particular purpose. Owner understands and acknowledges that CI did not select, manufacture or supply the Equipment. Owner will look solely to the manufacturer for delivery of the Equipment. Owner hereby waive any claim (including any claim based on strict or absolute liability in tort) either might have against CI for any loss, damage (including incidental or consequential damage) or expense caused by the Project or the Equipment. |
4.1.1 | Status and Location. Owner shall maintain its legal existence in its jurisdictions of organization with authority to transact business in the State of Connecticut. | ||
4.1.2 | Commissioning Date. Owner shall diligently cause the Commissioning Date to occur as shown in Schedule B (Project Schedule), but in any event, no later than one year from the Effective Date, and use its best efforts to acquire, preserve and protect all of the rights, interest and properties necessary for the Project. Owner shall install the Equipment, or cause the Equipment to be installed, in a manner consistent with any installation manual prepared by the manufacturer or supplier of the Equipment. Owner shall notify CI immediately of the occurrence of any event or contemplated action (including the threat and/or commencement of any legal proceedings) which could have a material adverse effect on the Project (including a material deviation from the specifications set forth in Schedule A), |
6
Contract No.
|
PHOTOVOLTAIC Project |
together with a recommended course of action. | |||
4.1.3 | Operation of Project. Owner shall maintain the Equipment at the Project Site and shall use and operate the Equipment solely to meet Owners energy needs. Owner shall (a) operate the Equipment in accordance with the suppliers or manufacturers instructions, consistent with warranty and insurance requirements; and (b) maintain the Equipment in good repair, working order and condition and make all needed and proper repairs, renewals, replacements, additions or improvements thereto and immediately notify CI of any event causing loss or depreciation in the value of the Equipment. Without limiting the generality of the foregoing, Owner shall use commercially reasonable efforts to ensure that the Equipment is operated for its intended purpose for at least eight (8) years from the Commissioning Date. Owner shall not take any action to replace, retrofit, upgrade or otherwise materially alter the Equipment without the prior written consent of CI, which shall not be unreasonably withheld. |
4.2.1 | Except as set forth in the next sentence, CI shall have the right to collect, review, analyze, utilize and disseminate to third parties and the public all information relating to the Project, including data directly related to the Projects economic, social and operational benefits, as well as Equipment performance, installation costs and operating costs. Owner shall obtain the authorization, in any applicable contract or otherwise, of each such Person furnishing reports with respect to the Project to specifically allow CI to rely on such reports and work product, to use it for other purposes and to disseminate it to third parties; provided, however, the Person supplying such reports and work product (i) may limit its liability with respect to the reuse thereof for purposes unrelated to the Project and (ii) may restrict, subject to applicable law (including the Freedom of Information Act), CIs public disclosure of any non-public confidential and/or proprietary information or trade secrets by conspicuous written indication of such restriction at the time of disclosure. Without limiting the generality of the foregoing, CI shall be entitled to access to, and the right to obtain and use copies of, all operation, maintenance and similar data relating to the Equipment. | ||
4.2.2 | In connection with the terms and conditions of this Agreement, Owner shall describe the Photovoltaic system and make all real-time and historical operating information with respect to the Project available to CI, including operating hours, power output, and any other available operating data reasonably requested by CI, through the installation and continued operation of an energy monitoring system such as Fat Spaniel or an equivalent system acceptable to CI. In addition, Owner shall facilitate a hyperlink between its web site, CIs web site and any other web sites as CI may reasonably request. |
7
Contract No.
|
PHOTOVOLTAIC Project |
8
Contract No.
|
PHOTOVOLTAIC Project |
4.15.1 | Subject to approval as to form by CI, Owner shall acknowledge the CCEFs financial assistance pursuant to this Agreement in Owners promotional materials, signage at the Project Site and on their web sites to the effect of This clean energy project was made possible by the support of the Connecticut Clean Energy Fund. | ||
4.15.2 | Owner shall issue press releases and seek out periodicals interested in publishing articles mentioning the Project | ||
4.15.3 | Owner shall host a dedication event to be coordinated with CI to be attended by such persons as CI may reasonably request |
9
Contract No.
|
PHOTOVOLTAIC Project |
4.15.4 | Owner shall arrange for public access to the Project Site at such times as CI may reasonably request, at least annually, subject to facility availability | ||
4.15.5 | Owner shall participate annually if requested by CI in a meeting or workshop promoting photovoltaic technology and imparting information developed from the Project. | ||
4.15.6 | CI and Owner agree to discuss collaboration, on a voluntary basis, on other projects or programs that may be reasonably suggested by either party, and which are consistent with the objectives of both organizations, to jointly promote employee or community participation in other clean energy projects or outreach/ educational programs. Examples of such projects or programs include: |
4.15.6.1 | Encouraging enrollment in the CTCleanEnergyOptions program offered to all customers of CL&P and UI | ||
4.15.6.2 | Publicizing practicable renewable energy and energy conservation technologies and encouraging employees and others in the local community to implement them | ||
4.15.6.3 | Directly supporting renewable energy generation through the purchase of Renewable Energy Credits, offsetting a percentage of electricity use | ||
4.15.6.4 | Publicizing green activities (including this project) or programs that may be of interest to each others constituencies on each others websites, newsletters or other media, as appropriate. |
4.15.7 | Owner shall add information to the Owners Website regarding the economic savings and avoided pollutants resulting from this Project. | ||
4.16 | Advertising . | ||
4.16.1 | Neither party nor its subcontractors or agents shall use in any advertising or sales promotion, any endorsements, direct or indirect quotes, or pictures that imply endorsement by the other party or any of its employees without such partys prior approval. | ||
4.16.2 | Owner will submit to CI and CI will submit to Owner, for review, prior to publication, all press releases relating to the Project that mention or display one anothers name and/or marks or contain language from which a connection to said name and/or marks may be inferred or implied. Nothing herein, however, shall be construed as preventing either party from publicly stating the fact that it has executed this Agreement with the other party. | ||
4.16.3 | Nothing in this Agreement shall grant, suggest, or imply any authority for one |
10
Contract No.
|
PHOTOVOLTAIC Project |
party to use the name, trademarks, service marks, logos, or trade names of the other party in any advertising, press releases, publicity matters, marketing and/or promotional materials or for any other commercial purpose without prior approval from such other party. |
5.1.1 | Failure to commence construction of the Project within three months from the date of this Agreement and failure to diligently prosecute completion of the Project; | ||
5.1.2 | Owner significantly deviates from the scope of work for the Project as set forth in Schedule A, in the reasonable judgment of CI, and fails to correct such deviation within thirty (30) days after written notice from CI; | ||
5.1.3 | Any warranty or representation of Owner in this Agreement is incorrect in any material respect; | ||
5.1.4 | Owner is in default of any of its Covenants under this Agreement and such default continues unremedied for thirty (30) days after written notice from CI; or | ||
5.1.5 | Bankruptcy, reorganization, receivership, insolvency or liquidation proceedings, or other proceedings under similar law for the relief of debtors are instituted by or against Owner, and, if instituted against it, are allowed against it or are consented to by Owner or are not dismissed within sixty (60) days after institution. | ||
5.1.6 | Owner and/or Owner fail to provide one or more of the deliverables under Section 2.1 of this Agreement. |
11
Contract No.
|
PHOTOVOLTAIC Project |
12
Contract No.
|
PHOTOVOLTAIC Project |
13
Contract No.
|
PHOTOVOLTAIC Project |
9.2.1 | Any warranty or representation by such Breaching Party proves incorrect in any material respect, and if curable, such misrepresentation continues unremedied for thirty (30) days after written notice from such Non-Breaching Party to the Breaching Party; or | ||
9.2.2 | Such Breaching Party defaults in the due observance of any of the covenants or agreements of such Breaching Party set forth in this Agreement, and if curable, such default continues unremedied for thirty (30) days after written notice from such Non-Breaching Party to such Breaching Party. |
10.1. | Owner understands and agrees that because the provisions contained in Section 10 must be provided in the Agreement as they were originally written under state contracting requirements, for the purposes of this Section only, Owner shall have |
14
Contract No.
|
PHOTOVOLTAIC Project |
the same meaning as Contractor. Owner agrees to comply with all of the following state contracting obligations during the Term of Agreement: |
10.1.1. | Executive Order No. 3: Nondiscrimination . This Contract is subject to the provisions of Executive Order No. Three of Governor Thomas J. Meskill promulgated June 16, 1971, and, as such, this Contract may be canceled, terminated or suspended by the State Labor Commissioner for violation of or noncompliance with said Executive Order No. 3 or any state or federal law concerning nondiscrimination, notwithstanding that the Labor Commissioner is not a party to this Contract. The parties to this Contract, as part of the consideration hereof, agree that said Executive Order No. 3 is incorporated herein by reference and made a part hereof. The parties agree to abide by said Executive Order and agree that the State Labor Commissioner shall have continuing jurisdiction in respect to Contract performance in regard to nondiscrimination, until the Contract is completed or terminated prior to completion. The Contractor agrees, as part consideration hereof, that this Contract is subject to the Guidelines and Rules issued by the State Labor Commissioner to implement Executive Order No. 3 and that the Contractor will not discriminate in employment practices or policies, will file all reports as required, and will fully cooperate with the State of Connecticut and the State Labor Commissioner. | ||
10.1.2. | Executive Order No. 16: Violence in the Workplace Prevention Policy . This Contract is subject to provisions of Executive Order No. 16 of Governor John J. Rowland promulgated August 4, 1999, and, as such, this Contract may be cancelled, terminated or suspended by the Contracting agency or the State for violation of or noncompliance with said Executive Order No. 16. The parties to this Contract, as part of the consideration hereof, agree that: |
15
Contract No.
|
PHOTOVOLTAIC Project |
10.1.3. | Executive Order No. 17: Connecticut State Employment Service Listings . This Contract is subject to provisions of Executive Order No. 17 of Governor Thomas J. Meskill promulgated February 15, 1973, and, as such, this Contract may be canceled, terminated or suspended by the Contracting agency or the State Labor Commissioner for violation of or noncompliance with said Executive Order Number 17, notwithstanding that the Labor Commissioner may not be a party to this Contract. The parties to this Contract, as part of the consideration hereof, agree that Executive Order No. 17 is incorporated herein by reference and made a part hereof. The parties agree to abide by said Executive Order and agree that the Contracting agency and the State Labor Commissioner shall have joint and several continuing jurisdiction in respect to Contract performance in regard to listing all employment openings with the Connecticut State Employment Service. |
10.2. | Campaign Contribution Restrictions . On February 8, 2007, Governor Rell signed into law Public Act 07-1, An Act Concerning the State Contractor Contribution Ban and Gifts to State and Quasi-Public Agencies. For all State contracts as defined in P.A. 07-1 having a value in a calendar year of $50,000 or more or a combination or series of such agreements or contracts having a value of $100,000 or more, the authorized signatory to this Agreement expressly acknowledges receipt of the State Elections Enforcement Commissions notice advising state contractors of state campaign contribution and solicitation prohibitions, and will inform its principles of the contents of the notice. See SEEC Form 11 attached. | ||
10.3. | Nondiscrimination and Affirmative Action Provisions in Contracts of the State and Political Subdivisions Other Than Municipalities . Owner agrees to comply with provisions of § 4a-60 of the Connecticut General Statutes: |
16
Contract No.
|
PHOTOVOLTAIC Project |
17
Contract No.
|
PHOTOVOLTAIC Project |
18
Contract No.
|
PHOTOVOLTAIC Project |
(a) | If to CI and the CCEF, to: |
(b) | If to Owner, to: |
19
Contract No.
|
PHOTOVOLTAIC Project |
20
Contract No.
|
PHOTOVOLTAIC Project |
21
Contract No.
|
PHOTOVOLTAIC Project |
By:
|
/s/ George Bellas
|
Date: 1/20/08 | ||||
|
Vice President of Finance & Administration | |||||
|
||||||
By:
|
/s/ Peter Longo
|
Date: 1/20/08 | ||||
|
Deputy Director | |||||
|
||||||
CRYSTAL ROCK LLC/VERMONT PURE HOLDINGS, LTD | ||||||
|
||||||
By:
|
/s/ John Baker
|
Date: 1/20/08 | ||||
|
Executive Vice President |
22
Contract No.
|
PHOTOVOLTAIC Project |
|
Crystal Rock Manufacturing Facility | |
|
1050 Buckingham Street, | |
|
Watertown, CT, 08795 |
Project Economics | Cost | $/kilowatt | ||||||
Generating Equipment
|
$ | 1,938,750 | $7,181/kW PTC | |||||
Installation
|
$ | 266,250 | $ 986/kW PTC | |||||
|
||||||||
TOTAL
|
$ | 2,205,000 | $ 8,167/kW |
23
Contract No.
|
PHOTOVOLTAIC Project |
Task | Players | Date | ||||||
1. Award from the CCEF
|
||||||||
|
||||||||
2. Project Feasibility & Planning
|
||||||||
|
||||||||
a. Preliminary layout drawing for presentation to
and discussion with Owner including site
drawings, single line drawings
|
||||||||
|
||||||||
b. Submit Interconnection Application to
electric utility
|
||||||||
|
||||||||
c. Schedule additional site visits, collect greater
on-site detail
|
||||||||
|
||||||||
d. completes Design & Permitting Phase including:
|
||||||||
System design and system drawings
|
||||||||
Full layout
|
||||||||
Engineering review
|
||||||||
Structural Analysis Report/Structural stamp
|
||||||||
Electrical Engineer Report/Electrical
stamp
|
||||||||
Permitting summary
|
||||||||
Estimated Project Installation Schedule
|
||||||||
|
||||||||
e. Customer Design Approval
|
||||||||
|
||||||||
f. Submit Permitting Package to Local Authorities
|
||||||||
|
||||||||
3. Installation Construction Documentation & Technical
Review
|
||||||||
|
||||||||
a. Permits Processed
|
||||||||
|
||||||||
b. Receive Permits
|
||||||||
|
||||||||
c. Order Equipment
|
24
Contract No.
|
PHOTOVOLTAIC Project |
Task | Players | Date | ||||||
d. Notice to Proceed Installation
|
||||||||
|
||||||||
4. Installation
|
||||||||
|
||||||||
a. Installation Contract Executed
|
||||||||
|
||||||||
b. Preconstruction Meeting
|
||||||||
|
||||||||
c. Schedule Construction Trailer
|
||||||||
|
||||||||
d. Equipment Starts Arriving on Site/
Installation Begins
|
||||||||
|
||||||||
e. Structural and Electrical Installation
|
||||||||
|
||||||||
f. Final Site Refurbishing
|
||||||||
|
||||||||
g. Site Inspections (Building, Electrical,
Interconnection, etc.)
|
||||||||
|
||||||||
h. Commission System
|
||||||||
|
||||||||
i. Project Complete
|
25
Contract No.
|
PHOTOVOLTAIC Project |
Generating Equipment
|
$ (includes Fat Spaniel monitoring system) | |
Engng, Design, Permit
|
||
Construction, Installation
|
||
Overhead & Profit
|
||
TOTAL
|
$ .00 |
26
Contract No.
|
PHOTOVOLTAIC Project |
Please send payment to:
|
Payee name | |
|
Payee accounts payable address |
By:
|
||||
|
|
|||
Its:
|
||||
|
|
27
Contract No.
|
PHOTOVOLTAIC Project |
28
Contract No.
|
PHOTOVOLTAIC Project |
Please send payment to:
|
Payee name | |
|
Payee accounts payable address |
By:
|
||||
|
|
|||
|
||||
Its:
|
||||
|
|
Attachments:
|
1) Cost Report | |
|
2) Municipal Inspectors Report | |
|
3) Utility Inspection/Test Report and Interconnection Agreement | |
|
4) Electrical Diagram (one-line) | |
|
5) Certificate of Insurance |
29
Contract No.
|
PHOTOVOLTAIC Project |
Please send payment to:
|
Payee name | |
|
Payee accounts payable address |
By:
|
||||
|
|
|||
|
||||
Its:
|
||||
|
|
30
a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
b) | evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
c) | disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
/s/ Peter K. Baker | ||||
Peter K. Baker | ||||
Chief Executive Officer |
a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
b) | evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
c) | disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
/s/ Bruce S. MacDonald | ||||
Bruce S. MacDonald | ||||
Chief Financial Officer |
/s/ Peter K. Baker | ||||
Peter K. Baker | ||||
Chief Executive Officer |
/s/ Bruce S. MacDonald | ||||
Bruce S. MacDonald | ||||
Chief Financial Officer |