exv10w29



 





Exhibit 10.29




PHOTOVOLTAIC SYSTEM SUPPLY AND INSTALLATION AGREEMENT



THIS AGREEMENT is made effective as of August 29, 2007 by and between American Capital Energy,
Inc., (“ACE”), referred to as “Installer”, and Crystal Rock, Inc./Vermont Pure Holdings, LTD,
(“Purchaser”) with reference to INSTALLER’s performance of engineering and installation of a solar
array at 1050 Buckingham Street, Watertown, CT (hereinafter referred to as the “Site”), as
specifically set forth and described in Schedule 1 and Schedule 2.



IN CONSIDERATION of the covenants hereinafter set forth, INSTALLER and Purchaser mutually agree as
follows:




1. CONTRACT DOCUMENTS





	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. SCOPE OF SERVICES





	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.




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	 	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 Purchaser’s responsibility as set forth in the following
Article;
	 
	 	2.1.8.	 	Facilitate and support Purchaser’s 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 manufacturer’s 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;




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	 	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





     Purchaser’s obligations under this Agreement shall be conditioned upon the following events:
(1) grant approval by the Connecticut Clean Energy Fund. If this event has not occurred to the
satisfaction of Purchaser within 90 days following execution of this Agreement, this Agreement
shall be cancelled immediately upon Purchaser’s written notice and Purchaser shall be not be
responsible for any costs, liabilities, or obligations hereunder.



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3. CONTRACT PRICE





	3.1.	 	As full compensation and consideration for the full and complete performance of all of the
System installation and Services and all of INSTALLER’s 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 INSTALLER’s
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. CONTRACT TIMES





	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




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	 	 	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. INSTALLER’ REPRESENTATIONS



In order to induce Purchaser to enter into this Agreement, INSTALLER makes the following
representations:





	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. PURCHASER’S REPRESENTATIONS



In order to induce INSTALLER to enter into this Agreement, Purchaser makes the following
representations:





	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.





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7. WARRANTIES AND GUARANTEES





	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




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	 	 	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. DEFAULT; DAMAGES; LIMITATION OF LIABILITY





	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 party’s 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. INSURANCE





	9.1.1.	 	COMMITMENT
	 
	9.1.1	 	Commencing with the performance of the Services hereunder, and continuing
until the earlier of acceptance of the Services or termination of this Agreement,
INSTALLER shall maintain standard insurance policies as follows:






	 	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
Employer’s 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.





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	 	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.





10. TERM AND COMPLETION





	10.1.	 	TERM.
	 
	 	 	The term of this Agreement will continue through INSTALLER’s complete performance of their
obligations under this Agreement, unless terminated, cancelled or suspended pursuant to
Article 12.
	 
	10.2.	 	COMPLETION
	 
	 	 	Completion of the System installation occurs when the System has been completed
mechanically, electronically and structurally and all specified tests have been completed
including inspection and acceptance of final interconnection by the controlling utility and
the overseers of the programs offering the Rebates.
	 
	10.3.	 	SCHEDULED COMPLETION
	 
	 	 	INSTALLER shall commence the Services immediately after the date of this Agreement and
shall prosecute the Services continuously and with due diligence.





11. TRANSFER AND ACCEPTANCE





	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.




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	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.




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13. SAFETY AND ENVIRONMENTAL





	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
subcontractor’s employees.





14. INDEMNIFICATION





	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. EQUITABLE ADJUSTMENT TO SCHEDULE





	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.





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16. TECHNICAL AND ENVIRONMENTAL RIGHTS





	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. GENERAL





	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 Purchaser’s 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:




INSTALLER:



American Capital Energy, Inc.

Attn: Thomas Hunton

15 Tyngsboro Rd. Suite 4a

North Chelmsford, MA 01863

(603) 795-4586



Purchaser:



Vermont Pure Holdings, LTD.

Attn: Jack Baker

1050 Buckingham Street

Watertown, CT 06795

860-945-0661





	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
party’s 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. Confidentiality





	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.




INTENDING TO BE LEGALLY BOUND, Purchaser and INSTALLER have signed this Agreement through their
duly authorized representatives effective as of the date set forth above.




INSTALLER




American Capital Energy, Inc.




	 	 	 	 	 
	By:

	 	/s/ Thomas Hunton
 

	 	 
	Printed name: Thomas Hunton	 	 
	Title: President	 	 






Crystal Rock Inc./Vermont Pure Holdings, LTD




	 	 	 
	/s/ John B. Baker
 


	 	 
	Printed name: John B Baker
	 	 
	Title: Executive Vice President
	 	 






13









 





Schedule 1: System Descriptions and Specifications




1. System Descriptions




	 	 	 	 	 	 	 
	 	 	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. System Specifications





	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 Underwriter’s Laboratories (UL). Module data sheet(s) are
attached to this Schedule 1 and incorporated herein.
	 
	2.5.	 	The inverters shall be listed by Underwriter’s 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.





Schedule 1 to

Photovoltaic System Supply and

Installation Agreement




1









 





Schedule 2: Services Description and Specification




1. Services Description





	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.





Schedule 2 to

Photovoltaic System Supply and

Installation Agreement




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.





Schedule 2 to

Photovoltaic System Supply and

Installation Agreement




2









 





Schedule 3: Purchaser Assistance Description



To aid in the installation of the System by INSTALLER and their subcontractor(s), Purchaser will
make arrangements with the Site tenants to:





	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.





Schedule 3 to

Photovoltaic System Supply and

Installation Agreement




1









 





Schedule 4: Warranties





	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.	 	Purchaser’s 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 INSTALLER’s reasonable control or not arising
under normal operating conditions.





Schedule 4 to

Photovoltaic System Supply and

Installation Agreement




1









 





Schedule 5: Price and Payment Schedule.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	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.





Schedule 5 to

Photovoltaic System Supply and

Installation Agreement




1









 





Schedule 6: Project Schedule



The following are expected project milestones from contract signing.




	 	 	 
	Milestone	 	Estimated Date
	Design/Engineering Complete

	 	Day 30
	 
	 	 
	Modules/All Equipment on site

	 	 Day 30-60
	 
	 	 
	Panels mounted, Wiring complete, Inverter installed, 

Commissioning completed

	 	Day 120







1