ANEMOMETER LOAN OPTION AGREEMENT
This Agreement is made this ___________ day of ________________, 2005 (the “Execution Date”) by Vermont Technical College (“VTC”), with an address for notice purposes as set forth in paragraph 18 of Part II of this Agreement, and _______________________________________________, (“Owner”), with an address for notice purposes as set forth in paragraph 18 of Part II of this Agreement.
A. The Vermont Anemometer Loan Program was established with the
objective of encouraging the use of wind energy in the State of
B. Owner is the
certain of real property located in ____________________County,
C. Borrower has made application to VTC requesting that the Property be considered as a location for the siting of an anemometer and related equipment.
D. Owner desires to grant to VTC and VTC desires to accept from Owner an option to enter into an Equipment Loan Agreement with Owner to locate an anemometer and related equipment on the Property, upon the terms and conditions hereinafter set forth.
NOW THEREFORE, for and in consideration of the mutual agreements hereinafter set forth, VTC and Owner, with intent to be legally bound, agree as follows:
Part I – Option
1. Grant of Option. Owner hereby grants to VTC an option (“Option”) to locate the Equipment (as that term in defined in paragraph 8 of Part II of this Agreement) on the Property upon the terms and conditions set forth in this Part I.
2. Term of Option. The term of the Option shall be two (2) years from the Execution Date. The date and time of expiration of the Option period is called the “Expiration Date”. If VTC shall not have exercised the Option in the manner provided in paragraph 3 hereof as of the Expiration Date, then the Option shall terminate and neither party shall have any further rights or obligations hereunder.
3. Exercise of Option. To exercise the Option, VTC shall give notice to Owner not later than the Expiration Date. Upon delivery of notice of the exercise of this Option, this Agreement shall become an Equipment Loan Agreement, upon the terms and conditions set forth in Part II of this Agreement, binding upon the parties, and their respective heirs, personal representatives, successors and assigns,
4. Consideration for Option. Owner acknowledges and agrees that VTC’s agreement to consider the Property as a site for the location of the Equipment constitutes good and valuable consideration for the grant of the Option.
5. Access to the Property. During the Option Period, Owner agrees
that VTC, its agents, representatives, and employees shall have the right of entry upon the Property for the purpose of making inspections, conducting studies, tests, surveys, environmental assessments, feasibility studies and such other investigations and evaluations of the Property as VTC, in its sole discretion, deems reasonable and necessary in order to determine the suitability of the Property as a site for the location of the Equipment. Such entry shall, in all cases, be upon reasonable prior notice to Owner, without unreasonable interference with Owner’s use of the Property, using reasonable care to avoid damage to the Property.
6. Notices. All notices and other correspondence given, under this Agreement (including, without limitation, notice of VTC’s exercise of the Option, shall be given in the manner, and shall be effective at the times provided in paragraph 18 of Part II of this Agreement.
Law. The Option shall be interpreted and enforced in accordance with the
laws of the State of
Part II - Equipment Loan Agreement
THE TERMS OF PART II OF THIS AGREEMENT SHALL BECOME EFFECTIVE AND BE BINDING UPON THE PARTIES UPON VTC’S EXERCISE OF THE OPTION GRANTED IN PART I ABOVE.
8. Equipment. The term “Equipment” as used in this Agreement shall mean:
a. One (1) NRG 30-meter Tall Tower Kit
b. One (1) NRG-Symphonie Logger Kit
c. One (1) NRG-Symphonie Sensor Kit
d. Any additional materials used by Lender in installation process
9. Term of Loan. VTC, in consideration of the covenants and agreements of Owner as hereinafter set forth, agrees to loan the Equipment to Borrower for a term of fourteen (14) months (“Term”). The Term shall commence as of the date of VTC’s written notice to Owner of its decision to exercise the Option.
10. Installation of Equipment. The Equipment will be installed by VTC on the Property at a location and on a date and time mutually acceptable to Borrower and VTC.
11. Care and Maintenance of Equipment. Borrower shall be responsible for the routine maintenance of the Equipment, including but not limited to, replacement of the data plugs on a monthly basis and replacement of batteries on a bi-monthly basis. At the end of the Term, Owner shall return the Equipment to VTC in substantially the same condition as it was received at the commencement of the Term, normal wear and tear accepted. If, for any reason, the Equipment must be removed or modified during the Term, Owner shall contact VTC. Owner acknowledges that under no circumstances is Owner authorized to remove or modify the Equipment, including the lowering the height of the tower.
12. Removal of Equipment. Upon expiration of the Term, the Equipment will be removed by VTC at its expense.
13. Access to Property. Owner agrees that VTC, its agents, representatives, and employees, shall have the right of entry upon the Property for the purpose of installing, maintaining, and removing the Equipment, and for the purpose of gathering wind speed and direction data from the Equipment during the Term. Such entry shall upon reasonable prior notice and without unreasonable interference with Owner’s use of the Property, using reasonable care to avoid damage to the Property. In addition, Owner acknowledges and agrees that VTC shall have the right to enter onto the Property for the purpose of demonstrating the operation of the Equipment to third parties.
14. Security of Equipment. In consideration of VTC’s agreement to loan the Property to Owner, Owner agrees that it will provide reasonable security for the Equipment. Owner will use its best efforts to protect against vandalism, theft, loss and damage to the Equipment, including damage from natural causes. Owner further agrees that if the Equipment is located in an area on the Property which is accessible by livestock or other animals, the Equipment shall be fenced off for protection at Owner’s expense. In the case the Equipment is damaged or stolen, Owner agrees to reimburse VTC for the damage or loss based upon the cost of repair and/or the replacement cost of the Equipment.
15. Responsibility for Permits. Owner shall be responsible for and shall obtain at Owner’s cost and expense, all permits and approvals which are required as conditions precedent to the installation of the Equipment from any governmental agencies having jurisdiction. Owner acknowledges that it is Owner’s responsibility to investigate the need for such permits and approvals. Owner further agrees to indemnify and hold VTC harmless from any liability resulting from failure to obtain permits or approvals prior to installation of the Equipment.
16. Indemnification. Owner agrees to indemnify and hold VTC harmless from any liability, loss, damage, claim or cost arising out or resulting from the location of the Equipment on the Property during the Term.
17. Termination. This Agreement may be terminated by VTC prior to the expiration of the Term in the event Owner fails or refuses to perform its obligations hereunder. If VTC determines that Owner has breached any of its obligations under this Agreement, VTC shall give notice to Owner in writing specifying the manner in which VTC believes Owner has failed or refused to perform its obligations. Owner shall thereafter have a period of thirty (30) days from receipt of the notice to cure the default. If VTC, in its sole discretion, determines that Owner has failed to cure the default within such thirty (30) day period, this Agreement shall be terminated and VTC shall have the right to enter onto the Property for purposes of removal of the Equipment. In the event Owner cures the default to VTC’s satisfaction, this Agreement shall remain in full force and effect for the balance of the Term.
18. Notice. All notices, demands or requests required or permitted to be made pursuant to or under this Agreement must be in writing and mailed, post pre-paid by certified or registered mail, return receipt requested, or delivered by Federal Express or other reputable independent overnight delivery service providing written evidence of delivery, or by hand-delivery by a reputable independent courier providing written evidence of delivery, addressed as follows:
If to VTC:
Vermont Technical College
Department of Mechanical Engineering Technology
If to Owner:
a. The Equipment shall not be removed from the Property without the prior written permission of VTC.
b. No waiver by either party of any failure or refusal by the other party to comply with its obligations hereunder shall be deemed a waiver of any other subsequent failure or refusal by the other party to comply.
c. This Agreement shall inure to the benefit of and by binding upon the heirs, personal representatives, successors and assigns of the respective parties.
Agreement shall be interpreted and enforced in accordance with the laws of the
IN WITNESS WHEREOF, VTC and Owner have executed this Agreement on the Execution Date with intent to be legally bound.
__________________________ By: _______________________